Scheck v. United States

• Decision Date: 05 June 1925
• Docket Number: No. 3180.,3180.
• Citation: 6 F.2d 187
• Parties: SCHECK v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

6 F.2d 187 (1925)

SCHECK v. UNITED STATES.

No. 3180.

Circuit Court of Appeals, Third Circuit.

June 5, 1925.

Frederic M. P. Pearse, of Newark, N. J., and Dilworth P. Hibberd, of Philadelphia, Pa. (Daniel W. Applegate, of Newark, N. J., on the brief), for plaintiff in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge.

In the court below Howard Scheck was indicted, convicted, and sentenced on one count (second in the indictment) for receiving and concealing intoxicating liquor which he knew had been fraudulently imported, and on another count (fourth in the indictment) for the unlawful possession of intoxicating liquor. Thereupon he sued out this writ, and the question involved is whether the court below erred in declining to give binding instructions to the jury to acquit him in each of said counts.

The proofs showed that Scheck was the lessee of a club house on the New Jersey coast near Longport; that connected with the club house were a number of individual garages, each of which had a motorboat slip, which was entered from an inlet or public harbor; that on the night of February 2d the premises were watched by federal prohibition officers and New Jersey state troopers, who on the next morning found large quantities of whisky (six bottles in each small gunny sack bag) on the wharves in front of the garages, some in the club house, and some in automobiles. We have carefully examined the testimony, and we find no testimony whatever showing that this whisky was imported, or that it bore any marks showing foreign origin. We are therefore of the opinion the evidence and sentence under the second count, viz. fraudulent importation, cannot be sustained. It is accordingly reversed.

Turning to the other charge, it appears that Scheck went on the stand and testified he knew absolutely nothing about the whisky; that he never had possession of it, and did not know to whom it belonged; that he slept in his own home that night, and was not there at the boat house at the early morning hours, when the tide allowed boats to come into the slips. He called witnesses in support of his alibi and as to his character. If his own testimony and that of his witnesses as to his alibi had been believed by the jury, which it evidently was not, he was entitled to a verdict of acquittal. The question, therefore, before us, is whether the government produced evidence which required the submission to the jury of the question of his guilt.

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