Cohen v. United States, 2625.
| Citation | 56 F.2d 28 |
| Decision Date | 25 February 1932 |
| Docket Number | No. 2625.,2625. |
| Parties | COHEN v. UNITED STATES. |
| Court | U.S. Court of Appeals — First Circuit |
Essex S. Abbott, of Boston, Mass. (Joseph V. Carroll, of Boston, Mass., on the brief), for appellant.
Elihu D. Stone, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for the United States.
Before BINGHAM and WILSON, Circuit Judges, and MORTON, District Judge.
Cohen, the appellant, was indicted in two counts. In the first count it was charged that on the 14th day of August, 1929, in Cambridge in said district, he unlawfully and knowingly transported intoxicating liquor in violation of the National Prohibition Act (27 USCA). In the second, that on the same day and at the same place he unlawfully had possession of liquor in violation of the National Prohibition Act. May 15, 1930, he was arraigned and pleaded not guilty; May 7, 1931, he was set to trial before a jury, was found guilty on both counts, and sentenced for a term of eighteen months in the house of correction at Worcester.
At the close of all the evidence, the defendant asked for a directed verdict.
De Angelo, the chief witness for the prosecution, testified that he was and had been for four and one-half years a prohibition agent; that he had known the defendant for about three years and for about a year and a half before August 14, 1929; "that, on that day, at about 6 A. M., he saw a Hudson Sedan, Registration No. 480,419, drive up and stop on McGee Street in Cambridge; that he drove up and stopped within fifteen feet of this automobile; that he (the witness) stooped down and asked him the way to Central Square and the defendant pointed in that direction; that he saw the defendant run; that he examined the car and found a five-gallon can in the car"; and, subject to exception, he testified that it was moonshine whisky and that he drank some of it; that he seized the car, registered in the name of Edward Frank, Malden, Mass.; that the next time he saw the defendant was in the United States commissioner's office probably six months afterwards; that he recognized the defendant; that the defendant said to him: "I hope you will forget the identity in the transportation case — that he would like to have him forget his identity." On cross-examination he testified that he swore out a complaint against Cohen October 3, 1929, and that the arrest was made on March 25, 1930.
One Smeaton, a prohibition agent, testified that on August 14, 1929, about 6 a. m. he was in the vicinity of McGee street and observed a car in that locality; that he saw Agent McClinchy chasing a man; that the agent fell down; that he only saw the man back to; and, subject to exception, testified that he looked about the same in the back view as the defendant; but, on being asked on cross-examination if he would identify the defendant as the man being chased, he answered, "No."
Marawski, a government chemist, testified that he examined a sample and made a report; that the sample was destroyed; that he made an analysis prior to the destruction of the sample. The admission of his report of the analysis, being objected to, was excluded. The government then rested.
The defendant, Cohen, in his own behalf, testified on direct examination that he was not in Cambridge August 14, 1929; that he did not own or possess the liquor seized; that he did know a person named Frank, in whose name the car was said to have been registered; that he did not know De Angelo; that he did not know of any complaint against him until a warrant was served about six months after the complaint was made, when he was in the commissioner's office; that, at the time, he did not have any talk with De Angelo and did not say to him that he would like to have him forget his identity, or anything like it in any form of words. On cross-examination the government inquired of the defendant as to his occupation and, subject to objection and exception, he testified that he was a plumber; that the last day he worked as a plumber was the day before, fixing a sink, doing the work for one Weiner, a plumber, at his father's house on Cross street, Malden. At this point the trial was suspended so that the district attorney, the prohibition agents, etc., could go to the place where the work was said to have been done. On renewal of his cross-examination the defendant testified that he, his attorney, the district attorney, and Agents De Angelo and Whiting went to 586 Cross street, Malden; that after getting the wrong key they finally got the right one and went to the top floor of that building; that Agent Whiting examined the trap under the sink; that he had no license as a plumber; that he took an examination four years ago and failed. Being asked if in doing this work he was not violating the law, he answered, "I do not think so," whereupon the district attorney stated the court would take judicial notice of the law and that he would introduce evidence by a public official of the plumbing department at the...
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