335 F2d 549 United States v. Portee

335 F.2d 549

UNITED STATES of America, Appellee,
Thelma PORTEE, Appellant.

No. 9061.

United States Court of Appeals Fourth Circuit.

Argued June 10, 1964.

Decided June 24, 1964.

Eugene F. Rogers, Columbia, S. C., for appellant.

Marvin L. Smith, Asst. U. S. Atty. (Terrell L. Glenn, U. S. Atty., on brief), for appellee.

Before HAYNSWORTH and BRYAN, Circuit Judges, and CRAVEN, District Judge.


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Tried before a jury on a three-count indictment for unlawful possession1 of untaxpaid distilled spirits in the City of Columbia, South Carolina, Thelma Portee was convicted on the third count. She now appeals.


The whiskey was found in an unoccupied house owned by her, two doors — about 100 to 150 feet — from her home. While the Government agents had her residence under surveillance, an automobile drove up to the vacant house on February 12, 1963, just after midnight. From the car a man walked to the home of the accused, rapped on the door "quite hard several times" and called out, "Thelma, I need the key." With the knock and exclamation, the lights went on; a conversation ensued, too low to be heard by the agents. In the darkness a man moved from appellant's home to the vacant house, from which then came the sound of the handling of fruit jars and cardboard cases. A few minutes, and a man emerging from the untenanted building was arrested. Search of the place disclosed 27½ gallons of illicit spirits. At home was appellant Portee, the lights still burning, well after midnight.


The point of this appeal is the introduction in evidence of the exclamation — "Thelma, I need the key." While of course these words were damaging to the accused, we think in the circumstances receipt of this evidence did not vitiate the conviction. The record teems with other proof of the appellant's guilt, and it is unnecessary to elaborate upon the precise grounds warranting the acceptance of the statement in evidence.


As we find no error in the judgment of the District Court, we affirm.





26 U.S.C. § 5604(a) (1) (Supp.1963)