Anderson v. United States

• Decision Date: 14 March 1927
• Docket Number: 7429.,No. 7428,7428
• Citation: 18 F.2d 404
• Parties: ANDERSON v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

18 F.2d 404 (1927)

ANDERSON v. UNITED STATES (two cases).

Nos. 7428, 7429.

Circuit Court of Appeals, Eighth Circuit.

March 14, 1927.

Donald G. Hughes, of Minneapolis, Minn., for plaintiff in error.

Lafayette French, Jr., U. S. Atty., and James A. Wharton, Asst. U. S. Atty., both of St. Paul, Minn.

Before STONE and VAN VALKENBURGH, Circuit Judges, and SYMES, District Judge.

SYMES, District Judge.

These two cases charge the same defendant with illegal sales of liquor, and were consolidated for trial. The first charges sales of alcohol without a prescription to one Herman Miller, on September 20 and 21, 1924, respectively, at defendant's drug store in the city of Duluth, Minn. The second information alleges a sale of half a pint of alcohol without a prescription to the said Miller on the 27th day of September, 1924, at the same place. Defendant was convicted on all three counts.

Briefly, the evidence is that on September 20th, Miller, a prohibition agent, went into the defendant's drug store and purchased from defendant a half pint of alcohol; that he tested it by taste and smell, and found it to be intoxicating, containing more than one-half of 1 per cent. of alcohol by volume. The next day he again visited the drug store, accompanied by Agent Harney, and defendant made another sale of alcohol to Miller in Harney's presence. They both tasted and smelled it, and testified it was alcohol, intoxicating, and fit for beverage purposes. This last purchase was introduced as Exhibit A.

On September 27th Miller and another agent, named Tetzel, entered the drug store about noon, and defendant made another sale to Miller in Tetzel's presence. They testified that the defendant secured the bottle from a drawer near the cash register; that it was alcohol fit for beverage purposes and intoxicating. Within half an hour after the latter purchase the premises were searched under authority of a federal search warrant, and nine gallons of alcohol were found in two containers in the prescription room. A half pint bottle of diluted alcohol was also found there and introduced as Exhibit C. Two pints were found in a drawer of the counter under the cash register, and were introduced as Exhibit B.

A government chemist testified that Exhibit A contained 69 per cent. of alcohol by volume, Exhibit B 54 per cent., and that both were grain alcohol diluted, and potable as a beverage. The defendant admitted that he was proprietor of the drug store in question, but denied having seen the...