United States v. Stappenback, 50.

• Decision Date: 05 December 1932
• Docket Number: No. 50.,50.
• Citation: 61 F.2d 955
• Parties: UNITED STATES v. STAPPENBACK et al.
• Court: U.S. Court of Appeals — Second Circuit

61 F.2d 955 (1932)

UNITED STATES v. STAPPENBACK et al.

No. 50.

Circuit Court of Appeals, Second Circuit.

December 5, 1932.

Irving K. Baxter, of Utica, N. Y., for appellants.

Oliver D. Burden, U. S. Atty., of Syracuse, N. Y. (R. O. Baldwin, Asst. U. S. Atty., of Syracuse, N. Y., of counsel), for the United States.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

SWAN, Circuit Judge.

The evidence upon which the defendants were indicted and convicted was obtained as the result of a raid made by two prohibition agents upon a building in which was found in active operation a large still, concededly unregistered, and a quantity of corn sugar, mash, and alcohol. The defendants were apprehended just outside the building. By a preliminary motion to suppress the evidence and by appropriate objections and exceptions upon the trial, they challenge the admissibility of such evidence; and, by motion for a directed verdict, they raised the question of its sufficiency for submission to the jury. The issues thus presented require a somewhat detailed statement of the testimony.

The raided building was one of a group of buildings located upon a tract of land near the outskirts of the city of Utica. Access is by a private roadway which leads from a public street about one-third of a mile distant from the buildings. These premises belonged to defendant Stappenback and had been used by him for a number of years as a rendering plant. About 3 p. m. on August 26, 1930, two prohibition agents went to the premises to investigate a report obtained from an undisclosed source that a still was located thereon. As they approached along the highway, they saw a truck driven by a man who proved to be defendant Stappenback turn into the private road. They followed the truck, and, when they reached the first building, an open shed, which the truck had entered, they found Stappenback working on some carcasses of animals. In response to inquiries by Agent Kress, he stated his name, and that he was the owner of the premises; he denied any knowledge of the existence of a still, and said that he had leased the three-story brick building, in which it was later found, to an Italian named Papace. This lease he apparently produced subsequently, as it was introduced in evidence at the trial during the cross-examination of Agent Kress. Papace was named as a co-defendant in the indictment, but had not been apprehended at the time of trial.

Leaving Stappenback to continue with his work, the agents proceeded about 100 feet to a narrow alleyway which separates two of the other buildings, one being a boiler room and the other the brick building which contained the still. In this alleyway were the three other appellants, Pulio, Castiglione, and Tomaselli. One of them, Tomaselli, Agent Kress had seen standing at the corner of the alleyway as the agents drove up to the shed. He was then seen to turn and pass out of sight into the alleyway. It is the theory of the prosecution that the jury might infer that he summoned the other two from within the three-story building. At the time Agent Kress encountered these three men, he says the air was heavily laden with the fumes of alcohol and a smell which from experience he associated with the distillation of corn sugar. He could also hear the sound of water in motion within the brick building and a sibilant cracking as of steam. The windows were all boarded up. The three men were in working clothes, which bore grease stains, and their hands were black with dirt. Agent Kress informed them he was a prohibition officer, and asked what they were doing there. Pulio and Castiglione replied that they were looking for work, and Tomaselli said his name was Bruni, and that he worked for Mr. Stappenback. Tomaselli's clothing, however, bore no sign of rendering work stains such as did Stappenback's. Kress told the men to stay where they were, and instructed Agent Norris to remain with them. He then tried a door leading from the alleyway into the brick building. An unlocked padlock hung on the door casing, but the door was fastened in some way from the inside so that it could not be opened. Kress forced an entry through a window and found himself in a room containing a still and ten large vats, nine of which were filled with corn sugar mash. The still was in active operation and carrying a full head of steam. A stream of alcohol was running from the still into condensing vats on the second floor. No person was found within the building. Upon returning to the alleyway through the door, which could be opened from the inside, Kress placed the three men under arrest. He then inspected the boiler room and found that the boilers had hot fires and showed signs of having received very recent attention.

Somewhat later in the afternoon, after additional agents had been summoned by Kress, a more thorough search of the building was made, and in one of the rooms a suit of clothes was found hanging on a hook. In the coat pocket was found a leather card case containing a chauffeur's license bearing a photograph of Tomaselli. This card case and its contents were put in evidence.

Agent Norris testified in less detail in corroboration of the story told by Kress. Certain other agents testified to subsequent conversations with Stappenback at his home. These were admitted as against him only. They added nothing to support the charges against him. That the still was unregistered was conceded, and both sides then rested.

Upon the foregoing evidence the jury found Stappenback guilty on the conspiracy and nuisance counts, and not guilty on the counts charging possession of an unregistered still, or manufacture or possession of alcohol. The other three defen...