Rosenfeld v. United States

• Decision Date: 23 April 1912
• Docket Number: 1,790.
• Citation: 202 F. 469
• Parties: ROSENFELD v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

202 F. 469

ROSENFELD v. UNITED STATES.

No. 1,790.

United States Court of Appeals, Seventh Circuit.

April 23, 1912

Rehearing Denied December 24, 1912.

The indictment herein contained eight counts charging violations of several sections of the Revised Statutes of the United States, having reference to the handling of distilled spirits. Defendant went to trial on the plea of not guilty. At the close of all the evidence defendant moved the court to instruct the jury to exclude the evidence, and find a verdict of not guilty as to each of the counts. Thereupon the government entered a nolle prosequi as to counts 1, 2, 3, 6 and 7. The court denied the motion as to counts 4, 5, and 8 and the case went to the jury upon those counts. The jury rendered a verdict finding defendant guilty as charged as to counts 4 and 8, and not guilty as to count 5. Motions for new trial and in arrest were made and overruled, and defendant was adjudged guilty and sentenced to imprisonment in the penitentiary for a term of 15 months, and to pay a fine of $2,000. Thereupon this writ of error was sued out, and the cause is duly before us for review.

Count 4 of the indictment reads as follows, viz.: '(4) And the grand jurors aforesaid, upon their oaths aforesaid, do further present that the said Hyman Rosenfeld, late of the city of Chicago, in the said division and district, on, to wit, the first day of April, in the year of our Lord nineteen hundred and ten, at Chicago aforesaid, in the division and district aforesaid, unlawfully, knowingly, and willfully, and with intent to defraud the United States, did conceal and aid in the concealment of certain large quantities, to wit, one thousand proof-gallons, of distilled spirits on which the internal revenue tax then imposed by law upon such spirits had not been paid, and which said spirits had theretofore unlawfully been removed from a certain distillery there situate, to wit, from the distillery of the Illinois Fruit Distilling Company in the said city of Chicago, Illinois, to a place other than the distillery warehouse provided by law to wit, to the place of business of him, the said Hyman Rosenfeld, in the said city of Chicago, Illinois; against the peace and dignity of the said United States, and contrary to the form of the statute of the same in such case made and provided'-- and is based upon section 3296 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 2136), which reads: 'Whenever any person removes, or aids or abets in the removal of any distilled spirits on which the tax has not been paid, to a place other than the distillery warehouse provided by law, or conceals or aids in the concealment of any spirits so removed, or removes, or aids or abets in the removal of any distilled spirits from any distillery warehouse, or other warehouse for distilled spirits authorized by law, in any manner other than is provided by law, or conceals or aids in the concealment of any spirits so removed he shall be liable to a penalty of double the tax imposed on such distilled spirits so removed or concealed, and shall be fined not less than two hundred dollars nor more than five thousand dollars, and imprisoned not less than three months nor more than three years.'

Count 8 reads as follows: '(8) And the grand jurors aforesaid, upon their oaths aforesaid, do further present that the said Hyman Rosenfeld, at Chicago aforesaid, in the said division and district, on, to wit, the first day of April, in the year of our Lord nineteen hundred and ten, unlawfully, knowingly, and willfully did purchase and receive certain large quantities, to wit, one thousand gallons of distilled spirits, which said distilled spirits had theretofore been removed from a distillery, to wit, from the distillery of the Illinois Fruit Distilling Company, in the said city of Chicago, Illinois, to the place other than the distillery warehouse provided by law, to wit, to the place of business of him, the said Hyman Rosenfeld, in the said city of Chicago, Illinois, and on which said distilled spirits the said Hyman Rosenfeld then and there well knew, and had reasonable grounds to believe, the internal revenue tax then imposed by law had not been paid; against the peace and dignity of the said United States, and contrary to the form of the statute of the same in such case made and provided'-- and is based upon section 3317 of the statutes (U.S. Comp. St. 1901, p. 2164), which is as follows, viz.: 'Every person who engages in, or carries on, the business of a rectifier with intent to defraud the United States of the tax on the spirits rectified by him, or any part thereof, or with intent to aid, abet, or assist any person or persons in defrauding the United States of the tax on any distilled spirits, or who shall purchase or receive or rectify any distilled spirits which have been removed from a distillery to a place other than the distillery warehouse provided by law, knowing or having reasonable grounds to believe that the tax on said spirits, required by law, has not been paid, shall, for every such offense, be fined not less than one thousand dollars nor more than five thousand dollars, and imprisoned not less than six months nor more than two years.'

On the trial, Max Bronstein, a witness called by the government, testified: That he and others had manufactured large quantities of spirits at the plant of the Illinois Fruit Distilling Company upon a great part of which no tax was paid. This was between August, 1898, and February, 1910. That on one occasion he sold defendant spirits in jugs for $1.20 a proof gallon, that being only 10 cents above the amount of the government tax. That defendant wanted to know how he could do it and whether it was safe, and was told by witness that 'we have a retail room in our establishment. ' That he explained to defendant how the spirits could be taken out without payment of the tax. That afterwards he would take the spirits in jugs to defendant and would go in the morning to get the jugs. He usually paid on Sundays. That the brandy he delivered to defendant came from the distillery without going into the warehouse, and without payment of taxes. That about 1,500 gallons were delivered between January, 1909, and February 15, 1910, and that he had always carried bills made out at the market price to deceive the government officer if he happened along.

Bronstein further testified that the distillery delivered to defendant brandy of 100 proof and of 150 proof, and that he helped Rosenfeld figure out how many jugs of 100 proof and how many jugs of 150 proof should be put by defendant into a barrel of 120 proof, which he had in his place of business, in order that the mixture should correspond in proof with the spirits then in the barrel. Rosenfeld admitted to witness he had a barrel in the saloon of 120 proof goods.

Frank Weiss, also a witness for the government, testified that he worked for the Illinois Fruit Distilling Company from August or September, 1908, until February or March, 1910, as engineer; that he met defendant in his store with Bronstein in January, 1909; that defendant was buying goods from the distillery; that defendant did not want Shapiro (a wholesale liquor dealer) to know he was buying from the distillery; that the latter was selling its goods to Shapiro in quantities of 500 or 600 gallons a week on which tax was not paid; that about 1909 defendant said Bronstein should be careful about the goods 'we were delivering to him,' because he owed Shapiro money, and did not want to have trouble with him; that in December, 1909, he delivered to defendant 10 jugs of brandy from the Illinois Fruit Distilling Company, 100 proof, upon which the tax was not paid. Witness took down the jugs from wagon and put them in the back room of defendant. He said to defendant: 'I would like to have the jugs back, Mr. Rosenfeld. ' Rosenfeld replied: 'I never empty them in the daytime. I always empty them after I close the saloon, and I cannot empty them in the daytime. ' Witness left the jugs there and was told by defendant: 'In the morning you can get the jugs.'

Abraham Weiss, also a witness for the government, testified that on one occasion, at defendant's place, he heard Frindel ask defendant for some jugs to deliver some brandy. Defendant said he could not give the jugs back in the same day because he had to empty them after the store closed at night.

Harry Spero testified for the government as follows, viz.: That he was an employe of the distilling company; that on the second Sunday he worked there he made a delivery of five jugs to defendant; that he carried them in the back way into the saloon; that the...