Schechter v. United States

• Decision Date: 03 June 1925
• Docket Number: No. 344.,344.
• Citation: Schechter v. United States, 7 F.2d 881 (2nd Cir. 1925)
• Parties: SCHECHTER v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

7 F.2d 881 (1925)

SCHECHTER v. UNITED STATES.

No. 344.

Circuit Court of Appeals, Second Circuit.

June 3, 1925.

Wallace E. J. Collins, of Jamaica, N. Y., and Morris Kamber, of Brooklyn, N. Y. (Otho S. Bowling, of New York City, of counsel), for plaintiff in error.

Ralph C. Greene, U. S. Atty., of Brooklyn, N. Y. (William A. De Groot, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.

Before ROGERS, HOUGH, and HAND, Circuit Judge.

HAND, Circuit Judge.

Schechter was a druggist in Richmond Hill, Long Island. He had had a license to possess and sell whisky at another place, but on December 8, 1923, he had just moved to the opposite corner of the street, and the night in question was that on which he opened his new shop. A prohibition agent entered in company with a woman at 11 p. m., made a purchase of candy, and then stepped up to the clerk behind the counter and asked him for a bottle of rye whisky, saying that he was "out for a good time." The clerk answered that he did not know the agent, but asked him to wait a minute until he should consult Schechter. He did so. Schechter nodded his head, and the clerk came back in a few minutes with a bottle of whisky, for which the agent gave him a $5 bill. Upon the cash register in his shop the clerk rang up $3.50 and gave back to the agent $1.50. He and Schechter were then arrested. On passing behind the partition on one side of the shop, they found one bottle standing behind the counter of the same appearance as that sold, but it was not identified as containing whisky. On this evidence, corroborated by the testimony of another prohibition agent, the jury convicted the defendant on both counts.

The only questions raised are of the sufficiency of the evidence, first, because it was consistent with it that the whisky had been obtained from outside the store, and was not there possessed; second, because a single sale under these circumstances was not proof of the maintenance of a nuisance. We agree that a common nuisance, as defined in section 21 of title 2 of the Volstead Act (Comp. St. Ann. Supp. 1923, § 10138½jj), implies a more or less continuous practice or habit of selling intoxicating liquor upon the premises, and that a single sale, standing by itself, does not constitute a nuisance. Singer v. U. S. (C. C. A.) 288 F. 695; Barker v. U. S. (C. C. A.) 289 F. 249; Miller v. U. S. (C. C. A.) 300 F. 529; Lewinsohn v. U. S. (C. C. A.) 278 F. 421; Strada v. U. S. (C. C. A.) 281 F. 143. However, it has been uniformly held, so far as we know, that a single sale may be sufficient evidence that the defendant is making a practice of which it is but an instance. We have ourselves twice so held (U. S. v. Reisenweber, 288 F. 520; Marshallo v. U. S., 298 F. 74), and the cases already cited for the most part hold the same thing.

In the case at bar there seems to us no question of the propriety of allowing a jury to infer from the evidence that any...