Bell v. United States

• Decision Date: 03 November 1924
• Docket Number: No. 6737.,6737.
• Citation: 2 F.2d 543
• Parties: BELL et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

2 F.2d 543 (1924)

BELL et al. v. UNITED STATES.

No. 6737.

Circuit Court of Appeals, Eighth Circuit.

November 3, 1924.

King & Schulder and Creighton G. King, all of Salt Lake City, Utah, for plaintiffs in error.

Charles M. Morris, U. S. Atty., of Salt Lake City, Utah (Edward M. Morrissey, Asst. U. S. Atty., of Salt Lake City, Utah, on the brief), for defendant in error.

Before LEWIS, Circuit Judge, and MUNGER and MILLER, District Judges.

MILLER, District Judge.

The plaintiffs in error, Louie Bell and Velma Houston, were jointly indicted under three counts.

The first count charged the plaintiffs in error with violation of section 37 of the Penal Code (Comp. St. ? 10201), in that they did unlawfully, willfully, and feloniously conspire to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, ? 10138? et seq.), by agreeing to sell intoxicating liquor, to wit, whisky, in violation of said act. Two overt acts are alleged: (1) The sale of one pint of whisky on the 24th day of December, 1923, to Mrs. R. H. Lewis for the sum of $3; and (2) the unlawful possession at the Colonial Hotel in Salt Lake City of large quantities of intoxicating liquor, to wit, whisky.

The second count charged the sale of the liquor to the same person at the same time and place as the first overt act charged in the first count of the indictment.

The third count charged the second overt act, namely, the unlawful possession of the liquor mentioned in the first count of the indictment.

The jury returned a verdict of not guilty on the first count and guilty as to the second and third counts.

Plaintiff in error Velma Houston was sentenced to serve four months, and plaintiff in error Louie Bell two months, in the county jail of Salt Lake county, state of Utah.

Twenty-nine errors are assigned. Only two require our consideration. The twenty-ninth assignment, that "the court erred in pronouncing any sentence or judgment on said defendants, or either of them," is strenuously urged. It is contended that the verdict of acquittal on the first count necessarily acquitted them on the second and third counts, because the specific charge in counts 2 and 3 are the identical overt acts charged in the first count, and therefore the verdict of not guilty as to that count is res judicata of counts 2 and 3. Plaintiffs in error's argument is that inasmuch as the government elected to prosecute on a charge of conspiracy in which the identical offenses charged in counts two and three were charged as overt acts, and having failed to prove that charge, prosecutions for such offenses are barred and no lawful conviction thereof can be had. The argument is predicated on the thought that an acquittal on the charge of conspiracy amounts to a finding of not guilty on every material allegation contained in the indictment; that inasmuch as the offenses charged in counts 2 and 3 were material allegations contained in count 1, the verdict of not guilty was necessarily a finding of not guilty as to counts 2 and 3; that as to said counts, because of their acquittal on the conspiracy count, they had been in former jeopardy within the meaning of the Fifth Amendment to the Constitution and was also res judicata as to said counts.

Some authorities may be found and some are cited by plaintiffs in error to sustain this contention. But the contrary rule is now too well settled, at least in the federal courts, to merit a lengthy discussion. A "conspiracy" to commit a crime is in itself a...