Goldstein v. United States

• Decision Date: 21 January 1919
• Docket Number: 2619.
• Citation: 256 F. 813
• Parties: GOLDSTEIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

256 F. 813

GOLDSTEIN v. UNITED STATES.

No. 2619.

United States Court of Appeals, Seventh Circuit.

January 21, 1919

Rehearing Denied March 4, 1919.

H. J Rosenberg, of Chicago, Ill., for plaintiff in error.

Charles F. Clyne and James R. Glass, both of Chicago, Ill., for the United States.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

EVAN A EVANS, Circuit Judge.

It is claimed by defendant that the government failed to prove venue. We reject this contention, because it was shown that the offense was committed in Rockford, and inferentially that the Rockford referred to was in the state of Illinois. The court properly took judicial notice of the fact that Rockford, Ill., is in the Northern district, western division, state of Illinois. Hoyt v. Russell, 117 U.S. 401, 6 Sup.Ct. 881, 29 L.Ed. 914.

Defendant also complains because the testimony fails to show that the soldiers were, at the times when whisky was sold them, in the uniform of the military forces of the United States. The soldier W. stated that on February 5th, being one of the dates fixed in the indictment when liquor was sold to him, he was in full military uniform. On February 8th, another date similarly fixed, he named two men and himself, and was then asked 'All soldiers?' and replied, 'All soldiers, and in uniform.'

There is other testimony showing that witnesses other than defendant observed 'the soldier' about defendant's restaurant. These witnesses were not acquainted with W., but significantly referred to him as 'that soldier.' Defendant also referred to the soldier K., to whom whisky was delivered, as 'the sergeant.' Having no acquaintance with K., it would have been unusual for the defendant to call him sergeant, unless his uniform indicated his position. There was testimony in the record to the effect that these men were in the restaurant only when on duty, from all of which we conclude that the jury was justified in finding the soldiers were in uniform when they received the whisky.

Defendant relies chiefly, however, upon the claim that the government is estopped from prosecuting this case, because its officers induced defendant to commit the crime, citing Voves v. United States, 249 F. 191, 161 C.C.A. 227. Passing for the moment the government's assertion that no claim of estoppel was ever made in the District Court, to a consideration of the evidence, we are persuaded that no jury question was presented upon this issue.

Three witnesses, soldiers at Camp Grant, testified for the government. They were members of the military police. Their duty was to secure evidence against persons selling whisky to soldiers. From their statement it appears the defendant sold whisky on the 3d, 5th, 8th and 18th of February to one or more of them; that they received this whisky in bottles that bore a grape juice label; that on the last occasion they asked for a larger bottle, adding that they 'were putting on a little party. ' On this occasion the defendant left the restaurant, went to a nearby hotel, where he filled the larger bottle with whisky and brought it back, receiving $1.50 therefor.

But if we are to determine whether any jury question in reference to this issue was presented by the evidence, we may, as we are doubtless required to do, ignore entirely this testimony and confine our attention to the defendant's story.

Defendant testified that one of the soldiers, W., came into the restaurant almost daily, spent considerable time visiting with defendant, and became friendly with him and his family including the children....