Grillo v. United States

• Decision Date: 31 May 1928
• Docket Number: No. 2234.,2234.
• Citation: 26 F.2d 461
• Parties: GRILLO v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

26 F.2d 461 (1928)

GRILLO v. UNITED STATES.

No. 2234.

Circuit Court of Appeals, First Circuit.

May 31, 1928.

Clifford B. Terry, of Gloucester, Mass., for appellant.

John V. Spaulding, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for appellee.

Before BINGHAM and JOHNSON, Circuit Judges, and HALE, District Judge.

PER CURIAM.

The defendant, Grillo, and five other persons were indicted with having, on or about the 1st day of January, 1925, entered into a conspiracy to bring intoxicating liquor into the United States without paying the lawful customs duties and without a permit from the Commissioner of Internal Revenue. The other five defendants were Joe Mello, John Madruga, William Meisner, alias Casey, Ted Wilson, and Ernest Schoening, all of Gloucester, Mass. Three overt acts were set out: (1) That on or about the 15th day of November, 1926, the defendant, Grillo, sent the gas screw vessel Lilly May to sea from the port of Gloucester in said district of Massachusetts; (2) that on or about the 15th day of June, 1926, the defendant, Grillo, employed one Joseph J. Cooney to aid in the unloading of certain intoxicating liquor; and (3) that on or about the 25th day of February, 1925, the defendant John Madruga accompanied one Joseph F. Grace, from the port of Gloucester in said district of Massachusetts, in a certain motorboat, the name of which is unknown to your grand jurors, bound for Provincetown in said district of Massachusetts. Before trial, three of the defendants, Mello, Schoening, and Madruga, pleaded guilty. Two of the defendants, Casey and Wilson, were not apprehended. Grillo was tried alone, found guilty, and sentenced; and this appeal was taken.

The government called five witnesses, Christopher J. Sullivan and William H. Perry, coast guardsmen attached to the Gloucester Coast Guard Station at Gloucester, Mass., and Joseph Grace, a fisherman at Gloucester. They testified about the conspiracy and the third overt act. John James Cooney and the defendant Ernest Schoening testified in regard to the conspiracy and the first overt act.

The defendant Grillo took the stand in his own behalf.

There are sixteen assignments of error, but we only find it necessary to consider the last one, which is:

"That the District Court erred in the charge in instructing the jury `that the defendant took the stand, and the case turns on whether you think he was telling the truth,' to which the defendant...