Appeals from the District Court of the United States for the Southern District of Indiana, Terre Haute Division; Robert C. Baltzell, Judge.
Before EVANS, SPARKS, and KERNER, Circuit Judges.
The appellants, Mann and Siegel, were indicted and tried together on charges set forth in an indictment which contained three counts, only two (one and three) of which are here involved. The third count charged a conspiracy to violate the revenue law and the first, the unlawful possession of a still set up in violation of the revenue act. Upon conviction each defendant was sentenced to the penitentiary. Each has appealed. Their appeals were heard at one time and will be disposed of in one opinion.
Upon failure to counsel for Mann to file a brief and upon Mann's request, as an alleged pauper, this court appointed Attorney Owen West to represent him. We are indebted to him for a clear and able presentation of defendant Mann's case.
The first count of the indictment charged unlawful and knowing possession, custody, and control of a still set up and suitable for the manufacture of intoxicating liquor, said still not being registered as required by law. Sec. 1162, 26 U.S.C.A. The third count charged conspiracy to defraud the United States of revenue, etc. Both defendants were acquitted on the second count and convicted on the first and third counts. The court set aside the conviction of Siegel on the first count, but on the third count sentenced him to imprisonment for two years and to pay a fine of $1,000. The verdict of guilty on both counts against defendant Mann and allowed to stand, and he was sentenced to three years' imprisonment and to pay a fine of $1,000.
On these appeals, defendant Siegel challenges the sufficiency of the evidence to support his conviction on count three. He also charges a prejudicial interruption of the cross-examination of a witness by the court. In addition to the errors assigned by Siegel, counsel for Mann challenges the sufficiency of the evidence to sustain conviction on either count.
Mann was sentenced to the penitentiary for three years. The maximum imprisonment penalty which could be imposed on each of counts one and three is two years. Inasmuch as the sentence was for three years, counsel argue, and logically, that failure of evidence to support conviction on either count must result in a reversal of the judgment against Mann.
Is the evidence sufficient to sustain the verdict of guilt against both Siegel and Mann on count three and to sustain Mann's conviction on count one? Our study of the evidence leads us to make an affirmative answer.
In reaching this conclusion and in making the following fact statement, we have accepted the Government's version of contradicted statements, for we are under obligation to accept the jury's judgment where veracity is in issue. Accepting this well-settled rule of law, we can only look to the record to see if any substantial testimony, not inherently unbelievable, appears, which supports the verdict.
Appellant Mann argues that inasmuch as the court set aside the verdict against Siegel on count one on evidence almost similar to that on which he was convicted, he, too, should have been freed of the charge found in this first count. The answer to this contention is - The conviction of Siegel on count one may also have been supported by competent evidence, and furthermore Mann may not complain because his confederate received a more favorable sentence than he. Mann's guilt and sentence are not to be determined by the court's or jury's estimate, false or sound, of a confederate's character or by the extent of a coconspirator's guilty participation in the substantive offense.
Nine defendants were indicted. One was not apprehended, although his guilt was clear. He was too fleet of foot when the raid on the still was made, and he has been successful in concealing himself since. Of the remaining eight defendants, five pleaded guilty. Siegel and Mann have consistently asserted their innocence.
Mann testified in his own defense. Siegel did not. Mann's testimony was flatly contradicted on material facts by ten witnesses. These ten witnesses were disinterested. Uncontradicted and undisputable facts also placed Mann in an embarrassing position, which necessitated explications. His attempted explanations were rather sorry and the jury may have reached the conviction that he was either a stranger to, or hardly on speaking terms with, a character called truth.
Inferences from facts may be quite as persuasive as direct or positive testimony. A jury might well have asked of Mann - Why tell so many falsehoods? Why carry title to a truck in another's name? Why carry a false telephone number on the truck? Why, a false business address? Why ...