Gurera v. United States, 8774.

• Decision Date: 16 April 1930
• Docket Number: No. 8774.,8774.
• Parties: GURERA v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

40 F.2d 338 (1930)

GURERA v. UNITED STATES.

No. 8774.

Circuit Court of Appeals, Eighth Circuit.

April 16, 1930.

John T. Mathis and C. S. Walden, both of Kansas City, Mo., for appellant.

William L. Vandeventer, U. S. Atty., of Kansas City, Mo., and Claude E. Curtis, Asst. U. S. Atty., of Jefferson City, Mo.

Before STONE and VAN VALKENBURGH, Circuit Judges, and DAVIS, District Judge.

STONE, Circuit Judge.

Appellant, and one Reed were indicted under two counts, one of which charged the transportation of one-half gallon of whisky, the other the possession of nine and one-half gallons of whisky. Reed pleaded guilty, and appellant was found not guilty under the possession count, but guilty upon the transportation count. He was sentenced to two years' imprisonment in the penitentiary. From that judgment he brings this appeal, and four claimed errors are presented here.

I. The first matter presented is the overruling on a demurrer to the transportation count of the indictment. The argument in support of this contention is that the indictment is vague and indefinite, in that it "does not describe the place from, nor the place to which, the transportation was had, nor whether it was by truck, wagon, automobile or otherwise." The charging portion of the first count of the indictment is as follows:

"That on the 2nd day of May, 1929, in alley in rear of 1131 East Missouri Ave., Kansas City, Jackson County, Missouri, in the Western Division of the Western District of Missouri, one Carl Gurera, and one Elmer C. Reed, whose name other than as herein set forth is to the grand jury unknown, then and there being, did then and there unlawfully, wilfully, knowingly and feloniously, and in violation of the National Prohibition Act, transport a certain quantity of intoxicating liquor, intended and fit for beverage purposes, to-wit: One-half gallon of whisky containing more than one-half of one per cent. of alcohol by volume; contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States of America."

The indictment identified the day and place and persons and liquor covered by the transportation. It made no difference where the transportation originated or where it was intended to end. The essential fact was that the described liquor was in course of transportation at that time and place. Allegations of the above character are amply sufficient. Also it was not an essential averment to describe the vehicle in which or the method of transportation. If such information were necessary to enable appellant to prepare his defense, he could have requested a bill of particulars in that regard, and, upon proper showing, the trial court would undoubtedly have accorded him such. The evidence in this case is crystal clear that the attacks made upon the indictment were as to matters in nowise necessary to the preparation of this defense, as there was no dispute that the two men accused were arrested at the time and place while in an automobile in which was the half gallon of whisky.

II. The second contention is that the evidence was not sufficient to justify submission to the jury. The undisputed facts showed that appellant was the owner of and driving the car. Accompanied by Reed, he had driven up an alley in the early evening after dark, and had parked his car between two garages near the alley. The car remained there only a short time. While there, the liquor was put into the car, the lights of the car turned on, and the car started to back out toward the alley. At this time two prohibition agents made the arrest and found the two men seated together with the whisky, in a half-gallon jug in a paper sack, on the floor between Reed's feet. Appellant's story was that Reed had come by his house, and, after a short conversation, had asked appellant to drive him to his home; that Reed had asked him to go by this place on the way, and he had done so; that he had no connection with the liquor, and did not know what it was. Under the undisputed evidence, the only question of fact for the jury to determine was whether appellant had knowledge of what was in the package. It is taxing credulity to believe that a man would drive up an alley at night, park his car within a few feet of a garage from which the liquor was taken, have that liquor brought out and placed on the floor of the car by him, and not know, to a moral certainty, that it was liquor of some kind. The law does not permit a man to hold his hands over his eyes and then escape the results of not seeing what is before him and what he must know is there. There are various ways of knowing things, and it is idle to say that this appellant, under the undisputed facts here, did not know that he was transporting liquor of some character.

III. The third contention is akin to the one just discussed. It has to do with the refusal of the court to instruct the jury that, if they should believe that the facts were as consistent with innocence as with guilt, then it would be their duty to acquit. There are cases where such form of instruction is proper, but those are cases where the essential facts...