United States v. Stallings (273 F.2d 740, 1960)

LUMBARD, Chief Judge.

This appeal raises questions regarding rulings on evidence and failure of the judge to charge with respect to a plea of guilty by a codefendant. We find no error and affirm the convictions.

The appellants Stallings and Godette were convicted after trial before a jury for the illegal distillation of whiskey and the running of an unlicensed still in Orange County, New York, in violation of 26 U.S.C. §§ 2833, 2810, 2834 and 2803 and conspiracy to violate these statutes, prohibited by 18 U.S.C. § 371. They were sentenced to five and three years imprisonment respectively. There is no dispute with respect to the sufficiency of the evidence which showed that in early 1953 Stallings and Godette arranged with the codefendant Colon Campbell, to set up a still in the woods near Janeal Lodge at Deer Park, Orange County, New York. The still was set up in March of 1953 and the defendants made several runs of whiskey before the still was discovered by a state trooper on July 28, 1953. The distillery had not been registered, no bond had been issued for the premises and no tax stamps had been placed on the barrels or containers.

The principal witness against the appellants was Campbell, who had pleaded guilty. After the discovery of the still, Stallings had first persuaded Campbell to admit nothing, and accordingly Campbell made two statements to government investigators which did not implicate the appellants. However, a few days later, on December 22, 1953, Campbell appeared before the Alcohol Tax Unit investigators and told substantially the same story of what had happened as he testified to at the trial. On direct examination the government brought out the fact that Campbell had made three statements to the government agents and that he had not told the truth in the first two of them. The defendants were furnished with copies of all three statements. After defense counsel had, on cross-examination of Campbell, thoroughly the conteliltf the statements so that the jury had before it virtually everything that Campbell had said in his statement of December 22, the govern-ment offered this statement in evidence an<^ ^ was receive