Baird v. United States
| Decision Date | 07 March 1922 |
| Docket Number | 3629. |
| Parties | BAIRD v. UNITED STATES. |
| Court | U.S. Court of Appeals — Sixth Circuit |
S. G Heiskell, of Knoxville, Tenn., for plaintiff in error.
George C. Taylor, U.S. Atty., of Greenville, Tenn.
Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.
Plaintiff in error was prosecuted under an indictment containing three counts-- the first, under R.S. Sec. 3281 (Comp. St.
Sec 6021), for carrying on a distillery without giving bond; the second, under R.S. Sec. 3279 (Comp. St. Sec. 6019), for working in a distillery on which no sign 'registered distillery' was placed and kept; the third, under section 15 of Lever Act Aug. 10, 1917, c. 53, 40 Stat. 276, 282 (1918 Supp.Fed.St.Ann. 181, 188, 189; Comp. St. 1918, Comp. St Ann. Supp. 1919, Sec. 3115 1/8l), for using foods and food materials in the production of distilled spirits for beverage purposes. There was conviction upon all three counts. A motion for new trial was overruled.
In our opinion the judgment should be affirmed. The sentence imposed was less than that imposable upon conviction under either the first or third counts. If, therefore, conviction is sustainable under either of those counts, the judgment is unassailable. Claassen v. United States, 142 U.S 140, 146, 12 Sup.Ct. 169, 35 L.Ed. 966; Pierce v. United States, 252 U.S. 239, 252-253, 40 Sup.Ct. 205, 64 L.Ed. 542.
If defendant was concerned in the still by way of ownership therein, the evidence would sustain a verdict of conviction, not only under the Lever Act, but under the revenue sections, the counts upon which charge the violation as 'on the 7th day of December, 1919, and on divers other dates between May, 1, 1919, and 1st day of May, 1920. ' The government's evidence was specially directed to conditions in December, 1919, which was before the Volstead Act took effect on January 16, 1920. Dillon v. Gloss, 256 U.S. 368, 41 Sup.Ct. 510, 65 L.Ed. 994. The prosecution for the revenue violations was saved, notwithstanding the indictment was not found until after the Volstead Act took effect. National Prohibition Act, Sec. 35, 41 Stat. 317 (1919 Supp.Fed.St.Ann.at page 217); Farley v. United States (C.C.A. 9) 269 F. 721, 724; Howard v. United States (C.C.A. 6) 271 F. 301, 302; Tisch v. United States (C.C.A. 6) 274 F. 208, 209.
While the price-fixing provision of section 4 of the Lever Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 3115 1/8ff) has been declared unconstitutional (United States v. Cohen Co., 255 U.S. 81, 41 Sup.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045), such declaration does not affect the validity of section 15 (Comp. St. Sec. 3115 1/8l). See in this connection the express provision in section 22 of the act (Comp. St. Sec. 3115 1/8oo).
Assuming that section 15 of the Lever Act was repealed by the Resolution of March 3, 1921 (No. 64, Fed. Reporter Advance Sheets, vol. 270, No. 3, Sec. 3115 14/15f; Fed. St. Ann. Supps. Nos. 26-27, pp. 72-74), which repealed war-time legislation generally, prosecutions for offenses already committed were not only expressly preserved by the last clause of the resolution, but section 24 of the Lever Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 3115 1/8pp) had contained declaration to the same effect.
The motion to direct verdict, made at the conclusion of the government's case, was waived by defendant by not resting upon his motion, and by thereafter offering his own evidence. Runkle v. Burnham, 153 U.S. 216, 222, 14 Sup.Ct. 837, 38 L.Ed. 694; Big Brushy Co. v. Williams (C.C.A. 6) 176 F. 529, 532, 99 C.C.A. 102.
No motion for directed verdict having been made at the conclusion of all the evidence, this court is under no obligation to consider the latter's sufficiency, raised for the first time by motion for new trial, although we may consider it if satisfied that there has been a miscarriage of justice. Crawford v. United States, 212 U.S. 183, 194, 29 Sup.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392; Ramsey v. United States (C.C.A. 6) 268 F. 825, 826; Quarles v. United States (C.C.A. 6) 274 F. 203, 204. We are not satisfied that there has been such miscarriage.
There was substantial evidence tending to sustain the conviction. We cannot weigh the testimony. Burton v. United States, 202 U.S. 344, 26 Sup.Ct. 688, 50 L.Ed. 1057, 6 Ann.Cas. 392; Kelly v. United States (C.C.A. 6) 258 F. 392, 406, 407, 169 C.C.A. 408; West v. United States (C.C.A. 6) 258 F. 413, 421, 169 C.C.A. 429. The motion for new trial was addressed to the judicial discretion of the trial judge, and his exercise thereof cannot be reviewed, in the absence of abuse thereof in denying the motion. Robinson v. Van Hooser (C.C.A. 6), 196 F. 620, 116 C.C.A. 294.
The District Judge gave the motion for new trial careful consideration. The ultimate question of fact was whether or not the father was interested in the ownership and operation of the still, or whether the sons were the sole owners and operators thereof. The case...
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