Goodfriend v. United States

• Decision Date: 17 December 1923
• Docket Number: 4057.
• Citation: 294 F. 148
• Parties: GOODFRIEND et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

294 F. 148

GOODFRIEND et al. v. UNITED STATES. ^[1]

No. 4057.

United States Court of Appeals, Ninth Circuit.

December 17, 1923

Hawley & Hawley and J. R. Smead, all of Boise, Idaho (Claude W Gibson and William Healy, both of Boise, Idaho, of counsel) for plaintiffs in error.

E. G Davis, U.S. Atty., and John H. McEvers, Asst. U.S. Atty both of Boise, Idaho.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT Circuit Judge.

The plaintiffs in error were convicted on six counts of an indictment. The first three counts charged them with a conspiracy to possess moonshine whisky for sale, to sell moonshine whisky, and to manufacture moonshine whisky. The fourth count charged them with having in their possession a still with accessories ready for operation, without first having registered the same with the collector of internal revenue; the fifth charged them with carrying on the business of a distillery without having given bond, with intent to defraud the United States of the tax; and the sixth charged them with making and fermenting on premises other than a distillery certain mash fit for distillation and intended for the production of spirits-- all of said counts being charged to be in violation of law.

The plaintiffs in error moved that the government be required to elect between the conspiracy counts and the other counts, and they assign error to the denial of that motion and their motion to quash the indictment. It is argued these offenses of different kinds cannot lawfully be joined. Section 1024, Rev. Stats. (Comp. St. Sec. 1690), provides:

'When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts.'

There can be no question here but that the counts of the indictment all related to the same acts and transactions, all depending on substantially the same proof, and were properly joined, Pointer v. United States, 151 U.S. 396, 14 Sup.Ct. 410, 38 L.Ed. 208; Sidebotham v. United States, 253 F. 418, 165 C.C.A. 159; Ader v. United States (C.C.A.) 284 F. 13, 24, and cases there cited. A motion to quash is addressed to the discretion of the trial court, and its denial will not be reviewed in an appellate court. Andrews et al. v. United States, 224 F. 418, 139 C.C.A. 646.

It is argued that one cannot be convicted under both the Prohibition Act and the revenue laws for the same act, and United States v. Stafoff, 260 U.S. 477, 43 Sup.Ct. 197, 67 L.Ed. 358, is cited. That decision has no relation to any question in the present case. This is not a case in which convictions have been had both under the Prohibition Act and the revenue laws for the same act.

Error is assigned to the instruction of the court that the jury might find the defendants guilty on the last three counts of the indictment. Exception was taken to the instruction on the ground that there was no evidence to support the counts in that the government had offered no proof that the defendants failed to register their still or failed to furnish a bond, or that the distilling was not carried on as authorized by law. But it is clear, in view of the other evidence in the case, that the burden was upon the defendants to show that the still had been registered and a bond had been filed. We made a similar ruling in McCurry v. United States, 281 F. 532. In that case we pointed to a circumstance which we said was of great significance, the fact that the defendants had made no claim of ownership, interest in, or knowledge of the still, and we observed that this was practically an admission that they had not registered the still or given bond therefor. In the case at bar the plaintiffs in error pleaded not guilty to all the counts of the indictment and they denied all knowledge of the location of the still or its operation.

Error is assigned to the admission in evidence of certain intoxicating liquor and other articles obtained by government officers upon a search of the rooms occupied by the defendant Sorenson and his wife in the Vernon Hotel. Prior to the indictment a search of the hotel had been made under a search warrant, whereupon an information had been filed against the Sorensons in the court below, charging them with the possession of intoxicating liquor. The Sorensons filed in that court a petition, supported by affidavits, for the return of the seized property. On an order to show cause, the prohibition director appeared and demurred to the petition and to the affidavits in support of it. The court denied the petition without prejudice. When the Sorensons were indicted in the case at bar, it was stipulated that the record on the petition and the proceedings thereon had been made a part of the record in the present case. It is now contended that the trial court erred in permitting the introduction of the evidence so obtained on the search warrant.

Upon the hearing of the Sorensons' petition, the court confined discussion to the question whether upon the petition and the affidavits the rooms occupied by the Sorensons in the Vernon Hotel were used by them exclusively as their residence, so as to constitute the same a private dwelling within the meaning of the National Prohibition Act. The court was not satisfied that the showing made by the affidavits was sufficient, and during the trial of the case now...