Didenti v. United States, 6175.

• Decision Date: 13 October 1930
• Docket Number: No. 6175.,6175.
• Citation: 44 F.2d 537
• Parties: DIDENTI v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

44 F.2d 537 (1930)

DIDENTI v. UNITED STATES.

No. 6175.

Circuit Court of Appeals, Ninth Circuit.

October 13, 1930.

T. D. Page, of Seattle, Wash., for appellant.

Anthony Savage, U. S. Atty., of Seattle, Wash., and Joseph A. Mallery, Asst. U. S. Atty., of Tacoma, Wash.

Before DIETRICH and WILBUR, Circuit Judges, and WEBSTER, District Judge.

WEBSTER, District Judge.

Appellant Didenti, John Huggler, and Jack Esara were charged by indictment with conspiring together, and "with sundry and divers other persons to the grand jurors unknown," to violate the National Prohibition Act, by manufacturing, possessing, transporting, and selling intoxicating liquor. Six separate overt acts are alleged, in the commission of all of which it is charged the appellant participated. Upon trial the jury acquitted Huggler and Esara, but convicted Didenti, who brings the case here for review, assigning as error the refusal of the trial court to grant his motions for a directed verdict of acquittal and in arrest of judgment. While counsel for appellant in his brief asserts that his challenge to the evidence at the close of the government's case in chief was renewed at the conclusion of all of the testimony, the defendants having offered evidence in their own behalf, the record discloses that in this he is in error, and that no such renewal of the motion was made. At the time of oral argument his attention was called to the state of the record, and he frankly acknowledged his mistake. The motion for a directed verdict made at the close of the government's case in chief, not having been renewed at the conclusion of all the testimony, by repeated decisions of this court, was waived, and its denial cannot now be assigned as error. The remaining assignment raises the question whether the court below erred in denying appellant's motion in arrest of judgment, on the ground that appellant's codefendants Huggler and Esara having been acquitted by the jury, he was automatically acquitted, since at least two parties are essential to the crime of conspiracy.

An examination of the record discloses that there was substantial evidence before the jury in support of the following facts: On the 2d day of August, 1929, at about 10 o'clock p. m., three federal prohibition officers went to the home of Huggler, in the city of Tacoma, to execute a search warrant. Upon entering the premises the odor of fermenting mash was detected, and upon examination a still was found in a chicken house, but was not in operation at the time. Very soon Huggler and Esara entered the still house and, after remaining inside for about ten minutes started to come out the door, when they were placed under arrest. About 11:15 o'clock p. m. a Chrysler sedan drove into the premises, passing the residence, but stopping at the chicken house in which the still was located. On stopping the car its lights were turned out. Immediately Didenti was arrested, as the driver of the automobile, in which were found 400 pounds of cellulose sugar, 400 pounds of Argo corn sugar, 50 pounds of yeast, and 3 ten-gallon kegs. On the same day, at about 8 o'clock in the evening, a prohibition officer saw appellant and talked with him. At that time appellant had in an automobile the articles found in his possession at the still, but eluded the officer, who attempted to follow him. Later the officer saw appellant driving a different car from the one he had been driving earlier in the evening. Esara testified that about July 29, 1929, a few days before his arrest, one Guarrazi made a proposal to him to work for Guarrazi in operating a still, Guarrazi offering to pay him $150 per month, and, in case of arrest, $50 per month while he was in jail. On August 2 appellant came to Esara's house and took him in a car to a point near the place where the still was found, and...