Rosenberg v. United States
| Citation | 15 F.2d 179 |
| Decision Date | 17 September 1926 |
| Docket Number | No. 7324.,7324. |
| Parties | ROSENBERG v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Frank E. Tyler, of Kansas City, Mo. (Gossett, Ellis, Dietrich & Tyler and Fred W. Lewis, all of Kansas City, Mo., on the brief), for plaintiff in error.
S. M. Carmean, Asst. U. S. Atty., of Kansas City, Mo. (Roscoe C. Patterson, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.
Before STONE and LEWIS, Circuit Judges, and SYMES, District Judge.
The defendant, Rosenberg, was tried on an information charging the unlawful possession of a still, unlawful manufacture of whisky, unlawful possession of whisky, and the maintenance of a nuisance at 718 Penn street, Kansas City, Mo. He was convicted on the nuisance count only, and brings error.
Rosenberg owned a large building in Kansas City, covering the greater part of a city block, and containing over 200 rooms. Due to a difference in street levels, it had three separate basements, in addition to several upper stories. He lived with his family at 718 Penn street. The whisky and distilling apparatus found by the government was in a part of the premises which could be reached either from Seventh street or Penn street, and retained by the defendant, and fairly within the description contained in the information. Penn street was on the higher level, while the Seventh street premises were three floor levels below.
Defendant testified that in November, 1924, he leased the Seventh street premises to parties by the name of Kamol and Faron for a syrup factory; that as part of the agreement the lessees were permitted to use his telephone and install a buzzer, by which a button placed in the defendant's living quarters, and hidden by some wall decorations, operated a buzzer in the so-called syrup factory, and a button in the syrup factory in turn operated a buzzer in Rosenberg's quarters. This buzzer, however, actually ran into a dugout adjoining the syrup factory, where a large still and a quantity of fermenting mash were found.
Defendant says he visited the syrup factory every month to collect the rent, and that he had seen Kamol and Faron operating a small truck about the premises, bringing in jars and other containers. These lessees were not accounted for at the trial. The dugout was cleverly concealed behind the south wall of the third basement, going up from the lower street level, and immediately under what is designated as the main basement, that extends under the entire building. It could be entered through a trapdoor working on a spring lock arrangement, cleverly concealed under a false sink, or from the lower levels by going up an old chimney by a ladder found there, and then through a door leading into the still room.
The first objection made is to a part of the court's charge on the nuisance count. The court told the jury that, if they believed there was a building possessed and owned by the defendant, in which intoxicating liquor was manufactured in violation of law, and that the defendant knowingly maintained such building in which liquors were so manufactured, it was their duty to find the defendant guilty on the nuisance count. This language, perhaps, is not the best or clearest that could have been used under all the circumstances, and might have confused the jury. It is not clear whether the word "knowingly," as used, refers only to the maintenance of the building, or to the maintenance of a building in which the defendant knew intoxicating liquor was being manufactured or kept in violation of law.
No exceptions were...
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