Vukich v. United States

Citation28 F.2d 666
Decision Date29 October 1928
Docket NumberNo. 5460.,5460.
PartiesVUKICH v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Robertson, Paine & Schaaf, of Spokane, Wash., for appellant.

Roy C. Fox, U. S. Atty., and E. J. Farley, Asst. U. S. Atty., both of Spokane, Wash.

Before RUDKIN and DIETRICH, Circuit Judges, and NORCROSS, District Judge.

NORCROSS, District Judge.

The appellant, Vukich, was convicted on two counts of an indictment; the first count charging that he carried on the business of a distiller without having given bond as required by law, in violation of section 3281, Revised Statutes (26 USCA § 306), and the second charging the making of mash fit for distillation of spirits, in a place not a distillery authorized by law, in violation of section 3282, Revised Statutes (26 USCA § 307). A jail sentence of six months and a fine of $1,000 was imposed on the first count, and no sentence imposed on the second count. An appeal is taken from the judgment, and from orders denying a motion in arrest of judgment and petition for a new trial.

The evidence discloses that about 7:30 o'clock in the evening of January 10, 1928, federal prohibition agents observed a touring car, apparently heavily loaded, turn off the main highway into a road leading to a place known as the Godsel ranch, about eight miles from the city of Spokane, Wash. About an hour later the car was observed to return to the highway, where it was stopped by the officers. Appellant was found to be driving the car. In the back compartment of the car, scattered over the cushions and the floor, and upon the left-hand running board, was found a small quantity of corn sugar, commonly called pearl sugar. In company with the officers, appellant was directed to drive back to the Godsel place. In a building about 100 yards from the dwelling house was found a distillery in operation, a quantity of fermenting mash, some moonshine whisky, and 25 100-pound sacks of pearl sugar, similar in character to the sugar found in appellant's car. When the officers approached the still house, two or three men ran from it, one of whom was captured. At the dwelling house there were a Mrs. Godsel, her daughter, and a baby. Mrs. Godsel told the officers that appellant had brought some medicine and condensed milk to the baby; that she had known him for 16 years; that he occasionally came there, and had brought the articles for the baby at her request; that, if there was a still on the place, she did not know it. Appellant told the officers about bringing the articles to the baby, but denied that he had any knowledge of the still, or any interest in it.

Further evidence was introduced to the effect that, about 5 o'clock that same evening, appellant, under the name of Matosa, purchased from a warehouse in Tacoma 25 sacks of pearl sugar, paying cash therefor, 20 sacks of which were at that time loaded into his car, and he was to call for the remaining 5. There was also evidence offered to the effect that there had been no permit issued or bond given for the operation of such distillery. No evidence was offered upon the part of defendant.

Error is assigned in denying defendant's motion for a directed verdict, made upon the conclusion of the government's case, in refusing requested instructions, and in the giving of a portion of the court's charge to the jury.

Instructions requested by defendant, and refused, read:

"You are instructed that in order to convict the defendant of the offense charged in count 1 of the indictment that it will be necessary for the evidence to show you beyond all reasonable doubt that the defendant was engaged in carrying on the business of a distillery without giving a bond as required by law. The evidence must satisfy you beyond a reasonable doubt that he was either the proprietor or had some proprietary interest in the still or its operation described in the evidence.

"You are instructed that the defendant cannot be convicted of carrying on the business of a distillery without a bond if you believe that he had no proprietary interest in the still or its operation. If you believe from the evidence that he sold or furnished or carried sugar to the owners of the still, this would not render him guilty of engaging in the business of a distiller unless you further find that he has some proprietary interest in the still, or in its operation, or was actively engaged in conducting it as agent for the owner."

Error is assigned in the giving of that portion of the court's charge to the jury reading:

"On the other hand, if there were others than the defendant engaged in operating that distillery, and this defendant knew they were so engaged in operating it and aided and assisted them in its operation with the intent and for the purpose of carrying their activities to success, then and under such circumstances he would be a principal, and would, within the meaning of this act be engaged in carrying on the business of a distiller, by reason of the law which says that whoever does the acts necessary to constitute a crime, or who aids or abets another in their commission, is a principal. * * * Or that others than the defendant were so engaged in conducting and carrying on that business, and that this defendant knew that they were so engaged, and aided and assisted them in the conduct of the business, with the intent and for the purpose of enabling them to successfully carry it on."

Counsel for the government concede that, "if it were necessary to prove proprietary interest on the part of defendant, the court should have instructed to that effect." It is contended, however, that in respect to count 1, as well as count 2, of the indictment, the evidence is sufficient to bring the defendant within the definition of a principal, as defined in section 550, 18 USCA, reading:

"Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal."

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10 cases
  • United States v. Gainey, 13
    • United States
    • U.S. Supreme Court
    • March 1, 1965
    ...of the most comprehensive of the criminal statutes designed to stop the production and sale of untaxed liquor. See Vukich v. United States, 28 F.2d 666, 669 (C.A.9th Cir.). Those who aid and abet the enterpriser come within the statute's reach by virtue of 18 U.S.C. § 2 (1958 ed.). United S......
  • Snead v. United States
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • December 10, 1954
    ...of the matter in a number of well considered cases in the federal courts. Pattis v. United States, 9 Cir., 17 F.2d 562; Vukich v. United States, 9 Cir., 28 F.2d 666, 669; Borgia v. United States, 9 Cir., 78 F.2d 550, 555; Anstess v. United States, 7 Cir., 22 F.2d 594; Hubinger Co. v. United......
  • United States v. Falcone
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 13, 1940
    ...he merely had notice of the future destination of the goods. That appears to be the settled doctrine in that circuit. Vukich v. United States, 9 Cir., 28 F.2d 666, 669; Borgia v. United States, 9 Cir., 78 F.2d 550, 555. The same is true of the Seventh Circuit. Anstess v. United States, 7 Ci......
  • Backun v. United States, 4588.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 10, 1940
    ...of the matter in a number of well considered cases in the federal courts. Pattis v. United States, 9 Cir., 17 F.2d 562; Vukich v. United States, 9 Cir., 28 F.2d 666, 669; Borgia v. United States, 9 Cir., 78 F.2d 550, 555; Anstess v. United States, 7 Cir., 22 F.2d 594; Hubinger v. United Sta......
  • Request a trial to view additional results

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