Singer v. United States

• Decision Date: 11 April 1923
• Docket Number: 2962.
• Citation: 288 F. 695
• Parties: SINGER v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

288 F. 695

SINGER v. UNITED STATES.

No. 2962.

United States Court of Appeals, Third Circuit.

April 11, 1923

J. J Weinberger, of Passaic, N.J. (Weinberger & Weinberger, of Passaic, N.J., of counsel), for plaintiff in error.

Walter G. Winne, U.S. Atty., of Hackensack, N.J., and Harlan Besson of Hoboken, N.J., for the United States.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

Schiffmann a federal prohibition agent, accompanied by Katz, a bootleg liquor 'salesman,' visited the premises of Barnet Singer in Clifton, New Jersey. There he met Singer and his wife. Leaving Singer in the yard, Katz took Schiffmann upstairs where Mrs. Singer showed them twenty-five gallons of liquor, gave Schiffmann a sample and offered to sell him the lot, payment and delivery to be made the next day. Later Schiffmann talked with Singer and contracted to buy from him two hundred and fifty gallons of liquor to be paid for and taken the following day. On that day, Schiffmann went to the Singer premises with a truck for the ostensible purpose of removing the liquor he had purchased, but instead he arrested Singer and seized the twenty-five gallons he had inspected. This was all he found.

Singer was tried on two counts of an information. By one count he was charged with maintaining a common nuisance in that he kept intoxicating liquors on his premises in violation of Section 21, Title 2, of the National Prohibition Act. Act of October 28, 1919, 41 Stat. 305. By the other count he was charged with having and possessing intoxicating liquors in violation of Section 25, Title 2, of the same act. Upon conviction, Singer was sentenced to imprisonment on the first count and to the payment of a fine on the second. He then sued out this writ, assigning many errors in the trial which when compressed raise the three questions he has discussed in his brief. The first is whether the trial court erred in refusing to dismiss the first count or to direct a verdict of acquittal thereon. In support of this position Singer contends that, though admittedly liquor was found on his premises, there is no evidence he kept it there for the purpose of sale; that, though there is evidence he offered to sell liquor, it was but a single offer and involved but one transaction of sale, covering, at most, two days, and that, as it lacked the quality of continuous sales, it does not sustain the charge of maintaining a nuisance.

That liquor was found on Singer's premises is not disputed. That he kept it there is a fact now established by the verdict of the jury as against his testimony that Schiffmann planted it as a frame-up. The purpose for which Singer kept the liquor was properly to be inferred from what was done with it, namely, its offer for sale; and the use to which the premises were put was likewise to be inferred from what was done upon them, namely, the keeping of liquor for sale. There was, therefore, enough evidence to sustain the charge of maintaining a nuisance within the definition of the statute-- if one transaction of sale covering one day and another covering two days are sufficient to establish the character of the place. The statute provides that:

'Any * * * house * * * or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this Title * * * is hereby declared a common nuisance. ' Title 2, Sec. 21.

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. ' Street v. Lincoln Safe Deposit Co., 254 U.S. 88, 92, 41 Sup.Ct. 31, 32 (65 L.Ed. 151, 10 A.L.R. 1548). The test of the statutory nuisance, therefore, is not the number of sales or the length of time liquor is kept upon the premises, but is whether the place is maintained for the keeping and sale of liquor in the sense of the statute. Other essentials being present, a single sale may establish the fact. Young v. United States (C.C.A. 9th) 272 F. 967; Wiggins v. United States, (C.C.A. 2d) 272 F. 41; Gray v. United States (C.C.A. 6th) 276 F. 395; United States v. Eilert B. & B. Co. (D.C.) 278 F. 659. And the keeping of liquor for this unlawful purpose for a single day may constitute the offense. Feigin v. United States (C.C.A.) 279 F. 107.

The next error with which the court is charged was admitting in evidence the conversation of Singer's wife with Schiffmann wherein she offered to sell him twenty-five gallons of liquor. Singer bases this assignment on the contention that if this quantity of liquor was offered for sale it was not offered by him but by his wife, and that, if offered by his wife, it was without his authority, thereby raising in the alternative two questions; one, the filing of the information against the wrong person; and the other, his conviction upon testimony of his wife without adequate proof of her agency. Of course, if...