Faraone v. United States
| Decision Date | 30 June 1919 |
| Docket Number | 3271. |
| Citation | 259 F. 507 |
| Parties | FARAONE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Clarence Friedman, of Memphis, Tenn., for plaintiff in error.
Wm. D Kyser, U.S. Atty., of Memphis, Tenn.
Before KNAPPEN and DENISON, Circuit Judges, and HOLLIS TER, District judge.
The plaintiff in error, Nick Faraone, herein called defendant was tried on an indictment charging that in 1917, at Memphis Tenn., he 'did carry on the business of a retail liquor dealer without having paid the special tax therefor, as required by law,' and was convicted and sentenced to imprisonment, and to pay a fine.
At the trial there was evidence tending to show that in September 1917, J. W. harris, of Savage, Miss., riding in his automobile to Memphis, purchased at defendant's grocery at Memphis, from defendant himself a half pint of whisky, for which he paid $2; that again, in October or November, 1917, he stopped at defendant's store and bought a half pint of whisky from defendant's clerk; and that on each occasion the whisky was taken from the same place behind the counter in the store.
A deputy United States marshal testified that in December he found in the lot in the rear of defendant's grocery, and about 50 feet therefrom, sunk in a hole in the ground, a barrel in which were two sacks containing about 40 half pint bottles of whisky, and in a room adjoining the grocery about 500 empty half pint bottles. A detective of the city of Memphis, who was with the deputy marshal, corroborated him, and said also that in the cellar of the house, and in the lot, there were several barrels sunk in the ground similar to the barrel in which the whisky was found.
No reference need be made to defendant's testimony, except to say that he denied having sold any whisky to Harris or to any one, and said that he had not authorized his clerk to sell whisky.
From all the testimony in the case, the jury was amply justified in finding that the defendant carried on the business of retail liquor dealer at the time and place charged.
The government made no offer to prove the averment in the indictment that the special tax required by law was not paid, and the defendant made no reference to the subject in his testimony. It was evidently assumed by court and counsel that proof of such a negative averment is not required. The assumption was justified by the authorities and on reason. If payment had been made, the fact was peculiarly within defendant's knowledge, and he could have shown it without inconvenience. He could thereby have prevented any proceedings against him, or could have brought them to an end at any time. The subject is discussed at length in 2 Chamberlayne's Evidence, Sec. 983, with references to many cases. See, also, 1 Greenleaf on Evidence, Sec. 79 (16th Edition), and cases directly in point; Williams v. People, 121 Ill. 84, 11 N.E. 881; People v. Boo Doo Hong, 122 Cal. 602, 55 P. 402; State v. Foster, 23 N.H. 348, 55 Am.Dec. 191; State v. Shaw, 35 N.H. 217; Wheat v. State, 6 Mo. 455.
It is claimed, however, that error intervened because the court would not permit each of three certain witnesses, concerning whom the record tells us nothing excepting their names and that they had testified to defendant's 'good character,' to answer the question 'Whether he had ever heard of any whisky being sold at defendant's place of business. ' Who these three proffered witnesses were, and what opportunities they had of knowing defendant's reputation or the reputation of his place of business, are not disclosed by this record.
It is elementary that reputation can only be proved by those who have the means of knowing it. These must show, either on direct or cross examination, their sources of knowledge before they can, in any event, become qualified to testify.
Assuming that these witnesses, having been permitted to testify as to defendant's general 'good character' (of course they could only testify as to reputation) in the community in which he lived, had shown sufficient qualifications for that purpose, and assuming, further, for the purposes of this opinion, that...
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Crapo v. United States
...353, 22 L.Ed. 584. 4 For analogous cases applying the rule see Goodfriend v. United States, 9 Cir., 294 F. 148, 150, Faraone v. United States, 6 Cir., 259 F. 507, 509, Giacolone v. United States, 9 Cir., 13 F.2d 108, 110, and McCurry v. United States, 9 Cir., 281 F. 532, in each of which th......
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Williams v. United States, 8451.
...19 F.2d 813; Giacolone v. United States, 9 Cir., 1926, 13 F.2d 108; McCurry v. United States, 9 Cir., 1922, 281 F. 532; Faraone v. United States, 6 Cir., 1919, 259 F. 507; Smith v. United States, 8 Cir., 1907, 157 F. 721, certiorari denied 208 U.S. 618, 28 S.Ct. 569, 52 L.Ed. 7 1934, 291 U.......
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