Wiggins v. United States, 160.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 272 F. 41
• Decision Date: 09 February 1921
• Parties: WIGGINS v. UNITED STATES.
• Docket Number: 160.

272 F. 41

WIGGINS
v.
UNITED STATES.

No. 160.

United States Court of Appeals, Second Circuit.

February 9, 1921

The plaintiff in error was the defendant below and is hereinafter referred to as the defendant. An information was filed against the defendant by the United States attorney which charged that on the 4th and 5th days of March, 1920, in the Southern district of New York, the defendant unlawfully, willfully, and knowingly maintained a common nuisance at a place particularly described in New York City where intoxicating liquor, to wit, whisky, brandy, gin, and wine, containing more than one-half of 1 per cent. of alcohol by volume, and fit for use for beverage purposes, was sold, kept, and bartered, in violation of title 2 of the National Prohibition Act, being the Act of October 28, 1919 (41 Stat. 307). The jury returned a verdict of guilty on June 8, 1920, and the defendant was sentenced to imprisonment for 60 days in the New York City prison and to pay a fine of $100.

The government's evidence showed that on March 5, 1920, certain police officers attached to the Special Service Division of the New York Police Department entered, without a search warrant, a saloon and restaurant in New York City having on the outside the sign 'Wiggins Hotel.' The officer who first entered asked for a glass of whisky and was served by the bartender. Then another officer entered and tasted the drink and found it to be whisky and arrested the bartender. The bartender broke two bottles behind the bar. He then showed the officers a closet behind the bar containing a large number of demijohns and bottles containing liquid and labeled variously champagne, whisky, and gin. In a short time Wiggins came in. He told the officers he was the proprietor, that he had been arrested only yesterday, that he had had this 'stuff' only a few days, and that it had cost a lot of money, and he asked them whether the affair could not be fixed up, and whether they could not leave the liquor or a portion of it. He himself stated that the demijohns contained whisky and sherry. One of the officers seized three bottles which he took from behind the bar and sealed them and took to a chemist. The whisky which was served in the glass to the officer who had asked for whisky was put into a small bottle and carried off by the officers. The chemist testified that the contents of all the liquor given to him contained more than one-half of 1 per centum of alcohol by volume. The defendant rested on the government's case, offering no evidence whatsoever. [272 F. 42]

George L. Donnellan, of New York City, for plaintiff in error.

Francis G. Caffey, U.S. Atty., of New York City (Albert C. Rothwell, Asst. U.S. Atty., of New York City, of counsel), for the United States.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS, Circuit Judge (after stating the facts as above).

The defendant asks this court to reverse the judgment of conviction which has been pronounced upon him, and to dismiss the information.

A motion to dismiss the information and discharge the defendant was made at the close of the defendant's case. The motion was made upon the ground that the government had failed to make out its case. This was predicated upon the theory that it was necessary on the part of the government to show knowledge on the part of the defendant of the sales made or alleged to have been made of liquors by the man employed there, and that there was not sufficient evidence before the court even to show ownership of the premises in the defendant. The court denied the motion and an exception was taken.

The National Prohibition Act, tit. 2, Sec. 21, provides as follows:

'Any room, house, building, boat, vehicle, structure, or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this title, and all intoxicating liquor and property kept and used in maintaining [272 F. 43] the same, is hereby declared to be a common nuisance, and any person who maintains such a common nuisance shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $1,000 or be imprisoned for not more than one year, or both. If a person has knowledge or reason to believe that his room, house, building, boat, vehicle structure, or place is occupied or used for the manufacture or sale of liquor contrary to the provision of this title, and suffers the same to be so occupied or used, such room, house, building, boat, vehicle, structure, or place shall be subject to a lien for and may be sold to pay all fines and costs assessed against the person guilty of such nuisance for such violation, and any such lien may be enforced by action in any court having jurisdiction.'

The statute thus makes any room or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of the act, and all intoxicating liquor and property kept and used in maintaining the same, a common nuisance, and makes any person who maintains such a common nuisance guilty of a misdemeanor and liable to...