Bergedorff v. United States
| Decision Date | 31 December 1929 |
| Docket Number | No. 26.,26. |
| Citation | 37 F.2d 248 |
| Parties | BERGEDORFF v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
George H. Lerg, of Denver, Colo. (George A. Chase, of Denver, Colo., on the brief), for appellant.
Charles E. Works, Asst. U. S. Atty., of Denver, Colo. (Ralph L. Carr, U. S. Atty., of Denver, Colo., on the brief), for the United States.
Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.
The appellant was convicted on the first count of an indictment which charged him with the unlawful possession of intoxicating liquor on March 31, 1928, at a place near his residence and on premises occupied by him; also on the second count, identical in terms with the first count except as to quantity, the first count charging that the liquor so possessed by appellant was about 190 gallons of whiskey and the second that it was about 20 gallons of whiskey. The third count, on which appellant was acquitted by the jury, charged appellant with manufacturing intoxicating liquors on April 14, 1928, at or near the premises in Adams County, Colorado, occupied by appellant as his residence.
As to the third count, on which appellant was acquitted, it appears that prohibition agents and police officers found a dismantled still near appellant's residence, and uncontradicted testimony discloses that it was put there in its dismantled state at the direction of appellant's brother, Roy, who, it seems, was manufacturing whiskey on leased premises about fifteen miles away. When the lessor learned that whiskey was being manufactured on the leased premises he notified the lessee and Roy Bergedorff that the manufacturing plant and everything connected therewith must be immediately moved off, and then it was that Roy dismantled the still and had it hauled to appellant's premises, where it remained in its dismantled state. So that the trial judge advised the jury that he was in great doubt whether there was any evidence to support the third count, and the jury acquitted appellant on that count. At the close of all of the testimony the court, over the exception of appellant, refused to direct verdicts of not guilty on the first and second counts, as well as the third. The court's refusal to so instruct is assigned as error.
It appears that appellant's residence during the time in question was on a 40-acre tract and in its northwest corner; that about March 31, 1928, prohibition agents and State police officers went to appellant's place and made a search. The greater part of the 40 acres was in alfalfa. They found automobile tracks leading eastward from the vicinity of the house to the east line fence of the 40 acres, and over the fence, 56 feet beyond it, in a creek bottom, they dug up 28 kegs of moonshine whiskey, which they removed. This testimony was offered in support of the first count. One of the police officers also found, on the same visit, four kegs of moonshine also buried in the sand at another point. This appears to have been on the 40 acres. The officers testified that they were attracted to this last place by indications on the ground that something had been...
To continue reading
Request your trial
-
State v. Labato
...construction in statutes defining criminal and penal offenses. It signifies an intentional control and dominion. Bergedorff v. United States, 10 Cir., 37 F.2d 248 (1929). Animus possidendi is of the essence of possession. Such was its primary meaning under Roman law. 'Possession is the occu......
-
State v. Brown
...construction in statutes defining criminal and penal offenses. It signifies an intentional control and dominion. Bergedorff v. United States, 10 Cir., 37 F.2d 248 (1929). Animus possidendi is of the essence of possession. Such was its primary meaning under Roman law. 'Possession is the occu......
-
Griego v. United States, 6826.
...Cf. United States v. Malfi, 3 Cir., 264 F.2d 147, 150, certiorari denied 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63; and Bergedorff v. United States, 10 Cir., 37 F.2d 248, 249. 9 Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 603, 72 L.Ed. 632; Yee Hem v. United States, 268 U.S. 178, 184,......
-
Handford v. United States, 16810.
...must be proved by some showing of dominion and control". McClain v. U. S., 5 Cir., 1955, 224 F.2d 522, 525. See also Bergedorff v. U. S., 10 Cir., 1929, 37 F.2d 248; Brady v. U. S., 8 Cir., 1930, 39 F.2d 312; Toney v. U. S., 1933, 62 App.D.C. 307, 67 F.2d 573; United States v. Mazzafalana, ......
-
A Diamond Anniversary: Tenth Circuit Formed and Robert E. Lewis Becomes First Chief Judge
...The court faced cases involving moonshiners and revenue agents [Bogileno v. U.S., 38 F.2d 584 (10th Cir. 1930); Bergedorff v. U.S., 37 F.2d 248 (10th 1929)]; automobile/railroad accidents [Chicago R.I. & P. R. Co. v. Fanning, 42 F.2d 799 (10th Cir. 1930)]; and claims by World War I veterans......