Rossini v. United States

• Decision Date: 03 June 1925
• Docket Number: No. 6688.,6688.
• Citation: 6 F.2d 350
• Parties: ROSSINI v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

6 F.2d 350 (1925)

ROSSINI v. UNITED STATES.

No. 6688.

Circuit Court of Appeals, Eighth Circuit.

June 3, 1925.

George G. Chapin, of St. Paul, Minn., for plaintiff in error.

George A. Heisey, Asst. U. S. Atty., of Minneapolis, Minn. (Lafayette French, Jr., U. S. Atty., of St. Paul, Minn., on the brief), for the United States.

Before STONE and LEWIS, Circuit Judges, and SCOTT, District Judge.

STONE, Circuit Judge.

From a conviction on an information in three counts, charging respectively possession of intoxicating liquor, sale of intoxicating liquor and maintaining a liquor nuisance, this writ is sued out.

The plaintiff in error presents here three main contentions: First, this offense, being punishable by imprisonment in the penitentiary, was an infamous crime, which could be preferred only in an indictment (Const. U. S. Amend. 5); second, that certain evidence relating to the nuisance count should have been excluded; and, third, that certain evidence secured under alleged unlawful search and seizure should have been excluded.

I. While a very ingenious argument is presented by counsel for the plaintiff in error, his entire contention is met and conclusively answered by the case of Brede v. Powers, 263 U. S. 4, 44 S. Ct. 8, 68 L. Ed. 132. The conviction in the Brede Case (as upon the third count here) was for violation of section 21 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½jj). At the same time that it determined the Brede Case, the Supreme Court had before it the case of Wyman v. United States, 263 U. S. 14, 44 S. Ct. 10, 68 L. Ed. 136, which was a conviction for violation of section 29 of the same act (Comp. St. Ann. Supp. 1923, § 10138½p) for the sale of intoxicants (the same charge covered by count 2 of the case at bar). These two cases were considered together and virtually determined in the opinion in the Brede Case. Both the Brede and Wyman Cases were instances of prosecutions upon informations where the persons had sued out writs of habeas corpus, based upon the contention that such offense could be presented only by indictment. While those cases had in mind the imposition of imprisonment at hard labor, yet the reasoning of the court covers the matter of imprisonment in a penitentiary as well and obviously is equally applicable thereto. The statement in the Brede Case which determines the case now at bar and settles this contention is found on page 12 (44 S. Ct. 9) and is as follows:

"The statute provides that, for the offense here charged, the offender shall be fined not more than $1,000 or imprisoned not exceeding one year, or both. Section 21. Where the charge is selling, as in the Wyman Case, post, 14 44 Sup. Ct. 10, the punishment, for the first offense, is a fine not more than $1,000, and imprisonment not exceeding six months. National Prohibition Act, § 29, 41 Stat. 316. The statute excludes the imposition of hard labor or imprisonment in a penitentiary. Under the contention of appellant both would be imposed."

See, also, Brown v. United States, 260 F. 752, 171 C. C. A. 490 (9th C. C. A.); Hunter v. United States, 272 F. 235 (4th C. C. A.); Yaffee v. United States, 276 F. 497 (6th C. C. A.).

Plaintiff in error places much reliance upon Stevens v. Biddle, 298 F. 209, decided by this court. That case is distinguishable because the offenses involved in those indictments were felonies.

In this connection, it is contended that the sentences here imposed of six months on the second count and one year on the third count, to run consecutively, amount to one sentence for more than a year and therefore justify imprisonment in a penitentiary which would make the punishment "infamous" and therefore require presentment by indictment. The above quotation from the Brede Case clearly and definitely settles the status of prosecutions under this statute and forecloses the contention just outlined. Again, separate counts in the same indictment or information charge separate and distinct offenses, require separate and distinct action by the court in adjudging sentence or acquittal.

II. The second matter relied upon here is the admission of evidence of a sale at this place on August 6, 1923. The third count charges a nuisance as of September 26, 1923. The objection to the above evidence was upon the grounds (a) that it comes within the rule prohibiting proof of distinct offenses not charged in the information; (b) that it was so remote in time from the date alleged in the nuisance count that it could constitute no part of the nuisance there charged; and (c) that no sufficient notice was given by the information by which any such evidence could have been anticipated on the trial. There was evidence introduced proving an unlawful sale at this place on August 25, 1923, and the unlawful possession at that place on September 26, 1923. There was conclusive evidence of no change in the ownership or character of business at this place between the 5th of August and the 26th of September. Evidence of sales at this place would support the charge of maintaining a nuisance, so that this character of evidence would be entirely pertinent to the nuisance charge if it be not so far removed in time as to have no logical or natural connection with the existence of such nuisance on or about the dates specifically charged. We think this evidence sufficiently near in point of time. The evidence is entirely proper and directly supports the charge of maintaining such a nuisance at or about the time alleged here.

Irrespective of the nuisance charge, the evidence was admissible as showing guilty knowledge and intent on the part of...