Hilsinger v. United States

• Citation: 2 F.2d 241
• Decision Date: 30 July 1924
• Docket Number: No. 3937,3938.,3937
• Parties: HILSINGER et al. v. UNITED STATES (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

2 F.2d 241 (1924)

HILSINGER et al. v. UNITED STATES (two cases).

Nos. 3937, 3938.

Circuit Court of Appeals, Sixth Circuit.

June 10, 1924.

Rehearing Denied July 30, 1924.

Edward J. Dempsey and Allen C. Roudebush, both of Cincinnati, Ohio (Edw. M. Hurley and Frederick Closs, both of Cincinnati, Ohio, on the brief), for plaintiffs in error.

Thos. H. Morrow and R. T. Dickerson, Sp. Asst. Attys. Gen. (Benson W. Hough, U. S. Atty., of Columbus, Ohio, on the brief), for the United States.

Before DENISON and DONAHUE, Circuit Judges, and SIMONS, District Judge.

DENISON, Circuit Judge.

The operations of the Schaller Brewing Company, of Cincinnati, had passed into the hands of defendant Hilsinger, as receiver, appointed by the state court. Defendant Keck had been president of the company, and continued active connection with its affairs under the receiver. Defendant Hermann was a salesman and collector for the receiver. It appears without question that, under the receivership, the brewery was manufacturing and selling two grades of beer. One grade, spoken of as "near bear," had an alcoholic content of less than one-half of 1 per cent., and there is no complaint as to the manufacture or sale of this beer. The other grade was darker in color, and it was regularly sold for $18 per barrel, while the near beer was sold for $9.20 per barrel. It is the theory of the government that the higher priced grade was beer in which the alcoholic content had not been reduced to the maximum point allowed by law, but was allowed to continue to be about 3 per cent., and these prosecutions are based on the theory that the defendants were engaged in making and selling this 3 per cent. beer. The indictment in the District Court, Case 2206, was for conspiracy to make, possess, and sell; that in 2205 for maintaining the brewery as a nuisance.

Throughout the trial, this heavier and darker beer was commonly referred to as "good beer," in distinction from near beer. It is apparent that the judge and witnesses and counsel, by the phrase "good beer," meant beer which approximated the alcoholic standard of the conditions before the Volstead Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.); and we see no error or prejudice resulting from the use of this nomenclature.

Having in some way come to suspect that this brewery was putting out this good beer, the prohibition agents, over a period of three or four days, observed the Schaller truck delivering barrels of beer to saloons, and on applying shortly to these same saloons and asking for good beer, were served with beer which they took away with them and found to contain about 3 per cent. of alcohol. Having this measure of confirmation of their suspicions, they followed a truck load of kegs from the brewery to the point where it stopped for the first delivery. They then accosted the driver, and after some conversation took possession of four kegs out of the much larger load. Each of these kegs was found to contain about the same grade of 3 per cent. beer. Thereupon they went to the brewery and proposed to make a search, to which no objection was made. In connection with this search, their special attention was attracted to relatively small quantities of beer in two different places; they took samples, and prevented those in charge from continuing the destruction of these two lots. These samples turned out to be the same 3 per cent. quality. It is claimed that all other evidence of the alcoholic content of this higher priced grade of beer was inadmissible for various reasons, except the six samples taken from the four kegs on the truck and the two places in the brewery. For the purposes of this opinion we assume that such claim is...