Cabiale v. United States

• Decision Date: 05 December 1921
• Docket Number: 3679.
• Citation: 276 F. 769
• Parties: CABIALE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

276 F. 769

CABIALE et al. v. UNITED STATES.

No. 3679.

United States Court of Appeals, Ninth Circuit.

December 5, 1921

Chauncey F. Tramutolo, of San Francisco, Cal., for plaintiffs in error.

John T Williams, U.S. Atty., of San Mateo, Cal., and Thomas J Sheridan, Asst. U.S. Atty., of San Francisco, Cal.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

ROSS Circuit Judge.

In nine counts the plaintiffs in error and seven other persons, their employees, were charged by information with certain violations of the National Prohibition Act (Act Oct. 28 1919, c. 85, 41 Stat. 305). The ninth count was subsequently withdrawn.

Upon the trial there was a verdict of not guilty as to all of the defendants, except the two plaintiffs in error. Each of them was found guilty by the jury under count 3 of the information, and each of them was found guilty under certain other of the counts, and not guilty as to certain of them. Count 3 was the only count that under the law admitted of a judgment of imprisonment against the plaintiffs in error, and the judgment here brought for review imposed imprisonment upon them on the verdict of guilty under that count.

The third count is therefore the only one for our consideration, as is practically conceded by the attorneys of the respective parties. It alleges that the plaintiffs in error and their named employees, above referred to, at a certain time and place within the city and county of San Francisco, unlawfully, willfully, and knowingly, in violation of the National Prohibition Act, did--

'sell certain intoxicating liquor, to wit, claret wine, containing one-half of 1 per cent. or more of alcohol by volume, and then and there fit for use for beverage purposes; that the sale of the said intoxicating liquor by the said defendants at the time and place aforesaid was then and there prohibited and unlawful, and in violation of section 3 of title II of the Act of Congress of October 28, 1919, to wit, the National Prohibition Act.'

The contentions on the part of the plaintiffs in error are that count 3 of the information does not state facts sufficient to constitute a crime against the government; that as to both of the plaintiffs in error the evidence is insufficient to justify the verdict upon which the judgment is based; that the trial court erred in admitting certain evidence, and in denying the offer of the defendants to introduce certain evidence, and further erred in a portion of its charge to the jury.

The first objection mentioned is based upon the view that the third count does not allege that the wine was sold for beverage purposes. That, we think, is a mistaken view. If a comma had been put after the word 'use,' immediately preceding the words 'for beverage purposes,' there would be no ground whatever for the contention; or if, after the word 'volume,' the word 'and' had not been used, but in lieu thereof the words 'which wine was' had been inserted, making the latter part of the clause read 'which wine was then and there fit for use for beverage purposes,' the point made would in that respect be clearly well taken. But as the language of the count actually reads, we think its clear meaning is that the wine alleged to have been sold by the plaintiffs in error was so sold for beverage purposes, and was fit for such use. Furthermore, the count alleges that the sale of the intoxicating liquor so sold 'was then and there prohibited and unlawful, and in violation of section 3' of the Prohibition Act. That averment, as said by the attorney for the government, necessarily excludes the idea that the wine was sold for a legitimate purpose.

In the case of Fyke v. United States, 254 F. 225, 165 C.C.A. 513, which arose under the Harrison Narcotic Act (Comp. St. Secs. 6287g-6287q), the Circuit Court of Appeals for the Fifth Circuit held that an indictment charging that the defendant sold narcotic drugs in violation of that act was sufficient, and that it was not necessary to therein negative any of the statutory exemptions or exceptions specified in the act-- the court saying:

'The third proposition presented by the demurrer is that the indictment does not sufficiently aver that the defendant did not come within one or more of the statutory exceptions or exemptions. Section 8 of the act (Comp. St.

1916, Sec. 6287n) contains this language at the end of it: Provided further, that it shall not be necessary to negative any of the aforesaid exemptions in any complaint, information, indictment, or other writ or proceeding laid or brought under this act; and the burden of proof of any such exemption shall be upon the defendant.'

'There are exceptions and exemptions in section 8, to which the language of the proviso might be referred. The Court of Appeals for the Seventh Circuit has, however, construed it to apply to all exceptions and exemptions, theretofore mentioned in the act, including those in section 2. We cannot agree with the contention that Amend. art. 6, of the federal Constitution, would prevent Congress from so enacting. An indictment, though it failed to exclude defendant from the excepted classes, would sufficiently inform him...