55 F.2d 161 (8th Cir. 1932), 9206-9209, Felio v. United States

Docket Nº:9206-9209.
Citation:55 F.2d 161
Party Name:FELIO v. UNITED STATES, and three other cases.
Case Date:January 14, 1932
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 161

55 F.2d 161 (8th Cir. 1932)

FELIO

v.

UNITED STATES, and three other cases.

Nos. 9206-9209.

United States Court of Appeals, Eighth Circuit.

January 14, 1932

Page 162

J. J. Friedman, of Omaha, Neb. (Harry B. Fleharty, of Omaha, Neb., on the brief), for appellants.

Edson Smith, Asst. U.S. Atty., of Omaha, Neb. (Charles E. Sandall, U.S. Atty., and Ambrose C. Epperson, Asst. U.S. Atty., both of Omaha, Neb., Robert Van Pelt, Asst. U.S. Atty., of Lincoln, Neb., and Lawrence I. Shaw, Asst. U.S. Atty., of Omaha, Neb., on the brief), for the United States.

Before STONE and VAN VALKENBURGH, Circuit Judges, and SANBORN, district judge.

VAN VALKENBURGH, Circuit Judge.

August 30, 1930, appellants in the above-entitled causes were jointly indicted in the District Court for the District of Nebraska for violations of the internal revenue laws (26 U.S.C.A. §§ 291, 306, 307). The indictment contained six counts. The first count was for the unlawful making of mash fit for the production of alcoholic spirits, said mash not having been made on the premises of a duly authorized distillery; the second, for unlawfully fermenting said mash; the third, for separating alcoholic spirits from a fermented mash; the fourth, for carrying on the business of distiller with intent to defraud the United States of the tax upon spirits so distilled; the fifth, for using unlawfully and feloniously a still for the purpose of distilling alcoholic spirits from a fermented mash in a barn within the inclosure connected with a dwelling house; and, the sixth, for conspiracy to commit the offenses set out in the preceding five counts, and further to manufacture and possess in said barn and transport therefrom and sell intoxicating liquor that would contain 1/2 per cent. or more of alcohol by volume, and which would be fit for beverage purposes, without obtaining lawful permit so to do.

On trial, the court directed a verdict of not guilty on count No. 5, and verdicts of guilty were returned as to all defendants upon the remaining five counts. Appellants Felio and Emmie were sentences to jail for a period of six months upon each of counts 1, 2, 3, 4, and 6, said sentences to run concurrently, and to pay 'a fine of $500.00 to cover all counts. ' Appellants Bruno and Badami received jail sentences of seven months, to run concurrently, and a similar fine of $500. The separate appeals filed are heard upon one transcript.

The farm upon which these distilling operations were conducted was occupied by one Goodhart, who testified that appellant Badami brought the defendant Felio out to his farm in the early part of July, 1930. They asked if Goodhart would rent them the barn. He consented. On a second visit by Badami and Felio, Goodhart was paid $25 for the rent of the barn. Badami was seen there by Goodhart once or twice thereafter. The latter saw Felio and Emmie about the barn on various occasions. August 2, 1930, Prohibition Agents Forsling and Davis, driving along the road near the barn smelled a strong odor of fermenting mash. About 9 o'clock in the evening of the same day they returned to the neighborhood and again smelled fermenting mash. They remained until about 12:30 a.m., at which time they saw an automobile leaving the premises. On the evening of August 5...

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