United States v. Griesel, Cr. No. 1025.

• Decision Date: 09 July 1954
• Docket Number: Cr. No. 1025.
• Citation: 122 F. Supp. 646
• Parties: UNITED STATES v. GRIESEL et al.
• Court: U.S. District Court — District of Minnesota

122 F. Supp. 646

UNITED STATES v. GRIESEL et al.

Cr. No. 1025.

United States District Court D. Minnesota, First Division.

July 9, 1954.

C. Stanley McMahon, of George, Brehmer and McMahon, Winona, Minn., Linus J. Hammond, of Cummins, Cummins, Hammond & Ames, St. Paul, Minn., for defendants.

George E. MacKinnon, U. S. Atty., St. Paul, Minn., Alex Dim, Asst. U. S. Atty., for plaintiff.

DONOVAN, District Judge.

This matter is before the Court on motion of both defendants for judgment of acquittal.

The motion here under consideration stems from verdicts of guilty returned against both of the defendants under Count 111 of the indictment in the above entitled case.¹

A summary of the facts may be helpful. Defendant Sikorski was licensed to engage in the business of a retail liquor dealer at Winona, Minnesota, and pursuant thereto operated under the trade name of "Winona Liquor Store." She had no basic permit for purchase or resale of liquor as a wholesale dealer. Defendant Griesel was a tenant of Sikorski, renting desk space in the back of said store, and on occasions, in the absence of the proprietor, he would perform gratuitous service for his codefendant.²

At the behest of a private club, one Ristey called at the Winona Liquor Store in June, 1953. Sikorski was alone therein. Ristey thereupon made his only purchase from Sikorski, totaling 6.4 wine gallons of distilled spirits.³

The government contends that evidence offered in support of two counts in which verdicts of "not guilty" were returned may be considered as supporting the finding of "guilty" in the remaining count.

Defendants contend that the government has failed to prove them guilty beyond a reasonable doubt and that the purchase by Ristey can under no circumstances involve defendant Griesel.

The verdicts returned which are here attacked by movants must be based on evidence proving beyond a reasonable doubt that defendants were engaged in the business of a wholesale liquor dealer without paying the essential special government tax.

It is my opinion that the evidence adduced supports proof only of an isolated sale unconnected with circumstances tending to prove that defendants were at the time in question engaged in the business of selling liquor as a wholesale dealer. In arriving at this conclusion, I am mindful that consideration of the sufficiency of the evidence to sustain the verdict must be viewed in a manner most favorable to the government and that the trial court must refrain from concerning itself with the credibility of the witnesses and the weight of the evidence.⁴

The instant case is one, however, where after resolving all doubts against defendants, one still finds the government's burden of proof bottomed on the insecure foundation of an isolated sale in support of Count III. The applicable penal statutes must be strictly construed in favor of defendants against whom they are invoked. The words of the statute "to engage in the business", 27 U.S.C.A. § 203(c), imply continuity of habitual practice. "Carrying on business" means continuity thereof as opposed to an isolated sale or transaction.⁵ Inferences as to intent may be gathered from subsequent acts and conduct⁶, but here each count must be treated as a separate and distinct offense. There is no evidence tending to support the government's claim that Ristey purchased from anyone other than Sikorski. There is no evidence of a substantial nature supporting the government's claim that Griesel was owner of an interest in the store, or a partner of Sikorski's. The jury could find intent only from the evidence in the case that was relevant and material. The instant case is readily distinguishable from the type of case illustrated in the Jensen decision, supra, wherein the government's burden...