Martin v. United States

• Decision Date: 28 February 1921
• Docket Number: 5647.
• Parties: MARTIN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

271 F. 685

MARTIN v. UNITED STATES.

No. 5647.

United States Court of Appeals, Eighth Circuit.

February 28, 1921

Rehearing Denied May 12, 1921.

J. E Willits, of Hastings, Neb., for plaintiff in error.

T. S Allen, U.S. Atty., of Lincoln, Neb. (F. A. Peterson, Asst U.S. Atty., of Omaha, Neb., on the brief), for the United States.

Before HOOK and CARLAND, Circuit Judges, and LEWIS, District Judge.

CARLAND Circuit Judge.

Plaintiff in error, hereafter defendant, was indicted, convicted, and sentenced for causing to be transported on June 29, 1919, in interstate commerce from St. Joseph, Mo., to and into the Hastings division of the district of Nebraska, certain spirituous and intoxicating liquors, not for medicinal, sacramental, mechanical, or scientific purposes, and not by virtue of a prescription of a licensed or practicing physician as provided by the laws of the state of Nebraska. The only point properly raised and argued by counsel for defendant to obtain a reversal of the judgment below is in regard to the refusal of the trial court to admit in evidence the record of a proceeding before a justice of the peace of Adams county, Neb., in the case of State of Nebraska v. Clifford K. Martin.

The record offered showed that on October 22, 1919, before C.N. Nash, justice of the peace, defendant was tried and acquitted upon a complaint, the first count of which charged the defendant with having on or about the 29th day of June, 1919, then and there being in said county did then and there unlawfully and knowingly transport and cause to be transported, carry and cause to be carried intoxicating liquors, to wit, whisky, for said defendant to be by him the said defendant, kept, stored, sold, and furnished to other persons in Adams county, Neb.

Counsel for defendant does not claim that the judgment of acquittal in the state court would be a bar to defendant's trial and conviction in the federal court, but that the judgment was admissible upon the question of transportation to be considered with all the other evidence in the case. Of course the defendant could not claim the judgment of acquittal in the state court to be a bar to his trial and conviction in the federal court, for the reason that the two offenses were different, and committed against different sovereignties. The defendant could be convicted of one offense and acquitted of the other.

We are of the opinion that the admission by counsel ...