Kubik v. United States, 9183

• Decision Date: 28 December 1931
• Docket Number: No. 9183,9184.,9183
• Citation: 53 F.2d 763
• Parties: KUBIK v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

53 F.2d 763 (1931)

KUBIK v. UNITED STATES (two cases).

Nos. 9183, 9184.

Circuit Court of Appeals, Eighth Circuit.

November 17, 1931.

Rehearing Denied December 28, 1931.

Eugene D. O'Sullivan, of Omaha, Neb. (Charles J. Southard and J. R. Lones, both of Omaha, Neb., on the brief), for appellants.

Edson Smith, Asst. U. S. Atty., of Omaha, Neb. (Charles E. Sandall, U. S. Atty., and Ambrose C. Epperson, Asst. U. S. Atty., both of Omaha, Neb., Robert Van Pelt, Asst. U. S. Atty., of Lincoln, Neb., and Lawrence I. Shaw, Asst. U. S. Atty., of Omaha, Neb., on the brief), for the United States.

Before STONE and VAN VALKENBURGH, Circuit Judges, and SANBORN, District Judge.

STONE, Circuit Judge.

John Kubik, George Kubik, and John Repo were jointly indicted for violations of the National Prohibition Act (27 USCA). The indictment was in five counts. The first count charged a sale of two quarts of spiked beer at a soft drink parlor located at 4410 South Twenty-Seventh street, Omaha, about 10 A. M., October 4, 1929; the second count charged a sale, at the same time and place, of two drinks of whisky; the third count charged sales, at the same place and on the same date at about 1 o'clock p. m., of one gallon of alcohol and two drinks of whisky; the fourth count charged possession of six quarts of beer at 4402-4 South Twenty-Seventh street, Omaha, on October 9, 1929; the fifth count charged maintenance of a nuisance at 4410 South Twenty-Seventh street, Omaha, on October 4th. The court directed a verdict of not guilty as to the fourth count, and the jury found all of the defendants not guilty on the fifth count and guilty on the first, second, and third counts. From the above convictions on counts 1, 2, and 3, John Kubik and George Kubik bring these appeals.

Eight assignments of error are argued here. Seven of these relate to the exclusion or admission of evidence, and one has to do with a comment upon evidence made by the court in the course of the trial.

Three of the above assignments may be considered together. In connection with the evidence as to the sale of the gallon of alcohol, covered by the third count of the indictment, the evidence for the prosecution was to the effect that two of the prohibition agents had gone to 4402 or 4404 South Twenty-Seventh street (a grocery store operated by George Kubik) in the afternoon of October 4, 1929, and had asked him where they could get hold of a gallon of alcohol. They were told by him to go over to the soft drink parlor and see John, who would fix them up. They went over there and, after telling John Kubik what they wanted, he said something to John Repo, which they did not hear, and the latter walked out of the back door of the soft drink parlor and went outside. In a few minutes he returned and said to John Kubik that "it will be here pretty soon." As Repo came back from the outside, one of the agents stepped into a toilet at the rear of the bar and looked out of a window therein toward the rear of the grocery store, when he saw a door of that building open and a boy coming therefrom toward the rear of the soft drink parlor. When the agent returned to the room, the boy was there and handed Repo a package which he laid on the bar and John Kubik handed it to one of the agents. This package contained the alcohol. The three assignments have to do with the ability of the agent to see from the toilet window a door at the rear of the grocery store. Two of the assignments are the refusal to admit in evidence two photographs claimed to have been taken from the toilet window and the other assignment has to do with the comment of the court upon the offer of these photographs. In this connection, the appellants offered three photographs identified as Defendant's Exhibits 1, 2, and 3. The evidence of the photographer was that Exhibits 1 and 3 were taken from the toilet window and Exhibit 2 was taken from an alley showing the walk to the rear of the grocery store. When the photographs were offered, the prosecution objected to all of them "as being irrelevant and immaterial," whereupon occurred the following:

"The Court: It seems to me they are irrelevant and immaterial. Whether a man looking out of that window can see that door is dependent upon the angle and the relation of the window to the door, as a matter of angles and distances, but to put a camera in there is the most confusing way in the world to get at the facts. I take it that the only issue that you want to explain by this is, that looking out of that window you cannot see the door?

"Mr. Lones: That is true.

"The Court: That altogether depends on the matter of angles, that what angle the door is away from the window and what relation the walls have in the way of interference, and that is a matter of diagramming by angles but to take pictures by a camera leads to nothing on earth but confusion. Of course, if you once had the angles diagrammed you might add the photograph as confirming the impossibility of seeing it, but you don't gain anything by using a photograph taken under those conditions, that I can see. If there is a wall between the point of vision in the window and the door, that appears to be absolutely incontrovertible as a matter of mathematical demonstration by the line of the wall of interference and the angle from which the observation must be taken. That is a matter of mathematical demonstration, whereas photographs are confusing. I sustain the objection.

"Mr. Lones: As to Exhibits 1 and 3 that objection might apply, but as to Defendants' Exhibit Number 2, it would not apply.

"The Court: You claim that particular photograph shows the location of the door in the building?

"Mr. Lones: Yes, it shows the door right here, right beyond the obstruction here.

"The Court: In that view the photograph would be material. I will overrule the objection as to the photograph. It may be received. But as to Defendants' Exhibits 1 and 3 I will sustain the objection."

While it would have been harmless to admit these two rejected exhibits, it is difficult to see how any real prejudice could result from their exclusion. The only charge in the indictment at which this evidence was aimed was the sale of a gallon of alcohol in the soft drink parlor located at 4410 South Twenty-Seventh street. The unimportance of whether the agent could see this door is revealed by his testimony in that regard, the substance of which is as follows: "I was looking over towards the store at the corner and I saw a door fly open from the building, that is, the door facing west on that building, and a boy about ten or twelve years old was coming along after the door slammed shut on a sort...