Nosowitz v. United States
| Decision Date | 27 March 1922 |
| Docket Number | 224. |
| Citation | 282 F. 575 |
| Parties | NOSOWITZ et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Morris Kamber, of New York City (Otho S. Bowling, of New York City of counsel), for plaintiffs in error.
Ralph C. Greene, U.S. Atty., of Brooklyn, N.Y. (Henry J. Walsh Asst. U.S. Atty., of Brooklyn, N.Y., of Counsel), for the United States.
Before HOUGH, MANTON, and MAYER, Circuit Judges. 0** MANTON, Circuit Judge.
The plaintiffs in error were charged in an information with an offense in that on or about the 22d of December, 1920, within the jurisdiction of the Eastern district, they did 'unlawfully, willfully, and knowingly manufacture and possess for sale and for some time prior thereto sell a certain machine, contrivance, or still designated or intended for use in the unlawful manufacture of intoxicating liquors,' in violation of section 18 of title 2 of the Volstead Act (41 Stat. 313). At the end of the government's proof, the plaintiffs in error moved to dismiss the information, which motion was denied. The plaintiffs in error offered no evidence.
Two witnesses were called on behalf of the government. The first a so-called prohibition enforcement agent, testified that he went to 8 Noll street, which was a factory building and had the name upon it. He describes it as a two-story house, old-fashioned, with a factory on the parlor floor. In the factory he saw some galvanized open cans. He talked with Mr. Nosowitz whom he describes as the father, and asked him what he was making these vessels for to which he replied, 'You know.' The witness then said, 'They can make whisky, you know,' and the reply was, 'Yes.' He thereupon asked him to sell the witness one of them, and he said 'No,' that he sold for wholesale only. That was all the conversation had. Whereupon a search warrant was issued and a seizure made, resulting in the prohibition agent taking some copper coils or pipe, screw caps, and some unfinished copper vessels, and they were placed in a warehouse.
The same witness visited the premises of one Grossman at 494 Ninth avenue, New York City, and there seized two alleged stills, one of which was produced in court and marked for identification. He was thereupon asked if that was the same type of vessel as was seized at the premises of Nosowitz, and he said it was. He then related a conversation had with the elder Nosowitz about these 'stills.' In this last conversation, the witness told Nosowitz that the vessels were stills, and that he found two of them in Grossman's premises on Ninth avenue, and further that Grossman told the witness that he had purchased them from Nosowitz, for which he said he had a check showing payment, and that Grossman had them in his store for sale, to which the elder Nosowitz replied that he sells them in lots to agents, and 'they may be all over,' and 'sold as well as in Grossman's. ' This plaintiff in error said he thought the law permitted him to make them, and he called them 'vessels.' He was thereupon permitted to testify that the vessel seized from the plaintiffs in error and the parts 'constituted the component parts of a still.'
Grossman testified that he was in the hardware and crockery business at 494 Ninth avenue. He identified the vessel which was seized at his premises, and testified that he did not pay for the vessel before it was taken away from him; but he had a bill rendered him, with the name of the creditor thereon as 'A. S. Nosowitz.' He did not know either of the plaintiffs in error and had never seen them. He bought the can, he says, from some salesman who came to his premises. There appeared a label on the vessel 'for storing gas and oils.' Upon this testimony, the jury were permitted to speculate as to an intentional violation of the statute on the part of the plaintiffs in error. They rendered a verdict of guilty.
The name of Hyman Nosowitz (who has been found guilty) was not used or referred to in all the testimony adduced, and the witness refers to Nosowitz as the 'elder Nosowitz,' and the only information that the record discloses of there having been any one else than the 'elder Nosowitz' is the fact that the name of was upon the door of the so-called factory. It might well be that Nosowitz had more than one son, and it is not shown that he even had a son. It might also be a fact that the name is used as a trade-name, or was,...
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