Phair v. United States, 4772

• Decision Date: 25 August 1932
• Docket Number: No. 4772,4773.,4772
• Citation: 60 F.2d 953
• Parties: PHAIR v. UNITED STATES. MEYEROTT v. SAME.
• Court: U.S. Court of Appeals — Third Circuit

60 F.2d 953 (1932)

PHAIR v. UNITED STATES.

MEYEROTT v. SAME.

Nos. 4772, 4773.

Circuit Court of Appeals, Third Circuit.

August 25, 1932.

Joseph H. Gaudielle, of Hackensack, N. J., for appellants.

Phillip Forman, U. S. Atty., and John W. Griggs, both of Trenton, N. J., for the United States.

Before BUFFINGTON, DAVIS, and THOMPSON, Circuit Judges.

DAVIS, Circuit Judge.

On December 17, 1929, the United States attorney for the district of New Jersey filed a criminal information against the appellants charging them with violating the National Prohibition Act (27 USCA), in that they maintained a saloon at 309 Hackensack street, in the town of Carlstadt, wherein they kept and sold intoxicating liquor. Phair was charged as owner of the saloon and business and Meyerott as his employee.

On February 15, 1930, both Meyerott and Phair subscribed to affidavits to the effect that Phair sold the saloon to Meyerott on March 1, 1929, and that Phair had not had any interest in the saloon since that date. Thereupon Meyerott pleaded guilty to the charge contained in the information and the United States attorney nolle prossed the information against Phair.

Some time thereafter Phair is charged with stating to three persons that the facts contained in his affidavit were false and that he was still the owner of the saloon and had been all the time and that Meyerott was his employee. He and Meyerott were indicted, tried, and convicted for perjury. They appealed to this court and contend that the judgment should be reversed for the reason that the government did not prove by sufficient evidence that they committed perjury.

In his affidavit, which is the basis of this prosecution, Phair said: "I am not in any way connected with the saloon business conducted at No. 309 Hackensack Street, Carlstadt, New Jersey, and have not been connected in any way since March 1, 1929, on which date I conveyed the said saloon business to John Meyrott."

But Samuel Cohen, Esq., legal adviser for the deputy prohibition administrator of New Jersey, testified that Phair later appeared before Commissioner Holland and "admitted that he was the owner of that saloon"; Julian R. Eagle, Esq., could not remember the exact words used; and Thomas Bebout, federal prohibition agent, testified that Phair later admitted that he was the owner of the "property," the "premises."

The exact words used by Phair in denying the truth of the facts stated in his affidavit are important. Whether he said that he did not own the real estate, "property," "premises," or that he did not own the saloon, the business carried on there, makes all the difference as to his guilt. There is no inconsistency between the affidavit and the assertion that he owned the real estate. But assuming that Mr. Cohen, and not the other witnesses, correctly stated what Phair said, it simply amounts to an affidavit on the one side and contrary oral statements by the same person on the other. The affidavit and the later statements cannot both be true, and which one is true is unknown, for there...