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October 19, 1948

HAYNES et al.

The opinion of the court was delivered by: GOURLEY

This is a criminal case and it comes before the Court on motion of defendants for arrest of judgment and/or a new trial. *fn1"

On the 17th day of March, 1948, the Grand Jury returned a true bill of indictment against Benjamin J. Haynes, William D. Williams and Nathan Barnes (William D. Williams, died subsequent to the return of said indictment and the government proceeded to trial against Benjamin J. Haynes and Nathan Barnes), said indictment charged the defendants of violating the federal criminal statutes, more particularly 18 U.S.C.A. § 88, now Sec. 371; 26 U.S.C.A. §§ 2803(a), 2833, 2834 and 2831: --

 (2) Transporting distilled spirits without containers having stamps;

 (3) Carrying on a business of distiller;

 (4) Delivering distilled spirits;

 (5) Making and fermenting mash; and

 (6) Depositing and concealing non-tax paid distilled spirits.

 In considering the sufficiency of the evidence to sustain the verdict of a jury, the Court must take that view of the evidence which is most favorable to the government; must give to the government the benefit of all inferences which reasonably may be drawn from the evidence; and must refrain from concerning itself with the credibility of witnesses and the weight of the evidence. Affronti v. United States, 8 Cir., 145 F.2d 3; United States v. Toner, D.C., 77 F.Supp. 908. The verdict of the jury must be sustained if substantial evidence supports it. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680; United States v. Michener, 3 Cir., 152 F.2d 880, 885; United States v. Toner, supra.

 It is not necessary to recount the evidence at length.

 During the month of August, 1947 and to on or about September 14, 1947, the defendants, Nathan Barnes and Benjamin J. Haynes, entered into an agreement with a person by the name of Johnson to engage in the manufacture and sale of distilled spirits. Johnson was the owner of a farm and was first approached by Haynes relative to the manufacture and sale of what is commonly known as 'moonshine whiskey.' Haynes, unquestionably in my mind, was the person who conceived the idea, and Barnes, who was easily led and with limited intelligence, joined with Haynes and agreed to lend his aid and be a party to the understanding reached between Haynes and Johnson. Hanyes together with Barnes made available and delivered to Johnson the equipment in order that the still could be set up. They also delivered materials or ingredients which were to be used in the making and manufacture of the moonshine. It was agreed between Haynes, Barnes and Johnson that after the moonshine whiskey was manufactured, Haynes and Barnes would distribute the same, and the moneys realized from the sales were to be divided on an equal basis wherein Johnson received 50% and Haynes and Barnes 50%. Williams, who is now deceased, was also to share in the amount realized by Haynes and Barnes. A week to ten days after the ingredients were delivered by Haynes and Barnes to Johnson, they returned to the farm of Johnson and secured two five-gallon cans of the moonshine. Five gallons were placed in one can and three gallons in another five-gallon can. Haynes and Barnes used as a means of transportation a truck owned by Haynes, and after the moonshine was placed in the truck, the defendants proceeded to a location in the area of Aliquippa and Ambridge, Pennsylvania. As a result of an investigation being made of Haynes which related to a matter not involved in this proceeding, the Police Department of Aliquippa, Pennsylvania, had occasion to inspect the truck of Haynes. In the truck were found two five-gallon cans of moonshine. As a result thereof, Haynes and Barnes were arrested, and after an investigation by both the state and federal officers, a complaint was filed against said defendants which resulted in the indictment being returned.

 Defendant Johnson, the owner of the farm where the still was erected, was not prosecuted or indicted under federal law, but action was taken against him in a state court and upon a plea of guilty being entered, sentence was imposed. Johnson testified as a government witness.

 The defense of Haynes was based on an alibi. He denied his guilt and introduced evidence to establish that at no time did he enter into an agreement with Barnes, Williams and Johnson to engage in the manufacture and sale of moonshine whiskey or to violate any other law of the United States relating thereto; that he had come to Aliquippa by train with Barnes, who was his friend, to seek the return of Mrs. Haynes to his home. It appears that some domestic differences had arisen between Mr. and Mrs. Haynes. That the only reason that he knows why he was arrested in the instant proceeding was due to the fact that an agent of the Federal Bureau of Investigation had a personal feeling against him as a result of previous differences which had existed between him and the agent. The explanation of defendant Haynes as to the presence of his truck in the region of Aliquippa and Ambridge. Pennsylvania, was that he had loaned his truck to Williams, now deceased, and that he had no knowledge as to the use to which Williams was going to place the truck other than his desire to go to Ambridge, Pennsylvania, to secure furniture for Williams' wife.

 There is not merit at all in any of the reasons set forth by Barnes for arrest of judgment and/or motion for a new trial.

 The basic reason presented by defendant Haynes in his request for arrest of judgment and/or motion for new trial is premised on a question asked by the Assistant United States Attorney in his cross-examination. Said examination which relates to the question being set forth in Footnote 2. *fn2"

 When government's counsel asked the defendant whether or not he sold any moonshine at his home, on objection being made, the Court sustained the objection. Counsel for defendant Haynes did not move for a mistrial or withdrawal of a juror, and did not take any further notice of the matter during the trial. No request was made to charge the jury relative thereto, and more particularly the ...

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