Rossi v. United States

• Decision Date: 20 December 1926
• Docket Number: No. 7468-7473.,7468-7473.
• Parties: ROSSI v. UNITED STATES (six cases).
• Court: U.S. Court of Appeals — Eighth Circuit

16 F.2d 712 (1926)

ROSSI v. UNITED STATES (six cases).^*

Nos. 7468-7473.

Circuit Court of Appeals, Eighth Circuit.

December 20, 1926.

Philip Hornbein, of Denver, Colo. (Theodore Epstein, of Denver, Colo., on the brief), for plaintiffs in error.

Forrest C. Northcutt, Asst. U. S. Atty., of Denver, Colo. (George Stephan, U. S. Atty., of Denver, Colo., on the brief), for the United States.

Before KENYON, Circuit Judge, and SCOTT and JOHN B. SANBORN, District Judges.

KENYON, Circuit Judge.

Plaintiffs in error for convenience will be designated as defendants. Two sets of cases are involved. Nos. 7468, 7469, and 7470 were contempt proceedings under section 24, chapter 85, title 2, of the National Prohibition Act (41 Stat. 315, Comp. Stat. § 10138½ll). In these cases defendants were found guilty of violating an injunction issued under section 21 of said act (41 Stat. 314 Comp. Stat. § 10138½ jj) against property known as the "Moonlight Ranch" in Arapahoe county, Colo. Defendants Manlio (or Mike) Rossi and Caroline Rossi were each sentenced to be confined in the county jail for a period of one year and to pay a fine of $1,000. Defendant, Eugene Rossi, a brother of Mike Rossi, was sentenced to confinement in the county jail for a period of eight months and to pay a fine of $1,000. This series of cases will be hereinafter referred to as the "contempt case."

Cases numbered 7471, 7472 and 7473 relate to a charge filed by information against defendants for violation of section 21, title 2, of the Act of Congress approved October 28, 1919, known as the National Prohibition Act (41 Stat. 314 Comp. Stat. § 10138½jj), for maintaining a common nuisance on the same premises; the specific charge being that defendants on said premises "did then and there at divers times theretofore knowingly, willfully and unlawfully keep, possess, furnish, barter, and sell intoxicating liquor, to wit, distilled spirits, to wit, whisky, fit for beverage purposes, in violation of the said National Prohibition Act." Defendants were found guilty by a jury, and each was sentenced to serve one year in jail and to pay a fine of $1,000. Both prosecutions arise out of substantially the same facts, and most of the questions raised are common to both cases. We shall therefore consider the cases in one opinion, directing attention as we proceed to the questions not common to both sets of cases.

Section 21 of the National Prohibition Act, upon which both prosecutions are based, is as follows:

"Section 10138½jj. Common Nuisance; What Are; Punishment for Maintenance; Liability of Owners of Buildings. — Any room, house, building, boat, vehicle, structure, or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this title, and all intoxicating liquor and property kept and used in maintaining the same, is hereby declared to be a common nuisance, and any person who maintains such a common nuisance shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or be imprisoned for not more than one year, or both. If a person has knowledge or reason to believe that his room, house, building, boat, vehicle, structure, or place is occupied or used for the manufacture or sale of liquor contrary to the provision of this title, and suffers the same to be so occupied or used, such room, house, building, boat, vehicle, structure or place shall be subject to a lien for and may be sold to pay all fines and costs assessed against the person guilty of such nuisance for such violation, and any such lien may be enforced by action in any court having jurisdiction." Act Oct. 28, 1919, c. 85, tit. 2, § 21, 41 Stat. 314.

The statute makes every place where intoxicating liquors are manufactured, kept, sold, and bartered in violation of the National Prohibition Act a common nuisance, and makes the parties maintaining the same guilty of a nuisance. The Moonlight Ranch was owned by Caroline Rossi. Mike Rossi was her husband, and the evidence shows he carried on the ranch with the assistance of his wife, Caroline, who was the attendant at the bar, and Gene Rossi who had charge of the dance floor and dining room. The Moonlight Ranch was near Denver, and consisted of a 40-acre tract, upon which there were a large building and several outbuildings, surrounded by a wire fence. There was a combined dance hall and restaurant, with a bar where soft drinks were sold. Tables and booths were placed along the sides. Meals were served, a regular cook was employed, and ample provisions were always in stock. A colored orchestra was maintained, and people resorted there in large numbers for various purposes. The evidence fails to show that any intoxicating liquors were sold by any of the defendants upon the place.

The evidence shows that ample liquor was there; that defendants furnished their patrons with glasses, chipped ice, ginger ale, and soft drinks, charging $2.50 a quart for ginger ale, and $4 a quart for grape juice. The place was well patronized, and for months large crowds of people assembled practically every night, bringing intoxicating liquor with them, remaining at the tables, or dancing late into the night. The liquors were publicly displayed, and it is the testimony of witnesses that generally by midnight, or at least toward the early morning hours, virtually all of the crowd was drunk. It was necessary to carry out drunken men, while drunken women fell upon the floor. Men and women were drinking and tussling on the floor, and, while the evenings started in quietude and peace, they ended in Bacchanalian orgies, with all the concomitants, and, as described by some of the witnesses, the place became a "veritable madhouse."

In both cases the question was properly raised that the evidence was insufficient to show that a nuisance was being maintained on these premises as the same is defined in section 21 of the National Prohibition Act hereinbefore set out. This is the important and controlling question involved.

It is the theory of defendants that section 21 does not reach a situation such as is here presented; that Congress did not include within the definition of a nuisance a place where liquor was drunk or consumed; that the act covers only a place where liquor is manufactured, sold, bartered, or kept; and that the evidence in these cases shows that defendants did not manufacture, keep, barter, or sell intoxicating liquors, and that therefore the charge of maintaining a nuisance under the National Prohibition Act fails. In their brief defendants' counsel clearly state the proposition as follows: "It is therefore respectfully submitted that defendants cannot be convicted of the crime charged in either the contempt or the nuisance case, because they did not do the thing which the statute denounces. They kept the place, but the evidence shows that no liquor was manufactured, sold, kept, or bartered at that place."

To constitute a nuisance under section 21, the place must be one "where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this title." Section 21 of the act does not stand alone. It refers to liquors manufactured, sold, kept, or bartered "in violation of this title" (title 2). Section 3 of this title provides as follows:

"Sec. 10138½aa. No person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this act, and all the provisions of this act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented." Possession of intoxicating liquor, except as authorized in the act is an offense against the United States.

It is conceded that there was no liquor manufactured on the premises or sold thereon by defendants. Two sales are shown, which were made on the premises to government inspectors by parties other than defendants. The Supreme Court of the United States in Street v. Lincoln Safe Deposit Co. et al., 254 U. S. 88, 92, 41 S. Ct. 31, 32 (65 L. Ed. 151, 10 A. L. R. 1548) has defined the word "kept" as used in section 21 as follows: "The word `kept' in this section is the only one of possible application to the case at bar, and the words with which it is immediately associated are such that as here used it plainly means kept for sale or barter or other commercial purpose." This court in Feinberg v. United States (C. C. A.) 2 F.(2d) 955, 958, referring to the same section of the National Prohibition Act, says: "Under that section it is necessary that the keeping or possession of the liquor shall be for sale, barter, or other commercial purposes." In Singer v. United States (C. C. A.) 288 F. 695, 696, referring to this same section, the court said: "The words `sold' and `kept' in this section are the ones applicable to the case at bar. The word `sold' tells its own meaning. The word `kept,' read in connection with the words with which it is immediately associated, `means kept for sale or barter or other commercial purpose.'"

Defendants urgently insist that, because the liquor was brought on the premises by guests, and kept on the premises by the guests for consumption, and not for sale or barter, defendants can be guilty of no crime — at least, the crime of common nuisance. Under the common nuisance section of the National Prohibition Act it is not necessary, in order to charge a defendant with maintaining a nuisance, that he personally manufacture, sell, keep, or barter liquor upon the premises. The act is directed against a place where intoxicating liquor is manufactured, sold, kept, or bartered. If a person maintain a place where intoxicating liquor to his knowledge is manufactured, sold, kept, or bartered, in violation of the General Act, he will be guilty of maintaining a common nuisance even though he did not personally possess,...