Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Philip L. Sullivan, Judge.
Before MAJOR and KERNER, Circuit Judges, and LINDLEY, District Judge.
The appellants, with others, were indicted in ten counts charging them with violation of the Federal Liquor laws and with conspiracy, but they were tried only on counts 1, 2, 3, 5, 7, 8 and 10. Counts 1, 2, and 5 were nolle prossed as to Bonarski, and count 5 as to Tuffanelli.
The jury found Tuffanelli guilty as to counts 1, 2, 3, 7, 8 and 10, and Bonarski as to counts 3, 7, 8 and 10. Judgments were entered upon the verdicts, and the appellants were each sentenced to imprisonment for various terms. To reverse the judgments, Tuffanelli and Bonarski have appealed.
The appellants contend that the evidence fails to sustain the third count of the indictment charging the illegal carrying on of the business of a wholesale liquor dealer on July 12, 1940, at 2332 West Grove Avenue, in the city of Blue Isaland, Illinois. The argument is that having fixed the place where the business was being carried on, it was incumbent upon the Government to prove that allegation.
The Government proved that on April 13 and May 16, 1940, the appellants sold taxunpaid alcohol, but there was no evidence indicating where the particular liquor came from.
Where an indictment specifically describes the premises on which the crime is alleged to have been committed, the description becomes a matter of substance and must be proved as alleged. Heitman v. United States, 9 Cir., 5 F.2d 887; Naftzger v. United States, 8 Cir., 200 F. 494; Anderson v. United States, 5 Cir., 30 F.2d 485; and Todd v. United States, 5 Cir., 48 F.2d 530. Under the circumstances here appearing, we think the court oiught to have sustained appellants' motion to strike the testimony on the ground of variance between the allegatioin as to the place of business and the proof.
Appellant Tuffanelli contends that the evidence is not sufficient to justify his conviction.
Counts 1 and 2 charge the illegal possession and operation of a distillery on July 12, 1940, at 2332 West Grove Avenue, in the city of Blue Island, Illinois. Count 7 charged removal oin MAy 24, 1940, at Chicago, Illinois, of 415 gallons of alcohol on which no tax had been paid. Count 8 charged removal on June 12, 1940, at Chicago, Illinois, of 100 gallons of alcohol on which no tax had been paid. Count 10 charged conspiracy on and from January 1, 1939, to July 15, 1940, to commit the offenses set forth in the above counts.
The pertinent facts not in dispute, or stated favorably for the Government, are that on April 13, 1940, one Perigo, in the presence of an investigator for the Alcohol Tax Unit, inquired of Tuffanelli if he (Tuffanelli) could sell him (Perigo) some alcohol. Tuffanelli said he knew a man who had a small plant and was looking for customers, and arrangements were made for Tuffanelli, Perigo, and the investigator to meet at a gas station at 119th Street and Western Avenue. The parties met at the appointed place, and Tuffanelli introduced the investigator and Perigo to appellant Bonarski. Tuffanelli said Bonarski had oinly eight cans. Bonarski drove away in the investigator's car, while Perigo and the investigator were taken in Tuffanelli's automobile to High Street and Gregory Avenue. There Boinarski informed Perigo that the alcohol was in the investigator's car, and the investigator paid Bonarski $91 for eight five-gallon cans of taxunpaid alcohol.
On May 3, 1940, at Bonarski's home, the investigator made arrangements for the purchase of 15 cans of alcohol. May 6, Bonarski and the investigator met at the Texaco station. Bonarski drove away in the investigator's car, returning shortly thereafter. He said "the cans are in the car," and received $180 for 15 cans of taxunpaid alcohol. May 14, at tuffanelli's home the investigator complained about the proof of the alcohol. Tuffanelli said: "Fix it up with Walter, he will be here soon." Bonarski came into the room and said he would give one free can.
The record also discloses that investigators seized an illicit distillery at 2332 West Grove Avenue on July 12, 1940, set for operation but not running at that time. It further discloses that one Bender, a water meter reader for the city of Blue Island, read the water meter on June 7, 1940, and found, in addition to the pipe leading into the yard at the premises, another pipe leading into a building in the rear. On June 8 Bender returned, and removed the connection that supplied the rear building with water. As he was leaving the premises he met Tuffanelli who said: "Well, I saw you down at the meter pit, we have to have water back there in the building," and added "there was something in the building would spoil." Tuffanelli also inquired of Bender if he had learned to take money yet. July 13, afer the still had been seized, Bender called at Tuffanelli's home for the purpose of reading Tuffanelli's meter, and while there, Tuffanelli said to Bender: "Something happened yesterday, there will be an investigation, don't say anything."
We think the evidence presented by the Government tended to prove that the appellant Tuffanelli was guilty of counts 1 and 2. We are, however, unable to find that there was substantial evidence which would warrant finding him guilty of counts 7 and 8. Neither was ...