Spalitto v. United States

• Decision Date: 14 March 1930
• Docket Number: No. 8698.,8698.
• Parties: SPALITTO v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

39 F.2d 782 (1930)

SPALITTO v. UNITED STATES.

No. 8698.

Circuit Court of Appeals, Eighth Circuit.

March 14, 1930.

Frank D. Rader and John N. Swenson, both of Kansas City, Mo., for appellant.

Harry L. Thomas, Asst. U. S. Atty., of Kansas City, Mo. (William L. Vandeventer, U. S. Atty., of Kansas City, Mo., on the brief), for appellee.

Before VAN VALKENBURGH and GARDNER, Circuit Judges, and MUNGER, District Judge.

GARDNER, Circuit Judge.

Appellant was convicted on three counts of an indictment charging him with engaging in the business of a distiller and of carrying on and operating a distillery in violation of law, and with having on his premises a quantity of mash fit for distillation purposes. Count 2 charges that on the 12th day of September, 1928, at 1142 Independence avenue, in Kansas City, Jackson county, Mo., the defendant operated a distillery for the purpose of distilling alcoholic spirits with intent to defraud the United States of America of the tax on the spirits distilled by him. Count 3 charges that at the same time and place the defendant operated a distillery for the purpose of distilling alcoholic spirits, without having given a bond as required by law; while count 4 charges that at the same time and place the defendant unlawfully and feloniously made and had possession of a quantity of mash fit for distillation and for the production of alcoholic spirits. The first count was withdrawn, and hence is not material.

On this appeal it is first urged that the court erred in overruling defendant's motion to quash the indictment, and while this assignment is argued in the brief, the assignment was waived on oral argument, and will be given no further consideration.

The sufficiency of the evidence to sustain the verdict and judgment is vigorously assailed. At the close of the entire testimony the defendant interposed a motion for a directed verdict in his favor, and the overruling of this motion directly presents the question of the sufficiency of the evidence. The testimony in this case is entirely and wholly circumstantial.

It appears from the testimony that the defendant was the owner of a building at 1142 Independence avenue, Kansas City, Mo., on the first floor of which he was conducting a grocery store. From the time he acquired the property, which was more than three years prior to the date charged in the indictment, the second floor was leased to a Mrs. Effie Gatewood, whose lease or occupancy continued until after the date of the raid upon the premises and the arrest of the defendant by government agents. She seems also to have been a tenant of defendant's predecessor. She maintained an apartment, and from time to time rented rooms. This building apparently faced south on Independence avenue, and the second floor was reached either by means of the stairway leading from the sidewalk along the front of the building, or by means of a back stairway reached from the alley in the rear of the building. Each of these stairs went directly to the second floor, landing in a hallway on the second floor; these landings being on the same side of the hallway as shown by photograph, Defendant's Exhibit 7, so that one going up either stairway landed in the hallway on the second floor, the landings being in plain view of each other, although the distance between the landings is not shown. On entering from the alley or porch in the rear of the building is a hallway, and at the foot of the rear stairs is another door. In order to get upstairs from the grocery store, it was necessary to pass through a door in the rear part of the grocery store, into this hallway, pass along the hallway to the foot of the back stairs, a distance of about fourteen feet, open the door at the foot of the stairs, and pass up the stairs on to the second floor landing. This doorway in the back of the grocery store was kept locked and barred.

On the 12th day of September, 1928, certain prohibition agents made a search of these premises. Entering first the grocery store, they found the defendant in charge of his business. The store appeared to be a well-stocked grocery store. The rear door, whether in the extreme rear of the building, or in the east partition wall, is not clear from the testimony, was closed and barred by means of a wooden bar fitted into strong iron brackets or holders on either side of the doorway. It may also have been locked. Nothing was found on the first floor except a stock of groceries and fixtures and some tables and chairs, but on looking at the ceiling in the back part of the store building it was observed that at one spot some of the plaster was loose and some water had seeped through. The prohibition agents detected in this seepage an odor of mash. This portion of the ceiling was over a balcony or mezzanine floor and was not easily observed from the floor of the grocery store, nor did the seepage through the plaster come onto the floor of the grocery store proper, but was intercepted by this balcony or mezzanine floor. The agents then broke open the door leading from the grocery store into the hallway communicating with the back stair, and finding the door at the foot of this back stair locked, broke the lock, passed up the stairway to the second floor, and entering the door to the back room on the second floor found twenty-three barrels of mash, fifty-gallon size, fit for distilling, and a seventy-five gallon still set up complete but not in operation. The defendant told the agents that he owned the building and that the second floor was rented to a colored woman. The front part of the second floor was used for living purposes. The tenant, Mrs. Gatewood, testified that she sublet the back room where the still and mash was found to a man by the name of Jennings at a rental of $10 per month. That the contract for gas was in her name, and that she settled with the gas company and apportioned the expense with the defendant; the defendant paying her such portion, apparently, as she from time to time allotted to him.

A government witness testified that on September 11th, he had visited the vicinity of these premises between 9 and 10 o'clock in the morning, and while standing across the street on the south side, saw a young negro rolling a barrel towards the defendant's grocery store. That the defendant opened the door and let him in, the barrel being a fifty-gallon barrel. That he waited in that vicinity about ten minutes and saw the boy come out of the store without the barrel.

Testimony on behalf of the defendant showed that Effie Gatewood had occupied the second floor of this building for about four years at a rental of $25 per month. That she had six rooms, and she produced evidence of payment of rent. She testified with reference to the entrances, and the fact that there were two stairways entering the second floor, but that neither of these stairways entered either directly to or from the grocery store, and that the hallway was not open to the grocery store, but shut off by a door which was barred with heavy wooden bars; that she worked in the daytime and stayed at home nights. It appeared that the gas bill ran from $2.17 in the month of September, 1927, to $16.81 in December, 1927; $15.96 in January, 1928; $24.12 in February, 1928; $26.31 in March, 1928; $24.46 in April, 1928; $16.68 in May, 1928; $10.52 in June, 1928; $12.39 in July, 1928; $12.73 in August, 1928; and $9.33 in September, 1928. The gas contract was transferred to the defendant in October, 1928, having prior to that time stood in the name of Mrs. Gatewood.

The defendant put his character in issue, and witnesses testified that his reputation for honesty and fair dealing, and for being a law-abiding citizen was good prior to September 12, 1928. The character testimony was not controverted by the government. It should be added that the defendant testified that he knew nothing whatever about who occupied the room where the still and mash were found; that he had no knowledge that a still was on the premises, nor that there was any mash on the premises. He testified that he had once observed a little leakage in the place referred to by the government's witnesses, but that he had been advised by the tenant that she had spilled some water in washing, or something of that sort, and that as the leakage did not come onto the main floor, but was intercepted by the balcony which he did not occupy, he paid no further attention to it, and did not observe any odor of mash.

As has already been observed, the testimony is wholly circumstantial, and hence in order to sustain a conviction it must not only be consistent with the guilt of the defendant, but must be inconsistent with his innocence. Evidence creating a suspicion of guilt is not sufficient. There must be substantial evidence of guilt beyond a reasonable doubt. Bishop v. United States (C. C. A.) 16 F.(2d) 410; Colbaugh v. United States (C. C. A.) 15 F.(2d) 929; Dickerson v. United States (C. C. A.) 18 F.(2d) 887; Haning v. United States (C. C. A.) 21 F.(2d) 508; Philyaw v. United States (C. C. A.) 29 F.(2d) 225; Van Gorder v. United States (C. C. A.) 21 F.(2d) 939; Grantello v. United States (C. C. A.) 3 F.(2d) 117; Salinger v. United States (C. C. A.) 23 F.(2d) 48; Beck v. United States (C. C. A.) 33 F.(2d) 107.

The circumstances relied upon in this case as establishing the guilt of the defendant are as follows: (1) The defendant owned the building in which the still and mash were found; (2) on the day previous to the search of the premises a boy was observed rolling an empty barrel to the front door of the defendant's store, and defendant was observed letting the boy into the store building with the barrel; (3) evidence of a leakage through the ceiling of the storeroom onto the balcony or mezzanine floor was observed by the government witnesses, who detected an odor of mash from the seepage; (4) the gas bills were larger in December, 1927, January, February, March, April, May,...