
    CARROLL et al. v. UNITED STATES.
    No. 8085.
    Circuit Court of Appeals, Fifth Circuit.
    June 22, 1936.
    Rehearing Denied July 13, 1936.
    John E. Meredith and Robert T. Ervin, Jr., both of Mobile, Ala., for appellants.
    Francis H. Inge, U. S. Atty., of Mobile, Ala.
    Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.
   SIBLEY, Circuit Judge.

The appellants Frank Carroll, Clarence Fisher, Charles Fisher, and Henry Smith were convicted for a conspiracy to engage in the business of distilling, of possessing distilled spirits, and of depositing and concealing the same on and around Mobile Bay, all in violation of the internal revenue laws. They allege error only in the refusal of the court to instruct a verdict of not guilty as to each. Without reviewing the evidence in detail, it showed with sufficient certainty that Frank Carroll and Clarence Fisher, aided by others, manufactured and possessed distilled spirits contrary to the revenue laws, probably over a considerable time and in large amounts, storing the same on a houseboat occupied by an old .negro which he told the sheriff was “owned by the Fishers” and oa another owned and occupied by Carroll. Their conviction is well authorized. We are of opinion that no sufficient proof is made of participation in the conspiracy by Charles Fisher and Henry Smith. Charles Fisher is not shown to be an owner of the houseboat, nor to have had any part in the making and storing of any of the liquor. He reported its presence in the Fisher houseboat to the sheriff and went with him to seize it. This does not show his guilt. Henry Smith was seen loitering about the houseboat of Carroll, and with him and others in boats in the bay but with no liquor, and once he was near where some liquor was found in a skiff; but he might as likely, for all that appears, have been a customer as a confederate of Carroll. The present evidence does not justify his conviction of conspiracy.

The judgment is affirmed as to Frank Carroll and Clarence Fisher, but as to Charles Fisher and Henry Smith it is reversed and the cause remanded for further proceedings not inconsistent herewith.  