Heitman v. United States

HUNT, Circuit Judge.

Heitman was convicted under an information charging, in count 1, that he maintained a common nuisance on or about June 4, 1923, at 950 Hampshire street, San Francisco, and, in count 2 that, at the above-described place he possessed certain intoxicating liquor, and, in count 3, that at the same time and place he had in his possession certain property designed for the manufacture of intoxicating liquor.

There was testimony on behalf of the government that a still and a quantity of liquor, described in the information, were found in a loft of a building at 950 Hampshire street, San Francisco, and that defendant had been seen entering the building in which the liquor and still were found, although he was not there when arrested. One of the witnesses for the prosecution testified that he rented the upper floor of the building in which the liquor and still were found to one Harris; that the premises were at 590 Hampshire street, San Francisco. Defendant introduced testimony to the effect that 950 Hampshire street was three or four blocks away from 590 Hampshire street, and that the paint shop with the loft upstairs, which had been described by the witness, was at 590 Hampshire street, but, on motion of the prosecuting attorney, all that testimony was stricken out as immaterial. Defendant excepted. In his own behalf defendant testified that he was arrested at 590 Hampshire street and not at 950; that he did not own the property designed for the manufacture of liquor or the liquor; that he did not know of the manufacture of liquor; that he went to visit a friend in the office at 590 Hampshire street; but that the office was not in the place where the still was found.

The court instructed the jury that, while there appeared to be a discrepancy in the number of the street at which the still was found, the jury was not to consider that. “The question,” said the court, “as to whether or not it was 950 or 590 is of no concern in this case whatsoever, if you find that a still was actually found there.” Upon that theory the court refused defendant’s request to charge that, if it were found from the evidence that liquor was not kept for sale at 950 Hampshire street in San Francisco, then defendant must be acquitted of the charge of maintaining a common nuisance in violation of section 21, tit. 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%jj). Exception was saved.

Section 21, tit. 2, of the National Prohibition Act, provides that any room, house, or place where intoxicating liquor is manufactured, sold, kept, or bartered, in violation of title 2, and all intoxicating liquor and property kept and used in maintaining the same, are declared to be a common nuisance, and any person convicted of maintaining a common nuisance shall be fined, etc.

The better rule is that an offense which has no essential connection with the place in which it is committed, although charged to have been committed in a particular location, may be proved to have been committed anywhere within the jurisdiction, but that, where the charge is for an offense in its nature local, as in cases of larceny in a building, burglary, or nuisance, the allegation of the place is necessary part of the description of the offense, and must be proved as laid. Commonwealth v. Heffron, 102 Mass. 148; Wertz v. State, 42 Ind. 161; People v. Slater, 5 Hill (N. Y.) 401.

In State v. O’Neal, 19 N. D. 426, 124 N. W. 68, defendant was indicted for keeping and maintaining a common nuisance, contrary to the provisions of the state prohibition law. The place was particularly described, but the evidence showed that it was committed on a different subdivision of land from that set forth in the information. The court referred to the generally commended rule that, in charging the keeping and maintaining of a common nuisance, the proof must conform to the allegation, and said that “this is- the rule, although it was not necessary to describe the place with particularity in the first instance.” State v. Kelly, 22 N. D. 5, 132 N. W. 223, Ann. Cas. 1913E, 974; Bishop’s Criminal Procedure, § 485.

In Hattner v. United States (C. C. A.) 293 F. 381, where defendant was charged with maintaining a common nuisance at 2057 North Fourteenth street in Toledo, Ohio, and the evidence showed that the nuisance was maintained at a certain number on another street in Toledo, the court held that the facts necessary to conviction under the one charge would not support conviction under the other, and that a man cannot be said to he guilty of maintaining a nuisance in one place, because the evidence tends to show he is guilty of committing precisely the same kind of nuisance in another place.

We therefore hold that, inasmuch as the information against Heitman specifically described the place where the alleged nuisance was maintained, it was incumbent upon the prosecution to prove that the alleged nuisance was maintained at that place. It follows that defendant had a right to introduce evidence tending to prove that the place described in the information was not where the alleged offense was committed, and that the court was in error in striking out the testimony heretofore referred to, and in refusing to instruct as requested by defendant.

We now turn to questions arising out of the conviction under counts 2 and 3.

A witness for the government, after testifying that he knew the defendant, was asked whether he ever had had occasion to arrest defendant. Counsel for defendant objected on the ground of incompetency, and stated that if there were any records which could be produced they should be. The court overruled the objection, and exception was preserved. The witness answered that he had had occasion to arrest defendant at a place called Yallimar. The prosecuting ■ attorney then asked what defendant was doing there at that time. Objection was overruled, and exception was preserved. Witness said that at the time in Yallimar defendant was in a bam with another man who had also been arrested; that they were there tacking up black paper around the bam, “and were preparing to operate an illicit distillery; they had a large tub there in the center; evidently it was for a worm tap; there was no worm there, and no still at that time.” Witness said that the defendant and the other man came out of the bam and laughed at them, saying, “You fellows are just about a week ahead of time.” Question was then asked by defendant’s counsel whether or not defendant had been convicted in that matter, to which witness replied that he-had not, and had not been arrested. Counsel for defendant then asked that the testimony be stricken out, but the court overruled the objection, and defendant saved an exception.

The obvious purpose of the prosecution in introducing such evidence was to impress the jury -with the belief that defendant, at some previous time, at another place, was implicated in an attempt to violate the prohibition law. The matter was wholly apart from the issue to be tried, and the tendency of it was to take the minds of the jurors away from the material questions before them, and to give the impression that defendant, by reason of previous criminal acts, was unworthy and therefore probably guilty •of the charge upon which he was being tried. It was clear error to allow the evidence to go to the jury. Jianole v. United States (C. C. A.) 299 F. 496; Beyer v. United States (C. C. A.) 282 F. 225; Souza v. United States, 5 F.(2d) 9, April 27, 1925.

Nor is the case one where the guilt of the defendant, of the particular crime charged, was so clearly established that the court can say the error was not prejudicial. Defendant was entitled to be tried upon competent evidence, .and only for the offense charged.

The judgment is reversed, and the cause is remanded for a new trial.