Patrilo v. United States

• Citation: 7 F.2d 804
• Decision Date: 06 August 1925
• Docket Number: No. 6124.,6124.
• Parties: PATRILO et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

7 F.2d 804 (1925)

PATRILO et al. v. UNITED STATES.

No. 6124.

Circuit Court of Appeals, Eighth Circuit.

August 6, 1925.

Dickmann & Burleigh, of St. Louis, Mo., for plaintiffs in error.

C. J. Stattler, Asst. U. S. Atty., of St. Louis, Mo.

Before SANBORN, LEWIS, and BOOTH, Circuit Judges.

LEWIS, Circuit Judge.

The three plaintiffs in error, Nick Patrilo, Sebastian Genino and Sam Catalano were convicted on two counts of an indictment, the first charging that on April 29, 1921, they had in their possession and under their custody and control property designed and intended for the unlawful manufacture, distillation and production of intoxicating liquor, to wit, one still and a large amount of corn mash. The second count charged that on the same day and at the same place, in the city of St. Louis, they unlawfully manufactured and distilled a certain quantity of intoxicating liquor, to wit, 25 gallons of alcohol. Three police officers were the only persons who testified and they were called by the prosecution. From the evidence it appears that two of these officers went to No. 5022 Grace avenue, in the city of St. Louis, on the day named in the indictment and found Patrilo in a shed on the rear of the premises. They had a conversation with him there and he told them he would show them what he had in the basement of the house. Patrilo lived in the house; it was his home. He took the officers through the kitchen and down into the basement, where a large still was in operation and where several hundred gallons of corn mash and about 25 gallons of alcohol were found. While in the basement the officers thought they heard a door slam above them, and one of them went up and around to the front of the house and discovered Genino and Catalano running up the street, each without a hat or coat. He hailed them and they came back. They were taken down to the basement. The officers testified that when they, Patrilo and the other two defendants, were together in the basement Genino and Catalano said they were working for Patrilo, they were just getting paid for working there and had nothing else to do with it, that Patrilo was the owner and he would fix it up. Their testimony was brief, and its substance has been stated.

Section 25 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½m), defining the crime charged in the first count speaks of having, holding, and possessing property designed for the manufacturing of intoxicating liquor. This means more than physical presence and the laying on of hands. As the pleader aptly charged, it means unlawful custody and control. The evidence shows that the premises were occupied by Patrilo as his home, the still and mash were in the basement of his house at his will and wish. So far as the evidence indicates, that condition existed regardless of anything done or said by the other two defendants. They were Patrilo's hired servants. Aside from that it does not appear they had anything else to do with it, and those services did not convert Patrilo's possession and control into the joint possession, custody and control of themselves and Patrilo, within the meaning of the law. Grantello v. United States (C. C. A.) 3 F.(2d) 117. No case was made against Genino and Catalano on that count. Their request for an instructed verdict should have been granted.

But conceding that the...