Biandi v. United States
| Decision Date | 05 February 1919 |
| Docket Number | 3208. |
| Citation | 259 F. 93 |
| Parties | BIANDI v. UNITED STATES. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Jere Horne and Phil. M. Canale, both of Memphis, Tenn., for plaintiff in error.
Wm. D Kyser, U.S. Atty., of Memphis, Tenn.
Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.
Biandi was convicted of violating R.S. Sec. 3244 (U.S. Comp. St Sec. 5971), by engaging in business as a retail liquor dealer without paying the tax, and he prosecutes this writ of error. His trial occurred immediately following that of Mrs. Bailey No. 3209, 259 F. 88, . . . C.C.A. . . ., whose case we have considered and disposed of by an opinion filed herewith. The facts in the Biandi Case are materially different in some respects from those in the Bailey Case, but the charge of the court to the jury shows that the case was tried upon and the conviction may rest upon that interpretation of the statute which, in the Bailey Case, we have felt compelled to think was erroneous. Biandi's counsel took no exception to the charge, nor did he present any requests to charge which properly saved the point. Perhaps the fact that similar exception to the charge in the Bailey Case had been unavailing tends to explain its absence here. We do not find it necessary to decide whether we ought to proceed under rule 11 (202 F. viii, 118 C.C.A. viii), in spite of no exception and no assignment of error, because there is an error duly assigned which would, of itself, justify reversal.
The prosecuting witness was allowed to state that he undertook to buy liquor from Biandi because he had been told that Biandi was selling. This was, quite obviously, merely hearsay, and inadmissible as direct evidence against respondent. Such matters may drop out during cross-examination, and the court can, by proper instruction prevent unlawful prejudice; but here the matter was directly developed, and the protest and objection of defendant's counsel were not met by any instruction or caution to the jury. This was especially prejudicial, because the statement was made in the course of an examination by the court.
In such cases as this, no doubt the presence or absence of any previous sale is a relevant fact to be proved one way or the other by witnesses competent to speak; but this may not be done by hearsay. The request for an instructed acquittal was properly refused.
The judgment must be reversed, and the case remanded for a...
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...was only preliminary. It can be seen that it could have had no effect to fasten guilt upon the accused. The case is unlike Biandi v. United States (C. C. A.) 259 F. 93, cited by the defendant, where it was held that to allow a witness to state that he undertook to buy liquor from Biandi bec......
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Smith v. United States, 7305.
...and not in determining the guilt or innocence of the defendant. In Mattson v. United States, 8 Cir., 7 F.2d 427, and in Biandi v. United States, 6 Cir., 259 F. 93, such evidence was held to be hearsay and inadmissible. And we said as much in Bolt v. United States, 55 App. D.C. 120, 2 F.2d 9......
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...and doubtless there is a certain amount of prejudice arising therefrom. Kolp v. United States (C. C. A.) 2 F.(2d) 953; Biandi v. United States, 259 F. 93, 170 C. C. A. 161. The government contends as to this evidence that there was no error, because the reputation of the place where the nui......
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...See LA. CODE EVID. ANN. art. 401 (2006) (evidence must have probative worth to a fact that is of consequence to determining the case). 37. 259 F. 93 (6th Cir. 1919). 38 . Id. at 93. 39 . Mattson v. United States, 7 F.2d 427, 428 (8th Cir. 1925). 40 . Bolt v. United States, 2 F.2d 922, 922–2......