Gemignani v. United States
| Decision Date | 04 December 1925 |
| Docket Number | No. 4372.,4372. |
| Citation | 9 F.2d 384 |
| Parties | GEMIGNANI v. UNITED STATES. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John Galella, of Memphis, Tenn., for plaintiff in error.
S. E. Murray, U. S. Atty., of Memphis, Tenn. (W. H. Fisher and A. A. Hornsby, Asst. U. S. Attys., both of Memphis, Tenn., on the brief), for the United States.
Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges.
It is contended on behalf of the plaintiff in error that the court erred in overruling its motion at the close of the government's evidence to dismiss the indictment on the ground that the record in case No. 2122 does not show that the defendant was convicted or sentenced upon his plea of nolo contendere upon the second count of the information charging him with the unlawful sale of intoxicating liquor. This plea of nolo contendere was entered as to each count of that indictment, and for the purpose of that case was, in effect, a plea of guilty to both counts. Tucker v. U. S., 196 F. 260, 116 C. C. A. 62, 41 L. R. A. (N. S.) 70; U. S. v. Lair, 195 F. 47, 115 C. C. A. 49.
The court might have sentenced the defendant on each count or it might impose one sentence upon both counts either upon a plea or verdict of guilty, and unless it specifically appears that the sentence was imposed upon one count only, the presumption obtains that it was a sentence upon both counts.
The plaintiff in error relies for reversal particularly upon the claim that the indictment before us purports to charge a second offense, that a second offense is a distinct and separate crime from a first offense, and that even though the evidence offered by the government would be sufficient to convict the defendant of the unlawful sale of intoxicating liquors, as charged in this indictment, yet, if the government failed to prove this offense was a second offense, then a verdict of not guilty should have been directed.
If the plaintiff in error is right in his contention that a conviction and sentence imposed upon a plea of nolo contendere cannot be made the basis of a charge for a second offense, then this indictment does not charge a second offense, for the reason that it states in detail all the facts upon which the government claims that this is a second offense. If as a matter of law these facts alleged in the indictment do not constitute a second offense, then they are mere surplusage, and may be wholly disregarded in determining the offense charged.
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