Marx v. United States

• Decision Date: 13 November 1936
• Docket Number: No. 10571.,10571.
• Citation: 86 F.2d 245
• Parties: MARX v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

86 F.2d 245 (1936)

MARX v. UNITED STATES.

No. 10571.

Circuit Court of Appeals, Eighth Circuit.

November 13, 1936.

Neil Hughes, of Minneapolis, Minn. (Sam Kroman, of Minneapolis, Minn., on the brief), for appellant.

James J. Giblin, Asst. U. S. Atty., of St. Paul, Minn. (George F. Sullivan, U. S. Atty., and John L. Wheeler, Asst. U. S. Atty., both of St. Paul, Minn., on the brief), for the United States.

Before GARDNER, SANBORN, and FARIS, Circuit Judges.

GARDNER, Circuit Judge.

Appellant and two others, Clarence H. Landwehr and Otto Villwock, were indicted in an indictment containing three counts, the first and second counts charging a violation of the Liquor Taxing Act of 1934, § 201 (26 U.S.C.A. § 1152a), while the third count charged a conspiracy to commit an offense against the United States in violation of the Criminal Code, § 37 (18 U.S.C.A. § 88). We shall refer to the parties as they were designated in the lower court.

The first count charged in substance that the defendants on the 20th day of December, 1934, unlawfully, willfully, and feloniously did possess a quantity of distilled spirits, to wit, 68 gallons, more or less, of alcohol, without the immediate containers thereof having affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all internal revenue taxes imposed upon such spirits. The second count is identical with the first, except that it charged the defendants with a sale of the distilled spirits described in the first count. The third count charged in substance that from and including December 19, 1934, to and including December 20, 1934, the defendants conspired with each other and together with sundry and divers other persons to the grand jurors unknown to commit certain offenses against the United States, to wit, to possess and sell a quantity of distilled spirits without the immediate containers thereof having the proper stamps attached evidencing payment of all internal revenue taxes imposed on said distilled spirits. The indictment set forth three overt acts in furtherance of the conspiracy alleged. On trial the jury found the defendant Clarence H. Landwehr guilty on the first and third counts of the indictment and not guilty on the second count, and it found the defendant herein not guilty on the first count and guilty on the second and third counts. The defendant Otto Villwock entered a plea of guilty. The appellant, Arthur Marx, was sentenced on the second count to imprisonment in federal prison for a period of 18 months and to pay a fine of $1,000, and on the third count a like imprisonment and fine, the sentences to run consecutively. Defendant Marx alone prosecutes this appeal, seeking a reversal of the judgment on the grounds: (1) Insufficiency of the evidence to support the verdict of guilty as to the second or third counts; (2) errors of the court in its rulings on the admissibility of evidence; (3) error of the court in giving a supplemental charge to the jury. We shall consider these contentions in the order named.

As has been observed, the second count of the indictment charged a sale of distilled spirits to one Guy W. Cravens, and it is therefore necessary to consider the evidence produced in support of this charge. It is strenuously urged that there is no evidence that the defendant Marx ever agreed to sell the distilled spirits or alcohol, but that the agreement for such sale was between the government witness, Guy W. Cravens, and the defendant Otto Villwock, but, in our view of the issue presented on this count of the indictment, it is not necessary to consider the evidence of surrounding circumstances tending to connect the defendant with the alleged sale of this liquor. Confessedly, if there were no completed sale of the alcohol by any of the defendants, then, of course, the defendant could not properly be convicted under count 2. The only evidence as to such a sale was given by the government witness, Guy W. Cravens. He testified that he had negotiations about the sale of alcohol with one Ringler at Staples, Minn., on December 19, 1934; that on December 20, 1934, pursuant to a talk he had had with Ringler, he had a conversation over the telephone with Villwock. He then negotiated with Villwock in regard to the price at which Villwock would furnish him alcohol, and the price finally agreed upon was $3.50 a gallon. Following this conversation, Villwock, about 9 o'clock p. m., came to Cravens' room at the Breen Hotel at St. Cloud, Minn., and asked Cravens to pay him in advance for the alcohol. Cravens showed him the money, but refused to turn it over to him, and after some negotiation it was agreed that Villwock should take Cravens' car and load the alcohol into it. Villwock told him it would take from fifteen to twenty minutes to get the alcohol. After waiting an hour, the witness became apprehensive that he had "slipped somewhere." One of the agents who was assisting him called up from the lobby, and he gave the assistant his car number and told him to scout around to try and locate his car. Just at this time Villwock called on the phone, and said, "O. K., George, the stuff is ready." Villwock declined to come up to Cravens' room, but said, "No, you come down here. I can not be monkeying around." The witness, accompanied by a federal agent, then went down and met Villwock in the lobby. He was then driven to the place where his car was standing. Villwock then said to him, "You will find the stuff all there." At that time defendant Landwehr was sitting behind the steering wheel, and as they approached the Cravens car he opened the door and started to get out. The witness was then asked: "Q. Did he get clear out or not. A. Well, he did not right then because I opened the back door and he could not quite get out at that time."

When the witness opened the door of his car, he found that there were 68 one-gallon tins of alcohol, no United States revenue stamps being on any of the containers. What then occurred is stated by the witness as follows: "At the time that I discovered the alcohol in my automobile, I had expected that the other federal and state officers would arrive and in order to stall for time I said to Villwock, `This is fine, Otto, but I will never pay for the stuff until I have a chance to look at it;' so I picked up one of the cans, pulled out a pair of pliers and twisted the top off, stuck my finger in it and was just going to taste it when I saw a car coming down the street without any lights which I recognized as the agents' car."

Then follows testimony as to the arrest of Villwock and Landwehr and the escape of the defendant Marx.

In Calcara v. United States (C.C.A.) 53 F.(2d) 767, 768, in an opinion by Judge Stone, it is said: "A sale always involves the passage of title to the thing bought and the payment therefor. The parties may make any agreement they desire either as to when title shall pass or as to when payment shall be made. But, whatever that agreement may be, there is no completed sale until the title to the thing sold passes to the buyer in accordance with the agreement. * * * Where no specific intention appears from the contract of the parties the court must take all of the circumstances surrounding the transaction and therefrom declare the intention."

The Supreme Court of Minnesota has declared that: "In the absence of evidence indicating that credit is to be given, a sale is presumed to be for cash. In the instant case, it was expressly stated that the sale was to be for cash. Payment and delivery in the sale of personal property are concurrent and mutually dependent acts. If the payment is evaded by the purchaser upon getting possession of the property, the seller may immediately reclaim the property; the title in such case not passing to the purchaser, the delivery being merely conditional, and the purchaser taking simply as trustee for the seller until the condition is performed." Gustafson v. Equitable Loan Ass'n, 186 Minn. 236, 243 N.W. 106, 107. See, also, Schnirring v. Stubbe, 177 Minn. 441, 225 N.W. 389.

The transaction involved took place in Minnesota. The parties thereto were conclusively presumed to know the law as it existed at the time and place of making the contract and where it was to be performed, and this law entered into and formed a part of it as fully as if it had been expressly referred to or incorporated in its terms. Farmers' Bank v. Federal Reserve Bank, 262 U.S. 649, 43 S.Ct. 651, 67 L.Ed. 1157, 30 A.L.R. 635. In the circumstances disclosed by the evidence, it is clear that the payment of the purchase price was a condition precedent to the passing of title. This was not only the presumption, but the evidence clearly indicates that the parties intended a sale for cash on delivery. Canadian Northern Ry. Co. v. Northern Mississippi Ry. Co. (C.C.A.8) 209 F. 758; Globe Milling Co. v. Minneapolis Elev. Co., 44 Minn. 153, 46 N.W. 306.

Cravens asserted a right to inspect for the purpose of determining the character or quality of the liquor, and this was acquiesced in by Villwock. Cravens asserted, "I will never pay for the stuff until I have a chance to look at it," and he proceeded then to open one of the cans and "was just going to taste it," when the agents arrived and the defendants were placed under arrest. He in fact had the right to an inspection and examination of the property for the purpose of determining whether it was of the character and quality contracted for and he had therefore not accepted it, and this is an additional reason why it must be held that title did not pass and the sale was not consummated. Toledo Computing Scale Co. v. Fredericksen, 95 Neb. 689, 146 N.W. 957; Ten Broeck Tyre Co. v. Rubber Trading Co., 186 Ky. 526, 217 S.W. 345; Field v. Descalzi, 276 Pa. 230, 120 A. 113.

We conclude that the evidence was not sufficient to sustain the conviction of the defendant on this second count.

As the sentences run...