Nanfito v. United States

• Decision Date: 13 June 1927
• Docket Number: No. 7381-7384.,7381-7384.
• Citation: 20 F.2d 376
• Parties: NANFITO v. UNITED STATES. St. LUCAS v. SAME. GIBILISCO v. SAME (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

20 F.2d 376 (1927)

NANFITO v. UNITED STATES.

St. LUCAS v. SAME.

GIBILISCO v. SAME (two cases).

Nos. 7381-7384.

Circuit Court of Appeals, Eighth Circuit.

June 13, 1927.

E. D. O'Sullivan, of Omaha, Neb. (W. N. Jamieson, C. J. Southard, William E. Lovely, Joseph M. Lovely, John D. Wear, and Ray T. Coffey, all of Omaha, Neb., on the brief), for plaintiffs in error.

George A. Keyser, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., and Ambrose C. Epperson, Andrew C. Scott, all of Omaha, Neb., and William J. Froelich, of O'Neill, Neb., Asst. U. S. Attys., on the brief), for the United States.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and KENNAMER, District Judge.

KENNAMER, District Judge.

Plaintiffs in error were charged by an indictment containing seven counts with the violation of section 3257 of the Revised Statutes of the United States (Comp. St. § 5993), in defrauding and attempting to defraud the government of a tax on distilled spirits; section 3281 of the Revised Statutes of the United States (Comp. St. § 6021), in distilling with intent to defraud the government of a tax; section 3282 of the Revised Statutes of the United States (Comp. St. § 6022), in making and fermenting mash on premises other than a distillery; and section 37 of the Penal Code of the United States (Comp. St. § 10201), in conspiring to violate sections 3257, 3281, and 3282 of the Revised Statutes. Certain other defendants were indicted with plaintiffs in error, but were not tried with them.

The defendants, Joe St. Lucas, Tony Nanfito, Rosario Gibilisco, Sam Gibilisco, and Frank D. Close, filed a motion to quash the indictment, which motion was overruled on the day it was filed, the court refusing to admit any evidence offered in support of the same. A challenge to the array or panel of jurors filed by the defendants was overruled and thereafter, the above-named defendants filed a special demurrer, which was likewise overruled. Five of the defendants, to wit, Frank D. Close, Louise Vinciquerra, Sebastiano Vinciquerra, Earl C. Hanning, and Tony Cortese, pleaded guilty to the indictment. The defendants St. Lucas, Nanfito, Gibilisco, and Gibilisco pleaded not guilty, and were tried, found guilty on each of the seven counts of the indictment, and sentenced to imprisonment of six months and to the payment of a fine of $500, the imprisonment to run concurrently, as regards each of the seven counts. Thereafter a motion for a new trial and a motion in arrest of judgment were filed, both of which were overruled. From the judgment and sentence of conviction, the defendants have sued out a writ of error to this court.

The facts disclosed by the record are that the plaintiffs in error, together with one Hanning, who, at and prior to the time of the indictment, was a federal prohibition agent, entered into a conspiracy to manufacture whisky. Suitable premises were obtained just outside the city of Omaha, Neb., where a distillery containing three stills was established. Each of the persons entering into the conspiracy for the manufacture of the whisky and for the carrying on of the business of a distillery either paid in a definite sum of money, or were to perform services, and all were to share in the profits and proceeds of the undertaking. The record further shows that a large quantity of whisky was manufactured and sold by the parties and the business of operating a distillery was carried on for a brief period of time. Certain of those entering into the conspiracy, above enumerated, entered pleas of guilty and testified on behalf of the government at the trial of the case. The record discloses that several witnesses were called on behalf of the defendants who testified as to the good character of the defendants St. Lucas and Nanfito.

There are 19 assignments of error in the writ, many being without merit. Only those containing merit will be herein discussed, which are briefly the assignments setting forth the refusal of the trial court to quash the indictment, error of the trial court in overruling the special demurrer to the indictment, refusal of the court to define reasonable doubt when same was requested, refusal of the trial court to instruct the jury that the indictment should not be considered as evidence against the defendants, and refusal of the trial court to instruct the jury upon the consideration of the evidence of good character.

The first ground presented in support of the motion to quash the indictment is that no colored persons were called to serve upon the grand jury returning the indictment. The record does not disclose that any colored people were deliberately or intentionally not called for jury service, because of their race or color. In the absence of a showing that colored persons were excluded from jury service on account of their race or color, we are unable to see how these defendants were prejudiced or injured because of the absence of colored persons on the grand jury.

It is further contended by plaintiffs in error that there was no competent evidence before the grand jury returning the indictment. This contention is worthy of much consideration. At the trial of the case, the defendants, plaintiffs in error, made an offer of proof to establish the fact that the only witness who testified before the grand jury upon which the indictment is predicated, was Louise Vinciquerra, who was indicted in this cause along with Sebastiano Vinciquerra, her husband. It is insisted that the testimony of the wife was incompetent, because of the indictment of the husband in the same transaction involving the commission of a crime. The motion to quash the indictment was filed on the day on which the case was tried. However, the trial court considered the matter as having been timely filed and presented. The question of insufficiency of evidence before the grand jury cannot be taken advantage of for the first time at the opening of the trial.

A motion to quash an indictment is addressed to the discretion of the court and will ordinarily not be reviewed in an appellate court. United States v. Rosenberg, 74 U. S. (7 Wall.) 580, 19 L. Ed. 263; Lewis v. United States (C. C. A.) 295 F. 441; Durland v. United States, 161 U. S. 306, 16 S. Ct. 508, 40 L. Ed. 709. However, as the trial court did not predicate his ruling upon the delay in the attack on the indictment, we shall consider the same upon its merits. It has become accepted as a general rule that investigations before the grand jury should be made in accordance...