John Hohenadel Brewing Co., Inc. v. United States

• Decision Date: 09 February 1924
• Docket Number: 2989.
• Citation: 295 F. 489
• Parties: JOHN HOHENADEL BREWING CO., Inc., v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

295 F. 489

JOHN HOHENADEL BREWING CO., Inc., v. UNITED STATES.

No. 2989.

United States Court of Appeals, Third Circuit.

February 9, 1924

William A. Carr and Sidney L. Krauss, both of Philadelphia, Pa., for plaintiff in error.

George W. Coles, U.S. Atty., of Philadelphia, Pa., and J. Paul MacElree, Asst. U.S. Atty., of Westchester, Pa.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS Circuit Judge.

On May 19, 1922, a criminal information was filed against the John Hohenadel Brewing Company. It contained seven counts. The first count charged the brewing company with unlawfully manufacturing intoxicating liquor, fit for use for beverage purposes, containing more than one-half of 1 per centum of alcohol by volume on January 1, 1921, and January 6, 1922 and at divers times between those dates. The second, third fourth, fifth, and sixth counts charged the company with the illegal sales of beer on specific dates to particular individuals. The seventh count charged it with maintaining a common nuisance between January 1, 1921, and January 6, 1922 in that it 'maintained a room, house, building structure, and place where intoxicating liquor fit for use for beverage purposes, to wit, beer, containing one-half of 1 per centum, or more, of alcohol by volume, was manufactured, sold, kept, and bartered. ' The jury returned a verdict of guilty on the seventh count, and not guilty on the other six counts.

The brewing company contends that the verdict of guilty on the seventh count cannot stand in the face of the verdict of not guilty on the other counts. If the government relies upon the facts charged in the other counts to sustain the verdict of guilty on the seventh count, the judgment cannot stand, for the jury has found as a fact that the company did not commit the acts therein charged and in that case, the verdict, as defendant contends, would be 'inexplicable and inconsistent.' Facts that have no legal existence may not support a verdict. The verdict of guilty on the seventh count must be based on evidence other than that pleaded in support of the first six counts. Is there such evidence?

It is charged that the defendant made sales on the following dates: In the second and third counts, on January 7, 1922; In the fourth count, on January 5, 1922; in the fifth count, on December 23, 1921; and in the sixth count, on January 9, 1922. The only dates, therefore, alleged in counts from 2 to 6, inclusive, that come within the time covered by the seventh count, January 1, 1921, to January 6, 1922, are found in the fourth and fifth counts. But the verdict of the jury eliminates these from consideration. The same language and identically the same dates are used in the first count as to unlawful manufacture as are used in the seventh count as to unlawful manufacture, sale, and possession, as a basis for the charge of maintaining a nuisance. But, since the jury found in the first count that the defendant did not commit the acts therein charged, they cannot support a verdict in the seventh count. Is there evidence that the company 'manufactured, sold, kept, and bartered' beer 'on or about January 1, 1921, and January 6, 1922, and at divers times between said dates,' without considering the sale charged on January 5, 1922, in the fourth count, and the sale on December 23, 1921, charged in the fifth count? We cannot consider the manufacture of beer within that time because that has been negatived by the verdict in the first count.

Michael O'Brien, who is not mentioned in any of the first six counts,...