337 F.2d 380
Richard Earl HOPKINS and Glenn Craig Hopkins, Appellants,
v.
UNITED STATES of America, Appellee.
No. 20534.
United States Court of Appeals Fifth Circuit.
October 12, 1964.
Everett C. Brannon, Jr., Gainesville, Ga., for appellants.
Bobby C. Milam, Asst. U. S. Atty., Atlanta, Ga., Charles L. Goodson, U. S. Atty., James C. Bright, Asst. Regional Council, Internal Revenue Service, for appellee.
Before TUTTLE, Chief Judge, BELL, Circuit Judge and WHITEHURST, District Judge.
PER CURIAM.
Appellants Richard Earl Hopkins and Glenn Craig Hopkins were both found guilty of having possessed, transported, and transferred non-tax paid liquor in violation of 26 U.S.C. §§ 5205(a) (2) and 5604(a) (1). The sole issue presented by this appeal is whether the evidence was sufficient to justify submission of the case to the jury.
After a careful review of the record, we have concluded that the conviction of Richard Hopkins should be affirmed, but that the conviction of Glenn Hopkins must be reversed for insufficient evidence. The only substantial evidence against Glenn Hopkins was that his truck and his wife's car were found parked on a dirt road leading to his house along with two other vehicles containing illegal liquor. No illegal liquor was found in Glenn Hopkins' vehicles, and there was evidence that the vehicles were often parked at that spot when weather conditions made the dirt road impassable beyond that point. Where convictions are based solely on circumstantial evidence, the test to be applied is whether the jury might reasonably conclude that the evidence excluded every reasonable hypothesis except that of guilt. Riggs v. United States, 5 Cir., 1960, 280 F.2d 949, and Clark v. United States, 5 Cir., 1961, 293 F.2d 445. As to Glenn Hopkins, this test has not been met.
The conviction of Richard Hopkins is affirmed; that of Glenn Hopkins is reversed.
