Farrell v. United States

• Decision Date: 10 August 1927
• Docket Number: No. 2570.,2570.
• Citation: 21 F.2d 318
• Parties: FARRELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

21 F.2d 318 (1927)

FARRELL v. UNITED STATES.

No. 2570.

Circuit Court of Appeals, Third Circuit.

August 10, 1927.

William B. MacKay, Jr., of Hackensack, N. J., for appellant.

Walter G. Winne, U. S. Atty., of Hackensack, N. J., and Harlan Besson, Asst. U. S. Atty., of Hoboken, N. J.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

This is an appeal from a decree of the District Court declaring the premises located at Nos. 95 and 97 Hudson street, Hoboken, N. J., to be a common nuisance and "padlocking" them for one year.

The bill of complaint was filed against Michael Tighe, Richard Farrell, John Farrell and Rose Cella. It was alleged that Rose Cella was the owner of the premises and Tighe and the Farrells were owners and proprietors of the business conducted there. It was further alleged that intoxicating liquor was manufactured, sold, kept, and bartered on the premises in violation of the National Prohibition Act, and therefore the premises were a public and common nuisance as defined by that act. Rose Cella admitted that she was owner of the premises and that Richard Farrell was her tenant. It appears that John Farrell and Michael Tighe were her tenants on February 27, 1925, and August 6, 1925, when searches of the premises were made. They remained tenants until February 1, 1926, when the appellant became the tenant. Tighe and the Farrels denied all the allegations made and set forth in the bill of complaint, and left the complainant to such proof as could be produced at the trial. The appellant says that the decree should be reversed because no evidence was produced to sustain the allegations on which it was based.

The government averred that intoxicating liquor was "manufactured, sold, kept, and bartered" on the premises, but it did not prove by competent testimony that such liquor was manufactured, sold, or bartered and the defendant therefore says that no proof was produced to sustain the allegations of the bill. It is accordingly necessary to determine what the testimony was which tended to establish these allegations or any of them and whether or not it was sufficient to sustain the decree.

The evidence shows that the premises were equipped as a barroom, with a kitchen in the rear. Among the furniture in the room were a bar, lunch counter, and tables. Michael F. Barry testified that he visited the premises in executing a search warrant on February 27, 1925, and "found ten quarts of whisky, a pint of wine, a gallon of wine, and a quart of gin" behind the bar under a lunch counter. The witness was not asked a single question by the defense about this whisky, wine, or gin and no other witness contradicted his testimony. The possession of the liquors on the premises may be taken as an established...