Pistillo v. United States

• Decision Date: 04 May 1928
• Docket Number: No. 7920.,7920.
• Citation: 26 F.2d 202
• Parties: PISTILLO v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

26 F.2d 202 (1928)

PISTILLO v. UNITED STATES.

No. 7920.

Circuit Court of Appeals, Eighth Circuit.

May 4, 1928.

Maurice J. O'Reilly, of Omaha, Neb. (Grenville P. North, of Omaha, Neb., on the brief), for plaintiff in error.

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

Before WALTER H. SANBORN and LEWIS, Circuit Judges, and PHILLIPS, District Judge.

WALTER H. SANBORN, Circuit Judge.

Mr. Pistillo, the defendant below, was charged by the United States attorney in an information consisting of three counts: In the first, with selling at a place specified in Omaha, Neb., one-half pint of moonshine whisky containing more than one-half of 1 per cent. of alcohol by volume, fit for beverage purposes, to Valmor Preston on the 8th day of September, 1926; in the second count, with selling on the 15th day of September, 1926, one-half pint of like whisky at the same place to Valmor Preston; and in the third count, with having in his possession on the 21st day of October, 1926, at the same place 7 pints and 47 half pints of like whisky.

At the trial after the close of the evidence for the United States, the defendant made a motion that the court dismiss the third, or possession, count, of the information. The court granted that motion, and subsequently instructed the jury to render a verdict of not guilty on that count, and they did so. The result is that, if the court fell into any error of law or fact in the trial of that count, they were not errors prejudicial to the defendant, and they will not be here discussed.

At the close of the trial, counsel for the defendant moved the court to instruct the jury to return a verdict of not guilty on the first and second counts of the information, but the court denied the motion, and the defendant excepted. That motion and exception would have presented to this court the questions of the sufficiency of the plaintiff's evidence at that time to sustain a verdict against the defendant on either of these two counts, if counsel had stopped there. But they did not do so, they introduced evidence for their client, thereby waiving the objections that there was at that time no evidence sufficient to sustain a verdict against him on either count, and did not thereafter at the close of the trial, after the defendant had introduced his evidence, renew the motion or make any like request. They thereby waived the motion for an instructed verdict in favor of the defendant, and no question of the sufficiency of the evidence to sustain the verdict in this case is presented for our consideration. We have, however, carefully read all the evidence in the case, and are of the opinion that it warranted the court below in submitting the issue of the guilt or innocence of the defendant of the charges in the first and second counts of the information to the jury.

But counsel for the defendant complain that the court failed to grant their motion founded on the affidavit of the defendant, Pistillo, to suppress certain evidence consisting of moonshine whisky unlawfully taken from the building of which the defendant was in possession at 413 South Eleventh street, Omaha, on October 21, 1926, by a deputy United States marshal, without a search warrant, and which Pistillo alleged the United States intended to use as evidence against him at the coming trial of his case. They also complain that the court did not grant their motion to dismiss this action based on the affidavits of defendant, Pistillo, and Maurice O'Reilly, that Pistillo was not granted a fair...