Gerk v. United States

• Decision Date: 11 June 1929
• Docket Number: 8429.,No. 8428,8428
• Citation: 33 F.2d 485
• Parties: GERK v. UNITED STATES. WOODCOCK v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

33 F.2d 485 (1929)

GERK v. UNITED STATES.

WOODCOCK v. UNITED STATES.

Nos. 8428, 8429.

Circuit Court of Appeals, Eighth Circuit.

June 11, 1929.

W. N. Jamieson, of Omaha, Neb., for appellants.

James C. Kinsler, U. S. Atty., and Ambrose C. Epperson, Asst. U. S. Atty., both of Omaha, Neb., Philip M. Aitken, Asst. U. S. Atty., of Lincoln, Neb., and George A. Keyser, Asst. U. S. Atty., of Omaha, Neb.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and OTIS, District Judge.

VAN VALKENBURGH, Circuit Judge.

The appellants in the above-entitled causes were jointly indicted for violations of sections 3281 and 3282, R. S. U. S. (26 USCA §§ 193, 306, 307). The indictment contained four counts: The first, for unlawfully and feloniously making 700 gallons of mash fit for the production of spirits, said mash not having been made on the premises of a duly authorized distillery; the second, for unlawfully and feloniously fermenting said mash, the same not having been fermented on the premises of a duly authorized distillery; the third, for unlawfully and feloniously separating 24 gallons of alcoholic spirits from a ferments mash, appellants not being authorized distillers; and the fourth, for unlawfully and feloniously engaging in carrying on the business of distillers with intent to defraud the United States of a tax on the 24 gallons of spirits by them distilled. Upon trial a verdict of guilty was returned on all counts. Judgment and sentence followed, from which these appeals are taken.

The assignments of error relied upon by appellants are, in the brief of their counsel, divided into three classes. Numbers 1 to 6, inclusive, challenge the legal sufficiency of the evidence. Numbers 10, 11, and 14 complain "that the court erred in admitting certain testimony in evidence over their specific objections; that errors of law occurred during the trial which were duly excepted to; and that the court erred in refusing to sustain certain motions to strike testimony received in evidence." No. 7 assigns as error the action of the court in overruling a motion entitled "Motion to quash search warrant and to return or suppress evidence."

A number of the six assignments comprising the first class are so general that they present nothing to this court for consideration. Lawson v. United States (C. C. A.) 297 F. 418, 419; Harris v. Newsom (C. C. A.) 23 F.(2d) 652. However, without unnecessary discussion, it may be said that the evidence introduced by the government in support of the indictment was ample to support the verdict of the jury.

With respect to the specifications of error comprising the second class, it is sufficient to say that these specifications fail to quote the substance of the evidence admitted, concerning which error is alleged, as required by rules 11 and 24 of this court; nor are the errors of law said to have occurred during the trial sufficiently specified.

The remaining specification, and that upon which practically entire emphasis is laid, concerns the action of the court in overruling the motion to suppress certain evidence produced by the government. Appellant Woodcock was at one time the owner of a small two-room structure, referred to in the indictment and in the evidence as a shack, located on the bank of Silver Lake and on lots 7, 8, and 9 of block 5, in Smiley and George addition to South Sioux City, Neb. She testified that on November 20, 1926, she sold this property to one G. M. Delles for the sum of $300, and introduced a contract of purchase purporting to show payments on the purchase price aggregating $150. She lived with her daughter about two blocks distant from this shack, and appellant Gerk lives at the same place.

On the night of February 21, 1927, federal prohibition officers detected the odor of fermenting mash emanating from this shack, and heard what they describe as the roar of gasoline pressure burners in the building. Upon investigation, they found that the door was padlocked on the outside and that there was no light within. Shortly thereafter they noticed some one approaching. They saw appellants enter the building, and directly thereafter a light appeared. The officers entered and immediately placed appellants under arrest. They found a still in operation, distilled liquor pouring from the coil into a crock, about 700 gallons of finished sugar mash, and 24 gallons of whisky. It was this physical evidence of the violations charged that the motion of appellants sought to suppress.

In explanation of their presence at the building, appellant Woodcock testified that she had done practical nursing, and that she had received a telephone message from a man who gave the name of Phillips, to the effect that the man who bought the place was sick and wanted her services as a nurse; that Gerk went with her because she did not wish to go alone. Appellants deny...