United States v. Moses
205 F.2d 358
2d Cir.
1953
Check Treatment

*1 358 equal right tí e to the of no more

is than employees to call out tie all

union the of Deal- of after another the

employees of one de- whipsawing manner above

ers in the

scribed. Taft under the hold that do not We tempora right to lockout

Hartley Act the g existir

rily may in all situations be used TI employees. le employers and

between a matter that Act is area under of its use Supreme by Coui t. yet the not determined Judge, Hand, L. dissented. Circuit thit However, has held Circuit the Second plant shutdown may use a employer not an the ef weapon to a defeat and lockout as piar t. unionize the employees to the forts of the shutdow n that case stated In that it was conditions, un by market was not caused whipsawir g where the case instant

like the a and ces of customers the loss threatened N. B. market. L. R. Dealers’ of the sation Inc., Cir., 193 F.2d Classics, 2 Somerset

v. denied, Mfg. Co. Modern v. 613, certiorari 816, B., 10. 73 S.Ct. U.S.

N. R. 344 L. position taken agree with the We involving case by in former the Board the temp > such a that use of the

the same facts by Dealers the rary made lockout as here whipsawing strikes announced to meet the sec either .violate Union does not

by the Taft 8(a) (5) of the 8(a) (3)

tion or section

Hartley Act. the of order petition set aside the

The to granted. is deny its enforcement

Board and STATES v. MOSES.

UNITED 264, Docket 22697.

No. Appeals States Court of United LiBrize, Falls, Niagara Y.,N. for James Second Circuit. defendant-appellant. Argued May 5, 1953. Grobe, George Atty., U. Buffalo, L. S. Kirchgraber, Y., R. Norman Asst. N. First 18, June 1953. Decided Y., Atty., Buffalo, counsel, N. of U. S. plaintiff-appellee. for. SWAN, Judge, Chief and

Before L. HAND, and AUGUSTUS N. Cir- HAND Judges. cuit *2 359 Judge. meaning within 2810 there was no HAND, the of Circuit N. § AUGUSTUS proof guilty that defendant the the was of convicted— and The defendant was tried charged two which he crimes with was and two Viglietta together with Valentino —on judgment accordingly the of conviction is charg- One count indictment. counts of an Cafero, 2 reversed. Cf. United States v. posses- in their defendants had ed that the Cir., 55 F.2d 219. 26 unregistered violation of still in sion an Judgment 2810, charged that second and the reversed. U.S.C. § and commodities they goods had concealed HAND, Judge (dissenting). L. Circuit to due with intent tax was on which a of the tax in United States defraud the 31(c) Rules, Rule of the Criminal 18 Section 3321. 26 U.S.C. provides violation of § may U.S.C.A. that a “defendant * ** “Every person having in provides: 2810 guilty attempt be found of an custody, con- or under his possession or his charged to commit either the offense or an distilling apparatus set trol, any or still necessarily offense included therein if the * * *. Stills up, register the same shall attempt substantially is an offense.” This is registered distilling apparatus shall be and 565, the same 18, as of U.S.Code, Title § being up.” upon set Since immediately their superseded; which it and I shall assume by government is made the no contention that the meaning of the statute was un- the payable until still a be that tax would changed. In United Coplon, States v. 2 up, validity of the conviction was set the Cir., 629, 185 633, F.2d we considered how the still depends on whether on each count nearly go the accused must towards com- 181.15(b). up. 26 C.F.R. was set pleting crime, the guilty to be attempt; of an and adopted we Holmes, the statement of government concedes that at The J., in Peaslee, Commonwealth v. 177 Mass. on the police arrived officers the time the 267, 277, 55, 59 preparation N.E. 56: “If the up. con The the was not set scene still very comes near accomplishment to the of however, made, there was that is tention act, complete the the intent to it renders up been set a the still had evidence that probable the crime so that the act will be discovery and that days prior its few to misdemeanor, a although there is still » found defendant could be the therefore poenitentiae, locus in the need of a further subsequent despite guilty dismantling the complete exertion of the towill the apparatus repairs, for since the still crime.” of the * * In the case at bar the still had immediately upon been “registered once was not up,” “set but was leaky, found to be and up.” 26 U.S.C. 2810. An offi being set § high the “column” permit was too to the the Alcohol Tax Unit testified with cer of “dephlegmator.” erection of the defendant, objection One of by the cf. United out the accused’s Hall, Cir., 853, confederates 2 178 was arrested v. F.2d that States while he looking one, was for advice had the still had from Viglietta stated that been up, “Patsy,” that it was found leak and as to how to deal with this diffi- set but to culty. A dephlegmator could be It seems to me not attached. that the setting up the up” certainly does of the still was “very to be not have to be still “set near to ac- complishment,” operation,” Forty- and “in see United States v. there can be no doubt Brew, D.C., Alleged Home about the intent. Bottles of It is true Six that this was 241, E.D.N.Y., statutory a 240, 39 but we think crime and F.2d that the statute did “capable make being of not it a crime that the still must be to to commit attempt required, registration it. There are holding is see decisions used” before that in such States, Cir., 504, attempt 29 an crime; United 7 F.2d cases is not a Otto v. but none adjustments minor Here more than 505. I of that know is us, authoritative on and the still required before could be were it me seems to that there should be no ex- by ception cases, the fact that it shown was in such operated, as even though the crime necessary repairs. in make be not malum to think se. judgment dissembled the I Therefore, up” the still was not should since “set be affirmed.