Daeuffer-Lieberman Brewing Co. v. United States

• Decision Date: 18 November 1929
• Docket Number: No. 4263.,4263.
• Citation: 36 F.2d 568
• Parties: DAEUFFER-LIEBERMAN BREWING CO., Inc., v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

36 F.2d 568 (1929)

DAEUFFER-LIEBERMAN BREWING CO., Inc., v. UNITED STATES.

No. 4263.

Circuit Court of Appeals, Third Circuit.

November 18, 1929.

P. J. Friel and John W. Crolly, both of Philadelphia, Pa., for appellant.

Calvin S. Boyer, Acting U. S. Atty., and Howard Benton Lewis, both of Philadelphia, Pa., for the United States.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

The government filed a bill in equity under section 22, title 2 of the National Prohibition Act (27 USCA § 34) averring that the respondent was maintaining a common nuisance, as defined by section 21 of the same title of the act (27 USCA § 33), and concluding with the usual prayers. The District Court, finding that the premises, which consisted of a brewery and outbuildings situated in the City of Allentown, State of Pennsylvania, were used, and likely would continue to be used, as a place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of the law, entered the decree here appealed from, ordering that the nuisance be abated, that the respondent, its agents and employees be restrained from further maintaining a nuisance and that certain of its buildings be closed for one year. Availing ourselves of the court's statement, it appears from the testimony of the government's witnesses that on the night of March 21-22, 1929, two prohibition agents, lying concealed in a field, had the brewery under observation. At various times, beginning at about 2 o'clock in the morning, a number of automobiles arrived at the brewery. Men were seen to go from the brewery and speak to men in the automobiles, and men in the automobiles were seen to leave them and enter the brewery. At about 3:30, two men came from the direction of the brewery, and after searching with flash-lights the field in which the agents, were hiding returned without having come upon them. At 4 o'clock a large truck arrived and backed against the loading platform. At 4:15 the agents went to the door of the brewery and one of them pounded upon it and announced himself as a federal officer. As he did so, they were suddenly attacked by three men, two of whom had been standing in the doorway of a hotel near by, and one of whom stepped from the running-board of an automobile parked in front of the premises. There is no evidence that the men who assaulted the agents were in any way connected with the brewery. Reference to the attack is not made with that in mind, but to show that nearly an hour elapsed between the time the agents announced their presence and the time they finally got into the brewery. After the arrival of police and, later, of two or three other agents, the agents seeking admittance were finally admitted at about 5:10 o'clock. In the brewery they found these conditions: The door of the racking room could not be opened, and it had to be broken down. In the racking room were many kegs, some of them stacked in regular order and about 200 lying scattered in every direction. The kegs were wet, the floor was covered with beer foam, and there was foam in the kegs. The truck which the agents had seen enter the yard was backed against a loading platform adjacent to the wash room door, and a skid, placed from it to the platform, was wet, apparently as a result of recent use. Another door of the racking room was barred. The racking machine showed evidence of having been recently washed out with water. The beer kegs which were standing on end were empty, but there was beer remaining in some of those which were lying on their sides. In one there were five or six gallons and in two others smaller quantities. Samples were taken and the beer proved to be of unlawful alcoholic content.

The learned trial judge said:

"I accept this testimony of the agents as true, and find the facts to be as above stated. I reject the testimony of various brewery employees, offered in explanation or contradiction, as untrue. The evidence clearly establishes to my mind that the entry of the agents came at a time when a run and shipment of illegal beer was being made, that the delay which intervened between the time the agents first knocked and the time when they finally entered the racking room, caused by the assault upon them and by the difficulty in getting into the racking room, enabled the employees of the brewery to partially but not entirely dispose of the evidence of the violation, and that during that time most of those upon the premises escaped without being seen. In this connection there was also evidence that two nights before at four o'clock in the morning the agents entered the brewery, after seeing the men search the field with search lights in the same manner as on the night in question and found a staff of twelve to fourteen employees upon the premises. The possession of high-powered beer in containers in the racking room was a violation of the regulations and of the conditions of the permit. The barred and...