United States v. Lo Biondo, 220.
| Decision Date | 22 April 1943 |
| Docket Number | No. 220.,220. |
| Citation | 135 F.2d 130 |
| Parties | UNITED STATES v. LO BIONDO et al. |
| Court | U.S. Court of Appeals — Second Circuit |
George J. Todaro, of New York City, for appellant.
Mathias F. Correa, U. S. Atty., of New York City (Winston H. Pickett, Asst. U. S. Atty., of New York City, of counsel), for appellee.
Before SWAN, CHASE, and CLARK, Circuit Judges.
The appellant contends that the evidence was insufficient to sustain the jury's verdict that he was guilty of "wilfully and knowingly" possessing the unstamped cans of alcohol. At the time of his arrest he was carrying two of the five-gallon cans along the hallway of a building in front of which Lo Biondo, a co-defendant who pleaded guilty, was stowing similar cans in an automobile. Four other cans were on the floor of the hall and four more had already been put into the car. The cans were so wrapped in paper that no one could see without removing the wrappings whether they bore tax stamps. Though others fled from the scene when the officer approached, the appellant made no attempt to escape. His story when arrested was that he lived in a room in the building and that an unknown stranger, whom he met in the hall, had asked him to help move the packages and promised to pay him something for so doing. He could give no adequate description of the stranger. The court left to the jury the question whether the appellant's possession was innocent or with knowledge. We think that the evidence was sufficient to take the case to the jury and that its verdict should stand if the trial was conducted without error. See Wheeler v. United States, 5 Cir., 80 F.2d 678, 679; United States v. Sebo, 7 Cir., 101 F.2d 889, 891.
But the second contention claims error in the charge. While the appellant and Lo Biondo were en route to the police station in an automobile, detective Duffy said to them, "Haven't you fellows stopped bootlegging yet?" To this Lo Biondo replied, "What can you do about it?" The appellant said nothing. No objection was taken to the admission of Duffy's testimony as to this conversation, but at the conclusion of the court's charge counsel for the appellant asked for an instruction "that though Duffy testified Lo Biondo made some comment to the query about getting out of bootlegging and that De Christino kept silent, the jury should not consider it an indication of guilt or innocence." Thereupon the court said: To this counsel excepted. The detective's question was in essence an accusation that appellant and Lo Biondo had...
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