United States v. Quaritius

• Decision Date: 10 September 1920
• Citation: 267 F. 227
• Parties: UNITED STATES v. QUARITIUS.
• Court: U.S. District Court — Eastern District of New York

267 F. 227

UNITED STATES v. QUARITIUS.

United States District Court, E.D. New York.

September 10, 1920

Leroy W. Ross, U.S. Atty., and John T. Eno, Asst. U.S. Atty., both of Brooklyn, N.Y.

Alexander S. Drescher, of Brooklyn, N.Y., for defendant.

GARVIN District Judge.

The government has applied for leave to file an information against defendant upon the charge of maintaining a nuisance in violation of the National Prohibition Law, commonly known as the Volstead Act (Act Oct. 28, 1919, c. 85, 41 Stat. 305). Prior thereto the defendant, through counsel, made application for leave to be heard when the government should present an information and ask for leave to file the same.

It is asserted, and not controverted, that on or about July 15 1920, a warrant was issued for the arrest of the defendant upon the charge of unlawfully maintaining a common nuisance as prohibited by the Volstead Act, and at the same time a warrant was issued for one Trainor, defendant's employe for having liquor in his possession. The defendant and Trainor were arraigned before Hon. Henry D. Barmore, a United States commissioner, and a hearing was had on July 22d. On August 5th the commissioner rendered a decision, in which he found as follows:

'In this case evidence is that federal prohibition agents entered store and asked for a 'highball.' Defendant Trainor was in charge, and declined to serve same, and stated that he had no liquor. After waiting about the place for a while, said agents, although witnessing no violation of the Prohibition Act and having no evidence or reason to believe that any violation was taking place, undertook to and did, without warrant or authority, go behind bar and search and discover and seize a bottle containing a red fluid, which they believe to be wine. There is no evidence as to its alcoholic content, or that it had any alcoholic content.

'They then made further search, and in a closet opening upon a passageway which connected the saloon with a grocery store or ship chandlery, found a quart bottle containing a colorless liquid, which they assumed to be alcohol, a pint bottle of brown liquid, which they assumed to be whisky, and a jug containing a green liquid, which they assumed to be creme de menthe. No evidence was offered that these were in fact intoxicating liquors. The door to this closet was marked 'Private.'

'The defendant Quaritius, who is the manager of the stores, was not present at this time. Quaritius testified that he is not owner or proprietor, but that his mother is. This evidence is uncontradicted. He further testified that he did not know of the existence of the supposed liquor; that, if there, it must have been there a long time. It further appears that part of the living quarters or dwelling of the family are on this same floor.

'There is no evidence of any selling or keeping for sale, such as would constitute a nuisance.'

These facts, as found by the commissioner, are not disputed by the government.

It has been held by this court that, while hearings are being held before a United States Commissioner upon a charge, the United States attorney may cause an information to be filed. U.S. v. Achen, 267 F. 595, Eastern District of New York, decided March 31, 1920. In that case the court cited, among other authorities, U.S. v. Maxwell, Fed. Cas. No. 15,750, in which Judge Dillon said:

'We are of the opinion, therefore, that offenses not capital or infamous may in the discretion of the court be prosecuted by information. We cannot recognize the right of

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