Rossi v. United States

• Court: U.S. Court of Appeals — Eighth Circuit
• Citation: Rossi v. United States, 293 F. 896 (8th Cir. 1923)
• Decision Date: 29 October 1923
• Docket Number: 6195.
• Parties: ROSSI v. UNITED STATES.

293 F. 896

ROSSI v. UNITED STATES.

No. 6195.

United States Court of Appeals, Eighth Circuit.

October 29, 1923

Joseph M. Black, of Denver, Colo., for plaintiff in error.

Clarence L. Ireland, Asst. U.S. Atty., of Denver, Colo. (Granby Hillyer, U.S. atty., of Denver, Colo., on the brief), for the United States.

Before STONE, Circuit Judge, and VAN VALKENBURGH and KENNEDY District Judges.

KENNEDY District Judge.

The record in this case discloses that in February, 1922, the defendant with other persons was restrained and enjoined by virtue of an order issued out of the United States District Court for the District of Colorado, from violating title 2 of the National Prohibition Act (41 Stat. 457) in keeping or carrying around on his person, or in a vehicle or other conveyance whatever, or leaving in a place for another to secure, any liquor, or soliciting taking, or accepting, orders for the sale, shipment or delivery of intoxicating liquor in any way in violation of the act. Thereafter, and in June, 1922, the defendant was charged in a criminal contempt proceeding in the same court with the violation of the injunctional order. A trial was had upon the contempt charge before the court, and the defendant was found guilty and sentenced to imprisonment in the county jail and to pay a fine. The defendant thereupon appealed to this court, and presents two points worthy of consideration as grounds for a reversal of the judgment of the court below.

The first contention raised on behalf of the plaintiff in error is that the judgment is void by reason of the fact that the original injunctional order was not introduced in evidence upon the trial in the contempt proceeding. The record fails to disclose the introduction of the injunctional order in the case. It appears, however, that the matter of said order was before the court in some form, as the court in excluding testimony in the nature of affidavits, remarked: 'He (meaning the district attorney) has offered the record of this court. ' In any event, the record further discloses that the contempt proceeding was tried upon the theory not only in behalf of the government, but as well by the defendant, that the injunctional order was in evidence. This is clearly disclosed by the record in the cross-examination of the defendant by his own counsel, of which one question and answer is illustrative, as follows:

'Q. I will ask you to state to the court whether or not you have studiously obeyed that injunction? A. Positively I have obeyed the injunction.'

Neither does the record show that the failure to introduce the original injunctional order in evidence was at any time made the basis by defendant of a motion to dismiss. The case therefore falls very clearly within the rule laid down in Schwartz v. United States, 217 F. 866, at page 870, 133 C.C.A. 576, 580, which is announced in the following language:

'It is true that the record does not show that the stay order and the order of injunction were formally introduced in evidence; but throughout the taking of the testimony they were referred to by the witnesses, including the defendant, as if they had been introduced, and were so treated by counsel in the examination. Besides, it does not appear that the omission

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