Singer v. United States

• Decision Date: 27 January 1922
• Docket Number: 2783.
• Citation: 278 F. 415
• Parties: SINGER v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Third Circuit

278 F. 415

SINGER v. UNITED STATES. ^[1]

No. 2783.

United States Court of Appeals, Third Circuit.

January 27, 1922

[Copyrighted Material Omitted]

James Mercer Davis, of Camden, N.J., and Eugene Schwinghammer, of Atlantic City, N.J., for plaintiff in error.

Elmer H. Green, U.S. Atty., and Fredk. M. P. Pearse, Asst. U.S Atty., both of Newark, N.J.

Before BUFFINGTON, Circuit Judge, and WITMER and THOMSON, District judges.

THOMSON District Judge.

The defendant in error was convicted on an indictment containing four counts; the first and third counts charging illegal sales, and the second and fourth counts illegal transportation of whisky, in violation of the Volstead Act (41 Stat. 305). A General verdict of guilty was rendered, a motion in arrest of judgment was overruled, and the defendant sentenced on the third count of the indictment, to pay a fine of $2,000 and undergo imprisonment in the penitentiary at Atlanta, Ga., for the term of three years. In imposing sentence, the court said, after addressing the defendant:

'I am going to sentence you on the third count of the indictment, on which you were convicted, and I am not at this time going to sentence you on the other charges which are standing against you in this court, and the sentence is that you serve a term of three years, on the third count of the indictment against you, on which you were convicted, in the Atlanta penitentiary, and that you further pay a fine of $2,000.

'Mr. Cutley: Your honor, it seems to me that the sentence which you impose finds no justification.

'The Court: Section 29 of the Volstead law justifies the imposition of a fine not to exceed $2,000 and imprisonment of not more than five years for a second offense, and I am imposing this penalty because this was a second offense.'

The legality of the sentence so imposed was objected to by defendant's counsel, an exception granted in his favor, and from the judgment so entered this writ of error was taken.

In all, 17 assignments of error were filed, a few only being pressed at the argument. The first, fifteenth, sixteenth, and seventeenth assignments relate to the judgment, and will be treated together. The second assignment asked for a directed verdict for the defendant, which was properly refused. The third, fourth, fifth, and sixth assignments bear on the proposition that the government's proof was not sufficient to establish that the liquors sold and transported were intoxicating liquors, within the meaning of the National Prohibition Act.

We are of opinion that there was ample evidence to establish this fact. It is true there was no analysis of the liquors sold and transported, but this was unnecessary. Whisky as a well-known intoxicating liquor of high alcoholic content, and, when the word is used in an act of legislation or elsewhere, it has a very definite and specific meaning. In certain liquids, the presence of alcohol or other ingredient may be determinable only by a chemical analysis. Not so with whisky. Alcohol is its chief ingredient. It is defined by the United States Pharmacopoeia to be:

'An alcoholic liquid obtained by the distillation of the mash of fermented grain, * * * with a specific gravity (designating it) corresponding approximately to an alcoholic strength of 44 to 50 per cent. by weight, or 50 to 58 per cent. by volume.'

The defendant, by separate agreements, contracted to sell two barrels of whisky, delivered it as whisky to the purchaser, and received the price of two barrels of whisky. The purchaser, an admitted connoisseur in that line, after emptying the liquid into demijohns and drinking some of it, declared it was whisky. With these facts in evidence, and nothing to contradict them, the court could not possibly have held as a matter of law that the proof of their intoxicating character was insufficient. These assignments are therefore overruled.

The seventh assignment alleges error in the court's refusal to define reasonable doubt as set forth in the first request for charge. The court's refusal was based on the fact that the same had been covered in the general charge. In this we think there was no error. The court had definitely instructed the jury that the defendant is presumed to be innocent until he is proven guilty, and that the defendant's guilt must be proven beyond reasonable doubt; that the presumption of innocence continues until it is overcome by the burden of proof beyond reasonable doubt. He then defined reasonable doubt as:

'A doubt founded in reason and arising from the evidence, not a mere hesitation of the mind to pronounce guilt because of the punishment that may follow, not a mere capricious doubt or a hesitancy of the mind to say, 'This man did so and so,' but it must be a doubt founded in reason and arising from the evidence.'

We deem this instruction entirely sufficient. It is substantially in accordance with the charge in Agnew v. United States, 165 U.S. 36, 17 Sup.Ct. 235, 41 L.Ed. 624; and which was held adequate. The court in that case, took occasion to say that the court is not bound to adopt the language which counsel employs in framing instructions, nor to repeat instructions already given in different language.

Clearly, the reasonable doubt contemplated by the law must arise from the evidence, which includes, within the term, want of evidence, and can arise from no other legitimate source. The seventh assignment of error is overruled.

The eighth, ninth, tenth, and eleventh assignments are based on the erroneous assumption that Maynard, the purchaser of the liquor, was an accomplice in the defendant's crime. An accomplice is an associate in guilt in the commission of a crime, a participant...