Dick v. United States, 8725.

• Decision Date: 25 April 1930
• Docket Number: No. 8725.,8725.
• Citation: 40 F.2d 609
• Parties: DICK v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

40 F.2d 609 (1930)

DICK v. UNITED STATES.

No. 8725.

Circuit Court of Appeals, Eighth Circuit.

April 25, 1930.

Fred W. Lewis and John J. Cosgrove, both of Kansas City, Mo., for appellant.

William L. Vandeventer, U. S. Atty., and Chet A. Keyes, Asst. U. S. Atty., both of Kansas City, Mo.

Before STONE and VAN VALKENBURGH, Circuit Judges, and DAVIS, District Judge.

DAVIS, District Judge.

An indictment was returned in the Western district of Missouri, wherein M. W. Dick, appellant, and Harry McDonald, were charged, under the National Prohibition Act (27 USCA), in the first count, with a second offense of sale of intoxicating liquors, in the second count with possession of gin and whisky, and in the third count with maintaining a nuisance. McDonald entered a plea of guilty, and appellant stood trial and was convicted on all three counts. The sentence imposed was, on the first count, two years in prison; on the second count, a fine of $100; on the third count, five days in jail.

It is contended that the evidence was wholly insufficient to sustain the charge. No motion for a directed verdict was made at the close of the evidence in this case, and consequently the only question that can be here for review is whether there is in the record any substantial evidence to sustain the verdict. Wishart v. U. S. (C. C. A.) 29 F.(2d) 103, and cases therein cited.

The indictment alleged that appellant was previously charged with having made an unlawful sale of liquor on the 29th of March, 1925, and that he was tried in the United States District Court for the Western District of Missouri, and convicted of the said offense on the 21st day of May, 1925, and was sentenced to serve a term in the Johnson county jail.

National Prohibition Act tit. 2, § 29, 27 USCA § 46, provides, in part, "it shall be the duty of the prosecuting officer to ascertain whether the defendant has been previously convicted and to plead the prior conviction in the affidavit, information, or indictment." In view of the fact that the government is required to plead the facts essential to a finding that the defendant is a second offender, the government must prove these facts the same as other allegations contained in the indictment. Klein v. U. S. (C. C. A.) 14 F.(2d) 35; McCarren v. U. S. (C. C. A.) 8 F.(2d) 113. So, the question is whether that proof was presented in this case.

To sustain this allegation made in the indictment a deputy clerk of the court was called as a witness and testified that the following entry was to be found in the records of the court on May 25, 1925: "This day comes James C. Madison, United States Attorney; also come defendants in person and with counsel; and it appearing to the court that defendants have heretofore been jointly tried by a jury, and defendant M. W. Dick found guilty on three counts of the information and defendant George Burgess found guilty on count one and two and not guilty on count three of the information herein; and the court being now fully advised in the premises fixes the punishment of the defendants as follows: For defendant M. W. Dick, at imprisonment in the Johnson County jail at Warrensburg, Missouri, for a period of five months on the first count; a fine of $100 on the second count and imprisonment in the Johnson County jail at Warrensburg, Missouri, for a period of three months on the third count of the information without costs; the sentence imposed on the third count of the information to commence to run and be served at the expiration of the sentence imposed on the second count of the information herein. The fine imposed on the second count to be placed upon execution."

Thereafter a witness was called who testified that he was present at the trial of the former case, and he identified appellee as having been the person mentioned in the above record. The appellant also while on the stand stated that he was the person mentioned in this record; that he was tried by a jury in May, 1925, convicted, and sentence to serve a term in the Johnson county jail.

This evidence covers every phase of the prior conviction, except that it does not show the character of the offense; that is, that it was a sale of liquor.

At the trial of the present case, counsel for appellant in his opening statement to the jury said: "The defendant in this case, Mr. Dick, is charged with having made a sale of liquor in 1925, in this court, and with having entered a plea of not guilty and having trial there he was found guilty, and was sentenced to serve eight months in jail, and that will be admitted by this man Dick. There is no controversy about that and we will not take up any more of the Court's time on that. He was sentenced in this court. I do not remember the judge. I did not represent him at that time, but he was sentenced to eight months in jail for that offense, and went down to Warrensburg and served it and paid the government everything he owed. That will be admitted. That was in January, 1925."

Counsel also said in this closing argument: "They charged him with being a second offender, and he comes in here and admits that in May, 1925, he came up here and stood trial. He was just a boy then. He was convicted, and he went down here in the jail at Warrensburg, in Johnson County, and served his eight months. And he don't owe the Government of the United States or the prosecutor's office or the prohibition agents or the police department of this city one cent for the crime that was committed in 1925. He has paid that penalty."

The trial court, acting on the evidence submitted and the admission of counsel, charged the jury on this point as follows: "It appears without controversy that the defendant had...