Di Bonaventura v. United States

• Decision Date: 10 November 1926
• Docket Number: No. 2544.,2544.
• Citation: 15 F.2d 494
• Parties: DI BONAVENTURA et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

15 F.2d 494 (1926)

DI BONAVENTURA et al. v. UNITED STATES.

No. 2544.

Circuit Court of Appeals, Fourth Circuit.

November 10, 1926.

R. L. Ramsay, of Wellsburg, W. Va., for plaintiffs in error.

Arthur Arnold, U. S. Atty., of Piedmont, W. Va., and Russell L. Furbee, Asst. U. S. Atty., of Parkersburg, W. Va.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

PARKER, Circuit Judge.

Plaintiffs in error, hereinafter called defendants, were convicted of conspiracy to violate the National Prohibition Act (Comp. St. § 10138¼ et seq.). The evidence showed that the defendant Di Bonaventura was in possession of a three-story building in the City of Follansbee, W. Va., the first and second stories of which were used by him as a barber shop and a residence respectively. Officers of the law, on making a search of the premises, found on the third floor of this building a still, in operation, and a number of barrels containing whisky mash. Beneath the porch at the rear of the building they found another barrel of mash, and in a garage at the rear they found several new barrels, and a quantity of corn sugar. While they were at this garage, the defendant Sanderson came up, and placed therein additional sugar and a barrel. Di Bonaventura testified that the third floor of the building was rented to one Corso, and that he had no knowledge of the still being operated there. Sanderson also denied knowledge of the still, and testified that he was a storekeeper in the neighborhood; that he had rented the garage for storage purposes; and that he had nothing to do with the third story of the building in which the still was found. The assignments of error chiefly relied on relate to the court's refusal to direct a verdict for defendants, and to a portion of the charge to the effect that, if Di Bonaventura knew that the still was being operated in his building and did not stop it, he would be guilty of the crime of conspiracy.

The assignment relating to refusal to direct a verdict is not supported by any proper exception in the record. It appears that, at the conclusion of the government's case, motion was duly made to exclude the evidence, and that an exception was properly entered to the denial of this motion; but it does not appear that the motion was renewed at the conclusion of all of the testimony, nor that the sufficiency of the evidence was challenged in any other way. In such case it is well settled that the exception taken at the conclusion of the government's evidence is waived by the defendant's offering testimony thereafter, and failing to renew the motion at the close of the trial. Latham v. U. S. (C. C. A. 4th) 2 F.(2d) 208; Thlinket Packing Co. v. U. S. (C. C. A. 9th) 236 F. 109, 149 C. C. A. 319; Gould v. U. S. (C. C. A. 8th) 209 F. 730, 126 C. C. A. 454. We will say, however, that we have carefully reviewed the evidence, and we are satisfied that as to both defendants it was sufficient to justify the submission of the case to the jury.

In the course of his general charge, the trial judge instructed the jury as follows:

"Where there is an attempt to accomplish an unlawful purpose, by two or more persons, who are actuated by a common design of accomplishing that unlawful purpose, and who in any way, and from any motive, or upon any consideration, work together in furtherance of the unlawful plan, each one of the persons becomes a member of the conspiracy. In other words, I may be the owner of a building, and one of you gentlemen come to me to get permission to use that building, with the understanding tacitly that it may be used, or that you are going to start a still therein, and if, in pursuance of that understanding, afterwards you place a still and mash therein, and start to operate, that is an overt act, and although I, the owner of the building, may never be in the room, if I have knowledge of the purpose for which you are going to use that room, or if it is operated under such circumstances that I could not help but know what is going on, I am guilty of conspiracy with you to operate the still."

In entering an exception to this portion of the charge, the following colloquy occurred between the trial judge and counsel for defendant, in which what we conceive to be the error in the charge was accentuated by the court:

"Mr. Ramsay: Your honor's instructions I think covered every possible thing that could be stated. But I am under the apprehension as to whether or not your honor meant to state to the jury that a crime committed in a building, where the owner has rented it to somebody else, not knowing what use was to be made of the building, makes the owner guilty. I am a little bit in doubt in my mind...