Loomis v. United States, 6726.
| Decision Date | 21 November 1932 |
| Docket Number | No. 6726.,6726. |
| Citation | 61 F.2d 653 |
| Parties | LOOMIS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
W. M. Whitney, of Seattle, Wash., for appellant.
Anthony Savage, U. S. Atty., and Cameron Sherwood, Asst. U. S. Atty., both of Seattle, Wash.
Before WILBUR and SAWTELLE, Circuit Judges.
Appellant was indicted with one Tardy, alias Walker, for possessing and transporting intoxicating liquor contrary to the provisions of the National Prohibition Act (title 2, § 3 27 USCA § 12). The indictment contained four counts. Count I charged appellant and his codefendant with possession of intoxicating liquor on a named date, and count III charged them with transporting the same liquor. Count IV charged appellant with a prior conviction of transportation of intoxicating liquor, and the remaining count charged the codefendant Tardy with a prior conviction of possessing intoxicating liquor. Tardy pleaded guilty as charged. Appellant was tried before a jury, convicted as charged, and sentenced to pay a fine of $500 on count I and serve three months in prison on counts III and IV; followed by this appeal.
The facts are substantially as follows: About midnight, July 3, 1931, prohibition agents called a certain telephone number in the city of Seattle and requested a delivery to the Westport Apartments of two quarts of gin and two pints of whisky. About half an hour thereafter the liquor was delivered by appellant's codefendant Tardy to the apartment specified by the agents. The testimony on behalf of appellant is to the effect that, about 11 o'clock on the night in question, appellant and his wife and one Moore were in appellant's apartment; that they decided to go out and get something to eat; that they first stopped at Tardy's apartment and asked him and his wife and baby to accompany them; that Tardy agreed to do so, but his wife could not; that while at Tardy's apartment the doorbell rang and Tardy answered it; that when he (Tardy) returned he said he would have to "go down on Roy Street and see a friend," and that he then went out and said he would meet the others downstairs in a few minutes; that Tardy agreed to eat with the others, if they would first drop him off at Roy street; that the others went out to appellant's automobile, which was parked in front of Tardy's apartment, and Tardy joined them there; that they entered the automobile and, at Tardy's request, drove to the Westport Apartments, where Tardy got out, handing, as he departed, a half bottle of gin to Moore. Tardy delivered the liquor in question to the Westport Apartments and was there arrested by the agents who had ordered it. Meantime, other of the agents arrested appellant, who was still in the automobile, and seized the half bottle of gin. Appellant had turned his automobile around at the corner and returned to await Tardy. One of the agents testified that appellant remarked at that time: "You have one man, there is no use taking everybody." And again: "Why don't you let me go, you have one of my men, there is no use taking us all." This conversation appellant denied.
Tardy testified that he was working for a man named Dolan, making liquor deliveries, and that it was Dolan who rang the bell of his apartment, while appellant was there, and requested him to make the delivery to the Westport Apartments. Tardy testified that he went out and got the liquor from a certain cache; that it was concealed on his person; and that appellant did not know he had it on him.
The only assignment of error we need discuss, in view of our conclusion thereon, challenges the correctness of the following portion of the court's instruction to the jury: To which counsel for appellant objected as follows:
The portion of the charge which instructed the jury to find appellant guilty of transportation, if guilty of possession, amounted to a statement that the one offense is included in the other. In Earl v. United States, 4 F.(2d) 532, 533, this court held that transportation and possession of intoxicating liquor are separate offenses, and upheld a sentence imposing a fine on each count, saying: ...
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Watts v. United States
...though the evidence points conclusively towards guilt. Edwards v. United States, 286 F.2d 681, 683 (5th Cir. 1960); Loomis v. United States, 61 F.2d 653, 655 (9th Cir. 1932); Cain v. United States, 19 F.2d 472, 475 (8th Cir. 1927). Moreover, a judge cannot partially direct a guilty verdict.......
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...9 Cir., 4 F.2d 532, upon the same facts a similar decision was rendered in which the Bell and Massy cases were cited. In Loomis v. United States, 9 Cir., 61 F.2d 653, and Aldridge v. United States, 10 Cir., 67 F.2d 956, it was held that transportation and possession are separate and distinc......
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