Smith v. United States, 9096

• Decision Date: 22 June 1931
• Docket Number: No. 9096,9097.,9096
• Citation: 50 F.2d 46
• Parties: SMITH v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

50 F.2d 46 (1931)

SMITH v. UNITED STATES (two cases).

Nos. 9096, 9097.

Circuit Court of Appeals, Eighth Circuit.

May 6, 1931.

Rehearing Denied June 22, 1931.

Floyd E. Stein and John E. Harris, both of El Dorado, Ark., for appellant.

W. N. Ivie, U. S. Atty., and G. T. Sullins, Asst. U. S. Atty., both of Ft. Smith, Ark.

Before VAN VALKENBURGH and BOOTH, Circuit Judges, and MUNGER, District Judge.

MUNGER, District Judge.

Appellant was convicted under two counts of an indictment (case No. 232), one charging unlawful possession, and one an unlawful sale of intoxicating liquor. He was convicted also under three counts of another indictment (case No. 240), one charging an unlawful possession, one an unlawful transportation, and the third an unlawful sale of intoxicating liquor.

Appellant assigns as error the submission of case No. 232 to the jury because of insufficient evidence to justify a conviction. There was no motion or request for a directed verdict. Notwithstanding this fact, the testimony in this case has been examined to ascertain if there was a vital error in the submission of the case. Clyatt v. United States, 197 U. S. 207, 221, 25 S. Ct. 429, 49 L. Ed. 726. There was testimony for the government by a prohibition agent that he had a talk with the defendant about whisky and that the defendant told him to see a man named McClure, who was a mechanic and worked for the defendant at his garage, and that McClure would probably furnish it. The agent went to the garage, and the defendant introduced the agent to McClure and said that that agent wished to purchase some whisky. McClure went to the rear of the garage and returned with some whisky which he delivered to the agent in the presence of the defendant. The agent asked to whom payment should be made for the whisky and the defendant said McClure should be paid, and payment was made accordingly. This was sufficient participation by the defendant in the sale under section 332 of the Criminal Code (18 USCA § 550) which provides: "Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal." But there is no substantial evidence of the alleged possession by the defendant of this liquor or of his aiding and abetting in the possession of it by McClure.

In case No. 240, the indictment charged the defendant with the unlawful possession of five gallons of whisky at a named place, and with unlawful transportation of five gallons of whisky from some unknown place to the place named in the first count and then alleged that the transportation was effected by the use of a Victory Six Dodge sedan, motor No. 87256, an automobile which was seized by the prohibition department, and which was then in custody of the deputy prohibition administrator for the Western district of Arkansas. The third count charged an unlawful sale of five gallons of whisky at the same place referred to in counts 1 and 2. There was testimony that the defendant after the sale by McClure, told two prohibition agents that he had 2,200 gallons of whisky but would sell only in wholesale lots. The defendant finally agreed to sell them five gallons and said he would deliver it in an hour at the place named. The defendant drove up in a Dodge sedan at the time and place agreed upon and delivered the whisky and was paid for it. One of the agents testified that the automobile in which defendant transported the whisky was the same car which was seized by the prohibition department. The defendant did not testify, but produced a number of witnesses who testified that the defendant owned a Dodge Victory Six, and had no other automobile, and that that car was in a repair shop at the time of the alleged offenses. No question of the sufficiency of the evidence of the alleged sale or possession was made in the court below, or is presented on this appeal, except by asking a review of the facts, a jurisdiction not possessed by this court, except that this court may determine whether a verdict is supported by substantial evidence.

It is conceded that there was evidence on behalf of the United States tending to show that the automobile described in the indictment was the vehicle in which the liquor was transported, but complaint is made of a portion of the instructions of the court, in which the court told the jury, in...