Bossio v. United States

• Decision Date: 29 November 1926
• Docket Number: No. 4953.,4953.
• Citation: 16 F.2d 57
• Parties: BOSSIO et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

16 F.2d 57 (1926)

BOSSIO et al. v. UNITED STATES.^*

No. 4953.

Circuit Court of Appeals, Ninth Circuit.

November 29, 1926.

M. E. Mack, of Spokane, Wash., for plaintiffs in error.

Roy C. Fox, U. S. Atty., and E. J. Farley, Asst. U. S. Atty., both of Spokane, Wash.

Before GILBERT and RUDKIN, Circuit Judges, and JAMES, District Judge.

RUDKIN, Circuit Judge.

This is a writ of error to review a judgment of conviction under the National Prohibition Act (Comp. St. § 10138¼ et seq.). December 17, 1925, an information containing four counts was filed in the court below against the plaintiffs in error. The first count of the information charged the unlawful possession of intoxicating liquor on or about October 30, 1925; the second count charged the unlawful sale of intoxicating liquor on or about October 30, 1925; the third count charged the unlawful possession of intoxicating liquor on or about October 31, 1925; and the fourth count charged the maintenance of a common nuisance on or about October 31, 1925.

January 8, 1926, an indictment containing ten counts was returned in the same court against the same parties. The first count of the indictment charged the unlawful sale of intoxicating liquor on or about November 20, 1925; the second count charged the unlawful sale of intoxicating liquor on or about November 21, 1925; the third count charged the unlawful sale of intoxicating liquor on or about November 21, 1925; the fourth count charged the unlawful sale of intoxicating liquor on or about November 27, 1925; the fifth count charged the unlawful possession of intoxicating liquor on or about November 27, 1925; the sixth count charged the unlawful sale of intoxicating liquor on or about November 29, 1925; the seventh count charged the unlawful possession of intoxicating liquor on or about November 29, 1925; the eighth count charged the unlawful sale of intoxicating liquor on or about December 2, 1925; the ninth count charged the unlawful sale of intoxicating liquor on or about December 15, 1925; and the tenth count charged the maintenance of a common nuisance on or about December 15, 1925, and a prior conviction for unlawful possession of intoxicating liquor and for maintaining a common nuisance.

January 11, 1926, after the filing of the information and the return of the indictment, the plaintiffs in error were placed on trial under and by virtue of the information. Upon the trial of the information, the jury returned a verdict of not guilty as to all four counts. Thereafter, and before the trial under the indictment, the plaintiffs in error interposed a plea of former jeopardy. This plea was sustained as to the nuisance count, but overruled as to the others, and upon the trial under the indictment the plaintiffs in error were convicted on certain counts and acquitted on others. The sufficiency of the plea of former jeopardy is the only question presented for our consideration on the present writ of error.

Briefly stated, the plaintiffs in error contend that under the information they could have been convicted of the crime of unlawfully possessing intoxicating liquor, and of the crime of unlawfully selling intoxicating liquor, committed at any time within three years prior to the filing of the information, and therefore they were once in jeopardy for all such crimes, notwithstanding there could have been but one conviction at most under each count of the information, and notwithstanding that plaintiffs in error were not in fact tried under the information for any of the offenses of which they were later convicted under the indictment. A mere statement of this broad proposition carries with it its own condemnation.

To support a plea of former...