Turinetti v. United States
2 F.2d 15
8th Cir.
1924
Check Treatment

TURINETTI v. UNITED STATES

Nos. 6475, 6476

Circuit Court of Appeals, Eighth Circuit

October 23, 1924

2 F.2d 15

Before STONE and KENYON, Circuit Judges, and FARIS, District Judge.

which to pay the fine theretofore imposed. This extended the time for payment to January 1, 1920.

More than three years afterwards, during the regular July, 1923, term of court, the district attorney asked for an order for a bench warrant for the аrrest of Pattison; it appearing that stay of the service of the commitment which had previously been ordered by the court had long since expired and the fine had not been paid. The court ordered a bench warrant, directing that Pattison be brought before the court forthwith to show cause why the fine had not been paid, or why he should not be committed in accordance with the judgment. Commitment was issued and returned “Not found.” Afterwards, on April 7, 1924, during the regular March, 1924, term of court the matter was heard upon a motion by the United Statеs attorney for a commitment, and upon the oral motion of defendant to set aside the judgment of October 31, 1919, for a remission of the penalty imposed, upon the ground that Mann, the principal, having been acquitted, Pattison, accessory, could not be legally guilty. The court denied the motion of the defendant and granted the motion for commitment in accordance with the judgment of the court theretofore rendered. Commitment issued, whereupon Pattison brought writ of error, and contends that the court erred in entering judgment of guilty against him and sentencing him to pay a fine and ordering his commitment, upon the ground that, the jury having found Mann not guilty upon a separate trial, he (Pattison) should not be adjudged guilty of being an accessory.

[1] While the question of jurisdiction of the District Court to grant defendant‘s motion does not seem to have been considered by the learned District Judge, it is so plainly involved in the record as to be decisive of the case. All the proceedings had were during regular terms of the District Court for Oregon, which (section 102 of the Judicial Code [Comp. St. § 1089]) are held at Portland on the first Monday оf March, July, and November. It was on October 31, 1919, during the regular July, 1919, term that judgment was rendered, fining Pattison and giving him 30 days from October 31 within which to pay the fine, and it was during the regular November, 1919, term that he was allowed an additional 30 days within which to pay the fine. If we assume, merely for the present purpose, that the order of the court made on December 1, 1919, at the November term, which was the term following the July term at which judgment was rendered, was not in excess of the power of the court and that the extensions of time allowed for the payment оf the fine were valid, still the extension only ran until January 1, 1920. It is therefore apparent that not until more than four years had elapsed after the July, 1919, term, when judgment against him was entered, did Pattison make any move to modify or alter or vacate the judgment. The judgment had long since become a finality as far as the District Court was concerned. Under such a state of facts we are of the opinion that the District Court was without power to set aside or modify the judgment theretofore entered. In

, the Supreme Court has recently reiterated the general principle that a court cannot set aside or alter a final judgment after the expiration of the term at which it was rendered unless the proceeding for that purpose was begun during that term.

[2] And the rule must prevail, even though the United States attorney may have appeared and consented ‍​‌​‌​​​‌​‌​​​​​​‌​‌‌​‌​​​‌‌​​‌‌‌​​‌​​​​‌‌‌‌​​​​‌‍to the consideration of the motion. Defendant, therefore, was invoking an authority not possessed (

), and the District Court should have denied his motion for lack of jurisdiction.

[3] Writ of error merely to review the order of commitment, which is regular in form, does not lie. It was but the order by which the court directed a ministerial officer to take the defendant to jail.

The writ of error must be dismissed; and it is so ordered.

TURINETTI v. UNITED STATES.

AZZOLIN v. SAME.

(Circuit Court of Appeals, Eighth Circuit. October 23, 1924.)

Nos. 6475, 6476.

1. Criminal law 590(1)—Denial of continuance to permit defendant to prepare defense held error.

Where defendant, though previously indicted, was not arrested until 9 o‘clock on night preceding day on which he was brought to trial at 10 o‘clock, it was error to refuse time within which to prepare defense, or within which to file formal motion for continuance.

2. Criminal law 552(3)—Circumstances merely arousing suspicion of guilt are insufficient to sustain conviction.

Circumstances merely arousing suspicion of guilt are insufficient ‍​‌​‌​​​‌​‌​​​​​​‌​‌‌​‌​​​‌‌​​‌‌‌​​‌​​​​‌‌‌‌​​​​‌‍to sustain conviction for criminal offense.

3. Conspiracy 47—Evidence held insufficient to sustain сonviction for conspiracy to violate the Volstead Act.

Evidence held insufficient to sustain conviction for conspiracy to violate the Volstead Act (Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.).

4. Criminal law 559—Where circumstance is susceptible of inference in favor of defendants’ innocence, it has no probative value as evidence of guilt.

When a circumstance relied on as evidence of guilt is susceptible of inference favorable to innocence, it is robbed of all probative value, though from other inference guilt mаy be fairly deducible.

5. Conspiracy 23—Reversal of conviction for conspiracy held necessary, in view of insufficiency of evidence to sustain conviction of alleged coconspirator.

Where on appeal evidence was held insufficiеnt to sustain conviction of one of two defendants for conspiracy to violate the Volstead Act (Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.), a reversal as to other also was necessary, since he could not have conspired alone, ‍​‌​‌​​​‌​‌​​​​​​‌​‌‌​‌​​​‌‌​​‌‌‌​​‌​​​​‌‌‌‌​​​​‌‍notwithstanding evidence clearly establishes some offense or offenses by him.

Stone, Circuit Judge, dissenting in part.

In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.

John Turinetti and Frank Azzolin were each convicted of conspiracy to violate the Volstead Act, and they separately bring errоr. Reversed.

William N. Jamieson, of Jamieson, O‘Sullivan & Southard, of Omaha, Neb. (William E. Lovely; of Omaha, Neb., on the brief), for plaintiffs in error.

George A. Keyser, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., of Omaha, Neb., on the brief), for the United States.

FARIS, District Judge. Plaintiffs in error here, who were defendants below, were jointly indicted and jointly tried for a conspiracy to violate the Volstead Act (Comp. St. Ann. Supp. 1923, § 10138 1/4 et seq.), for that they formed such conspiracy with others, and thereafter, to carry it into effect, set up a still and manufactured whisky. On the trial, the wives, respectively, of Turinetti and Azzolin, and one Bertino, also jointly indicted with defendants herein, were ordered acquitted for lack of evidence. While separate writs of error were taken, the record here is a joint record, and the cases were argued and heard together, and may be disposed of in a single opinion.

[1] On behalf of both defendants it is contended (a) that the indictment is bad; and (b) that there is no sufficient evidence to take the case to the jury. On behalf of Azzolin, it is urged that the court erred in refusing to allow him to present a formal motion and affidavits for a continuаnce or postponement of the case. On this point it is contended, and not denied, that, while he was indicted some 10 days before the trial, he was not arrested till only some 13 hours before he was actually put ‍​‌​‌​​​‌​‌​​​​​​‌​‌‌​‌​​​‌‌​​‌‌‌​​‌​​​​‌‌‌‌​​​​‌‍on trial; that is to say, he was arrested about 9 o‘сlock on a certain night, and compelled to go to trial at about 10 o‘clock in the forenoon of the following day. His counsel asked for further delay within which to prepare his defense, which being refused, counsel thereupon requested time within which to file a formal motion for a continuance and to prepare and present affidavits in support thereof. The court refused to permit this to be done, and Azzolin excepted. We think this was error.

[2] We are further of the view that there was not any sufficient evidence to take the case to the jury as to Azzolin. He may be guilty; the facts and circumstances adduced arouse a suspicion of guilt, but mere suspicion is not a sufficient ground on which to convict a man of any criminal offense.

. The most that the evidence оffered against Azzolin tended to show was (a) that he owned and himself occupied a disconnected part of the building in which his tenant and codefendant Turinetti, who occupied another part, set up and operated the still in question; (b) that Azzolin personally рaid the water rates on the entire premises, including the apartments occupied by Turinetti; (c) that the still was so placed, of such size, capacity, and construction, that Azzolin must have known of its presence in the premises which he leased to Turinetti; and (d) thаt the premises, while divided for separate occupancy by two or more families, were L-shaped, thus making the distance between the respective rear entrances thereof only some 60 feet.

[3, 4] All these facts together do not make out a case against Azzolin. His knowledge even that the still was in Turinetti‘s apartment would not render him guilty under the charge here; whether knowledge by Azzolin of Turinetti‘s intent, if in fact he had such, to set up and run a still in the premises, at and before he leased them to the latter, would render Azzolin guilty, need not be decided, because there is no evidence or circumstance in the case indicating either that Azzolin had such knowledge or that Turinetti harbored such intent. The fact of payment of the water rates is susceptible of an inference making fоr innocence; that is, that since this is often done by, and is usually required of, the landlord, such payment could well have been done in the usual compliance with a rule or an ordinance of the municipality. Whenever a circumstance, relied on as evidence of criminal guilt, is susceptible of two inferences, one of which is in favor of innocence, such circumstance is robbed of all probative value, even though from the other inference, guilt may be fairly deducible. We conclude that the court ought to have directed a verdict as to Azzolin, and so, for the two errors noted, the case as to him should be reversed.

[5] It is obvious that this conclusion renders reversal necessary also as to Turinetti. Clearly the latter is guilty of some offense or offenses against the National Prohibition Act. The trial court correctly found that Mrs. Turinetti, Mrs. Azzolin, and one Bertino, jointly indicted with Turinetti and Azzolin, were under the evidence not guilty of conspiracy. We are of opinion, as already said, that the court below erred in not making a similar ruling in favor of Azzolin, because of lack of sufficient evidence to show that he was guilty of a conspiracy. Therefore, since Turinetti could not have conspired with himself alone, he could not under the law be convicted of a conspiracy. It follows that there is no lаwful way to avoid a reversal also as to Turinetti, although, under the evidence, he violated one or more provisions of the National Prohibition Act. For the latter violations, however, he was neither indicted nor convicted, and so the fact of such othеr violations will not warrant affirmance of this conviction for conspiracy.

Since the case must, for the reasons already given, be reversed as to both defendants, we need not consider whether the indictment is bad, as urged, for that it fails to aver what partiсular provision or provisions of the National Prohibition Act defendants conspired to violate, and thus fails fully to inform defendants of the charge against which they are required to defend themselves. While the point is, upon principle, a fairly simple one, it is obviоus that, unless the evidence shall be greatly strengthened upon another trial, defendants cannot be convicted on the charge here before us.

Let the case, for the errors noted, be reversed for further proceedings ‍​‌​‌​​​‌​‌​​​​​​‌​‌‌​‌​​​‌‌​​‌‌‌​​‌​​​​‌‌‌‌​​​​‌‍not inconsistent with the views herein expressed.

STONE, Circuit Judge (dissenting in part). I concur in the remand of the Azzolin Case. I base this solely upon the action of the court in refusing that defendant an opportunity to file a motion and affidavit for a continuance and to perfect his record upon that matter. Such was necessary to enable this court to pass upon the propriety of the refusal of the continuance.

I dissent from remand of the Turinetti Case. While he had his writ of error here, it was not argued by counsel. I think there was evidence from which the jury might have found a conspiracy. It is undisputed that Turinetti was making the whisky in a large still and had a large quantity of mash and new whisky on the premises. It is also undisputed that Azzolin furnished the water used and necessary in making this whisky. The evidence is clear, to my mind, that he knew this whisky was being made on his premises and with this water. I think one cannot knowingly permit his premises to be used for an unlawful purpose and knowingly contribute a necessary ingredient or element to the prosecution of that purpose without being a party to the unlawful act. Whether Azzolin had knowledge of the unlаwful intentions of Turinetti at the time the lease was executed is not controlling. If thereafter he became aware of such usage of the premises and water and did not, within a reasonable time, take reasonable steps to terminate such unlawful usage, such inaction is evidence of a consent to such usage and of such community of accord and action as to constitute conspiracy.