269 F. 568 | 6th Cir. | 1920
Plaintiff in error (whom we shall call defendant) was indicted on April 24, 1919, under the so-called “Reed Amendment,” charged with having, on January 30, 1919, transported intoxicating liquor from the state of Ohio into the state of Michigan. This writ is to review a judgment of conviction thereunder. Numer-> ous assignments of error are presented.
3. Consideration of the remaining assignments requires a reference to testimony. The transportation in question is alleged to have been made on the early morning of January 30, 1919; 300 quarts of liquor being carried in a Chandler car, owned hy plaintiff in error, and 300 quarts in a King car, which was supposed to belong to one Somers— the Chandler car being driyen by Gill, and the King car by Dotson, both of whom were jointly indicted with Wagman, who alone was fried. Gill testified that the Chandler car was loaded at Wagman’s place of business in Toledo, with the assistance of both Wagman and Somers. Dotson and Gill testified in effect that Wagman rode ahead of the liquor cars in a taxicab, and that at Wyandotte, Mich., they were told by him (he is said to have gone on ahead from there) to await instructions before they should go on through. Gill says that in the taxicab (driven by Weed) were also Somers and another person, said to be a friend of Wagman. The latter was arrested in Detroit on the morning of January 30th. There was testimony of the finding on his person of official identification cards both for the Chandler car (in his own name) and for a King car in the name of “Dave Samsht,” as printed in the record here; also two liquor bills, one indicating the purchase of $1,925 worth of liquor on December 31, 1918, from one Belmont, and the other for $2,475, for liquor purporting to have been purchased from the Webher firm in Toledo, the purchaser’s name, as recollected by the witness, being given as “Sam Immer.” Webber testified to the sale to Wagman in January, 1919, of liquors which, on the basis of his testimony, would amount to more than 590 quarts. He says: “The name of Sam Ember was given in this sale. Wagman bought the whisky.” One Goldstein, a liquor dealer at Detroit, also testified to the sale to Wagman of whisky “last January and February in considerable quantities” (this naturally means 1919). Goldstein’s books were said tó have been destroyed “since the state went dry,” which was
There was also testimony of a settlement by Wagman with the government (presumably after his arrest in'this case) by the payment of $831 “due as wholesale liquor dealer, and a violator of section 601 of the act of 1918, for failure to pay taxes on” a certain amount of liquor, together with penalties on that account; the tax as wholesale liquor dealer “on January 1, 1919, to and including June 30, 1919,” with delinquency penalty on that account. There was also testimony that Wag-man ordered, for use in a Dodge truck owned by him in Toledo, a copper tank of about 30 gallons capacity; the tank being delivered on January 14, 1919. Wagman admitted on the trial that he went from Toledo to Detroit on the morning in question (on what he asserted was a legitimate business trip) in a taxicah hired by him and driven by Weed, and for the asserted reason that his Chandler car was out of commission. He also admitted that the Chandler identification card was his. He denied all knowledge of the King card, or of that car, or of the copper tank, or that he had anything to do with or knew of the alleged transportation of liquor in question here, or that he was at any time engaged in bringing liquor into Michigan, or dealing in liquors, or that he had liquor in his Toledo store; denied that he had ever gone under the name of “Ember”; denied that he knew Dotson, or that he bought in January the liquor claimed to have been sold him by Webber. He neither admitted nor denied making the Belmont purchase, stating, however, that he bought in January, 1919, 45 cases (540 quarts) from Belmont “for our own use,” in anticipation of Ohio’s hecoming dry. He denied that he had authorized his attorney to make the settlement with the government before mentioned. He made no reference to Somers or the alleged fourth occupant of the taxicab. Neither such fourth occupant nor Weed nor Somers testified in the case.
8. Gill testified that while he and Dotsoñ were in a garage at Wyandotte, under instructions from Wagman to wait there until he telephoned them to follow, the proprietor of the garage, who he afterwards learned by the newspapers was named Gianola, told him it was “unnecessary to wait for Wagman; that the road was clear; that we should drive through by the River Rouge bridge.” They were arrested at that
We have not found it necessary to discuss all of the criticisms made upon the proceedings below. We have, however, considered them all, ■and have discussed all that seem fairly to call for such action.
Finding no reversible error in the record, the .judgment- of the District Court is affirmed.
It seems likely that Weed is the person jointly indicted as “Heed.”
See upon this question what is said by this court in Breitmayer v. United States, 249 Fed. 929, 934, 162 C. C. A. 127, and Stetson v. United States, 257 Fed. 689, 692, 168 C. C. A. 639. In United States v. Simpson (D. C.) 257 Fed. 860, it has been held that the excepted uses are matter oí defense, and need not be negatived by the government.