Dandrea v. United States

• Decision Date: 13 August 1925
• Docket Number: No. 6678.,6678.
• Citation: 7 F.2d 861
• Parties: DANDREA v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

7 F.2d 861 (1925)

DANDREA v. UNITED STATES.

No. 6678.

Circuit Court of Appeals, Eighth Circuit.

August 13, 1925.

W. A. Pittenger, of Duluth, Minn., for plaintiff in error.

Lafayette French, Jr., U. S. Atty., of St. Paul, Minn.

Before SANBORN, LEWIS, and BOOTH, Circuit Judges.

BOOTH, Circuit Judge.

Plaintiff in error and one Jacobs were tried on a criminal information charging them in the first count with possession of intoxicating liquor at 629 West Superior street, in Duluth, St. Louis County, Minn., on the 1st day of February, 1923, and in the second count with a sale at the same place on the 19th of December, 1922, in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). Dandrea was found guilty on both counts. Jacobs was found guilty on the first count only; the second count being dismissed as to him at the close of the evidence. Dandrea alone has sued out a writ of error.

The evidence to support the charge of sale consisted of the testimony of Herman Miller, a prohibition agent of five weeks' experience. He testified that about 8 o'clock in the evening of December 19, 1922, he met a stranger on the sidewalk in the vicinity of the premises mentioned, and after a short talk went into the building on the ground floor. On one side of the room was a fruit stand and a lunch counter. On the other side were showcases with tobacco and confectionery. Further along was a soft drink bar. Dandrea was behind the showcase containing candy. Another man was behind the soft drink bar. Miller and the stranger went to the middle of the soft drink bar, and the stranger asked the bartender for a drink of "moon." The bartender took from the work bench under the bar an 8-ounce glass containing liquor, and poured a drink into a small glass. Miller drank it. The stranger also had a drink. Miller paid for the two drinks 50 cents. The liquor, in the opinion of Miller, was moonshine whisky. He had had some experience with odor and taste of intoxicating liquors. While this transaction was taking place, Dandrea was distant about 16 feet behind the candy counter. Miller was unable to testify that Dandrea heard what was said, or saw what was done. There was no evidence that Dandrea said anything or did anything which indicated that he was proprietor of the place. Miller, on being confronted with defendant Jacobs, testified that he was not the man who made the sale. This count was, upon this showing, dismissed as to defendant Jacobs. Miller had been in the place once before, and bought gum of Dandrea, but was not in the place after December 19th. There was no evidence whether Dandrea employed the man behind the bar, or was employed by him; no evidence that Dandrea owned or had a lease of the premises. One of the other government witnesses testified that Dandrea on February 1, 1923, the date of the possession count, admitted that he was proprietor of the place and had been for quite a while, but the length of time was not stated. One of the government witnesses also testified that in the preceding July he was on the premises and saw Dandrea serve two men with something to drink; that he detected an odor of moonshine whisky. There was no evidence that Dandrea was proprietor of the place at that time.

At the close of the evidence a motion was made in behalf of Dandrea for a directed verdict on the sale count. It was denied. We think it should have been granted. It is well settled that it is not necessary, in order to convict the proprietor of a place, to prove that he personally made the sale charged. It is sufficient that the sale be shown to have been made with his knowledge and consent, or that the sale be shown to have been made on his behalf and as part of his business, and under such circumstances that he must be held to know that such sales were being made. Commonwealth v. Stevens, 155 Mass. 291, 29 N. E. 508; 16 Corpus Juris, § 106 et seq.; Heitler v. United States (C. C. A.) 280 F. 703; Dukich v. United States (C. C. A.) 296 F. 691; Nobile v. United States (C. C. A.) 284 F. 253.

In so far as offenses against the United States are concerned, section 332 of the Criminal Code (Comp. St. § 10506) comprehensively covers the field. It reads: "Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal." See Heitler v. United States, supra; Dukich v. United States, supra; Nobile v. United States, supra.

The fatal weakness of the case at bar, however, is that there was no substantial evidence to bring it within the rules stated, even if there had been evidence that Dandrea was proprietor of the place at the time of the sale; but such evidence was also lacking.

The possession count as to both defendants rested upon the evidence which was obtained upon a search of the premises February 1, 1923. By timely motions to suppress evidence, to have the court withdraw its permission to file the information, to quash the information, and in arrest of judgment, the evidence thus obtained was challenged on the broad ground that the search warrant was invalid, and the evidence obtained by means of it incompetent.

The foundation for the search warrant was a complaint verified on belief by a prohibition agent, C. E. Benson; the foundation for the complaint was an affidavit by Prohibition Agent Miller. They are as follows:

"Affidavit.

"State of Minnesota, County of St. Louis — ss.:

"Herman Miller, being first duly sworn, deposes and says that on the 19th day of December, A. D. 1922, he was in the confectionery store. located at 629 West Superior street, Duluth, Minnesota, and which said confectionery store is situated in a three-story brick building, and there purchased from one John Doe, whose name is unknown, and who is described as follows: about 5 feet 11 inches tall, weighs about 190 pounds, about 40 years of age, smooth-shaven, and is light complexioned — certain intoxicating liquor, to wit, 2 drinks of white moonshine whisky, paying therefor the sum of 50c. (fifty cents).

"Affiant further states that he is familiar with the taste, odor, color and other physical properties of moonshine whisky, and knows that the liquor sold to him on this occasion was such moonshine whisky. Affiant further states that moonshine whisky then and there was and now is kept on the said premises for sale.

"Further deponent sayeth not.

"Herman Miller.

"Subscribed and sworn to before me this 1st day of February A. D. 1923.

"J. C. Herman Engel "U. S. Commissioner for Dist. of Minn."

"Complaint.

"State of Minnesota, County of St. Louis — ss.:

"Be it remembered that on the 1st day of February, 1923, before me, J. C. Herman Engel, a United States commissioner for the state and district of Minnesota, personally appeared C. E. Benson, who, being duly sworn, says that he is a federal prohibition agent, and that he has good reason to believe, and does believe, that intoxicating liquor is being sold and the National Prohibition Act is being violated by one John Doe, name unknown, located at 629 West Superior street, in the city of Duluth, county of St. Louis, and state of Minnesota, and the violation is occurring at 629 West Superior street, Duluth, Minnesota, and more particularly on the premises described as follows: A confectionery store, so called, and entire first floor and basement outbuildings of three-story brick building located at 629 West Superior street in the city of Duluth, county of St. Louis, and state of Minnesota;

"The belief of this affiant is found upon the following facts: That he has an affidavit hereto attached by one Herman Miller to the effect that on the 19th day of December 1922 he purchased intoxicating liquor in said place;

"Wherefore the above affiant prays for the issuance of a search warrant to search the above-described premises, for the purpose of securing any intoxicating liquor or instruments or materials designed for the manufacture of intoxicating liquor which may be found therein.

"C. E. Benson.

"Subscribed and sworn to before me this 1st day of February, 1923.

"J. C. Herman Engel "U. S. Commissioner for Dist. of Minnesota."

It may be observed that both are dated February 1, 1923. It is to be noted that the complaint has no other basis than the affidavit of Miller; it is expressly so stated in the complaint. This being so, it is next to be noted that there is no foundation whatever for the expressed belief that violation of the National Prohibition Act was occurring in the basement or outbuilding of the premises 629 West Superior street, because the affidavit contains no mention of either. Nor is there any foundation for the prayer of the complaint to search for materials and instruments designed for the manufacture of...