Opinion · Court of Appeals for the Second Circuit

United States v. Crushiata

59 F.2d 1007

Type: Opinion
Court: Court of Appeals for the Second Circuit
Jurisdiction: Federal
Date: 1932-06-13
Topic: general

CHASE, Circuit Judge (after stating the facts as above). It is claimed that the entry of the barn under the circumstances above outlined was unlawful and that the evidence so acquired was erroneously admitted against these appellants because obtained through an unlawful search and seizure. Without meaning to indicate an agreement with this contention, it is enough for present purposes to point out that, if the entry was in violation of the rights of any one, these defendants are not the ones who may raise that issue. They were merely workmen without any interest in the premises invaded or the property seized. United States v.

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Cited by: 7 opinions

UNITED STATES v. CRUSHIATA,59 F.2d 1007(2nd Cir. 1932)

UNITED STATES v. CRUSHIATA et al.

No. 434.

Circuit Court of Appeals, Second Circuit.

June 13, 1932.

Appeal from the District Court of the United States for the Eastern District of New York.

Gaspari Crushiata and Tony Platonio were convicted on two counts of an indictment charging manufacture and possession of intoxicating liquor in violation of the National Prohibition Act, and, from a judgment on the verdict, they appeal.

Affirmed as to the count for illegal manufacture, and reversed as to the count charging illegal possession.

The appellants, with a man named Brown who owned the premises where they worked, were charged in an indictment in six counts with having violated the provisions of the National Prohibition Act. Brown was acquitted on all counts. The appellants were convicted only on counts 5 and 6. Count 5 charged the illegal manufacture of intoxicating liquor. Count 6 charged the illegal possession of such liquor.

The defendants were discovered at work in the operation of three whisky stills in a barn in Babylon, N.Y. The officers drove to the barn in an automobile and smelled the odor of whisky mash on alighting from the car. They saw that the windows of the barn had been covered with burlap, cardboard, and boards. On walking around the barn, they found a window which was only partly so covered, and looked through it to see a still. Then they went to the rear door which they found ajar and entered. They found three stills in operation. The appellants, who said they worked there, were the only men in the barn when the officers entered. They had no interest there except as employees operating the stills. Crushiata was shoveling coal into one of the boilers. Both men were arrested and samples of the product being made were taken. These samples upon analysis were found to have an unlawful alcoholic content of more than 10 per cent. of alcohol by volume. Both defendants were dressed in working clothes somewhat stained by mash.

Joseph M. Crooks, of Brooklyn, N.Y. (James E. Wilkinson, of Brooklyn, N.Y., of counsel), for appellants.

Howard W. Ameli, U.S. Atty., of Brooklyn, N.Y. (Herbert H. Kellogg, Asst. U.S. Atty., of Brooklyn, N.Y., of counsel), for the United States.

Before MANTON, SWAN, and CHASE, Circuit Judges.

CHASE, Circuit Judge (after stating the facts as above).

It is claimed that the entry of the barn under the circumstances above outlined was unlawful and that the evidence so acquired was erroneously admitted against these appellants because obtained through an unlawful search and seizure. Without meaning to indicate an agreement with this contention, it is enough for present purposes to point out that, if the entry was in violation of the rights of any one, these defendants are not the ones who may raise that issue. They were merely workmen without any interest in the premises invaded or the property seized. United States v. Messina et al. (C.C.A.)36 F.2d 699; In re Dooley (C.C.A.)48 F.2d 121. On the other hand, their lack of interest in the premises, the stills, or their contents does not affect their status as manufacturers of intoxicating liquor. They were the only persons present at the place where the stills were being used to make such liquor. One was actually shoveling coal used in such manufacture, and both said they worked there. There was nothing to indicate that they worked there for any other purpose than the manufacture of whisky, and all reasonable conclusions to be drawn from the evidence were to the affect that they were engaged in operating illicit stills to make such liquor. At least the jury was justified in finding that to be the fact beyond a reasonable doubt. Such evidence in the case made the guilt or innocence of the defendants under the manufacturing count a question for the jury. De Gregorio v. United States (C.C.A.)7 F.2d 295; United States v. Dibella (C.C.A.)Page 100828 F.2d 805; Palazini v. United States (C.C.A.)14 F.2d 886. Nor did United States v. Molyneaux (C.C.A.)55 F.2d 912, decide anything to the contrary. In that case Molyneaux was charged with having violated section 20 of the Radio Act of 1927 (47 USCA § 100), and his conviction was reversed because the evidence, while it did show that he was present where a transmitting apparatus was being unlawfully operated, was insufficient to show that he operated it. The statute under which he was prosecuted required proof that the accused actually operated the set himself.

There was, however, no proof of unlawful possession of intoxicating liquor except such possession as was a necessary incident of manufacture. That possession of the contraband which its manufacture required was not a separate offense for which the appellants could be convicted in addition to their conviction under the manufacturing count. Rouda v. United States (C.C.A.)10 F.2d 916; Schroeder v. United States (C.C.A.)7 F.2d 60, 65; United States v. Levinson et al. (C.C.A.)54 F.2d 363.

Judgment on the fifth count affirmed; judgment on the sixth count reversed.