Morehouse v. United States, 11049.

• Decision Date: 22 April 1938
• Docket Number: No. 11049.,11049.
• Citation: 96 F.2d 468
• Parties: MOREHOUSE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

96 F.2d 468 (1938)

MOREHOUSE v. UNITED STATES.

No. 11049.

Circuit Court of Appeals, Eighth Circuit.

April 22, 1938.

Carl F. Benjamin and Raymond T. Coffey, both of Omaha, Neb., for appellant.

Emmet L. Murphy, Asst. U. S. Atty., of Omaha, Neb. (Joseph T. Votava, U. S. Atty., and Ambrose C. Epperson and Fred G. Hawxby, Asst. U. S. Attys., all of Omaha, Neb., on the brief), for the United States.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

The appellant was convicted under an indictment containing four counts charging a violation of section 3258, United States Revised Statutes, 26 U.S.C.A. § 1162. Each count alleges the offense to have been committed April 21, 1936, "on an island in the Missouri River about five miles east of Fort Calhoun on the premises described as the Southeast Quarter of the Southwest Quarter of Section 15, Township 17, North, Range 13, East of the Sixth Principal Meridian, in Washington County, State of Nebraska, in the Omaha division of the District of Nebraska, circuit aforesaid, and within the jurisdiction of this court. * * *" Count 1 charges the unlawful fermentation of about 700 gallons of mash fit for the production of alcoholic spirits, said mash not having been fermented on the premises of a duly authorized distillery. Count 2 charges the unlawful separation of about 10 gallons of alcoholic spirits by the defendant, he not being an authorized distiller. Count 3 charges that defendant carried on the business of a distiller of alcoholic liquor with the intent to defraud the United States of America of the tax on the 10 gallons of spirits distilled by him. Count 4 charges the unlawful possession of certain distilling apparatus, set up and situated for the distillation of alcoholic spirits, to wit, a whisky still of 100 gallons capacity.

At the close of the government's case and again at the close of all the testimony, defendant interposed a motion for a directed verdict upon the ground that the government had failed to prove the venue as alleged in the indictment. These motions were overruled and the defendant excepted.

In his brief, defendant sets out the following as his "Specifications of Errors Relied Upon":

"1. Because the Court erred in overruling the motion for a directed verdict in favor of the plaintiff in error, made by the plaintiff in error at the conclusion of the Government's case in chief, and again renewed after the conclusion of all the testimony in this case.

"2. Because of the failure of the Government to prove the venue of the offense as alleged in the indictment.

"3. The Court erred in admitting, over objections of the defendant, incompetent, irrelevant and immaterial testimony prejudicial to the defendant.

"4. The Court erred in refusing to allow the defendant to prove by the Government's witnesses and by the defendant, certain evidence material to the case.

"5. The Court erred in not allowing the defendant to show that the witness, Anderson, had been convicted of a felony.

"6. That the Court erred in instructing, upon its own motion, that it was not necessary that the specific spot alleged in the indictment should be proven. That all the law requires, is that the offense was committed at or near the particular spot."

Rule 36 of this court provides as follows: "When the error alleged is to the admission or the rejection of evidence, the assignment of errors shall quote the full evidence so admitted or rejected and the objections, exceptions and rulings thereon. When the error alleged is to the charge of the court, the assignment of errors shall set out the part referred to totidem verbis."

Specifications 3, 4, and 5 are fatally defective and present nothing to this court for review. Marx v. United States, 8 Cir., 86 F.2d 245; Ed. S. Michelson, Inc., v. Nebraska Tire & Rubber Co., 8 Cir., 63 F. 2d 597; Wagner Electric Corp. v. Snowden, 8 Cir., 38 F.2d 599; Federal Surety Co. v. Standard Oil Co., 8 Cir., 32 F.2d 119; Federal Intermediate Credit Bank v. L'Herisson, 8 Cir., 33 F.2d 841.

Each of the four counts of the indictment charges the offense as having been committed on April 21, 1936, on premises described as the southeast quarter of the southwest quarter of section 15, township 17 north, range 13, east of the Sixth principal meridian, in Washington county, state of Nebraska. In support of the venue, the government called as a witness a surveyor who produced and identified a map which he had prepared and on which he indicated the location of the...