Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker and Robert M. Gibson, Judges.
Before DAVIS, MARIS, and CLARK, Circuit Judges.
These are appeals from judgments entered after trial upon verdicts of guilty. The indictment contained five counts charging the defendants with carrying on the business of distillers without having given bond as required by law; with making and distilling a certain quantity of distilled spirits with intent to defraud the United States of the tax on the spirits distilled by them; with making and fermenting a certain quantity of mash fit for the distillation of spirits and alcohol, in a building other than a distillery duly authorized according to law; with having in their possession a still and distilling apparatus without registering them with the Collector of Internal Revenue, according to law; and with depositing and concealing a certain quantity of distilled spirits with intent to defraud the United States of the tax imposed upon it by law.
The defendants were found guilty on all counts.
Speaking of the parties as they stood in the District Court, the defendants, Ralph Feldman and Jacob Feldman, lived in a double dwelling house at 114 Montville Street, Pittsburgh, Pennsylvania.
The land rises abruptly from the front toward and past the rear of the house where there is a retaining wall about four feet high, from which a person standing thereon, "could see at a level of three to four feet below the sill of a rear window in the second floor" of the house. The basement is level with the street in the front of the house and contains an auto garage which is entered by a driveway over the pavement. In the rear of the garage there are steps leading from it to the first floor of the house.
On May 22, 1937, three revenue agents, A. D. Bressler, W. S. Geis, and an agent by the name of Richards who does not appear to have been present at the trial, saw Ralph Feldman loading his automobile in the rear of what is known as a supply house - where yeast, sugar, cans and other supplies fit for making and marketing liquor and alcohol are kept and sold - on Fullerton Street in Pittsburgh. They followed Feldman from the supply house to his residence on Montville Street. They stopped some distance from the house and as they approached Feldman's residence, they smelled the odor of cooking mash. When Feldman had driven his car into the garage, the agents drove near to the front of the house and as they got out of their car, Geis went to the door of the garage and Bressler and Richards went around to the rear of the house.
As Geis looked through the glass doors of the garage, he saw Feldman run up the stairs leading from the garage to the first floor of the house. He had in his hand a brown paper bag which he had obtained at the supply house. Geis then opened the door and went into the garage where he saw sacks of white sugar, "three 5-gallon cans of tax unpaid moonshine whiskey". In the car there were eight empty five-gallon cans.
Standing on the retaining wall in the rear of the house, Bressler saw, through a window in the second floor, a still in full operation and at the same time smelled a strong odor of cooking mash coming from the window.
While Bressler was standing on the retaining wall, Ralph Feldman ran out of the kitchen door in the rear of the house almost into the arms of Richards who was standing near the door. When he saw Richards, he turned and ran back into the kitchen. Richards and Bressler then went into the kitchen and arrested him. On the table was a brown paper sack or bag, containing twenty pounds of wet yeast, resembling the one they had seen Ralph Feldman bring out of the supply house and later take from his car up to the first floor of his home.
About this time the other defendant, Jacob Feldman, in his underwear, came from upstairs into the kitchen. He was also then and there arrested.
Geis was called from the basement garage and the premises were searched. The agents found a fifty-gallon still in operation on the second floor, sitting on a ten burner gas stove, five 100-pound sacks of white sugar, eight empty five-gallon cans, twelve and one-half gallons of moonshine whiskey, all on the second floor, and three five-gallon cans full of moonshine whiskey in the garage, all tax unpaid.
A number of times before, these agents, or some of them, had seen the defendants making purchases at the supply house or store and had tried to follow them to ...