(dissenting in part, concurring in part).
A careful study of the record in this case compels me to dissent from what is concluded both by Judge MINTON and Judge KERNER as to Counts 2, 4, 6, 8 and 12 (the substantive counts). I agree that the judgment should be affirmed as to Counts 18 and 19 (the conspiracy counts).
Judge MINTON apparently favors affirmance upon two grounds, (1) that no motion for a directed verdict was made on behalf of the defendant, and (2) that the bill of exceptions was not filed in compliance with the rules and is, therefore, not properly in the record. As does Judge KER-NER, I do not agree that the judgment should be affirmed upon such grounds. Ordinarily, of course, the insufficiency of the evidence should be tested by a motion for a directed verdict so that the court may have such insufficiency- called-to its .attention. True, the record discloses no such motion *566on behalf of the instant defendant, but there was such a motion on behalf of other defendants. The court apparently, after a careful and deliberate consideration of the evidence as to the instant defendant and all others, on all charges of the indictment, passed upon the sufficiency of the evidence and, in so doing, decided as to the instant defendant that it was insufficient as to all counts except the seven counts on which he was convicted and which are now before us. As to these counts, the court decided that the evidence was sufficient to go to the jury. Under these circumstances, no purpose could have been served by a formal motion. The court acted as though such a motion was before it and there is no room for the thought that its ruling would have been different if the formal motion had been made.
As to the bill of exceptions, Judge MIN-TON overlooks the Certificate of the District Judge, dated May 11, 1942, that it was duly proposed and presented to the court “within the time allowed by law, and by the rules and order of this court, after due notice to the United States attorney,” and “is hereby made a part of the record in this case.” True, as pointed out by Judge MINTON, the bill of exceptions, so far as the record discloses, was- not filed in compliance with the rule. I think, however, there is a presumption which attaches to the validity of the court’s Certificate which the record does not overcome. In view of such Certificate, it is probable that an order was entered extending the time for filing the bill of exceptions, which the record does not disclose. This view is strengthened by the fact that the Government raises no question, either in its printed brief or in oral argument, concerning this point.
It is conceded, however, that neither of these questions affects our authority to consider the appeal on its merits, but it is said there is nothing which will justify the exercise of our discretion to so do. It is my view, however, that inasmuch as the case has been presented by both sides on the merits, it should be disposed of on that basis. Furthermore, the record presents a situation which calls for the exercise of our discretion in favor of review. Judge MIN-TON aptly points out the gross incompetence attributable to defendant’s counsel. In fact, it is so glaring that it is a dubious question as to whether the defendant could have had a fair trial. (This is no reflection on defendant’s present counsel as he. did not participate in the trial below.) The situation, no doubt, was recognized by the trial court when, at the conclusion of the Government’s case, without formal motion, he ruled upon the sufficiency of the evidence. It is still the rule, so far as I am aware, that every person accused of crime, whether he be saint or sinner, is entitled tq a fair trial upon the precise charge contained in the indictment. Considering the seriousness of the charge in connection with the fact that apparently no serious effort was made by counsel to protect defendant’s rights, I think this court should squarely meet the challenge to the sufficiency of the evidence.
This brings me to Judge KERNER’S concurring opinion, in which he has fairly stated the evidence most favorable to the Government upon which it relies to sustain a conviction as to the substantive offenses. Just how and in what manner, however, this evidence is proof of the charges, is not pointed out. I need not refer to the propositions of law or the authorities cited further than to state they are inapplicable to the instant situation. It would serve no good purpose to analyze the proof as related by Judge KERNER. Such evidence speaks for itself, and while relevant to the conspiracy counts, is wholly lacking in probative value as to the counts now under consideration.
As to the offenses charged in connection with the Yanke farm, two circumstances-only are relied upon—(1) that in connection with the presence of the defendant upon a public highway, and (2) the alleged false alibi. It may be of some importance to note that the raid and seizure at the Yanke farm occurred at 4 o’clock P. M.,, and that it was four hours later when the Plymouth Sedan entered those premises. It was some time subsequent (just how long is not disclosed by the record) that defendant was seen upon the public highway under the circumstances related. Assuming that such circumstances were suspicious, as I think they were, there isn’t the slightest relevancy between them and the charge of possession of an unregistered still, the carrying on of the business of a distiller without bond, or the possession of 282 gallons of alcohol in containers without Revenue-stamps affixed thereto. His presence on the highway was just as consistent with any number of purposes, and even more so, than it was with these three separate and distinct offenses, or any one of them. In its-brief the Government explains his presence upon the highway thus: “This mission log*567ically could be only one of two things; either to deliver 150 pounds of yeast for the still, or to take away alcohol.” This is purely a guess, but perhaps as good as any other guess. Assuming, however, it is correct, does it prove or tend to prove any one of the three charges relative to the Yanke farm? As pointed out in Girgenti v. United States, 3 Cir., 81 F.2d 741, 742: “The presence of the appellants at or near the premises where the still was in operation is not sufficient to sustain a conviction on counts charging them with possession of an unregistered still or the manufacture of mash, in the absence of any testimony that they were in charge of, or were doing work in connection with, the still. The possession of old clothes, sandwiches, and a revolver is as consistent with innocence of the offenses charged as with guilt. Graceffo v. United States [3 Cir.] 46 F.2d 852, and cases there cited. The unexplained possession of the hydrometer supports an inference that the appellants were concerned with testing liquor in some form, but was not in itself sufficient evidence to warrant the conclusion that they were connected with the operation of the still in question. * * -jf»
Again in Grunwald et al. v. United States, 3 Cir., 94 F.2d 952, 953, the court said:
“ * * * The possession and control and the operation of a distillery is by the statute made a vital element of the offense, and the person in such possession and control is made the offender.
“ * * * The defendants were there and in possession, dominion, and control. It is true that the mere presence of a defendant at or near an illicit still will not in itself justify a conviction. * * * ”
Recently, this court in United States v. Cusimano, 7 Cir., 123 F.2d 611, while affirming a conviction as to a conspiracy count, reversed it as to substantive counts under circumstances which, in my judgment, were more favorable to the Government than are those in the instant case. It should be noted there is not a scintilla of evidence that the defendant was at any time on the Yanke farm, or that he had possession of a still or alcohol upon which the tax was unpaid.
It is feebly suggested that such presence was not necessary to constitute him as an aider and abettor. Even so, some affirmative act of assistance was required to con,-stitute aiding and abetting. Was defendant’s presence on the highway an affirmative act relative to the possession of an unregistered still, or with carrying on the business of a distiller, or with the illegal possession of alcohol found on the farm? The mere inquiry answers itself. Moreover, defendant’s presence on the highway was at least five hours subsequent to the final consummation of the offenses charged. The still and alcohol had been seized by the Government agents, which terminated such offenses. Under such circumstances, I am unable to perceive how defendant’s presence on the highway could make him accountable as an accessory before the fact.
Judge KERNER, in his opinion, as does the Government in its brief, dwells at length upon the circumstances in connection with the alibi which defendant sought to prove. It is said the alibi was false. Assume that it was. How does that prove or tend to prove the offenses charged? It should be remembered that the alleged alibi had to do with defendant’s presence on the highway and not his presence on the Yanke farm. The jury had a right to believe the alibi false, and that defendant was present on the highway as the Government contends. But because the jury had a right to believe he was present on the highway did not authorize it to guess that he was guilty of the offenses charged. The Government suggests a theory that this alleged false alibi is an admission of guilt as charged. This is a novel theory, unsupported by any authorities and I do not accept it.
The offenses charged on the Krupenski farm are the illegal possession of an unregistered still and the operation of a distillery without the required bond. If such a thing is possible, the proof in support of the charges is more barren than that concerning the Yanke farm. The circumstances, as related by Judge KERNER, have no tendency, either directly or indirectly, to prove the charges made in the substantive counts. At most, they are pertinent to the conspiracy counts and perhaps consistent with a theory that the defendant was interested in some manner in the purchasing and convoying of illicit alcohol. Without a scintilla of evidence that he was ever present on the Krupenski farm, the jury was permitted to speculate he was in the possession of an unregistered still and engaged in the business of operating a still without bond. Now, under the much abused theory that “the jury had the right to draw inferences from the facts established,” the judgment is to be affirmed.
*568It may be that the result achieved is desirable as to this particular defendant. Perhaps he deserves the punishment which has been imposed. Assuming that such is the case, I am unwilling to affirm a judgment which, as I view the situation, rests upon proof so grossly inadequate. In my judgment the court below should have directed a verdict in favor of the defendant as to the substantive counts. I therefore favor a reversal as to those counts and an affirmance as to the conspiracy counts.