
    GOFF v. UNITED STATES.
    (Circuit Court of Appeals, Eighth Circuit.
    March 22, 1919.)
    No. 5110.
    1. Criminal Law <@=>563—Sufficiency of Evidence—Proof of Corpus Delicti.
    Evidence held insufficient to sustain a conviction where, aside from statements made by defendant before his arrest, it was as consistent with the commission of a different offense as with that of the crime charged.
    2. Criminal Law <@=>535(1)—Declarations by Accused—Necessity of Corroboration.
    A conviction on statements of the defendant will not be sustained without corroborative proof of the corpus delicti.
    <@=>For other eases see same topic & KEY-NUMBER in all Key-Numbered. Digests & Indexes
    
      3. Indians <g=>38(5)—Introducing Intoxicating Liquors into Indtan Country in Interstate Commerce—Evidence.
    The provision of Act May 18, 1916, making the possession of intoxicating liquor in the Indian country prima facie evidence of its unlawful introduction, does not apply where the charge is the carrying of liquor from outside ■ the state of Oklahoma into that part which was formerly Indian Territory.
    other cases see same topic & K1SY-NUMBISR. in ail Key-Numbered Digests & Indexes
    Appeal from the District Court of the United States for the Eastern District of Oklahoma; Joseph W. Woodrough, Judge.
    Criminal prosecution by the United States against R. E. Goff. Judgment of conviction, and defendant brings error.
    Reversed.
    Frank Fee, of Muskogee, Okl. (J. C. Denton, of Muskogee, Okl., on the brief), for plaintiff in error.
    C. W. Miller, Sp. Asst. U. S. Atty., of Muskogee, Okl. (W. P. Mc-Ginnis, U. S. Atty., of Muskogee, Okl., on the brief), for the United States.
    Before HOOK and STONE, Circuit Judges, and WADE, District Judge.
   WADE, District Judge.

Defendant was indicted for, and convicted of, the crime of introducing liquor from without the state into that part of the state of Oklahoma which was formerly Indian Territory. He was found by officers in Nowata, Okl., traveling in a Ford car equipped with a false bottom, having concealed in and about the car more than 280 pints of whisky and some beer. The indictment charged only that defendant “did introduce and carry into the county and district aforesaid, from without the state of Oklahoma,” liquor found in his possession.

At the close of the evidence offered by the government, the defendant demurred to the evidence as insufficient to prove the crime charged, for the reason that the corpus delicti was not established, which demurrer was overruled, the defendant excepting. The defendant offered no evidence, the case was argued, the jury instructed, and a verdict of guilty returned.

1. The, defendant by this appeal renews his contention that there was no evidence offered by the government, aside from the proven statements of the defendant, tending to prove that the liquor found in the custody of the defendant, was in fact brought into the state, and it is insisted that the statements or admissions made by the defendant are not alone sufficient to establish such fact.

Two elements are involved in the offense charged: (1) That the liquor was in fact brought into Oklahoma from some point without the state; and (2) that the defendant was the person who brought it in. A careful examination of the record discloses no fact or circumstance, aside from the statements of the defendant at the time of his arrest, tending to show that the liquor was introduced into the state at the time alleged by any one.

Nowata, where the defendant was apprehended, is located about 24 miles from the Kansas line, and at least twice that far from the Missouri line. The careful concealment of liquor in a car with a false bottom was just as consistent with ordinary “bootlegging” as with introducing. There is proof that there was a large stock of liquor about this time at South Coffeyville, Okl. If, as suggested by counsel (though without any competent evidence to sustain such contention), the defendant procured the liquor at South Coffeyville with the' purpose of retailing it in the state, his plan for concealment would probably be just as ingeniously devised, and his mode and direction, of travel would probably have been the same.

There is no attempt to prove that there were not dozens of other places in that part of the state where the supply could have been obtained. The facts and circumstances (aside from the statements of the defendant) being just as consistent with guilt of some other offense, it cannot be held sufficient as proof of the particular offense charged. ,

The defendant first stated to the officers that he was traveling from his home in Pittsburg, Kan.; but, after the liquor was discovered, he stated that he came from Joplin, Mo., and was on his way to Tulsa, Okl. The rule of this court as to the effect of statements or confessions, in establishing the corpus delicti, is as follows:

“A conviction upon extrajudicial confession, or acts or declarations of a prisoner, will not be sustained, without corroborative proof that the property was in fact stolen.” Naftzger v. United States, 200 Fed. 494, 118 C. C. A. 598.

See, also, 4 Chamberlayne, Evidence, § 1600.

We do not hold that declarations of a party may not be considered in finding the corpus delicti; but, standing alone, they arte insufficient, and other facts and circumstances cannot be said to be corroborative, when they point as directly to some other offense as they do to the crime charged.

2. Counsel for the government insist that possession of liquor in Oklahoma is by act of Congress of May 18, 1916, “prima facie evidence of unlawful introduction.” 39 Stat. 123, c. 125. This court has already ruled adversely to this contention. Chambliss v. United States, 218 Fed. 154, 132 C. C. A. 112; Sellers v. United States, 222 Fed. 1023, 137 C. C. A. 666; Lewellen v. United States, 223 Fed. 18, 138 C. C. A. 432. And furthermore the case was not tried upon this theory.

The case is reversed and remanded to the District Court, with directions that a new trial be granted.  