United States v. Di Orio, 8782.

• Decision Date: 14 August 1945
• Docket Number: No. 8782.,8782.
• Citation: 150 F.2d 938
• Parties: UNITED STATES v. DI ORIO.
• Court: U.S. Court of Appeals — Third Circuit

150 F.2d 938 (1945)

UNITED STATES v. DI ORIO.

No. 8782.

Circuit Court of Appeals, Third Circuit.

Argued July 24, 1945.

Decided August 14, 1945.

Harold Simandl, of Newark, N. J. (Anthony A. Calandra, of Newark, N. J., on the brief), for appellant.

Grover C. Richman, Sr., Asst. U.S. Atty., of Camden, N. J. (Thorn Lord, U. S. Atty., of Newark, N. J., on the brief), for appellee.

Before BIGGS, WALLER, and McLAUGHLIN, Circuit Judges.

WALLER, Circuit Judge.

At or about 3:45 on the afternoon of April 26, 1944, several state officers found an illicit moonshine still in the horse barn on the Carkhuff farm in Somerset County, New Jersey. Secreting themselves, they watched and waited until approximately six o'clock, when one Stanley Pawlowski appeared on the scene and was arrested. At or about nine o'clock that night hidden officers saw the lights of an automobile as it approached the point where the road leading to, and beyond, the Carkhuff farm intersects the old York highway, at a point variously estimated to be between 1/8 of a mile and one mile from the Carkhuff farmhouse. Oddly enough, the driver extinguished the lights on his automobile shortly before leaving the highway and entering the lane leading by the Carkhuffs' house. Slowly, but with the accuracy of one familiar with the surroundings and with the stealth of one bent on concealing his approach, this nocturnal navigator drove to a point opposite the barn containing the still, where he turned in and came to a stop within eight or ten feet of the barn.

Thereupon two of the officers, with drawn guns, appeared beside his car, to his evident consternation and dismay, and gave the command: "Get out and get your hands up." Visibly frightened, the driver obeyed, meanwhile saying to the officers: "All right, you got me. Let's get it over with." And thus was accomplished the arrest of the appellant, Angelo DiOrio, sometimes called "Slim."

He was taken into the kitchen of the Carkhuff home where the following dialogue between him and one of the officers was said to have ensued:

Officer: "Slim, isn't this the first time you ever came into one of your stills?"

Slim: "Yes, God damn it, this is the first time. I ought to have my head examined."

Slim is also said to have told Officer Cirone: "Well, I guess that is another feather in your hat."

According to Officer Webster, when appellant had been detained at the farmhouse approximately two hours, he inquired: "What are we waiting for?"

Officer Lurie replied: "Well, we have a lot of things to do yet."

To which appellant urged: "Let us go. There won't be any more men here tonight."

Mrs. Carkhuff and her sons, Raymond and Russell, along with Pawlowski and DiOrio, were indicted in five counts charging a conspiracy in the first count, and substantive offenses alleging in substance: (a) The possession of an unregistered still; (b) unlawfully engaging in the business of a distiller with the intent to defraud the Government of taxes; (c) making and fermenting a quantity of mash fit for distillation in a building not then and there a distillery; (d) and concealing 265 gallons of distilled spirits on which the required tax had not been paid, with the intent to defraud the United States. A severance was granted to Mrs. Carkhuff because of illness. Her two sons were acquitted, but Pawlowski and DiOrio were convicted on all counts. Only DiOrio has appealed.

At the time of his arrest, and on trial, appellant denied any knowledge of, or connection with, the still and its operations and the Carkhuffs denied ever having seen him theretofore.

Appellant undertook to explain his presence and manner of approach by insisting that the defendant Pawlowski owed him $250 as a loan, made some months before. Having acquired the impression that Mr. Pawlowski was not overzealous in his efforts to repay the loan, he set out that afternoon seeking Pawlowski and repayment. Inquiry from Mrs. Pawlowski, at her home, revealed that her spouse was at the Carkhuff farm. Not knowing where that farm was, he obtained directions from Mrs. Pawlowski as to its location. He also got additional directions at a filling station en route. Clear and explicit, indeed, these directions must have been, for they enabled him to drive to the place at night, minus lights, albeit he denied: (a) Having extinguished his lights; (b) having ever been to the place before; (c) or having any part in the illicit enterprise. He insisted that he was intently attempting to locate his delinquent debtor and to collect the money needed to relieve his financial necessities, even though he had $600 in cash on his person at the time of his arrest.

Counsel for appellant state that the question involved is: Did the trial Court err in refusing to grant appellant's several motions for dismissal and acquittal?

Their chief argument is that the Government failed to prove the corpus delicti or the existence of any conspiracy in the present case, and that in the absence of such antecedent proof any admissions by the defendant were not receivable in evidence.

Unquestionably, the Government proved the existence of an unlawful still, of untax-paid liquor, the presence of illegally produced mash, etc. In other words, the fact that the substantive acts charged in Counts 2, 3, 4, and 5 were proven to have been committed by someone is not even disputed. The corpus delicti may be established by showing that a crime has been committed or by showing an act and that it was committed by a criminal agency. Proof of the identity of the perpetrator of the act or crime is not a part of the corpus delicti.¹

That the acts charged in Counts 2, 3, 4, and 5 were committed by someone, and that a criminal agency was involved, cannot be disputed, nor is the proof thereof dependent upon any admission, or confession, made in this case by appellant.

Antecedent to an inquiry as to whether or not a sufficient compliance with the general rule in reference to the proof of the corpus delicti in conspiracy cases was followed by the Court below, it is appropriate that the general rule be stated, viz.: A...