Knable v. United States

• Decision Date: 05 December 1925
• Docket Number: No. 4387-4389,4472.,4387-4389
• Citation: 9 F.2d 567
• Parties: KNABLE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

9 F.2d 567 (1925)

KNABLE et al. v. UNITED STATES.

Nos. 4387-4389, 4472.

Circuit Court of Appeals, Sixth Circuit.

December 5, 1925.

In Nos. 4387 and 4472:

George A. Hurley, of Cleveland, Ohio, for plaintiffs in error.

M. E. Evans, Asst. U. S. Atty., of Cleveland, Ohio (A. E. Bernsteen, U. S. Atty., and D. C. Van Buren, Asst. U. S. Atty., both of Cleveland, Ohio, on the brief), for the United States.

In Nos. 4388 and 4389:

Jos. C. Breitenstein, of Cleveland, Ohio (Wertz & Breitenstein, of Cleveland, Ohio, on the brief), for plaintiffs in error.

M. E. Evans, Asst. U. S. Atty., of Cleveland, Ohio (A. E. Bernsteen, U. S. Atty., and D. C. Van Buren, Asst. U. S. Atty., both of Cleveland, Ohio, on the brief), for the United States.

Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges.

KNAPPEN, Circuit Judge.

The four plaintiffs in error, together with one Fleck and one Berner, were jointly indicted upon a charge of conspiracy, under section 37 of the Penal Code (Comp. St. § 10201), to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼) by transporting to the premises known as the Green Valley Inn (located a few miles beyond the city limits of Cleveland) intoxicating liquors and distilled spirits of forbidden alcoholic content, and fit for beverage purposes, and then and there to maintain a common nuisance as defined by section 21 of title 2 of the National Prohibition Act, by possessing and selling such liquors and spirits. By a second indictment the four plaintiffs in error, together with Berner, were charged under two counts — the first for maintaining a common nuisance at the Green Valley Inn in the manner charged in the conspiracy indictment, and at the time referred to in several of the overt acts charged thereunder; the second count, for having in their custody and control whisky otherwise than as allowed by title 2 of the act. Berner was separately indicted for selling intoxicating liquors for beverage purposes.

The three indictments were consolidated for trial. Fleck pleaded guilty to the conspiracy charge (the only one made against him), and testified for the government. Berner was acquitted under the first and second indictments, and convicted upon both counts of the third. He does not ask review. Knable, who was a police sergeant, and Miller and Paige, who were patrolmen in the service of the city of Cleveland, were convicted under the first two indictments (as was also Gosiorosko), and sentences were thereupon imposed upon all four. The three police officers constituted the liquor squad of the Seventh precinct of Cleveland. The assignments of errors specially relied upon relate to the refusal to direct verdict for plaintiffs in error, the refusal of certain requests to charge, and alleged improper and prejudicial remarks by the district attorney in his closing argument to the jury.

1. The court rightly refused to direct verdict for plaintiffs in error. Fleck was proprietor of the Green Valley Inn, and was in the habit of putting on pig roasts, clam bakes, etc. It was the government's contention that plaintiffs in error arranged with Fleck to give them the exclusive use of his place, "the whole place, all except the kitchen," during the afternoon and evening of November 14, 1923, Fleck to put on a pig roast, for which — including a "Dutch lunch" during the afternoon — he was to receive from plaintiffs in error $2 a plate, and in fact received in all $780; that plaintiffs in error were to have the exclusive sale of the liquors and beer, and to have their own men "take care of" it, Fleck to have no liquor at all during the time stated; that plaintiffs in error brought large quantities of whisky and beer, and two games, "chuck luck" and "Klondike"; that the festival was largely attended, that liquor flowed freely (a considerable number of the guests becoming intoxicated), and that both the liquor sales and gambling devices netted plaintiffs in error a large sum. There was ample and substantial testimony in support of the indictments against each of the plaintiffs in error.

Upon motion to direct verdict, the testimony must be considered in its aspect most favorable to the government. It is elemental that we cannot weigh the testimony or pass upon the credibility of the witnesses. Burton v. United States, 202 U. S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 392; Kelly v. United States (C. C. A. 6) 258 F. 392, 169 C. C. A. 408. The evidence, if believed, was sufficient to establish the conspiracy charged within the rule stated in Remus v. United States (C. C. A. 6) 291 F. 501.

Fleck was an accomplice, and the convictions of the respective plaintiffs in error rested largely, though by no means entirely, on his testimony; but that is not enough to invalidate the verdict, where, as here, the jury was properly instructed as to the weight to be given it. Caminetti v. United States, 242 U. S. 470, 495, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168; Holmgren v. United States, 217 U. S. 509, 30 S. Ct. 588, 54 L. Ed. 861, 19 Ann. Cas. 778. The charge in the instant case, as to the caution to be exercised by the jury in considering the testimony of accomplices, was sufficient. Ray v. United States (C. C. A. 6) 265 F. 257; Albert v. United States (C. C. A. 6) 281 F. 511, 515.

This court of review cannot consider arguments that others, no less culpable than plaintiffs in error, were not arrested; that certain of the witnesses for the government failed to implicate plaintiffs in error; that the latter denied the criminal charge; that the stories of certain witnesses were improbable and actuated by motives of revenge; that "the practice indulged in nowadays by enforcement officials in believing the stories about `higher ups' * * * which are always told by violators of the law, * * * for the purpose of exculpating themselves and mitigating their offense has reached its logical conclusion in this case"; and that the "conviction should be reversed, if for no other reason than to teach the enforcement officials that they cannot achieve notoriety and gain a record for law enforcement at the expense of the reputation and liberty of men whose character heretofore has been above reproach, and, in so doing, condone the offense of persons who are violators of law." Nor...