(concurring).
I concur with Judge MINTON in the result. I think the case should be considered as though the evidence were in the record.
The second count of the indictment charged the defendant with the illegal possession of a still, the sixth count with carrying on the business of a distiller without giving bond as required by law, and the twelfth count with the illegal possession of *564282 gallons of alcohol, the containers of which did not have revenue stamps affixed thereto. The date was August 22, 1940, and the situs was upon the Yanke farm in Walworth County, Wisconsin.
The fourth count of the indictment charged the defendant with the illegal possession of a still, and the eighth count with carrying on the business of a distiller without giving bond as required by law. The date was August 6, 1941, and the situs was upon the Krupenski farm in Kenosha County, Wisconsin.
The pertinent testimony tended to prove that from about October 1, 1939, up to August 22, 1940, the defendants, Papavasilius, Caruso, Cucunato, Gottlieb, and Roy, Arthur and Emil Richio, operated an unregistered still on the Yanke farm for the purpose of distilling alcohol, and that during this period, Infusino associated with and was frequently seen in the company of the above named men.
During the evening of August 22, 1940, government agents seized the still and 282 gallons of non-taxpaid alcohol. Shortly after the seizure, a Plymouth sedan drove into the Yanke farm, and the occupants, Cucunato and Gottlieb, were placed under arrest. For the-purpose of determining if any other individual desired to contact this car, Huntley, a government agent, drove it from the Yanke farm, followed by other officers in a Government automobile. When Huntley reached a point 300 feet from the Yanke driveway, he saw the lights of a Ford automobile parked off the road, and as he approached the Ford, it pulled out onto the highway and proceeded ahead of the Plymouth. The Ford was driven by Infusino, and when some distance from the Yanke farm, it stopped. Emil Richio alighted from the Ford, approached the Plymouth, and there Huntley informed Richio he was under arrest. Richio, however, fled to the woods, followed by Huntley. In the meantime, Infusino drove away in the Ford. Infusino admitted driving the Ford, but denied he was present at the time in question, and claimed an alibi.
One Koch testified that he was vice-president of a hotel company operating the Lorraine Hotel, and produced cards showing registration at the hotel on August 22, 1940, from noon until midnight, one of which carried the name of Frank Infusino, indicating that the registrant rented Room 218, for which the hotel charged $1.50. He did not, however, testify that Infusino occupied the room shown on the card or that he visited the hotel on August 22 or at any other time.
The defendant testified that he left Kenosha at 6:40 p. m. and arrived at Chicago at 9 p. m.; that he registered at the Lorraine Hotel, signed the registration card, and retained the room for two nights; and that he returned to Kenosha on the evening of August 24.
On rebuttal the government recalled Koch and he produced 31 registration cards, bearing numbers 56818 to 56850, with number 56823 missing. Number 56834 bears the name of the defendant. The auditor of the Hotel testified that his cash sheets for August 22 and 23 reveal the entire income of the hotel for that day and indicate that on August 22, 1940, Room 218 was occupied by one Small, for which he paid $1.50; that Small was entitled to use that room until 4 p. m. on August 23; that Room 218 was vacant on August 23; and that the cash sheets for August 22 and 23 do not reveal the name of Frank Infusino. The registration cards produced did not contain a registration card for Small.
A recognized authority on questioned documents testified that he had compared card numbered 56834 with the remaining 30 cards produced; that card 56834 was not of the same stock as the other cards; that the number “56834” printed thereon did not fall in the same relative position as the corresponding number on any of the other cards; that 30 of the cards had the printer’s offsets on their backs, acquired through piling when wet, but that 56834 had no such offset; that the ink on 56834 was different and the numeral “8” was damaged.
A printer of 22 years’ experience testified that “it would not be possible in a continuous run to change the position of the numerals, the figures would have to appear in the same place where the others are,” and it was his opinion that “cards 56833, 56834 and 56835 were not made in the same run of printing.”
Krupenski farm. The record discloses that one Tarrallo employed investigator Irzyk, and that on July 18, 1941, Tarrallo directed him to drive a Dodge car from Chicago to Fossland’s Gas Station near the Wisconsin-Ulinois line. There Irzyk met Tarrallo, and sometime later, defendants Nudi, Capponi, and Emil and Arthur Richio drove up to the gas station in a Plymouth car. Tarrallo directed Irzyk to give the key to the Dodge to Capponi and Nudi, and *565told Capponi he had to load 60 5-gallon cans of alcohol. Capponi and Nudi drove away in the Dodge, Tarrallo and Emil and Arthur Richio drove north in the Plymouth, and Irzyk remained at the gas station. Later, Tarrallo returned with the Dodge, loaded with 42 5-gallon cans of alcohol which bore no revenue stamps, and directed Irzyk to drive the Dodge to Chicago.
On July 23, 1941, Irzyk drove Tarrallo to Cy’s Gas Station near the WisconsinUlinois line. There they were joined by Infusino and Emil Richio. Tarrallo, Richio and Infusino engaged in a conversation, in which, in the presence of Infusino, Irzyk told Tarrallo that he (Irzyk) was worried about being there, to which Tarrallo replied: “Don’t worry. We are going to work for the right people. These people up here are right people, and Frank is a pretty big boss.” Emil Richio and Irzyk then drove in Tarrallo’s car to a garage in Kenosha, followed by Infusino and Tarrallo in Infusino’s car. At the garage, Tarrallo, in the presence of Infusino, said to Irzyk: “How do you like the crate * * * Frank has given me to replace the one the Feds knocked off on the Lake Geneva job?”
On July 27, 1941, Irzyk loaded chunks of broken concrete, 1% to 2 feet long, a foot wide, and weighing up to 100 pounds, into the Dodge and drove it, at Tarrallo’s direction, to a place outside Kenosha where he met Infusino, Tarrallo, Emil, Arthur and Roy Richio seated in Infusino’s car. Irzyk, having been directed by Tarrallo in the hearing of Infusino to give the keys to the Dodge car to Roy, gave them to him, and Roy drove away in the Dodge. After a while Roy Richio returned, and in the presence of Infusino said to Tarrallo: “I could only get 26-28 * * * we are having trouble at the pot. Can’t get the proof.” Tarrallo got angry and started to argue with Roy, whereupon Infusino said: “If he has got trouble, he has got trouble.” Upon Tarrallo’s instructions, Irzyk then drove the Dodge car to Chicago. It was filled with cans of non-taxpaid alcohol, and the concrete had been removed.
On July 29, 1941, government agents found a tile discharging mash into an open ditch and traced the tile across the field into the Krupenski farm. They entered the farm on August 6 and found a 700-gallon dismantled still in the barn, some mash in a receptacle, and chunks of broken concrete of the size and description testified to by Irzyk, but no sign, Registered Distillery. On August 6, after the still had been seized, Tarrallo tried, without success, on four occasions to reach Infusino by telephone, and cruised the park in Kenosha, the usual meeting place for Tarrallo and Infusino, looking for Infusino’s car. August 7, the Government agents, while approaching the Covelli Gas Station in Kenosha, saw Infusino in his car, talking to Arthur Richio; as the officers approached, Richio ran away and Infusino drove off at a high speed. Infusino denied he knew or had ever seen Irzyk or Tarrallo.
Whether the evidence was sufficient to establish the guilt of Infusino, or whether it was equally consistent with innocence or guilt, was a matter for the jury. The jury had the right to draw inferences from the facts established, Saunders v. United States, 6 Cir., 260 F. 386, and United States v. Mann, 7 Cir., 108 F.2d 354, and to say whether Infusino aided and abetted the other defendants. It is not necessary that one who aids and abets the commission of a crime be present when the crime is committed, Colbeck v. United States, 7 Cir., 10 F.2d 401, and where several acts constitute together one crime, if each is separately performed by a different individual in the absence of the rest, all are principals as to the whole. Alexander v. United States, 8 Cir., 95 F.2d 873. The jury believed the Government witnesses, and the direct and circumstantial evidence sufficiently supports the verdict of the jury.