United States v. Sall, 7484.

Citation116 F.2d 745
Decision Date10 December 1940
Docket NumberNo. 7484.,7484.
PartiesUNITED STATES v. SALL.
CourtU.S. Court of Appeals — Third Circuit

Anthony A. Calandra, of Newark, N. J., for appellant.

William F. Smith, U. S. Atty., and Irwin L. Langbein, Sp. Asst. U. S. Atty., both of Trenton, N. J., for appellee.

Before BIGGS, MARIS, and GOODRICH, Circuit Judges.

MARIS, Circuit Judge.

The defendant, Harry Sall, was convicted and sentenced in the District Court for the District of New Jersey upon all eight counts of an indictment which charged him and others with violation of the internal revenue laws. The first count charged that the defendants violated Section 37 of the Criminal Code, 18 U.S.C.A. § 88, in that they conspired to carry on the business of distillers with intent to defraud the government of the tax thereon, to possess an unregistered still, to make mash fit for distillation in a building not authorized to be used as a distillery, to remove and aid in the removal of distilled spirits to a building which was not a bonded warehouse and to conceal and aid in the concealment of untaxed distilled spirits. Counts two to five, inclusive, charged the defendant and others with the substantive offenses of unlawfully carrying on the business of distillers without notice, possessing unregistered stills, making and fermenting mash fit for distillation in a building not authorized as a distillery and distilling spirits with intent to defraud the government of the tax thereon. Counts six, seven and eight charged that the defendant and others unlawfully concealed and were concerned in the concealment of alcohol with intent to defraud the government of the tax thereon in violation of Section 3321 of the Internal Revenue Code, 26 U.S.C.A. The places of the concealment, referred to by the witnesses as "drops," were located at 161-3 North Main Street, (count six), 104 Montgomery Street (count seven) and 90-2 Paterson Street (count eight), all in Paterson, New Jersey.

Hugo Fontana, Henry Fontana, De Grado and Cirone, four of the co-defendants, pleaded guilty. Lanza and Fishbein were acquitted by direction of the court. The defendant Sall was found guilty as to all the counts. Upon this appeal he assigned as error the trial court's refusal to direct a verdict for him upon each of the counts but upon the argument of his appeal he voluntarily abandoned all the assignments except those relating to the court's alleged error in failing to direct a verdict for him upon counts six, seven and eight. We shall, therefore, restrict our consideration of his appeal to these three counts.

The government's evidence showed that on the morning of February 7, 1939, as a result of an investigation which had begun in November, 1938, government agents in the Alcohol Tax Unit raided a silk dye plant at 335 McLean Boulevard (where they found unregistered stills, mash fit for distillation purposes, and untaxed alcohol), private garages at 161-3 North Main Street (where they seized cans of untaxed alcohol and saw empty sugar bags and empty cartons), a private dwelling at 104 Montgomery Street (where they seized cans of untaxed alcohol), and a public garage at 90 Paterson Street (where they found a Ford truck bearing the name Harry Canover and containing cans of untaxed alcohol). All the raided premises were located in Paterson, New Jersey. In September, 1938, the defendant, using the name William Canova, had leased from Lanza for a period of one year a portion of the premises at 335 McLean Boulevard. In October, 1938, one Sloan, a fire protection engineer, made an inspection of the premises and found a wall which had not been there at his previous inspection. He asked Henry Fontana, who was employed on the premises, for leave to look behind this wall but was told by Fontana that he would have to obtain permission from the boss, William Canova. The latter, whom the witness identified as the defendant Sall, refused permission, assigning as his reason that he was making use of a secret dye process at the time. A few days later Sloan made his investigation but found no still nor anything out of the ordinary.

In September, 1938, the defendant Sall and Hugo Fontana had negotiated for the purchase of a Ford truck. A few days later Fontana paid the $500 which had been agreed upon and took title in the name of Harry Canover. The defendant Sall was not present when this sale was consummated. This truck played a very active part in the operations of the conspirators. On January 27, 1939, it was seen entering the garage at 90 Paterson Street, heavily laden with bags marked "sugar" and covered with a tarpaulin. The driver was Hugo Fontana. On February 1, 1939, at about 7:30 o'clock in the evening an investigator saw it in the driveway at 161 North Main Street, and heard the rattling of cans. It was heavily laden when it came and empty when it left. The investigator then traced it to 90 Paterson Street. On February 6, 1939, at about 8 o'clock in the evening the truck was seen being driven to a shed in the rear of the silk dye plant at 335 McLean Boulevard, heavily laden and covered with a tarpaulin; later it was seen at 104 Montgomery Street and at about midnight at the public garage at 90 Paterson Street. In the morning of February 7, 1939, the truck was found at the public garage and it then contained 155 cans of alcohol. The defendant was once or twice seen driving the truck at the public garage at 90 Paterson Street.

The only other testimony tending to connect the defendant with the offenses charged in the indictment was that on January 19, 1939, he...

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12 cases
  • United States v. Byrne
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 12 Octubre 1976
    ...clear that the crime of conspiracy is separate and distinct from a related substantive crime. (Citations omitted). In United States v. Sall, 116 F.2d 745 (3d Cir. 1940), which held that although the evidence in the case was sufficient to support a conspiracy conviction, it was not sufficien......
  • Com. v. Stasiun
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 22 Abril 1965
    ...offense committed by any other member of the group even though he had no part in it or even knowledge of it' United States v. Sall, 116 F.2d 745, 748 (3d Cir.). 3 In some of our decisions, language may be found to the effect that where parties are working with a common purpose to commit an ......
  • U.S. v. Zackery
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 12 Julio 2007
    ...the substantive offenses absent proof that he "participated directly" in their commission, as the Third Circuit had held in United States v. Sall, 116 F.2d 745 (1940). The Court rejected this contention, A scheme to use the mails to defraud, which is joined in by more than one person, is a ......
  • U.S. of America v. Carl Sutton, Jr., Joseph Spinoza Elkins, Dyeatra Ann Carter, Edwin Arthur Adams, Otis Hensley, Prince Albert Rankin, Samuel Lee Harris, Charles Edward Craven, Viola Holmes.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 3 Diciembre 1980
    ...conspiracy and the substantive offenses charged were in fact committed in furtherance of it. 6 Daniel relies on United States v. Sall, supra (116 F.2d 745 (3rd Cir. 1940)). That case held that participation in the conspiracy was not itself enough to sustain a conviction for the substantive ......
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1 books & journal articles
  • The “DOGMAS” of Antitrust Actions: A New Perspective
    • United States
    • Antitrust Bulletin No. 24-4, December 1979
    • 1 Diciembre 1979
    ...does not reachthe question of who is liable for the damage caused by the separateacts of the conspirators.124 See United States v. Sall, 116 F.2d 745, 747-748. In Pinkertonv. United States, 328Ll.S,640 (1946), the Court held Daniel liablefor the commission of unlawful acts by his brother, w......

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