COLASURDO v. UNITED STATES, 22 F.2d 934

GILBERT, Circuit Judge (after stating the facts as above). Error is assigned to the refusal of the court below to suppress evidence and to quash the search warrant, and it is contended that the plaintiff in error was arrested without probable cause and without reasonable ground to believe that he was violating the Volstead law (27 USCA) or the internal revenue law. No ground was advanced in the court below, nor is any presented in this court, for quashing the search warrant.

The officers in possession of a search warrant found on the premises therein described a still, newly installed, which was incomplete for want of certain portions, and they found the plaintiff in error bringing the missing portions upon the premises, obviously for the purpose of completing the still, and they knew that he was necessarily aware of the open and visible contents of the auto in which he was bringing them. Clearly there was ample ground for the arrest.

It is said that the court erred in refusing to instruct the jury to disregard as testimony in the case the liquor which was introduced in evidence, for the reason that the plaintiff in error was not charged with or connected with the possession or ownership thereof. Prom the record it appears that no such request for instruction was made. We think the evidence did sufficiently connect the defendant with the liquor that was introduced in evidence.

It was found in various places on the premises and under circumstances which raised a strong presumption that it had been manufactured there, by the owner of the new still, which was being installed in the cave in place of a still which presumably had been removed therefrom. There had been recent distillation. The mash whieh was found was in condition for present distillation, and the liquor, while it was not introduced for the purpose of showing possession or ownership by the defendant, was competent as tending to indicate that he had been engaged in illicit distillation.

Error is assigned to the instruction of the court to the jury that, under the circumstances, the burden of proof was upon the defendant to show that the distillery was registered and that a bond had been- furnished. The court in that connection instructed the jury that, before they could And the defendant guilty, they must find that ho carried on the business of a distiller and possessed the distilling apparatus set up for tbe distilling of alcoholic liquor. Wo find no error in either instruction. Goodfriend v. United States (C. C. A.) 294 F. 148, 150. Giacolono v. United States (C. C. A.) 13 F.(2d) 108; Id. (C.

C. A.) 13 F.(2d) 110. It is contended that there was error in 'the remarks of the court in the following colloquy: “Mr. Coles: Have you ever seen a tank similar to that used for the operation of a still before ? “Mr. Northrup: I object to that as incompetent, irrelevant, and immaterial. “The Court: Objection overruled. It is a common practice to have tanks exactly similar to this — smaller or larger, but of a similar character — at all stills.” No exception was taken to the remarks of the court nor are they assigned as error. Nor can we see that they were prejudicial to the plaintiff in error.

Doubtless it was common knowledge, at least to court and counsel engaged in the trial of cases of this nature, that it was the practice to have' tanks at all stills; the tank being a pressure tank, indispensable to the use of oil burners. It is said the court below erred in permitting the government to introduce evidence of possession of 2,000 gallons of mash fit for distillation, whereas the indictment charged the defendant with having in his possession but 300 gallons fit for distillation. It is impossible to see how this variance between charge and proof could have injured the plaintiff in error.

The motion for a directed verdict of acquittal was properly denied. There was sufficient evidence to go to the jury to show the connection of the plaintiff in error with the still and the distilling operations.

He testified that the contents of his car were delivered to him on the street that morning in Seattle, after he had started to drive to Issaquah, a place where he had often gone to fish; that they were delivered to him by a man “who used to come down to the pool room all the time to play pool”; that the man asked him where he was going, and, on receiving his answer, asked him as a favor to take the packages in his car and “go to the detour to a bridge, and after the bridge, the first gate across the road to the left, and drop this, stuff about 200 feet inside that place; leave it there; somebody is going to pick it up.” But it was undisputed that, when arrested, the plaintiff in error made statements quite at variance with those which he made in his testimony; that, when arrested, he stated to the officers that the man who gave him the materials asked him if he would take them out “to the still in Maple Valley”; and that he said to the man that “he was going out to Maple Valley, and would be glad to take it out for him”; that in answer to the question, what business he had going up to Maple Valley, he said he was just going up there that, morning, because it was a nice drive; that he stated, also, that he never had known the man who delivered the articles to him, and he never saw him before; and that he admitted to the officers that he knew the material he carried was to be used in the manufacture of distilled spirits.

We believe that the contradictory statements of plaintiff in error as to the circumstances under which the articles came into his possession, and the inherent improbability of the whole of his explanation of his possession therepf, together with the other evidence in the ease, were sufficient to justify the submission of the ease to the jury. The judgment is affirmed.