Fisher v. United States

• Decision Date: 03 May 1929
• Docket Number: No. 2842.,2842.
• Citation: 32 F.2d 602
• Parties: FISHER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

32 F.2d 602 (1929)

FISHER v. UNITED STATES.

No. 2842.

Circuit Court of Appeals, Fourth Circuit.

May 3, 1929.

Before PARKER and NORTHCOTT, Circuit Judges, and ERNEST F. COCHRAN,, District Judge.

Lively & Stambaugh, of Charleston, W. Va., for appellant.

Edmund Marshall, Asst. U. S. Atty., of Huntington, W. Va. (James Damron, U. S. Atty., of Huntington, W. Va., on the brief), for the United States.

ERNEST F. COCHRAN, District Judge.

The appellant, who was the defendant below, and will hereafter be referred to as the defendant, was convicted upon an information containing three counts; the first count charging unlawful possession of intoxicating liquor (charged as a second offense), the second count charging the sale of intoxicating liquor, and the third count charging the maintenance of a common nuisance, a place where intoxicating liquor was kept, bartered, and sold, in violation of the National Prohibition Act. He was convicted on all counts, and sentenced to pay a fine of $100 and to be imprisoned for 12 months.

We shall not state all of the evidence offered at the trial, but only so much as may be necessary for a proper understanding of the errors assigned. On the part of the government, one A. C. Allmen, a prohibition agent, testified that he purchased one quart of whisky from the defendant, and that the transaction took place in a rear room of the defendant's house, in the presence of Robert Saulton and Charles Buckland. Saulton testified that he and Allmen purchased a quart of whisky from the defendant, and that he was under the impression that Allmen paid for the whisky. The government introduced the record of the defendant's previous conviction of the offense of unlawful possession of intoxicating liquor.

The defendant in his testimony admitted that he had been formerly engaged in the illegal sale of liquor, but claimed that he had quit the business, and that he had merely made a gift of the whisky, upon the representation by Saulton that they had been on a drunk and were sick and had run out of whisky. He testified also that Allmen stayed in the front room with Blanche Buckland, his brother-in-law's wife, and the defendant's wife, Lula Fisher, and that he and Saulton and Buckland went into the bathroom, and there he delivered the whisky to Saulton. Charles Buckland, a witness for the defendant, corroborated this testimony of the defendant. Blanche Buckland testified that she was present when Allmen and Saulton came to the defendant's house, and that Allmen remained in the front room, and that the defendant, Buckland, and Saulton went into the bathroom in the rear of the house; that she did not know what transpired in the bathroom, but that she saw no whisky, and that at no time did Allmen, the prohibition agent, leave the front room, but remained in the front room, talking to herself and to Lula Fisher, the defendant's wife; and that Allmen did not on that occasion give the defendant any money. There was no evidence of more than one sale.

Referring to the third count, charging a nuisance, the court instructed the jury that, if they believed that the liquor was sold in the defendant's house, they would be justified in finding him guilty under that count. The defendant excepted to this portion of the charge on the ground that there was but a single sale, and that one sale would not constitute a nuisance. The defendant also requested the court to charge the jury that the defendant's wife could not be a witness for or against him, which was refused, and the defendant excepted.

A common nuisance, as defined in section 21 of title 2 of the Volstead Act (U. S. Code, title 27, § 33 27 USCA § 33), implies continuity. A single isolated sale, with no other circumstances warranting the inference that the place where the sale is made is maintained for any of the unlawful purposes denounced by the statute, is ordinarily insufficient to sustain a conviction for maintaining a nuisance. But a single sale may be made under such circumstances as to warrant the inference that the defendant is engaged in a practice of which the sale is but an instance, and justify a conviction. Barker v. U. S. (C. C. A. 4th) 289 F. 249; Muncy v. U. S. (C. C. A. 4th) 289 F. 780; Reynolds v. U. S. (C. C. A. 6th) 282 F. 256, 258; Schechter v. U. S. (C. C. A. 2d) 7 F.(2d) 881, 882; Miller v. U. S. (C. C. A. 6th)...