Rosenthal v. United States, 8828.

• Decision Date: 22 December 1930
• Docket Number: No. 8828.,8828.
• Parties: ROSENTHAL v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

45 F.2d 1000 (1930)

ROSENTHAL v. UNITED STATES.

No. 8828.

Circuit Court of Appeals, Eighth Circuit.

December 22, 1930.

Oscar Strauss, of Des Moines, Iowa (A. J. Myers, of Des Moines, Iowa, on the brief), for appellant.

B. E. Rhinehart, U. S. Atty., of Anamosa, Iowa (D. C. Browning, Asst. U. S. Atty., of Sioux City, Iowa, on the brief), for the United States.

Before STONE and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

Appellant, Rosenthal, was engaged in the transfer and storage business at Sioux City, Iowa. His main warehouse was located at 11 West Third street in said city. November 10, 1928, he rented another warehouse, known as the Rathbun warehouse, located at 21 West Third street, for a period of one year, with an option for four years more, and at a monthly rental of $150. He was to take possession December 1, 1928. At the time this lease was made the Rathbun warehouse was in the hands of a receiver, and was not a going concern. After taking possession on December 1st, appellant proceeded to remove from the Rathbun building, to his main warehouse, a quantity of furniture which was stored on the third floor of the former building. This removal which, it appears, left the third floor of the Rathbun building vacant, was completed December 5, 1928. About December 15th appellant and one Gill looked over the Rathbun warehouse. December 20th a lease was prepared at appellant's direction whereby appellant rented to Gill "for the storage and shipping of flour, mill feeds, farm supplies and groceries" the entire third floor of the Rathbun building, together with office space on the second floor, approximately 25 by 30 feet. The term of the lease was two years, with a renewal option. The rent reserved was $115 per month. This lease was signed December 26, 1928. January 21, 1929, the Rathbun warehouse was raided by prohibition and police officers and an extensive distilling plant was found. The space actually occupied by Gill at this time was the entire upper floor, a part of the second floor, and a space twelve by forty feet in the basement. Openings had been cut in the second and third floors to accommodate what might be termed a shaft about eight by ten feet in dimension. In the basement was a large boiler, tanks, and other distilling apparatus extending from the basement through the openings described to the third floor of the building. On the third floor were twelve large vats, five of them containing fermenting mash. These vats were arranged in rows, and platforms five feet high were piled with sugar. About four hundred sacks of sugar were found in the building. These vats were purchased in Minnesota. There is testimony, denied by appellant, that, when these vats arrived in Sioux City, the trucks on which they were brought in were unloaded with the assistance of appellant's men and placed in the Rathbun warehouse. The first carload of sugar reached Sioux City December 21, 1928. Appellant, being notified by the railroad, directed this car to be sent to his main warehouse, for the assigned reason that the Rathbun warehouse was not yet fully repaired and cleaned. A second car of sugar was received soon after and was sent to the Rathbun warehouse at appellant's direction. Both these shipments were sent in care of the Rosenthal warehouse. Appellant claims to have exercised no supervision over the extensive "repairs" or physical changes made in his building, nor to have had any knowledge or suspicion of the character of business carried on therein. Molasses and coke were hauled to the Rathbun building by appellant's men in appellant's trucks, the molasses in a piano wagon with the sides closed. No records were kept of the hauling of these goods. Appellant testified that these hauls were marked cash jobs, and that the drivers turned the money over to him in cash.

June 1, 1929, an indictment was returned and filed in the United States District Court for the Northern District of Iowa charging appellant, Gill, Albert Larson, and Hiram Torbet with conspiracy to violate the National Prohibition Act by the illicit manufacture of intoxicating liquor for beverage purposes. At the trial under this indictment appellant was convicted, and from the judgment entered this appeal is taken.

The assigned errors relied upon in brief and argument are five in number. The first two have to do with the instructions to the jury. They charge (1) that the court imposed upon the defendant a greater burden to show his innocence than the law recognizes; and (2) that the court failed to instruct the jury fully on all the principles of law which govern or control the substantial facts in evidence. A third assignment is that the circumstances were as consistent with innocence as with guilt, and therefore appellant was entitled to a verdict of acquittal by direction of the court. It is further complained (4) that "where four are indicted for conspiracy and no severance of the cases is had, two found not guilty, the third convicted, and the fourth never apprehended, tried, convicted, or dead, the conviction and punishment of the third is unlawful"; and (5) that the argument of the district attorney to the jury was an appeal to race prejudice, and a reversal is demanded for that reason.

Taking up the assignments relating to the court's charge, the first is directed to language embraced within slightly more than two pages of the printed record, which appellant charges is unfair and prejudicial to the appellant, argumentative, and an invasion of the province of the jury. The charge of the court upon reasonable doubt and presumption of innocence is unexceptionable. Moreover, the entire charge reiterates again and again the burden of proof...