McDonough v. United States

• Citation: 299 F. 30
• Decision Date: 26 May 1924
• Docket Number: 4109.
• Parties: McDONOUGH et al. v. UNITED STATES. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

299 F. 30

McDONOUGH et al. v. UNITED STATES. ^[1]

No. 4109.

United States Court of Appeals, Ninth Circuit.

May 26, 1924

Rehearing Denied June 30, 1924. [Copyrighted Material Omitted]

Frank J. Hennessy and Marshall B. Woodworth, both of San Francisco Cal. (Charles J. Heggerty, of San Francisco, Cal., of counsel), for plaintiffs in error.

John T Williams, U.S. Atty., and T. J. Sheridan, Asst. U.S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and MORROW, Circuit Judges.

MORROW Circuit Judge.

The plaintiffs in error were tried, convicted, and sentenced upon two counts of a criminal information filed by the United States attorney. We will hereafter refer to them as the defendants.

The first count charged that the defendants on March 23, 1923, maintained a common nuisance at the northeast corner of Clay and Kearny streets, San Francisco, in keeping for sale on the premises certain intoxicating liquor, to wit, five gallons of whisky containing one-half of 1 per cent. or more of alcohol, fit for use for beverage purposes, in violation of section 21 of title 2 of the Act of October 28, 1919, known as the National Prohibition Act (41 Stats.at Large, 307, 314 (Comp. St. Ann. Supp. 1923, Sec. 10138 1/2jj)).

The second count charged that the same defendants, on March 23, 1923, at the same place, sold certain intoxicating liquor, to wit, five gallons of whisky containing one-half of 1 per cent. or more of alcohol, fit for use for beverage purposes, in violation of section 3 of title 2 of the Act of October 28, 1919, known as the National Prohibition Act (41 Stats.at Large, 307, 308 (Comp. St. Ann. Supp. 1923, Sec. 10138 1/2aa)).

The following testimony on behalf of the prosecution relates to some of the questions involved in this writ of error:

M. J. O'Callaghan, Jr., testified that he was a federal prohibition agent, and was such on March 23, 1923; knew the defendants, Peter P. McDonough and Harry Rice, the first by sight for about five years, and the latter since about March 16, 1923; was familiar with the premises known as McDonough's, at the northeast corner of Clay and Kearny streets, San Francisco, the premises consisting of a bar and a back room and some kind of a lodging house at the top. It was what would be called an old-time saloon. On March 23, 1923, the witness, with one Frank Serresseque and one Miles Perrucci, entered the premises, and saw Harry Rice and the bartender. Rice was standing toward the end of the bar on the outside. Witness overheard a conversation between Rice and Serresseque. Serresseque said to Rice: 'Here is a bootlegger from San Jose, and he wants to get some whisky. ' Rice, in response, said: 'Is he all right?' Serresseque said: 'Yes.'

Perrucci and witness were then introduced to Rice. Defendant Rice asked how much whisky he wanted. He said: 'Five gallons.' The price was set on the purchase. The price was $35 a gallon. Rice then took a bottle of whisky from his back pocket and handed it to the bartender, and they had a drink on the house. The bartender poured out a drink in glasses that were placed upon the bar. They were not charged for that drink. After that drink Perrucci bought a drink at 50 cents a drink and paid the money to the bartender, who put it in the cash register. The drinks Perrucci purchased came from the same bottle that was handed over the bar by Rice. Witness bought a drink after that, which came from the same source; paid 50 cents a drink. The bartender took the money and put it in the cash register. Then witness saw the defendant Peter P. McDonough coming out of the back room. Witness saw a safe in the back room, and noticed the name 'McDonough' painted across the face. McDonough came out of the office. Rice stepped over to him, and told him there was a new whisky customer. McDonough said, in response to that, 'Is he all right?' Rice said to McDonough, in answer to that, 'He must be; the Frenchman brought him,' referring to Serresseque.

Perrucci then took $180 from his vest pocket and handed it to McDonough. McDonough threw a $20 bill on the counter, got change from the bartender, and handed back to Perrucci $5. After payment to McDonough by Perrucci, Perrucci said, if the whisky was good, they would come back and be a good customer. McDonough said the whisky was good and could be sold to anybody, and was from 108 to 110 proof and could be cut. Perrucci said, in reply, that if it was good he would be a good customer. McDonough said that he had three or four boats coming in originally, but now only one was coming in, but next month he expected more in, and the next time he came it would be a dollar cheaper per gallon. Rice then asked witness and Perrucci: 'What means of transportation have you? ' Perrucci said: 'Our car is broken down.' Then Rice said: 'We will go in Frank's car,' meaning Serresseque.

Thereupon Serresseque and defendant Rice left in Serresseque's car to get the whisky. Witness and Perrucci took a walk up Kearny toward Broadway. When they returned to the saloon, they saw the defendant Rice. He told witness and Perrucci that, as they were not there when Rice and Serresseque arrived back, Serresseque took the whisky out to 2001 Folsom street. Witness and Rice went there and found the five gallons of whisky. Serresseque had it, and gave it to Perrucci in the presence of witness. Witness thereupon identified the demijohn. It was thereafter introduced in evidence.

On cross-examination the witness said, among other things:

'When McDonough came out of the back room, he had some bills, some greenbacks, in his hands.'

Frank Serresseque testified that he knew the witnesses O'Callaghan and Perrucci; that he went there with them on March 23d. The parties entered the saloon, and saw defendant Rice, and had a conversation with him. Witness told Rice he wanted to get 5 gallons of whisky for a friend of his, Perrucci. Rice asked witness if he knew the man. Witness told him, 'Yes; the man was introduced to him by a friend, by O'Callaghan. ' Rice asked if he was all right. Witness told him, 'Yes; the man is all right. ' After that Perrucci paid for the whisky in advance. Witness made Perrucci and O'Callaghan acquainted with Rice by their right names. They had a talk with Rice about the whisky. After the talk, or while it was going on, or shortly following it, witness saw defendant McDonough. He came from back in the office at the rear corner of the saloon. He became acquainted with Perrucci and O'Callaghan. Witness saw them talking together. Rice introduced them to him. Witness saw money transaction between Perrucci and McDonough. Saw Perrucci take his money and hand it to McDonough. He took it out of his vest pocket. Something was said after that regarding how he would get the whisky. Rice told witness they were to get the whisky, he and witness. He went with witness' machine to 162 Eleventh avenue; stopped the machine in front of the house. Rice went into the house without a demijohn and returned with the five-gallon demijohn, put it in the machine. The witness identified the demijohn. Witness first saw that demijohn in Harry Rice's hand at 162 Eleventh avenue; after witness got this demijohn from Rice, they went back to McDonough's saloon. When they got there they did not see Perrucci or O'Callaghan.

Witness told Rice to tell Perrucci and O'Callaghan to come and meet him at Enterprise alley, between Sixteenth and Seventeenth streets, off Folsom. Witness drove to that point; left the whisky in the machine. Later saw Perrucci. He told witness he wanted to get the whisky. He took him out and handed him the whisky. He put it in his machine and went away with it. O'Callaghan was with him. While witness was in McDonough's saloon, talking to Rice about buying this whisky, witness saw somebody getting drinks, and Rice served them. Witness saw Perrucci buying drinks. He could not remember if O'Callaghan did. He knew what price Perrucci would have to pay for the whisky. It was $175-- $35 a gallon. He bought some of it before from Mr. Rice, and paid $35. The first time was about 4 1/2 months before; the second time was about 2 1/2 or 3 months before. Witness bought five gallons each time, and the whisky came from the same place, 162 Eleventh avenue. Witness made the arrangements for these other purchases at Harry Rice's place at McDonough's saloon, northeast corner of Clay and Kearny streets.

Witness saw McDonough after Perrucci had made this purchase-- about 8 or 10 days after. A fellow came over to witness' place and told him that McDonough wanted to see him. Witness went to see him, and saw him down at the office, one or two doors below the saloon. When witness went there, he asked what McDonough wanted. Witness said: 'What do you want to see me for? ' McDonough asked about the fellow-- who was this fellow that he introduced to Harry Rice in the saloon, Perrucci and O'Callaghan? Witness told him those fellows were all right. Mr. Perrucci lives in San Jose. His father had a saloon and he has a vineyard, and two or three ranches, and he bought the whisky because he wanted to start in the bootlegging business himself. He never told the witness if he was a federal prohibition agent. Witness did not know it. McDonough did not ask him. He said they were kind of suspicious, and that was why the saloon was closed. McDonough did not tell witness anything about the purchase of whisky that Perrucci made on the 23d. He just said he was suspicious of Perrucci, and that was why he closed his saloon.

Following the verdict of the jury, finding both defendants guilty counsel moved for a new trial on behalf of each defendant, on various grounds, among others that the evidence was insufficient to sustain the verdict. The motions were considered by the court and denied....