Weinstein v. United States, 1936.
| Decision Date | 03 March 1926 |
| Docket Number | No. 1936.,1936. |
| Citation | 11 F.2d 505 |
| Parties | WEINSTEIN et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — First Circuit |
William H. Lewis, of Boston, Mass., for plaintiff in error Weinstein.
Leo A. Rogers, of Boston, Mass., for plaintiffs in error Siegel and Zetzel.
George R. Farnum of Boston, Mass. (Harold P. Williams, of Boston, Mass., on the brief), for the United States.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
The three plaintiffs in error, Weinstein, Siegel, and Zetzel, were indicted, with six others, for unlawfully conspiring to commit offenses denounced by sections 3, 6, 21, 25, and 26 of title 2, Act Cong. October 28, 1919, commonly known as the National Prohibition Act (Comp. St. Am. Supp. 1923, §§ 10138½aa, 10138½c, 10138½jj, 10138½m, 10138½mm), on or about the 10th day of December, 1924.
A jury in the court below returned a verdict of "guilty" against them, and they have brought this writ of error, alleging that the court erred in overruling a demurrer to the indictment, in the reception of evidence, and in the failure to give requested instructions.
The demurrer, which was overruled, alleged that the indictment was void for duplicity, because it charges in a single count a conspiracy to commit more than one offense, to wit: The offenses denounced by several sections of the National Prohibition Act; that each offense should be set forth in a separate count; also that the indictment charges conspiracy to "willfully, knowingly, and unlawfully * * * manufacture, possess, sell, and transport intoxicating liquors containing one-half of one per cent. or more of alcohol by volume and fit for beverage purposes," but that it does not allege that these unlawful acts were done without a permit.
Upon motion a bill of particulars was filed by the government, alleging in substance that, during the period from about December 10, 1924, to the date of the indictment, the plaintiffs in error, with the other defendants who were indicted with them, held meetings at the place of Weinstein, in Chelsea, in the district of Massachusetts, and at various other places, and organized an association for the following purposes:
It also alleged that, pursuant to said purposes, an arrangement was made between Weinstein, Brown, Siegel, Goldsmith, Zetzel, Palais, Bigler, and other persons, with Ernest Henry, alias Dutch Henry, that he was to sell all the liquor manufactured by them, and no intoxicating liquor should be sold by them to any retail liquor dealer in Chelsea, except through said Henry; that from about December 10, 1924, to about February 15, 1925, said parties did deliver intoxicating liquor to the places designated by the said Henry; that the office of the association was on the premises of Weinstein, and he received a rental for part of his premises for the conduct of said illegal business; that one Woodrow did transport and deliver intoxicating liquor pursuant to the arrangement made with said Henry to retail liquor dealers in Chelsea; that said Henry did at various times during said period pay various sums of money to the said association for liquor purchased from it pursuant to the arrangement made with it and did cause intoxicating liquor to be delivered to various liquor dealers in said Chelsea; that all ingredients used in the illegal manufacture of liquor by the members of said association were to be purchased from said Weinstein; that eligibility to membership in said association was engagement in the business of illegally possessing, bartering, selling, and delivering intoxicating liquor, all or either of said acts.
Goldsmith, Palais, Bigler, and Brown severally pleaded guilty. The jury returned a verdict of guilty as to Weinstein, Ernest Henry, alias Dutch Henry, Siegel, and Zetzel, and of not guilty as to Woodrow.
The government contended that the plaintiffs in error, together with others not indicted, viz. Burstein, Bortman, Udelson, and Kark, entered into an arrangement by which they were to control the business of manufacturing "moonshine" in the city of Chelsea; that those who were engaged in the business should pay $300 each; that there should be two places of manufacture conducted by the concern, and two more storage places; that all their materials for the manufacture of "moonshine" should be bought from the Suffolk Supply Company, conducted by Weinstein; that there should be a fixed price for the manufactured product, and that it should be sold to retailers through one agent, viz. Ernest Henry. This arrangement was made in December, and continued until about the middle of February.
The assignments of error upon the overruling of the demurrer cannot be sustained.
In Frohwerk v. United States, 39 S. Ct. 249, 249 U. S. 204, 63 L. Ed. 561, the Supreme Court said:
See, also, Taylor v. United States (C. C. A.) 2 F.(2d) 444; Waldeck v. United States (C. C. A.) 2 F.(2d) 243; Dahl v. United States, 234 F. 618, 148 C. C. A. 384; Bailey v. United States (C. C. A.) 5 F.(2d) 437; Williams v. United States (C. C. A.) 3 F.(2d) 933; Norton v. United States (C. C. A.) 295 F. 136.
The other ground set forth in the demurrer is that, as intoxicating liquor may be manufactured, possessed, sold, and transported legally, in accordance with a permit, the indictment does not negative the existence of such permit.
The indictment alleges that the intoxicating liquor was manufactured, possessed, sold, and transported unlawfully and it is not necessary that an exception be set out to be expressly negatived.
Section 32 of title 2 of the Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½s), provides that "it shall not be necessary in any * * * indictment * * * to include any defensive negative averments." United States v. Scarneos (D. C.) 8 F.(2d) 320; Jelke v. United States, 255 F. 264, 166 C. C. A. 434; Sharp v. United States (C. C. A.) 280 F. 86; Goldberg v. United States (C. C. A.) 297 F. 98; Altshuler v. United States (C. C. A.) 3 F.(2d) 791.
It is also assigned as error that the District Court erred in permitting the United States attorney in his opening remarks to the jury to state that the members of the conspiracy were to get police protection for the illegal sale of liquor through one "Dutch" Henry, there being no evidence afterwards admitted in the case to that effect, and that "Weinstein was the president and treasurer, and sometimes acted as one and sometimes acted as both, of this association."
The court stated to the jury that what the district attorney stated in his opening was not evidence, but told for the purpose of enabling the jury "to place in the story the evidence as it comes from the witnesses on the stand."
There was no evidence that Henry was to obtain police protection, and none that Weinstein was president or treasurer. There was evidence that Weinstein received some of the cash paid in by members of the organization.
After this statement by the court to the jury, we think they could not have been misled by any opening remarks of the district attorney.
In order to sustain an indictment under section 37 of the Criminal Code (Comp. St. § 10201) for conspiracy to commit an offense against the United States, it is not only necessary to prove that such a conspiracy was entered into, but also that some overt act was performed in furtherance of it; but it is sufficient if one of the overt acts set out in the indictment, or in the bill of particulars, is proven. The government relied, to prove, not only conspiracy, but overt acts in furtherance of the same, upon the testimony of Kark, Bortman, Palais, and Bigler, who, from their testimony, the jury were warranted in finding were co-conspirators with the defendants. The character of this testimony was fairly commented upon by the presiding judge and its weakness pointed out.
Kark and Bortman were not indicted. Kark testified that some time in the month of November or December, 1924, a certain association was formed of men who were engaged in the wholesale liquor business and men who were engaged in the manufacture of liquor in Chelsea. He also testified as to meetings of the association. Bortman testified that he was engaged in the liquor business and "belonged to this corporation that was formed to manufacture liquor for the city." He also testified that Kark told him how "Dutch" Henry came to him with a proposition of manufacturing liquor to be...
To continue reading
Request your trial
-
United States v. Vehicular Parking
...108 F.2d 140; Vitagraph, Inc., v. Perelman, 3 Cir., 95 F.2d 142. 8 United States v. Harrison, 3 Cir., 121 F.2d 930. 9 Weinstein v. United States, 1 Cir., 11 F.2d 505. 10 International Indemnity Company v. Lehman, 7 Cir., 28 F.2d 1, certiorari denied, 278 U.S. 648, 49 S.Ct. 83, 73 L.Ed. 561;......