428 F. 2d 445 - United States v. Wright

This is a timely appeal by defendant Sherwood Andrew Wright from his conviction by a jury upon an information charging him with unlawfully, willfully and knowingly having in his possession eight cases of Scotch whiskey valued at over $100 which had been unlawfully stolen while moving in interstate commerce, in violation of 18 U.S.C.A. § 659. Defendant was sentenced to two-years imprisonment. Defendant is represented by privately retained counsel.

The Government on May 21, 1970, filed a motion to dismiss the appeal as frivolous, filing a memorandum in support of the motion. While the appeal could possibly be considered frivolous, we have chosen to deny the motion. We have considered the appeal upon the merits and have treated the memorandum in support of the motion as appellee's brief.

The errors relied upon for reversal are thus stated:

(1) The verdict was against the weight of the evidence.

(2) The trial court erred in overruling defendant's timely motions for acquittal based upon the insufficiency of the evidence to support a conviction.

This court as an appellate court does not try cases de novo and does not determine the weight of the evidence. It is for the fact finder, here the jury, to determine the credibility of the witnesses and the weight of the evidence. See United States v. May, 8 Cir., 419 F.2d 553, 554-555. The jury by its verdict has properly performed its function in this respect.

Defendant's motion for acquittal raises the issue of the sufficiency of the evidence to support the guilty verdict. Upon appeal, this court must view the evidence in the light most favorable to the party prevailing in the jury trial, here the Government. A careful examination of all the evidence completely satisfies us that the verdict is supported by substantial evidence with respect to each element of the offense charged.

The judgment is affirmed.