United States v. Dellaro, 94.

• Decision Date: 07 November 1938
• Docket Number: No. 94.,94.
• Citation: 99 F.2d 781
• Parties: UNITED STATES v. DELLARO et al.
• Court: U.S. Court of Appeals — Second Circuit

99 F.2d 781 (1938)

UNITED STATES v. DELLARO et al.

No. 94.

Circuit Court of Appeals, Second Circuit.

November 7, 1938.

Wegman & Climenko and Jesse Climenko, all of New York City, for appellants.

Vine H. Smith, of Brooklyn, N. Y., for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

The three appellants, Dellaro, Mongiovi and Shortino, were indicted on six counts, of which the fifth was dismissed during the trial. Of the remaining five, the first was for conspiracy to commit the acts charged in the later counts, the second and third were for unlawful possession of a still, the fourth was for making mash, and the sixth was for possession of illicit alcohol. Dellaro was convicted on the first count only; Mongiovi and Shortino on all. The testimony was of government agents who raided a two-story family house in Lynbrook, Nassau County, which they found to be substantially without furniture, and occupied by a still in active operation. Mongiovi and Shortino were apparently in charge, and the agents arrested them, and sent a policeman to Dellaro's home, two or three blocks away, to fetch him to the premises. When he arrived he was questioned, and acknowledged that he owned the house, as well as a piece of land across the street, where there was a barn with wagons and a steam shovel. He said that after living in the house for eleven years, he had let it in the preceding August to one, Fallo, whose address he did not know. When asked what he had to say about the fact that the ceilings were braced up all over the building, and that there was no furniture except a table and some chairs, he replied that he had nothing to say. Shortino said that the telephone number on one of two pieces of paper found in his pocket, was Dellaro's and that the "boss" had told him in case of trouble to call up that number. Again, upon being asked to reply to this, Dellaro said that the number was his, but that he did not know Shortino, and as to the rest that he had nothing to say. On the stand he swore that he could not find Fallo, who always came to his present home to pay the rent, and that he did not know his address, except that it was in East New York.

The officers had entered the building through a cellar door which they found open. Before doing so they had smelled mash while nearing the building, apparently coming from a garage on an adjoining empty lot. Inside the garage they found a cesspool which they concluded was being used as a dump for waste mash, because a vapor was rising from freshly strewn earth, and the smell was especially strong just there. They heard the sound of a motor and the hiss of steam coming from the house, and by looking through a window saw the column of a still. It was only after informing themselves in these ways that they entered. The appellants object that the entry and search were unlawful, being without warrant and without reasonable cause, and we will dispose of the point at once. Quite aside from the fact that none of the accused were aggrieved by the search, not being in possession of the premises, there was ample evidence to justify the entry. The officers did not depend upon smell alone; they saw the cesspool, traced the mash into it by smell and sight, heard the sound of machinery within the house, and actually saw part of the apparatus. It is difficult to see what more could be asked.

The evidence being lawfully procured, there is therefore nothing more to discuss as to Mongiovi and Shortino, who were caught red-handed. The case against Dellaro was less certain. It is true that mere knowledge that a leased tenement is being used as an illicit still, coupled with failure to evict the...