Dunn v. United States

Decision Date11 January 1932
Docket NumberNo. 393,393
Citation76 L.Ed. 356,52 S.Ct. 189,284 U.S. 390,80 A.L.R. 161
CourtU.S. Supreme Court

Messrs. Roger O'Donnell, of Washington, D. C., and Raymond T. Coughlin, of Sacramento, Cal., for petitioner.

The Attorney General and Mr. Thomas D. Thacher, Sol. Gen., of Washington, D. C., for the United States.

Mr. Justice HOLMES delivered the opinion of the Court.

The petitioner was indicted in three counts, first, for maintaining a common nuisance by keeping for sale at a specified place intoxicating liquor, second, for unlawful possession of intoxicating liquor and third, for the unlawful sale of such liquor. The jury acquitted him on the second and third counts, and found him guilty on the first. No question was raised in the courts below with respect to the sufficiency of the indictment on the first count, and no such question has been presented here. The case was tried upon the assumption that the indictment was good as to that count, and in the opinion of the majority, we should make the same assumption.

The defendant says that the evidence did not warrant a conviction and that the verdict on the second and third counts is inconsistent with that upon the first and that for this reason also he is entitled to be discharged. The evidence was the same for all the counts. The defendant owned the establishment where the alleged sale took place. It consisted of a front room where fishing tackle, sporting goods, cigars and soft drinks were sold, and a larger room in the rear with pool tables and a bar. Two prohibition agents and two unknown men walked in and ordered from the defendant three glasses of whisky and one of beer and were served without further conversation. A little later two more drinks were called for and furnished. The whisky was served in ordinary whisky glasses from underneath the bar and the money paid for it, twenty-five cents a glass, was put into a cash register behind the bar. The testimony, if believed, showed a regular course of business, which manifestly was continuous, Fisher v. United States (C. C. A.) 32 F.(2d) 602, 604, and warranted a verdict of guilty on the nuisance count. The defendant gave evidence that he was elsewhere at the time of the alleged sale and did not make it. He contends that the verdict is inconsistent, since it negatives possession and affirms the nuisance, the proof of the commission of both alleged offienses consisting of identical evidence. The Government says that even though the jury seems to have believed that the defendant was elsewhere at the time of the alleged sale and did not make it, the verdict is not necessarily inconsistent, for some third person, with defendant's knowledge, may have been doing business on the premises, and if so they were a nuisance, and the defendant was guilty although he neither possessed nor sold intoxicating liquors upon them; that whereas the Government's witnesses may have been mistaken in saying that the defendant sold, they may have been right to the extent that someone did, and if that be true the defendant's knowledge could be inferred, this being his place of business and he being habitually present there. It is further argued that it may be inferred that he received the money coming from the sale, and that he knowingly abetted the seller in the acts that created the nuisance on the premises that the defendant controlled.

Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. Latham v. The Queen, 5 Best & Smith, 635, 642, 643; Selvester v. United States, 170 U. S. 262, 18 S. Ct. 580, 42 L. Ed. 1029. If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence being offered in support of each, an acquittal on one could not be pleaded as res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold. As was said in Steckler v. United States (C. C. A.) 7 F.(2d) 59, 60:

'The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.'

Compare Horning v. District of Columbia, 254 U. S. 135, 41 S. Ct. 53, 65 L. Ed. 185.

That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.

Judgment affirmed.

Mr. Justice BUTLER (dissenting).

The indictment contains three counts, and accuses petitioner of violations of the liquor laws. The first is under section 33 and the other two are under section 12 of title 27, U. S. Code (27 USCA §§ 12, 33), being, respectively, sections 21 and 3 of title 2 of the National Prohibition Act, 41 Stat. 308, 314. The pertinent words are:

'§ 33. Any * * * building * * * or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this chapter (title), and all intoxicating liquor and property kept and used in maintaining the same, is hereby declared to be a common nuisance, and any person who maintains such a common nuisance shall be guilty of a misdemeanor. * * *'

'§ 12. No person shall * * * sell * * * or possess any intoxicating liquor except as authorized in this chapter (title). * * *'

The first count cites section 33 and charges that petitioner on the 4th of July, 1930 (the evidence shows that June 26 was meant), 'at a place known as No. 301-2d Street, in the City of Eureka * * * did * * * maintain a common nuisance, in then and there knowingly and willfully committing a prohibited and unlawful act of keeping for sale at said place certain intoxicating liquor * * * to wit: five drinks of whisky and one drink of beer. * * *' The second cites section 12, and charges that he then and there committed a prohibited and unlawful act of 'possession of the said certain intoxicating liquor.' The third cites section 12, and charges that on June 26, 1930, he did then and there knowingly and willfully commit a prohibited and unlawful act of 'sale of certain intoxicating liquor * * * to wit: five drinks of whisky and one drink of beer.'

The nuisance charged is specifically limited to the 'keeping for sale' of the six drinks mentioned. The unlawful possession count is limited to the same drinks. The unlawful sale alleged is limited to six drinks. The evidence showed that the same liquor constituted the sole basis of each count.

At the trial it was shown that petitioner owned and carried on business in the place described; that there was a front room where sporting goods, cigars, and soft drinks were sold and a back room in which defendant had a bar, pool and card tables, and all kinds of soft drinks. The bar was used to wait on customers in that room. There were some one-ounce whisky glasses which petitioner testified were used to serve bitters.

Two federal prohibited agents testified that about 7:30 o'clock in the afternoon of June 26, 1930, they and two unknown men, whom they referred to as 'pick-ups,' entered the rear room and found petitioner behind the bar; that one of the agents bought from petitioner 'three whiskys and one beer,' and paid him a dollar, which he rang up on the cash register; that the other agent bought from him two more drinks of whisky; and that all such liquor was consumed on the premises by the agents and their companions. No other sale was shown. No arrest, search, or seizure was then made or attempted. Marron v. United States, 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231. Eight days later federal officers having a warrant for arrest, accompanied by one of the prohibition agents, raided the place and arrested petitioner. There was no evidence that any liquor was found. Petitioner testified and introduced other evidence to show that he was absent from Eureka and not in the place until some time between 8 and 8:30 o'clock that evening.

The trial court charged:

'The element of nuisance is the keeping of intoxicating liquor for sale. If you find from the evidence that the defendant had in his possession any liquor * * * for the purpose of such sale, then you must find the defendant guilty. * * *

'If you find from the evidence that the defendant unlawfully possessed intoxicating liquor, of course it will be your duty to find him guilty of that charge. * * *

'Of course, if * * * you believe that he is guilty * * * of having sold liquor at his said place of business it will be your duty to find him guilty of that charge. * * *

'When an indictment charges a defendant with crime, it is not necessary for the Government to prove that the act was committed by the defendant personally, but it is sufficient for the Government to prove that the act was committed by an agent of the defendant and committed in the course of the agency and in furtherance of it. * * *

'I instruct you * * * that it is the law that 'Whoever directly commits any act constituting an offense defined in any law of the United States or aids or abets or procures its commission is a principal' (Apparently referring to 18 U. S. C., § 550, 18 USCA § 550). * * *

'The defendant has introduced evidence tending to show that he was not present at the time and place of the commission of the crime charged in this indictment. * * * If the evidence of an alibi in connection with all the other evidence raises a reasonable doubt of the presence of the defendant at the time and place of the crime he should acquitted.'

The jury acquitted petitioner on the possession and sales counts, and convicted him on the nuisance count.

The court by the first quoted instruction, in harmony with the...

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