Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.
Before SPARKS, KERNER, and MINTON, Circuit Judges.
The appellant, with three others, was charged by grand jury indictment in eight counts, with the violation of the Federal liquor laws, and with conspiracy. The first six counts, relating to offenses alleged to have occurred at 4718 West Kinzie Street in the city of Chicago, respectively charged the possession of an unregistered still; engaging in the business of distilling alcohol without bond; making and fermenting alcoholic mash, fit for distillation, outside an authorized distillery; possessing alcohol in containers which did not bear revenue stamps; engaging in the distillation of alcohol and defrauding the United States of the tax on such alcohol; and failure to post a sign on the distillery as required by law. The six counts charged that the alleged offenses were in violation respectively of sections 2810, 2833(a), 2834, 2803(a), 2806(f), and 2831, all of Title 26, U.S.C.A. Int. Rev. Code. Count 7 charged the possession of alcohol in contaianers which did not bear revenue stamps, at 814 North Lavergne Avenue, Chicago, in violation of section 2803(a), Title 26 U.S.C.A. Int. Rev. Code. Count 8 charged conspiracy to commit the offenses set forth in the preceding counts, during a period from November 28, 1940, to October 31, 194, in violation of section 88, 18 U.S.C.A.
On motion of the Government, and without objection, a severance was granted as to appellant. The cause with respect to him was thereupon stricken from the docket with leave to the Government to reinstate it. The other three defendants were tried and convicted. The cause having been reinstated as to appellant, he was tried before a jury and found guilty on each charge of the indictment. Judgment was entered accordingly, and from that judgment this appeal is prosecuted.
The only errors assigned and discussed relate to intructions. Appellant contends that the trial ourt erred in giving the jury an improper instruction concerning accomplices, and in instructing the jury that the acts of appellant's co-defendants were binding upon him, and that it did not adequately instruct the jury that this would be true only if it were established beyond a reasonable doubt that appellant was engaged in the conspiracy as charged.
The following facts are supported by substantial evidence: A large illicit distillery was seized under federal search warrant on October 3, 1941, at 4718 West Kinzie Street, Chicago, Illinois. It contained two stills, an 11,000 gallon first-run still, and an 800 gallon re-cooker for production of high proof alcohol. 14,000 gallons of mash in four huge vats, and large amounts of other necessary distilling equipment, such as motors and tanks, were also found. The still was in operation attended by one of the other defendants. This property was located and operating in a one-story building containing three rooms, all connected and occupied only by the distillery operation.
The electric service for this building was contracted for on December 13, 19409. It was furnished by the Commonwealth Edison Company upon an application signed by this appellant in these premises in the presence of a representative of the Commonwealth Edison Company and two other defendants who were working in that building. Appellant told this representative that his name was Joseph Burke, and he so signed his name to the application. He said that the nature of his business was "roofing materials." This application when signed constituted a contract between appellant and the Company and it remained in effect until after October 3, 1941. It was the only electric service contract in force at that address duridfng that period.
At 814 North Lavergne Avenue, there is a large garage, 30 feet wide by 60 feet long, at the rear of the lot. For some time prior to September 23, 1941, this garage had been under surveillance by government agents. During that period a two-tone red Ford truck and a green panel body truck bearing license number B 115,504, were seen entering that garage. They were loaded with what appeared to be one-hundred pound sacks of sugar. On September 17, 1941, these trucks were seen being followed by the defendant, Frank Daniels, in his Plymouth coupe which bore an Illinois license number B 1,795,305. A witness, James Callozzo, testified that he was then serving a sentence in the Illinois State Penitentiary for robbery with a gun, that he had previously been convicted in 1941 for selling sugar, and that another indictment, the nature of which he did not know, was then pending against him. He further stated that he was in the sugar business in April, 1941, and that he had a sugar customer named Frankie Vanco. He said that he owned three trucks, two green ones and a two-tone red one, and he identified two of their license numbers as B 115,504 and B 115,505. From April, 1941, to September, 1941, he at several times sold sugar to a Frankie Vanco. He usually delivered this in his trucks but it was occasionally picked up by Vanco in a 1936 Ford sedan. Between the dates last mentioned he had delivered one hundred bags of sugar, each weighing 100 pounds, to Vanco on an average of twice a week. However, in three or four days, from September 21 to September 24, 1941, he delivered three or four hundred bags of sugar to Vanco at Chicago Avenue and Christiana Street. In making these latter deliveries he turned the trucks over to Vanco at that place, and Vanco left the trucks in a vacant lot for Callozzo to pick up the next day. He denied, however, that appellant was the man he knew as Vanco.
Among other vehicles observed to be operating on many occasions to and from the garage above referred to, was a 1936 Ford bearing license number 1,710,032, which was seized when Fusco, a defendant, drove it loaded with empty five-gallon cans to the still premises on the night of October 3, 1941, shortly after the government gents had obtained entry thereto under a search warrant. On that occasion Fusco had in his possession the keys for the doors of the garage and the distillery.
A grey Plymouth coupe bearing license number 1,795,305, was continuously used by Frank Daniels, another defendant, during the period of observation, to escort trucks and to visit the premises at the garage and the distillery. George Daviduke, one of the defendants, was also seen in this automobile with Daniel. When the garage was searched, a red Diamond T truck was there seized, loaded with seventy-five sacks of sugar of one hundred pounds each. This truck was observed by a government agent at the distillery on September 26, 1941. At the time of the search of the garage there were also found therein sixty-two five-gallon cans of alcohol and thirty-eight one-hundred pound sacks of sugar on the garage floor together with vairous pumps and motors and other distilling equipment incluidng 350 empty five-gallon cans.
On September 24, 1941, the 1936 Ford coach, bearing license number 1,710,032, in which Fusco was later arrested, was seen to leave the garage premises and was followed by the agents to the distillery. On April 2, 1941, the defendant Daniels, accompanied by appellant, negotiated the purchase of a 1937 Ford at the Kenwood motors. Subsequently Daniels traded this Ford into the Tremont Company on the purchase of a Plymouth coupe bearing serial number 1,401,452, which was the automobile observed by the agents on and about the operations between the still and the garage. Appellant was seen entering the still premises many times during the spring and summer of 1941, and was usually accompanied by another man, and sometimes they drove a 1936 red Ford coach. In response to an inquiry from a witness who lived in the vicinity of the distillery as to what appellant was doing there, the latter replied that he was making roofing cement in the building.
Appellant's first contention related to the propriety of the following instruction of the court:
"Certain witnesses who have testified in this case have openly admitted that they are law violators and have openly admitted the part that they had in the commission of crime. Such persons may be termed accomplices. You will scrutinize the testimony of such witnesses very carefully, and before convicting defendant upon the testimony of an ...