Wolstein v. United States

• Decision Date: 17 December 1935
• Docket Number: No. 10357.,10357.
• Citation: 80 F.2d 779
• Parties: WOLSTEIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

80 F.2d 779 (1935)

WOLSTEIN v. UNITED STATES.

No. 10357.

Circuit Court of Appeals, Eighth Circuit.

December 17, 1935.

Neil Hughes, of Minneapolis, Minn., for appellant.

James J. Giblin, Asst. U. S. Atty., of St. Paul, Minn. (George F. Sullivan, U. S. Atty., and John L. Wheeler, Asst. U. S. Atty., both of St. Paul, Minn., on the brief), for the United States.

Before GARDNER, WOODROUGH, and FARIS, Circuit Judges.

FARIS, Circuit Judge.

Appellant, convicted on two counts of an indictment which charged him with violations of section 404, title 26 U.S.C., (now section 1287, title 26 U.S.C.A., formerly section 3296 R.S.,) appealed in conventional form. His punishment on each count was fixed at a fine and imprisonment, but the punishment on the second count ran concurrently with that on the first count.

Specifically, the charge in the first count was, that appellant and one Motzko "unlawfully, knowingly and feloniously did remove and aid and abet in the removal of distilled spirits on which the tax imposed by the laws of the United States had not been paid, to-wit, fifteen gallons, more or less, of moonshine whisky and six gallons, more or less, of alcohol, to a place other than the bonded warehouse, provided by law, to-wit, to a certain Plymouth Coupe" (the precise location as to street, house number, city and state, then followed).

The second count charged appellant, and said Motzko, with the concealment and aiding and abetting in the concealment of the identical nontax paid distilled spirits, in the Plymouth coupé, at the location aforesaid. Appellant was tried alone; his codefendant Motzko, having, as the vernacular expresses the notion, "turned state's evidence," testified for the government.

Numerous assignments of errors, forty-three in all, are set out in the brief. In consonance with the doubt whether any court could in a trial which took but two days commit so many errors, counsel for appellant urges but five in his brief. So, the other thirty-eight may under the rule laid down in the case of Schnitzer v. United States (C.C.A.) 77 F.(2d) 233, be considered as waived. But in fairness it may be observed that an examination of each of the thirty-eight discloses no serious error, at all inconsistent with a fair trial.

It is contended by appellant that it was error for the court to permit the witness Motzko to testify as to a conversation had with appellant some time in June or July, and prior to the commission on October 17, 1934, of the offenses charged in the indictment. This conversation was to the effect that appellant was again in the business of selling liquor, and if Motzko was also engaged in such business, he (Motzko) should come up and see him. It was urged in objection by appellant that the matter was too remote; that it had reference to another and independent offense, and that no foundation had been laid as to time. Clearly all of these objections were wholly afield from the point. No crime whatever was committed by appellant at the time. It is not yet a crime to make an unaccepted offer to sell illicit spirits. The matter was merely an admission against interest voluntarily and freely made by appellant. It tended to show that appellant was engaged in the business of selling liquor, that any liquor he might have on hand, whether in containers of five gallons' capacity, or otherwise, was intended for sale, and not for appellant's own use. Cf. Act of January 11, 1934, 48 Stat. 313; section 1152, title 26, U.S.C.A. As well contend that a threat made by A, eight weeks before a murder that he was going to kill B, whom he afterwards is charged with killing, is evidence of another crime and is too remote. Remoteness, absent extrinsic facts, such as locus pœnitentiæ, affects weight only, and not admissibility. The contention is frivolous.

Again it is contended that error was committed in permitting an eyewitness for the government who was at high noon some 400 feet away, to say that an object "appeared to be a five-gallon jug" and it "appeared (to the witness) that appellant picked it up from between two cars and placed it in the Plymouth Coupe." Obviously, the word "appeared" was used by the witness as a mere form of expressing the notion that according to his belief, bottomed on observation, appellant did have a five-gallon jug which he picked up and put in the automobile. His language evinced some doubt, it is true, of the correctness of his observation; but this was for the jury. The mere fact that the witness was fair enough to state the fact in language which carried a tincture of doubt as to absolute verity did not render his statements inadmissible. The doubt expressed by the very language used affected the weight of the evidence. It was as if the witness had said, "I was four hundred feet away, I saw an object which I took to be a jug, and I saw a man whom I took to be the appellant put this object in an automobile, but I may have been mistaken, I am only expressing the result of my best observation, and my belief bottomed on my experience and this observation, from having on other occasions seen the appellant and this jug and other jugs." A similar situation in entire effect arises on doubtful identification. A witness says he believes the accused to be the person whom he saw in the commission of a crime; he looks like the man, i. e., he appears to be the same person; he believes him to be such; but he cannot be sure to an absolute certainty. Such evidence may be weak, but surely it is not inadmissible; its weight and weakness are for the triers of fact, we think.

But the most serious and most strongly stressed contention made is, as to a matter of alleged erroneous admission of evidence, in that the witness Motzko was permitted to detail the facts and circumstances of a prior purchase of "moonshine whiskey," which occurred some two or three weeks prior to the commission of the acts on which the case at bar is bottomed. These facts were that Motzko went, about the last of September or first of October, 1934, to the appellant at his house and asked to buy six one-gallon cans of alcohol; that the price was agreed on between the witness and appellant; that he paid the appellant therefor; that the manner of the delivery was, the appellant went to the telephone and called up some one with whom he talked; that shortly thereafter a person designated by the witness as "a guy" brought over, to the premises of appellant, the six one-gallon cans of alcohol, and appellant delivered them to the witness.

On these facts appellant now contends that the above acts of appellant were not admissible, because they constituted proof of another independent and unrelated crime, not directed toward proving any fact relevant to the charges on trial, and not involving intent.

Appellee contends that inasmuch as the moonshine whisky, which constitutes a part of the distilled spirits here involved, was brought, or caused to be brought to appellant's premises by identically the same procedure, the evidence was admissible as proof of appellant's method of carrying on his illicit business, and of the fact that he was possessing nontax paid spirits for sale and not for his own consumption.

It is not entirely certain that this evidence did not have some probative value in throwing light on the pending charge against appellant; nor is it certain that intent, as an aider and abettor, is not involved in the case. Cf. United States v. Nunnemacher, Fed.Cas.No.15,902. Certain it is that if appellant had merely taken or caused to be taken articles...