107 F.2d 519 | 7th Cir. | 1939
Appellant appeals from a judgment upon a finding that he was guilty as charged in an indictment containing nine counts. It charged unlawful possession of a still for distilling alcohol, defrauding the United States of tax, carrying on the business of wholesale liquor dealer, operating a distillery without a sign, and without a bond, fermenting mash, concealing goods and commodities, possessing distilled spirits in unstamped containers, and conspiracy to commit the various offenses enumerated.
As grounds for his appeal, appellant asserts that the evidence failed to establish his guilt beyond a reasonable doubt; that the court erred in denying his motion for discharge at the close of all the evidence; that the court erred in overruling his petition to suppress evidence; and that the court erred in the admission, over his objection, of evidence secured as the result of an unlawful search and seizure.
Prior to the hearing of the cause, appellant introduced evidence in support of his petition to suppress evidence. This petition and evidence established the following facts. A search warrant was executed at 5 o’clock in the morning of October 22, 1938, on a farm near 143rd Street and La
The little black book taken from appellant contained a number of items relating-to sugar, yeast, labor, coal, gas, and what were apparently abbreviations of some of these words, “sug, yes, lab.” It also contained, in Italian, what was translated as “in coal,” “cans or containers, 270, all paid for.” One “sug” item appears at five places with the figures, 963.50. Other items are listed opposite the names “Orl, Pet, Joe, Rich, Wal, Tor, Mike, Walter,” together with items “Elect(ricity?), Rent.”
It was stipulated by the parties that upon the execution of the search warrant a large still was found in full operation, 77 five-gallon cans full of alcohol, 10 gallons of alcohol in the receiving tank, 3,000 gallons of yeast and cane sugar mash, together with a steam boiler, condenser, four wooden fermenters, a deep well pump, water pump, mash pump, three electric motors, and 75 empty five-gallon cans. It was also stipulated that the alcohol found on the premises was distilled spirits on which no tax had been paid, and that the still found there was not registered as required by law, and that the purpose of the still was to distill alcohol.
In addition to the Government agents who described the circumstances surrounding appellant’s arrest, the Government also relied upon the following witnesses:
1. A meter reader for the Public Service Company who said that he had seen appellant about the middle of October at the farm where the still was located, when he went to read the electric meter. Although he did not know his name, he pointed out appellant as the man he had seen.
2. An investigator for the Government who testified that he had seen the 1934 Chevrolet sedan in a field adjoining the farm where the still was located, and about a block from the barn, and he had seen the same automobile several times in December 1937, and January 1938, at the home of appellant, in Dolton.
3. A State highway repairman who testified that he had seen appellant, whose name he did not know, but whom he pointed out in court, frequently driving along the highway in the vicinity of the raided premises.
One of the Government agents testified' that the defendant who escaped was one Orland David, and that he had identified him from a photograph. Another witness -identified a photograph of Orland David, and stated that he was a minor son of-appellant, seventeen or eighteen years old.
The Government also called as a witness one Mrs. Slachetka, the owner of the farm adjoining the one where the still was located, and on which appellant had been apprehended the morning of the raid. She. had previously signed a statement which tended to connect appellant directly with the operation of the still. However, when she was called upon as a witness, she completely repudiated the signed statement, stating that it contained assertions which she had not made, and that her signature had been forced from her by threats that
Appellant assigns as error the refusal of the court to strike from the record the question propounded to Mrs. Slachetka, including the statement read to refresh her memory. We find no error as to this. It must be remembered that the case was tried to the court without a jury, and it must, of course, be assumed that the court considered only the evidence properly admitted and admissible. -The objection to the, question based on the statement was sustained, thus showing clearly that the court did not consider it proper. We are of opinion that nothing further was necessary.
The only question, then, is, whether or not there was sufficient evidence in the record to sustain the conviction. We think this question must be answered affirmatively. The unexplained facts of his approach-at an early morning hour with a package of lunch under his arm, toward the premises where a large still had been seized in full operation a short time before, his attempt at - concealment and flight when he saw strangers on the premises, his possession of a memorandum book with entries obviously applicable to the operation of such a business as was found in operation, his being seen at another time actually on the premises, and at other times going-to and from the vicinity of the still, and the flight and escape of his minor son from the barn where the still was located, at the time two of the defendants were arrested, all taken together constitute sufficient evidence to justify a finding of guilty as charged in the indictment.
Judgment affirmed.
Violations of sections 1162, 1155(f), 1397(a) (1), 1182, 1184, 1185, 1441 of Title 26, U.S.C., 26 U.S.C.A. §§ 1162, 1155 (f), 1397(a) (1), 1182, 1184, 1185, 1441, and section 201 of the Liquor Taxing Act of 1934, 26 U.S.C.A. § 1152a„ and section 88, Title 18, U.S.C., 18 U.S.C.A. § 88.