United States v. D'Antonio , 324 F.2d 667 ( 1963 )

PER CURIAM.

Appellant was convicted of being a party to a conspiracy to violate the internal revenue laws in regard to alcohol, 18 U.S.C. § 371; of carrying on the business of a distiller without having given bond, 26 U.S.C. § 5601; of possession of an unregistered still, 26 U.S.C. § 5606 and of making and fermenting mash fit for distillation, 26 U.S.C. § 5608.

It is contended primarily on his behalf that a blackboard diagram of the farm area that contained, inter alia, the still, which was drawn and used by an Alcohol and Tobacco Tax Unit agent for the purpose of illustrating his testimony, should not have been admitted into evidence. The objection is that the diagram was not drawn to scale and therefore tended to mislead the jury. There was no assertion at any time that the sketch was drawn to scale. Admittedly it was not. However, the various distances marked thereon were those measurements made by the witness while he was present at the locality represented in the diagram. Clearly the latter comes within “The general rule * * * that an illustrative diagram intended to portray existing facts may be employed if it is a correct portrayal of existing facts.” Grayson v. Williams, 256 F.2d 61, 63 (10 Cir., 1958); cf. Thomas v. Conemaugh Black Lick Railroad, D.C., 133 F.Supp. 533, 541, aff’d on other grounds, 234 F.2d 429 (3 Cir., 1956).

The remaining objection is that there was not sufficient proof offered on behalf of the Government to warrant the case being presented to the jury for decision. From our own independent examination of the evidence we are satisfied that the case was properly submitted to the jury on all four counts.

The judgment of the district court will be affirmed.