Lutch v. United States
| Decision Date | 26 November 1934 |
| Docket Number | No. 7468.,7468. |
| Citation | 73 F.2d 840 |
| Parties | LUTCH et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Revelle, Simon & Coles, of Seattle, Wash., for appellant.
J. Charles Dennis, U. S. Atty., of Seattle, Wash., and Owen P. Hughes, Asst. U. S. Atty., of Tacoma, Wash., for the United States.
Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges.
This appeal is from a judgment of conviction of appellants under an indictment in five counts, two of which (Nos. II and III) charge a violation of the internal revenue laws, and the other three of which (Nos. I, IV, and V) charge a violation of the National Prohibition Act. Appellants contend that the conviction and sentence covering counts I, IV, and V of the indictment should be reversed and the cause remanded to the District Court, with direction to vacate that portion of the judgment and dismiss counts I, IV, and V, in view of the recent decision of this court in Green v. United States, 67 F.(2d) 846, and the United States Supreme Court decisions in the case of U. S. v. Chambers, 291 U. S. 217, 54 S. Ct. 434, 78 L. Ed. 763, 89 A. L. R. 1510, decided February 5, 1934, and Massey v. U. S., 291 U. S. 608, 54 S. Ct. 532, 78 L. Ed. 1019, decided March 12, 1934. We agree with this contention as to the counts of the indictment charging a violation of the National Prohibition Act (27 USCA), namely, counts I, IV, and V.
There is no assignment or specification of errors set out in appellants' brief, but, in an assignment of errors in the transcript of record signed by defendants' attorney, it is claimed that the court erred in allowing the government to reopen its case after both defense and government had rested in order to put in evidence that defendant William Andrews' true name was Soderstrom. There is nothing in this assignment, as it is within the discretion of the trial court as to whether the case shall be reopened to receive new evidence. It was competent to show that the appellant was living under an assumed name at the time he engaged in the distilling business. See Jones Commentaries on Evidence, vol. 2, p. 575, § 287; Underhill on Evidence (3d Ed.) § 201; State v. Clark, 160 Iowa, 138, 140 N. W. 821.
The other assignments go to the question of whether or not there was sufficient evidence to submit the case to the jury.
The testimony in the case shows that on November 15, 1932, several federal agents, armed with a proper search warrant, surrounded a...
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...v. United States, 187 U.S. 118, 131, 23 S.Ct. 42, 47 L.Ed. 100; Strom v. United States, 9 Cir., 50 F.2d 547, 548. Cf. Lutch v. United States, 9 Cir., 73 F.2d 840, 841, and United States v. Heitner, 2 Cir., 149 F.2d 105, 107. It is plain that the jury could well infer from the evidence in th......
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Rivers v. United States
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Haugen v. United States, 11063.
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Medina v. United States, 15507.
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