Goldberg v. United States

Decision Date03 April 1922
Docket Number3591.
Citation280 F. 89
CourtU.S. Court of Appeals — Fifth Circuit

Shelby Myrick and A. A. Lawrence, both of Savannah, Ga., and J. T G. Crawford, of Jacksonville, Fla., for plaintiffs in error.

Charles D. Russell, Asst. U.S. Atty., and John W. Bennett, U.S Atty., both of Savannah, Ga.

Before WALKER, BRYAN, and KING, Circuit Judges.

BRYAN Circuit Judge.

The defendants, Harry Goldberg and Israel Goldberg, were convicted upon a joint indictment, charging that on July 29 1919, they were carrying on the business of a retail liquor dealer without having paid the special tax required by Revised Statutes, Sec. 3244 (Comp. St. Secs. 5971, 6176, 6187). Each defendant was also convicted upon a separate indictment charging an unlawful sale, on July 31, 1919, of distilled spirits for beverage purposes. The joint indictment is based upon Revised Statutes, Sec. 3242 (section 5965), and the separate indictments upon the provision of the War Prohibition Act, to the effect that after June 30, 1919, and until the conclusion of the War and demobilization, it should be unlawful to sell distilled spirits for beverage purposes. 40 L. 1046 (Comp. St. Ann. Supp. 1919, Secs. 3115 11/12f-3115 11/12h).

The indictments were found November 15, 1919, and consolidated for trial by order of court upon motion of the district attorney, and without objection by defendants, or either of them. A demurrer to the joint indictment, upon the ground that the payment of tax by a retail liquor dealer has not been required by law since June 30, 1919-- the effective date of the War Prohibition Act--was overruled.

There was sufficient evidence that liquor was being sold at retail at a store in Savannah. Sales on at least three occasions were shown, and several thousand empty bottles and cartons with whisky labels on them were found there.

The principal contention on the facts is that the place of business was being conducted, not by the defendants, but by several of their brothers. The defendant Harry Goldberg claims a case of mistaken identity. One witness seemed to be in some doubt as to the identity of this defendant, but other witnesses testified positively that he was present while sales were being made and asserted the rights of an owner of the place, by resisting a search by government officials, and demanding to be shown their authority to make it. Besides, the defendants offered in evidence, without limitation as to its purpose or effect, testimony taken at a preliminary hearing, from which it appeared that the doubtful witness was more positive just after the arrest of the defendants than he was at the time of the trial, which occurred more than a year later. The defendant Israel Goldberg undertook to prove an alibi, but he was positively identified.

The order of the court overruling the demurrer to the joint indictment is assigned as error. It is contended that section 3244, which required a special tax of retail liquor dealers was repealed by the War Prohibition Act, and that consequently no tax was required on the date when it is charged by the indictment that defendants engaged in the business of retail liquor dealers. Section 3244 defines a retail liquor dealer as a person who sells or offers for sale distilled spirits in less quantities than five wine gallons at the same time. Prior to the passage of the War Prohibition Act, no distinction was made between dealers engaged in the sale of distilled spirits for beverage purposes and dealers so engaged for any other purpose. Besides, the special tax was required to be paid, not only by persons engaged exclusively in the sale of liquor, but also by druggists and...

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5 cases
  • United States v. Infusino, 7973.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 5, 1942
    ...v. United States (No. 2), 159 U.S. 682, 685, 16 S.Ct. 182, 40 L.Ed. 305; Haynes v. United States, 8 Cir., 101 F. 817; Goldberg v. United States, 5 Cir., 280 F. 89; Hostetter v. United States, 8 Cir., 16 F.2d Secondly, it is contended that the evidence is not sufficient to support the verdic......
  • Davis v. United States, 11113.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 18, 1945
    ...States, 9 Cir., 12 F.2d 727; 18 U.S. C.A. § 557. 2 Logan v. United States, 144 U.S. 263, 296, 12 S.Ct. 617, 36 L.Ed. 429; Goldberg v. United States, 5 Cir., 280 F. 89; Dowling v. United States, 5 Cir., 49 F.2d 3 Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas. 1914......
  • Zedd v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • January 13, 1926
    ...reversible error, the silence of the defendants in the court below had waived their right to complain in that above. Goldberg v. United States, 280 F. 89 (C. C. A. 5th Cir.) Of the two in which the defendants did object, the first was tried in the Circuit Court for the Northern District of ......
  • Dowling v. United States, 6066.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 19, 1931
    ...a trial and object to the misjoinder only after conviction. Logan v. U. S., 144 U. S. 263, 297, 12 S. Ct. 617, 36 L. Ed. 429; Goldberg v. U. S. (C. C. A.) 280 F. 89; Phillips v. U. S. (C. C. A.) 264 F. 657. The assignments of error relating to the instructions given the jury cannot be consi......
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