The Glasgow courier. [volume] (Glasgow, Mont.) 1913-current, 1922-02-24
SLATTERy wins FIFTH
CRIMINAL J:*>SE: BEFORE
ninth COURT APPEALS
THE UNITED STATES VS.. RAY McCURRY AND
JOHN WALL is FIFTH CRIMINAL CASE IN
WHICH JUDGE BOURQUIN HAS BEEN SUS-
TANNED BY CIRCUIT COURT OF APPEALS
SINCE SLATTERY TOOK OFFICE. SLATTERY
ARGUED THIS CASE LAST OCTOBER

These defendants Ray McCurry and
John Wall are from Livingston, and
they were tried in Helena in January,
1921. They were sentenced to serve
nine months each, and in addition
McCurry to pay fine of $500.0O and
costs, and Wall fine of 5000 and
costs. They had their case reviewed
upon alleged errors by Judge Bourquin
in his instructions to the jury. They
contended that the Judge misdirected
the jury in his definition of "reason-
able doubt, and in holding that the
defendants, who were charged with
illicit distilling of liquor, had the bur-
den of proving that they had register
ed the still and had filed the required
distiller's bond with Collector of In
ternal Revenue.
Judge Bourquin held that the jury
could consider, from the fact that the
defendants denied ownership and pos
session Of the still, that the same was
not registered, and the bond had not
been filed; and in addition that they
had the right to infer that the govern
ment would not license a still to be
operated in a cottonwood grove con-
siderably removed from habitations.
Copy of decision follows:
In the United States Circuit Court
of Appeals. For the Ninth Circuit.
Ray McMurry and John Wall,
Plaintiffs in Error,
VS..
United States of America,
Defendant in Error.
Upon Writ of Error to the United
States District Court of the District
of Montana.
Before Gilbert, Morrow, and Hunt,
Circuit Judges.
Morrow, Circuit Judge:
The indictment filed in the court be-
low contained three counts. The first
count charged the appellants with hav-
ing made and fermented a certain
mash fit for the production of spirits
on premises other than a distillery
duly authorized according to law. The
second count charged the appellants
with having failed and neglected tt
register a certain still, set up, which
they had in their possession and Gus
tody; and the third count charged
them with having carried on the bust
ness of distillers without having giver
the bond required by law.
Upon the trial of the cause the ap
pellants were convicted upon the sec
ond and third counts of the indictment
and were found not guilty upon tn
first count. Judgment was entere'
accordingly and from this judgmen
the appellants prosecute this writ.
The appellants contend that tn
lower court erred in instructing tn
jury at the trial that evidence tending
to show the probability Of guilt of til
defendants was sufficient to warran
conviction. This is an erroneou
statement of the courts instruction
The counsel for the appellants in thi
argument to the jury had said that tn
jury could not convict on suspicion
The court said that ''that is true, bu
he (the counsel) went on to say tina
you (the jury) could not convict o
probabilities" There the court inter
rupted counsel and stated that "tha
is not the law, because after all, a
cases are determined on probabilities
The court thereupon gave the follow
ing instruction. "There is no sue
thing as absolutely proving the gull
of the defendants, and guilt neve
needs to be proven to an absolute Gel
tainty because that is impossible.
needs only be proven to that high de
gree of probability that creates
your minds an abiding conviction to
moral certainty that he is guilty
The court had previously instructe
the jury "that these defendants a,
presumed to be innocent and that prt
sumption requires that you acqu
them unless after your review of a
the evidence, you believe it overcome
to a degree that satisfied you thu
they are guilty beyond reasonab
uouDCS ~ 10 SOuA OuCy W SoASINI elCiA
This was unquestionably CORES
statement Of the law. Dunbar v.
S. 1856 U. S. 185,199. 1t is not nece
sary to repeat what has been so ofte
said in this court that counsel can NJ
select particular passage or portic
of the charge of the trial court fl
the purpose of establishing error. tt
whole charge must be taken togeth'
and if it appears therefrom that Il
law has been fully and fairly state
and that the jury must have so unde
stood him, the fact that same passal
or even passages are open to CRITICS
can not be successfully urged as r
versible error.
1t is next assigned as error that Il
lower court erred in instructing tt
jury that the burden was upon the d
PENDANTS to show the registration