Rose v. United States

• Decision Date: 19 July 1921
• Docket Number: 3522.
• Citation: 274 F. 245
• Parties: ROSE v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

274 F. 245

ROSE v. UNITED STATES.

No. 3522.

United States Court of Appeals, Sixth Circuit.

July 19, 1921

Frank B. Kavanagh, of Cleveland, Ohio (Frank F. Gentsch, of Cleveland, Ohio, on the brief), for plaintiff in error.

H. L Eastman, Asst. U.S. Atty., of Cleveland, Ohio (E. S. Wertz U.S. Atty., of Cleveland, Ohio, on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge.

The plaintiff in error was convicted in the United States District Court, Northern District of Ohio, Eastern Division upon an indictment, the first count of which charged him with the unlawful sale of intoxicating liquor in violation of the Act of November 21, 1918, known as the War-Time Prohibition Act (Comp. St. Ann. Supp. 1919, Secs. 3115 11/12f-3115 11/12h). The second count charged the unlawful possession of intoxicating liquors in violation of section 3, title 2, of the Act of October 28, 1919, known as the National Prohibition Act (41 Stat. 308). A motion for new trial was overruled, and a separate sentence imposed on each count.

The plaintiff in error asks reversal of conviction on the first count for the reason that:

'The court erred in overruling the objection to the sufficiency of the first count because Congress was without power to enact, constitutionally, the War-Time Prohibition Act.'

In the disposition of this assignment of error, it is sufficient to say that the Supreme Court of the United States has held that act constitutional. Ruppert v. Caffey, 251 U.S. 264, 40 Sup.Ct. 141, 64 L.Ed. 260; Hamilton v. Distilleries Co., 251 U.S. 146, 40 Sup.Ct. 106, 64 L.Ed. 194.

Reversal of the conviction on this count is also asked by the plaintiff in error for the further reason that the verdict of guilty is not sustained by sufficient evidence. An examination of this record discloses the fact that one witness, Burton, testified positively and unequivocally that on the date named in the indictment he was in defendant's place of business; that Herman Zanker was with him; that he asked for and obtained from the defendant's bartender two glasses of whisky for which he paid 50 cents for each glass; that the defendant was standing at the cigar counter three or four feet away from him at the time he purchased and drank this whisky; that he drank one glass of this whisky, and that Zanker drank the other glass; that he was familiar with the taste, smell, and appearance of whisky, and that the whisky he obtained from defendant's bartender at this time was rye whisky; that the bartender placed the money that the witness paid for this whisky in the cash register on the back bar. The evidence of this witness, if believed by the jury, fully sustains its verdict.

It is insisted, however, that the evidence further shows that Burton was employed and paid by the Dry Maintenance League for obtaining evidence of the violation of the War-Time Prohibition Act; that he is directly contradicted by the witness Zanker, who, Burton said, was with him at the time and drank one of the two glasses of whisky purchased and paid for by Burton; that he is also contradicted by the defendant and his bartender, Szularcki; and that by reason of this conflict in the evidence the uncorroborated testimony of this one witness is not sufficient to sustain the verdict. The fact that Burton was employed by the Dry Maintenance League to secure this evidence did not disqualify him as a witness, or prevent a conviction upon his uncorroborated testimony. Grimm v. U.S., 156 U.S. 604-611, 15 Sup.Ct. 470, 39 L.Ed. 550; Carey v. State, 70 Ohio St. 121-126, 70 N.E. 955; People v. Noelke, 94 N.Y. 137, 46 Am.Rep. 128. The credibility of the witnesses is a question solely for the jury. This court has no power to determine the weight of the evidence. Section 1011, R.S. (Comp. St. Sec. 1672), provides, among other things, that 'there shall be no reversal in the Supreme Court or in a Circuit Court * * * for any error of fact. ' Therefore, if the verdict is sustained by any substantial evidence, it is conclusive upon this court, regardless of the claim of the plaintiff in error that upon all the evidence the verdict should have been one of acquittal upon this count. U.S. v. Penna. & Lake Erie Dock Co. (C.C.A. 6, No. 3466, decided May 7, 1921) 272 F. 839, and cases there cited.

The objection to the second count of the indictment is based upon the theory that the National Prohibition Act of October 28, 1919, is unconstitutional, for the reason that section 3 of title 2 provides that no person shall possess any intoxicating liquor after the Eighteenth Amendment to the Constitution of the United States goes into effect, except as authorized and permitted by that Act, although such intoxicating liquors were lawfully acquired before that time.

Section 25 of the act further provides that it shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used, and section 33 of the act provides that after February 1, 1920, the possession of liquor by any person not legally permitted under this title to possess the same, shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this title. It is also further provided in this section that it shall not be unlawful to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only, and such liquors are for use only for the personal consumption of the owner thereof and his family residing in such dwelling and of his bona fide guests when entertained by him.

Section 2 of the Eighteenth Amendment to the Constitution of the United States provides, among other things, that 'Congress and the several states shall have concurrent power to enforce this article by appropriate legislation. ' 'Appropriate legislation,' as used in this section, necessarily means such legislation as will tend to make this constitutional provision completely operative and effective. National Prohibition Cases, 253 U.S. 350, 40 Sup.Ct. 486, 588, 64 L.Ed. 946.

The power conferred on Congress by section 2 of the Eighteenth Amendment is plenary in its nature, and commits to Congress the discretion to determine the legislation necessary and appropriate to enforce the provisions of section 1 of this constitutional amendment. Unless the enactment has no substantial relation to the enforcement of the constitutional prohibition of the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from, the United States and all territories subject to the jurisdiction thereof, for beverage purposes, a court has no power to determine the wisdom of the enactment or challenge the manner of the exercise by Congress of the authority and discretion confided to it by the second section of this constitutional amendment. Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 33 Sup.Ct. 44, 57 L.Ed. 184.

Congress in the exercise of its power has determined that it is essential and appropriate to the enforcement of this constitutional amendment to restrict the possession of intoxicating liquors to those having permits to keep and possess the same and to private homes when intended for the sole use of the owner and his family and their bona fide guests. The possession of intoxicating liquors is the first essential to its barter and sale as a beverage. Intoxicating liquors, stored in the same building in which the owner or occupant of the building is conducting a business with the public generally, not only furnishes opportunities for the violation of the provisions of this constitutional amendment, but would also tend to hinder, delay, and prevent the detection of unlawful traffic therein. It would therefore appear that this provision of the National Prohibition Act has a substantial relation to the enforcement of national prohibition, and that Congress has not in this respect transcended its power or abused the discretion conferred upon it by the second section of the Eighteenth Amendment. Tonic Co. v. Lynch, supra; U.S. v. Murphy (D.C.) 264 F. 842; National Prohibition Cases, supra.

The facts in this case are wholly different from the facts in the cases of United States ex rel. Soeder v. Crossen (D.C.) 264 F. 459, and Street v. Lincoln Safe Deposit Co., 254 U.S. 88, 41 Sup.Ct. 31, 65 L.Ed. . . ., 10 A.L.R. 1548, decided by the Supreme Court November 8, 1920. In the case of Soeder v. Crossen, above cited, Mrs. Soeder and her husband occupied a part of the building in which the intoxicating liquors were kept as their private dwelling only. In another part of the same building, wholly separate and apart from their dwelling, some other person, in occupation of that part, conducted a business. Upon this state of facts the court properly held that the relator came within the exception in section 33 making it lawful 'to possess liquors in one's private dwelling while the same is occupied and used by him as his dwelling only. ' The correctness of this holding further appears by the provision of section 25 of this act which provides:

'The term 'private dwelling' shall be construed to include the room or rooms used and occupied, not transiently, but solely as a residence in an apartment house, hotel, or boarding house.'

Necessarily therefore, the exception applies to the building or to the part of a building that is used and occupied by the person who is in possession of such intoxicating liquor. If all of the building or the part exclusively occupied by such person is used as a dwelling only, then such possession is not...