412 F2d 851 Holley v. United States

412 F.2d 851

Stacy Sanford HOLLEY, Appellant,
v.
UNITED STATES of America, Appellee.

No. 27071.

United States Court of Appeals Fifth Circuit.

June 25, 1969.

Robert P. Gaines, Pensacola, Fla. (court-appointed) for appellant.

Clinton Ashmore, U. S. Atty., Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., for appellee.

Before TUTTLE and GEWIN, Circuit Judges, and COMISKEY, District Judge.

PER CURIAM:

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1

The appellant Holley was found guilty by a jury in the United States District Court for the Northern District of Florida on both counts of an indictment charging unlawful possession and transportation of distilled spirits in containers not bearing tax stamps in violation of 26 U.S.C. §§ 5604(a) (1) and 5205(a) (2). Holley contends that he was denied due process of law because the federal agents destroyed the unstamped containers and the distilled spirits alleged to be contained therein. He argues that, at least, a sample of the alleged distilled spirits should have been preserved and introduced into evidence.

2

Three of the agents involved testified that they determined by taste and smell that each of the jugs contained moonshine whiskey and that there were no stamps on them. The agents were well experienced and were qualified to testify as experts. If the Government agents would preserve a sample of the alleged distilled spirits for use as evidence, contentions of the type here involved could be avoided and perhaps some time of the appellate courts could be saved. The issue has been raised in this circuit several times. However, the law is conclusively settled against the contention of the appellant and the judgment must be affirmed. Driggers v. United States, 384 F.2d 158 (5th Cir. 1967); O'Neal v. United States, 341 F.2d 581 (5th Cir. 1965); Burney v. United States, 339 F.2d 91 (5th Cir. 1964).

3

The judgment is affirmed.