OpenJurist

324 F2d 27 Rowe v. United States

324 F.2d 27

James ROWE, Sr., Appellant,
v.
UNITED STATES of America, Appellee.

No. 20190.

United States Court of Appeals Fifth Circuit.

October 25, 1963.

Wesley R. Asinof, Charles R. Smith, Atlanta, Ga., for appellant.

Bobby C. Milam, Robert D. Feagin, III, Asst. U. S. Attys., Charles L. Goodson, U. S. Atty., Atlanta, Ga., for appellee.

Before TUTTLE, Chief Judge, and BROWN and BELL, Circuit Judges.

PER CURIAM.

1

In this appeal from a conviction on three counts of a four-count indictment for violation of the liquor laws, appellant makes a strong contention that there was no evidence submitted to the jury to the effect that the liquor that was purchased failed to have the required revenue stamps affixed to it. While the Government can point to no evidence expressly stating that there were no stamps affixed to the whiskey, it contends that there was sufficient circumstantial evidence to warrant the jury's inferring that no stamps had been affixed. The most persuasive is that the purchases were made for $5.50 a gallon, whereas the stamps themselves would have cost $10.50 a gallon.

2

We think it is not necessary to determine whether there was sufficient evidence to warrant the jury's finding of a verdict of guilty as to these two counts, because we conclude that there is unquestionably ample evidence to support the jury's verdict of guilt as to the fourth count. Since the sentence of 18 months falls within the maximum permissible for a single count, the sentence will not be disturbed even though there might be error in connection with one or more counts. Walker v. United States, 5 Cir., 285 F.2d 52, 60; Hall v. United States, 5 Cir., 286 F.2d 676, fn. 16, p. 680, cert. denied 366 U.S. 910, 81 S.Ct. 1087, 6 L.Ed.2d 236.

3

The judgment is affirmed.