Hermansky v. United States

• Citation: 7 F.2d 458
• Decision Date: 24 July 1925
• Docket Number: No. 6863.,6863.
• Parties: HERMANSKY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

7 F.2d 458 (1925)

HERMANSKY v. UNITED STATES.

No. 6863.

Circuit Court of Appeals, Eighth Circuit.

July 24, 1925.

Albert W. Jefferis, of Omaha, Neb. (Joseph T. Votava and George M. Tunison, both of Omaha, Neb., on the brief), for plaintiff in error.

George A. Keyser, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., Andrew C. Scott, Asst. U. S. Atty., both of Omaha, Neb., and Ambrose C. Epperson, Asst. U. S. Atty., of Hastings, Neb., on the brief), for the United States.

Before KENYON and BOOTH, Circuit Judges, and AMIDON, District Judge.

KENYON, Circuit Judge.

Plaintiff in error was convicted in the United States District Court for the District of Nebraska on the first and third counts of an information charging violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.). The first charged an illegal sale of intoxicating liquor; the third, maintaining a nuisance by keeping a place where intoxicating liquor fit for beverage purposes was kept for sale and sold. Plaintiff in error (hereafter designated defendant) was a druggist. He had a government permit to use alcohol for nonbeverage purposes in the making of U. S. P. and N. F. preparations unfit for use for beverage purposes. The facts show that on May 17, 1924, one witness purchased two pints of alcohol from the defendant at his place of business. On May 20, 1924, the witness again purchased two pints of alcohol from defendant. After the second purchase, witness Samardick, who was the federal prohibition agent, went into the store and found 2½ gallons of alcohol. There was some contest in the trial over the nature of the alcohol. Evidence was introduced of defendant's good reputation and character.

The amended assignment of errors covers 69 specific assignments and occupies 26 printed pages in the record. We have heretofore referred to and condemned the practice of useless assignment of errors. There is no magic in the number of errors that may be assigned, nor is it any particular evidence of legal acumen. It tends to mere confusion in the record. Chesapeake & Delaware Canal Co. v. United States, 250 U. S. 123, 39 S. Ct. 407, 63 L. Ed. 889; Clark v. United States, 258 F. 437, 169 C. C. A. 453; Pulver v. Union Inv. Co. (C. C. A.) 279 F. 699. Out of the entire 69 assignments of error, only 6 are argued. We consider them in the inverse order of their importance.

Assignment of error No. 5 is that the evidence adduced in support of count 3 of the indictment is insufficient to prove the guilt of defendant thereof beyond a reasonable doubt. The evidence shows a sale on May 17th and another on May 20th. These are the only sales shown, but the record contains other evidence from which a jury could well find that the defendant was conducting a place where liquor was commonly kept for sale, and sold. The testimony discloses that the witness purchased alcohol from defendant at his drug store as freely as he could purchase any other article; that considerable quantities of alcohol were found in the drug store at the time of the seizure. While defendant had a permit, it did not protect him in sales for beverage purposes. The courts have sustained conviction for a common nuisance under the National Prohibition Act, where only one sale has been proven, other essentials appearing, such as liquor being on hand in considerable quantity at the place concerning which complaint was made.

The case of Barker v. United States (C. C. A.) 289 F. 249, cited by defendant on this question, is really an authority for the government's position. The court says (page 251) that "evidence of a single sale in a place, from which the circumstances tend to show habitual violation, is enough to bring the prosecution within the terms of the nuisance section." The case of Muncy v. United States (C. C. A.) 289 F. 780, also cited by defendant, is the case of a single sale on the premises of a laboring woman; nothing else being shown in the case. The court says this is not sufficient to sustain the charge of maintaining a nuisance. Such, however, is not the situation here. As to whether the facts show a common nuisance, each case must be judged by the testimony therein adduced. Here was evidence of two sales, together with other circumstances, amply justifying conviction under the nuisance charge. United States v. Eilert Brewing & Beverage Co. (D. C.) 278 F. 659; Fassolla v. United States (C. C. A.) 285 F. 378; Young v. United States (C. C. A.) 272 F. 967; Singer v. United States (C. C. A.) 288 F. 695.

Assignment of error No. 44 relates to the admission of certain evidence. When the witness Samardick was on the stand, he was asked why he sent Agents Gewinner and Engle to the drug store of defendant. Objection was made to this, but overruled, and this answer given: "A. I had many complaints of bootlegging, up there in that store, previous to May 20, 1924, and I sent Gewinner and Engle there," etc. Objection was made to the question, and exception noted. The admission of this evidence, we think, was error. It is hearsay and incompetent, and doubtless there is a certain amount of prejudice arising therefrom. Kolp v. United States (C. C. A.) 2 F.(2d) 953; Biandi v. United States, 259 F. 93, 170 C. C. A. 161.

The government contends as to this evidence that there was no error, because the reputation of the place where the nuisance is alleged to exist would be competent and material, and further that under section 269 of the Judicial Code (Comp. St. § 1246) the error, if such, would not be a reversible one. While it...