Heitler v. United States

• Decision Date: 13 January 1922
• Docket Number: 2850.,2849
• Citation: 280 F. 703
• Parties: HEITLER v. UNITED STATES. WEINSTEIN v. SAME.
• Court: U.S. Court of Appeals — Seventh Circuit

280 F. 703

HEITLER v. UNITED STATES.

WEINSTEIN v. SAME.

Nos. 2849, 2850.

United States Court of Appeals, Seventh Circuit.

January 13, 1922

Henry W. Freeman, of Chicago, Ill., for plaintiffs in error.

Charles F. Clyne and Charles J. Monahan, both of Chicago, Ill., for the United States.

Before BAKER, ALSCHULER, and PAGE, Circuit Judges.

PAGE Circuit Judge.

Plaintiffs in error (herein known as defendants) were convicted in the District Court at Chicago under both counts of an indictment charging violation of the National Prohibition Act (41 U.S.Stats.at L.p. 305). Under the first count, charging unlawful possession of intoxicating liquor, defendants admitted guilt, but no sentence was imposed thereon.

The second count charges that defendants, at Chicago, in said district, did unlawfully sell for beverage purposes certain intoxicating liquors, to wit, distilled spirits of more than one-half of 1 per cent. alcoholic content, etc. It is urged that this count is defective. Section 3 of title 2 of the Prohibition Act provides:

'No person shall * * * sell * * * any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented.'

Section 1 of title 2 of the act provides:

'The word 'liquor' or the phrase 'intoxicating liquor' shall be construed to include alcohol, brandy whisky, rum, gin, beer, ale, porter, and wine, and in addition thereto any spirituous, vinous, malt, or fermented liquor, liquids, and compounds, whether medicated proprietary, patented, or not, and by whatever name called, containing one-half of 1 per centum or more of alcohol by volume which are fit for use for beverage purposes.'

The defendants are charged with the unlawful sale for beverage purposes of intoxicating liquor, further defined to be distilled spirits containing more than one-half of one per cent. of alcoholic content. As this court said in Jacobsen v. United States, 272 F. 399.

'The language of each count is substantially that of the statute, and properly charges a statutory offense. The meaning is clear. No injury growing out of any alleged insufficiency or uncertainty in the allegations appears from the record, and none is disclosed in the argument (citing Jelke v. United States, 255 F. 264).'

It is contended that there was no evidence of the intoxicating character of the beverage sold. This is apparently based upon the fact that there was no chemical analysis of the beverage and that those testifying could not and did not undertake to tell the alcoholic content. Witnesses Somerville and Frazer ordered whisky from a waiter who said, 'We have some very good whisky. ' When the witness Fisher arrived, the waiter asked him if he was going to have the same drink ordered by the others, and Fisher replied, 'Yes, if they ordered whisky.' The waiter filled the order by bringing back a beverage. By the very act of filling an order for whisky, whoever filled it must be held to have represented that it was whisky. Witnesses who gave the order for whisky drank that which was brought to them and pronounced it whisky. They were experienced in the use of whisky.

Distilled spirits containing less than one-half of 1 per cent. alcoholic content, if known at all commercially, was never known as whisky, so that the experience of the witnesses, who said that they were familiar with the use of whisky, must have been gained by drinking beverages containing more than one-half of one per cent. of alcoholic content. Their opinion that the beverage served them was whisky was competent evidence that it was a liquor containing more than one-half of 1 per cent. alcoholic content. See opinion in Lewinsohn v. United States, 278 F. 421, of this court filed November 29, 1921.

Defendants urge that the evidence is...