Golden v. United States

4 F.2d 846 | 8th Cir. | 1925

SANBORN, Circuit Judge.

In this ease the defendant below was tried and convicted of violation of National Prohibition Act, tit. 2, §§ 3, 25, 29 (sections 10138½aa, 10138½m, 10138½p, U. S. Compiled Statutes 1923), under two counts of an indictment, tbe first of which charged him with tbe unlawful possession of intoxicating liquors at 529 Washington Avenue South in Minneapolis, Minn., on March 30, 1923, and tbe second charged him with unlawfully selling such liquor at tbe same place on March 14, 1923. Counsel for the defendant below have submitted their ease to this court on their brief wherein they insist upon and argue three propositions.

Tbe first is that it was error for tbe court to receive in evidence the liquor which tbe witnesses testified they found in tbe possession of tbe defendant at tbe time and place stated in tbe indictment, because tbe officer wbo found and seized tbe liquor in bis affidavit and return to tbe search warrant, under which be took it, stated that be found and took it on the 30th day of March, A. D. 1922, when tbe fact was that be found and seized it on tbe 30th day of March, A. D. 1923. But tbe officer testified at tbe trial that be received and served tbe warrant and seized tbe liquor on March 30, 1923, and tbe evidence that be did so on that day is very conclusively shown by other witnesses. It was not bis written affidavit and return to tbe search warrant, but the legality of tbe search warrant and bis actual seizure and keeping of tbe liquor that qualified tbe latter for admission in evidence. Tbe fact that be made a mistake in stating tbe date-of bis seizure in bis written affidavit and return did not disqualify tbe liquor as evidence, in this ease, and there was no error in receiving it, nor in receiving tbe testimony of tbe officer and the other witnesses-to tbe actual date of tbe seizure.

Tbe second proposition of counsel is that tbe court erred in receiving in evidencetbe testimony of tbe two witnesses, Tetzel- and Sunde, that they purchased of tbe defendant at tbe time and place charged in tbe indictment moonshine whisky and that this whisky was intoxicating liquor containing more than ono-half of 1 per cent, of alcohol in volume. But they testified that they purchased at the time and place charged in the indictment several drinks of moonshine whisky and paid 30 cents a drink for it; that they tasted and smelled it. Tetzel testified that he had been working as an undor-eover man from October 17, 1922, to March 14,, 1923, that during that time he drank and smelled moonshine whisky several hundred times, that ho had drank it between 25 and 50 times, that on March 14, 1923, he was able to tell whether this liquor was moonshine whisky or not hy tasting and smelling of it and whether it contained more than one-half of 1 per cent, of alcohol hy volume and that it was white moonshine whisky, that it was intoxicating liquor, and that it contained more than one-half of 1 per ■cent, of alcohol by volume. The testimony of Sunde as to his qualifications to determine and testify as to the character of the liquor was of the same nature, and the conclusion is that these witnesses were well-qualified to testify to the name, the intoxicating character and the alcoholic quantity to the extent of one-half of 1 per cent, hy volume of this liquor, and there was no error in receiving their testimony.

The third contention of counsel is that the evidence of the identification of the defendant as the man who sold the whisky was not substantial and was insufficient to sustain the verdict against him. We have carefully examined the evidence on this subject, and, in our opinion, it is far from sustaining the position of counsel here taken. There was substantial evidence that the defendant was the man who had possession of the liquor seized, and that he was the man who sold the liquor the witnesses who testified for the government bought, and the question of his guilt or innocence was properly submitted to the jury.

Let the judgment below he affirmed.