Gallaghan v. United States

• Decision Date: 28 April 1924
• Docket Number: 6392.,6391
• Citation: 299 F. 172
• Parties: GALLAGHAN v. UNITED STATES. COLWELL v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

299 F. 172

GALLAGHAN v. UNITED STATES.

COLWELL v. SAME.

Nos. 6391, 6392.

United States Court of Appeals, Eighth Circuit.

April 28, 1924

E. D O'Sullivan, of Omaha, Neb. (W. N. Jamieson and C. J Southard, both of Omaha, Neb., on the brief), for plaintiffs in error.

George A. Keyser, Asst. U.S. Atty., of Omaha, Neb. (J. C. Kinsler U.S. Atty., of Omaha, Neb., on the brief), for the United States.

Before LEWIS, Circuit Judge, and BOOTH and SYMES, District Judges.

LEWIS Circuit Judge.

In July, 1922, three criminal informations were filed in the office of the clerk of the District Court at Omaha, all charging violations of the National Prohibition Act (41 Stat 305 (Comp. St. Ann. Supp. 1923, Sec. 10138 1/4 et seq.)). The first was put on the docket as No. 2227. It contains three counts, the first count charges that George W. Colwell, S. L. Colwell, and J. H. Jackson did on June 19, 1922, unlawfully sell certain intoxicating liquor, to wit, 1 quart bottle of beer and 1/2 pint of whiskey; the second count charges that George W. Colwell, S. L. Colwell, and J. H. Jackson did on June 20, 1922, unlawfully sell intoxicating liquor, to wit, 1/2 pint of whiskey; and the third count charges that George C. Colwell, S. L. Colwell, and J. H. Jackson did on June 21, 1922, have in their possession certain intoxicating liquor, to wit, 130 pints of home brew beer, 12 quarts of home brew beer, 1 gallon bottle of whiskey and 1 gallon bottle of whiskey, half full. This information is supported by the affidavits of H. J. Hansen and B. F. Lynch. Hansen averred that on June 19, 1922, accompanied by W. R. Sweet he went into the soft drink parlor of G. W. Colwell at No. 311 North Sixteenth street, Omaha, Nebraska, where he purchased one quart of beer for 50 cents, which he and Sweet drank on the premises; that he also bought one-half pint of what was claimed to be Spring Hill whiskey; that on June 20, accompanied by Sweet he again visited that place and purchased one-half pint of supposed Spring Hill whiskey. Lynch in his affidavit said that a search warrant issued on June 21, 1922, to search the premises named and that the search resulted in the seizure of the beer and whiskey named in the third count.

The second information was put on the docket as No. 2238. It contains one count, which charges that Cy Colwell, G. W. Colwell, and Time Gallaghan did on June 21, 1922, unlawfully sell certain intoxicating liquor, to wit, 3 drinks of intoxicating liquor, to wit, whiskey. This information is supported by the affidavit of Maurice Silverman and Lane Moloney, who say that on June 21, 1922, they purchased from the bartender at the premises known as 311 North 16th street, Omaha, 3 drinks of intoxicating liquor, to wit, whiskey.

The third information was put on the docket as No. 2248. It contains two counts, the first count charges that Cy Colwell, George W. Colwell, John Shea and Randolph Stevens did on May 3, 1922, unlawfully sell certain intoxicating liquor, to wit, 2 drinks and 1/2 pint of whiskey, and the second count charges that Cy Colwell, George W. Colwell, John Shea and Randolph Stevens did on April 28, 1922, unlawfully sell certain intoxicating liquor, to wit, 4 drinks and 1/2 pint of whiskey. This information is supported by the affidavit of George W. King, who says that on the 28th day of April, 1922, he purchased at the soft drink parlor of Cy Colwell and George W. Colwell, at 311 North Sixteenth street, in the city of Omaha, Nebraska, four drinks of whiskey and one-half pine bottle of whiskey, and on the 3d day of May, 1922, he purchased at the same place two drinks of whiskey and one-half pint bottle of whiskey.

S. L. Colwell and Cy Colwell are one and the same person. He was convicted on the third count of the first information, on the one count of the second information, and on both counts of the third information. Gallaghan was convicted of the charge in the second information. They sued out these writs of error.

All of the defendants named in the three informations, except Shea (not in custody), pleaded not guilty and went to trial at the same time before the same jury without objection; but during the impaneling of the jury and after the defendants had made three peremptory challenges the court, over their objection, refused to allow them any more peremptory challenges.

The information in No. 2227 charged Jackson and the two Colwells, in No. 2238 it charged Gallaghan and the two Colwells, and in No. 2248 it charged Shea and Stevens and the two Colwells. The six offenses as charged in the three informations could not have been joined in separate counts in one information. Therefore, there could be no consolidation under section 1024, R.S. (section 1690, Comp. St.). McElroy v. U.S., 164 U.S. 76, 17 Sup.Ct. 31, 41 L.Ed. 355. There were parties defendant in each information, put upon trial, who were not defendants in either of the other two informations. The right of challenge is an essential part of a jury trial. Lewis v. U.S., 146 U.S. 370, 376, 13 Sup.Ct. 136, 36 L.Ed. 1011. It is regulated by Act of Congress. Judicial Code, Sec. 287 (Comp. St. Sec. 1264). While the three informations could not be consolidated under the terms of the statute, the prosecution and the defendants in the several informations could consent to one trial by the same jury; but that gave the court no right to deny them their peremptory challenges, three on each of the three separate informations. Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 Sup.Ct. 909, 36 L.Ed. 706; Betts v. U.S., 132 F. 228, 65 C.C.A. 452; Butler v. Evening Post Pub. Co., 148 F. 821, 78 C.C.A. 511. The ruling denied them a right guaranteed by the law and was clearly prejudicial error.

It is also assigned as error that the court denied counsel for plaintiffs in error the right to cross-examine some of the witnesses for the prosecution. Lane Moloney was called as a witness to sustain the charge in information No. 2238, against the two Colwells and Gallaghan, of which they were convicted. He testified in chief that on June 21, 1922, he went with Silverman, another witness, to 311 North Sixteenth street, Omaha, that Silverman purchased from Gallaghan two drinks of liquor and that he and Silverman drank it, that he was not positive or able to say whether it was colored alcohol cut and flavored with bourbon or whether it was straight whiskey, but he thought it was whiskey and took it for straight whiskey at the time. On cross-examination this occurred:

'Q. Are you particularly skilled in the taste and smell and appearance of whiskey,

'The Court: Well, I hold that a man don't have to be. We all know enough about whiskey to know whether it is an alcohol drink or not. You cannot fool a grown man on that.

'Mr. O' Sullivan: The defendants take exception to the remarks of the court.

'The Court: Well, let's get along.

'Mr. O' Sullivan: Do I understand that I am precluded from this line of inquiry, Your Honor?

'The Court: I don't know. Anything that is pertinent to the inquiry here of course may be asked, but I won't spend any time fooling with a man who has had a couple of drinks of hard liquors having to tell about the details of what it smells like, or looks like, or tastes like.'

Maurice Silverman was next called as a witness. He testified that he went to 311 North Sixteenth street on June 21, 1922, with Moloney. He was there, however, a short time before that alone, and testified that he bought a drink of whiskey from Gallaghan, that he later went back with Moloney and he purchased two drinks for himself and Moloney and they drank it, that his business for two and a half years past had brought him in contact with the taste, color and smell of whiskey and in his opinion what he bought and drank was whiskey. During the cross-examination of Silverman this occurred:

'Q. Now, did you ever taste or see any concoction that looked and smelled and tasted like liquor but yet was not liquor?

'The Court: Oh, I don't think we will pursue that line of inquiry I think it is just as simple a proposition of whether it is a drink of whiskey, as it is of whether it is a pair of pants, just about as simple a question, one as the other.'

B. F. Lynch, Federal Prohibition Agent, was called for the prosecution. He had been stock keeper and gauger at Willow Springs Distillery for twelve years, and testified that he had gauged Government Exhibits 1 and 2 to determine alcoholic content, that Exhibit 1 was 37.91 per cent. alcohol and Exhibit 2, 36.42 per cent. alcohol, and that they came from 311 North Sixteenth street, that the test he made was what is known as a gravity test. He did not make a chemical test. He described how the gravity test was made. This occurred on cross-examination:

'Q. Mr. Lynch, there are a number of combinations of liquids that have the same specific gravity?

'The Court: Oh, well; that is immaterial. It is immaterial; of course there are. It is immaterial.

'Mr. O' Sullivan: I would like to pursue this inquiry further, Your Honor.

'The Court: No, I think the inquiry has gone far enough.

'Q. You made a test with what do you call it, a hydrometer?

'A. A hydrometer, yes.

'The Court: A hydrometer test is all the test he made and in addition we are all taking a smell of it and those who want to are taking a drink of it. We will determine whether it is whiskey or not.

'Mr. O' Sullivan: Defendants and each of them offer to prove, and wish to elicit from the witness on cross-examination, that the gravity test is not a satisfactory test to determine alcoholic content; that in order to make a gravity test you must first assume that it is alcohol, and without this assumption that the liquid in question is alcohol the test is worthless; that the

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