Turinetti v. United States

• Decision Date: 23 October 1924
• Docket Number: No. 6475,6476.,6475
• Parties: TURINETTI v. UNITED STATES. AZZOLIN v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

2 F.2d 15 (1924)

TURINETTI v. UNITED STATES.

AZZOLIN v. SAME.

Nos. 6475, 6476.

Circuit Court of Appeals, Eighth Circuit.

October 23, 1924.

William N. Jamieson, of Jamieson, O'Sullivan & Southard, of Omaha, Neb. (William E. Lovely, of Omaha, Neb., on the brief), for plaintiffs in error.

George A. Keyser, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., of Omaha, Neb., on the brief), for the United States.

Before STONE and KENYON, Circuit Judges, and FARIS, District Judge.

FARIS, District Judge.

Plaintiffs in error here, who were defendants below, were jointly indicted and jointly tried for a conspiracy to violate the Volstead Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), for that they formed such conspiracy with others, and thereafter, to carry it into effect, set up a still and manufactured whisky. On the trial, the wives, respectively, of Turinetti and Azzolin, and one Bertino, also jointly indicted with defendants herein, were ordered acquitted for lack of evidence. While separate writs of error were taken, the record here is a joint record, and the cases were argued and heard together, and may be disposed of in a single opinion.

On behalf of both defendants it is contended (a) that the indictment is bad; and (b) that there is no sufficient evidence to take the case to the jury. On behalf of Azzolin, it is urged that the court erred in refusing to allow him to present a formal motion and affidavits for a continuance or postponement of the case. On this point it is contended, and not denied, that, while he was indicted some 10 days before the trial, he was not arrested till only some 12 hours before he was actually put on trial; that is to say, he was arrested about 9 o'clock on a certain night, and compelled to go to trial at about 10 o'clock in the forenoon of the following day. His counsel asked for further delay within which to prepare his defense, which being refused, counsel thereupon requested time within which to file a formal motion for a continuance and to prepare and present affidavits in support thereof. The court refused to permit this to be done, and Azzolin excepted. We think this was error.

We are further of the view that there was not any sufficient evidence to take the case to the jury as to Azzolin. He may be guilty; the facts and circumstances adduced arouse a suspicion of guilt, but mere suspicion is not a sufficient ground on which to convict a man of any criminal offense. State v. Gordon, 199 Mo. 591, 98 S. W. 39. The most that the evidence offered against Azzolin tended to show was (a) that he owned and himself occupied a disconnected part of the building in which his tenant and codefendant Turinetti, who occupied another part, set up and operated the still in question; (b) that Azzolin personally paid the water rates on the entire premises, including the apartments occupied by Turinetti; (c) that the still was so placed, of such size, capacity, and construction, that Azzolin must have known of its presence in the premises which he leased to Turinetti; and (d) that the premises, while divided for separate occupancy by two or more families, were L-shaped, thus making the distance between the respective rear entrances thereof only some 60 feet.

All these facts together do not make out a case against Azzolin. His knowledge even that the still was in Turinetti's apartment would not render him guilty under the charge here; whether knowledge by Azzolin of Turinetti's intent, if in fact he had such, to set up and run a still in the premises, at and before he leased...