Carpenter v. United States

• Decision Date: 25 July 1924
• Docket Number: No. 6212.,6212.
• Parties: CARPENTER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

1 F.2d 314 (1924)

CARPENTER et al. v. UNITED STATES.

No. 6212.

Circuit Court of Appeals, Eighth Circuit.

July 25, 1924.

George G. Chapin, of St. Paul, Minn. (George Ogilvie, of St. Paul, Minn., on the brief), for plaintiffs in error.

Leland W. Scott, Asst. U. S. Atty., of St. Paul, Minn. (Lafayette French, Jr., U. S. Atty., of St. Paul, Minn., on the brief), for the United States.

Before SANBORN and LEWIS, Circuit Judges, and SCOTT, District Judge.

SCOTT, District Judge.

The defendant was indicted for violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.) in two counts. The defendant demurred to both counts of the indictment, which demurrer was by the court overruled, to which the defendant duly excepted. At the close of the trial the defendant moved to dismiss for a variance between the proof offered and the allegations of the indictment, which motion was overruled and exception allowed. A verdict of guilty was returned, and the defendant given a jail sentence of six months on each of the two counts, same to run concurrently. Defendant brings the case to this court on error, assigning 17 different errors, 13 of which are based upon the overruling of the demurrer, 1 upon the defendant's motion to dismiss on account of variance, 1 general on account of the denial of motion to dismiss, 1 for failure to direct a verdict for defendant, and 1 upon the charge given the jury. All of the assignments of errors may be disposed of by a consideration of the sufficiency of the indictment.

Count 1 charges that on the 1st day of June, 1922, in Oneida township, county of Washington, state of Minnesota, defendant did sell certain intoxicating liquor containing more than one-half of 1 per cent. of alcohol, and count 2 charges that on the 1st day of June, 1922, in Oneida township, county of Washington, state of Minnesota, defendant did manufacture certain intoxicating liquor containing more than one-half of 1 per cent. of alcohol. The evidence shows without controversy that there is no such township as Oneida township in Washington county, Minn. Therefore the place was altogether indefinite. The indictment does not state to whom the sale was made, what kind of liquor was sold, or any other circumstance or fact tending to identify the particular offense. As said in Goldberg v. United States (C. C. A.) 277 Fed. 211: "The true test of the sufficiency of an indictment is that it sets forth the facts which the pleader claims constitute...