United States v. Spagnuolo, 285

• Decision Date: 23 June 1948
• Docket Number: Docket 20992.,No. 285,285
• Citation: 168 F.2d 768
• Parties: UNITED STATES v. SPAGNUOLO.
• Court: U.S. Court of Appeals — Second Circuit

168 F.2d 768 (1948)

UNITED STATES v. SPAGNUOLO.

No. 285, Docket 20992.

Circuit Court of Appeals, Second Circuit.

June 23, 1948.

Joseph Aronstein, of New York City, for defendant-appellant.

Roy M. Cohn, Asst. U. S. Atty., of New York City (John F. X. McGohey, U. S. Atty., and Robert Mitchell and Bruno Schachner, Asst. U. S. Attys., all of New York City, on the brief), for plaintiff-appellee.

Before AUGUSTUS N. HAND, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

The defendant attacks his conviction below particularly because of asserted failure to prove his possession of the distilled spirits which were discovered with only counterfeit revenue stamps upon them, in violation of 26 U.S.C.A.Int.Rev.Code, § 2803(a, g). Upon the trial to the jury the principal witness for the prosecution was one Howard Johnson, a bartender, who testified that some months before the day in question he had bought liquor of a man who was accompanied by the defendant, and that the seller had given him a telephone number to use for further orders. On June 6, 1947, Johnson telephoned an order to this number. It was established by other witnesses that about 11 a. m. a man arrived at 940 St. Nicholas Avenue, Manhattan, the apartment house where Johnson lived, and asked the elevator operator if he could leave a package on the elevator for Johnson. Being directed, however, to the office of the apartment house, he went there and was given permission by Mrs. Lewis, a building employee, to leave the package in the office. Later she saw two packages wrapped in brown paper on the floor. Shortly before noon Johnson left his apartment and found the defendant in front of the house. Defendant told Johnson that "he had the whiskey" and that it was "inside." Johnson told the defendant to wait while he got the money to pay for it. Johnson then went to meet two Alcohol Tax Agents, with whom he had made prearrangements, at a nearby bar and grill, where he pointed out the defendant to them. One agent detained defendant while the other went into the house, was referred by the elevator operator to the office, and at the office was shown by Mrs. Lewis the two packages in question. These being opened were found to contain twelve bottles of Scotch with no stamps upon them other than counterfeits.

This was substantial evidence of control, and hence possession, of the liquor and of the commission of the charged crime. In addition, there was other evidence, partially corroborative of it, and no evidence inconsistent with the normal conclusions which the jury obviously drew from the testimony. Though both the elevator operator and Mrs. Lewis failed to identify the defendant because they had taken no particular notice of the person who delivered the packages, nevertheless they concurred in saying that this person was white (as is the defendant) and that all the tenants in the apartment building were colored. While the Agents were taking the defendant to the station house, he took a handkerchief from his pocket and with it a piece of paper, upon which were Johnson's address and telephone number. The defendant offered no evidence.

Defendant now asserts error in the court's denial of his various motions to remove the case from the jury and in the court's charge submitting the case to the jury on the evidence. He makes several arguments, all directed to the issue of the sufficiency of the evidence, asserting that there was a failure "to establish the corpus delicti," that there was "no substantial evidence to support the verdict," that there was a failure to establish knowing and willful possession of untaxed spirits, and that there was error in the court's statement that there was "direct evidence" upon which the jury could base a verdict. The latter happens to be a misinterpretation of the charge where the court was defining a natural, even if obvious, distinction between circumstantial and direct evidence and stating the jury's duty to consider both types of evidence as present in the case. But as we have so often pointed out, there is no such differentiation in types of evidence and no such requirement of degrees of quantum of proof as is indicated in the defendants' contentions. It is true, of course, that the elements of the crime must be proven, though it helps little to shroud this requirement with a Latin phrase. But once the court concludes that there is a sufficient basis in the evidence for reasonable men to draw natural inferences of facts establishing the crime, the function of deciding upon the facts then rests with the jury and the court cannot properly take the case from it or limit its powers by trying to state conditions or quanta of proof or by using such expressions as that each element of the case must be proved beyond a reasonable doubt or every reasonable hypothesis of innocence must be excluded. There are no such requirements. True, of course, the jury must be warned that there must be proof of guilt beyond a reasonable doubt; but this "operates on the whole case, and not on separate bits of evidence each of which need not be so proven; and it cannot be accorded a quantitative value other than as a general cautionary admonition." United States v. Valenti, 2 Cir., 134 F.2d 362, 364, certiorari denied Valenti v. United States, 319 U.S. 761, 63 S.Ct. 1317, 87 L. Ed. 1712. See also United States v. Feinberg, 2 Cir., 140 F.2d 592, 154 A.L.R. 272, certiorari denied 322 U.S. 726, 64 S.Ct. 943, 88 L.Ed. 1562, a ruling which, indeed, we have frequently repeated. United States v. Greenstein, 2 Cir., 153 F.2d 550; United States v. Picarelli, 2 Cir., 148 F.2d 997, certiorari denied 326 U.S. 722, 66 S.Ct. 27, 90 L.Ed. 427; United States v. Cohen, 2...