281 F. 125 | 6th Cir. | 1922
The plaintiffs- in error were indicted and convicted in the United States District Court for the Northern District of Ohio, Eastern Division, for selling intoxicating liquor fit for beverage purposes, containing more than one-half of 1 per cent, of alcohol by volume, in violation of title 2 of the National Prohibition Act (41 Stat. 307).
It is insisted on behalf of the plaintiffs in error that the trial court erred in admitting in evidence a bottle, claimed to be the bottle which contained the whisky unlawfully sold, for the reason that it was shown to have been in possession of a man who was not produced at the trial; that it was not properly identified by the government as the bottle which contained the intoxicating liquor alleged to have been purchased by Harris Anson and Joe Markowsky from the plaintiff in error; and for the further reason that there is an apparent conflict as to where these witnesses placed their initials upon the label on this bottle.
This objection is more technical than substantial. There is direct evidence to the effect that, before Anson and Markowsky went into the place of business of Joseph Gichanov and Mary Gichanov, they were searched by -Federal Agents Weaver, Van Burén, and Thomas, and that they then had no bottle upon their persons. Anson and Markowsky testified that they purchased this bottle and contents from the plaintiffs in error; that they then left their place of business and walked down to the corner and turned the bottle over to Mr. Thomas, in the presence of the other federal prohibition agents, Weaver and Van Burén. Anson says he placed his initials on the bottle at the hotel
While the question of the sufficiency of the evidence to sustain the verdict is not presented by the record, by motion for directed verdict or otherwise, nevertheless it is now insisted that no evidence was offered by the government tending to show that the distilled spirits, which the. indictment charges were unlawfully sold by the plaintiffs in error, were fit for use for beverage purposes. This contention overlooks the •evidence of Anson and Markowsky that, while they were in the place of business of the plaintiffs in error, they bought and drank two small glasses of raisin brandy, for which they paid 50 cents; that thereupon Markowsky asked Mary Gichanov if he could purchase some in a bottle, and she said he could; that, in pursuance of this request to purchase a quantity of this raisin brandy in a bottle, Mary Gichanov handed Markowsky this bottle of intoxicating liquor, for which he paid her $2, and which by actual test, made by the witness Brown, proved to be raisin brandy containing 47.5 alcohol by volume. Anson also testified that he tested the contents of this bottle and that it was raisin jack.
It is also contended on the part of plaintiffs in error that this judgment should be reversed, for the reason that the trial court abused its •discretion in overruling their motion for a new trial. This motion for a new trial was based particularly upon the claim of newly discovered evidence, and that the witnesses Weaver and Van Burén, called on behalf of the government, testified falsely in matters material to the prosecution. This latter question was, of course, a question for the jury. The court, upon a motion for a new trial, could not consider it, except in so far as it might become important in determining the probable effect of the newly discovered evidence in reference thereto.
While the testimony of these witnesses, the truth of which is challenged by this motion, was competent and relevant, nevertheless it was not directed to the alleged unlawful sale, but, on the contrary, to the search and seizure, which was made some time later. Further than that, it had no connection with the offense charged in the indictment. The newly discovered evidence is merely cumulative to the evidence of plaintiffs in error, who both testified in reference to this same subject-matter during the trial of the case. Flannelly v. Delaware & H. Co. (C. C.) 165 Fed. 350, Kroger v. Ryan, 83 Ohio St. 299, 94 N. E. 428. This newly discovered evidence is wholly in the nature of impeaching
For the reasons above stated, the judgment of the District Court is affirmed.