Rachel v. United States, 9499.

• Decision Date: 05 October 1932
• Docket Number: No. 9499.,9499.
• Citation: 61 F.2d 360
• Parties: RACHEL v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

61 F.2d 360 (1932)

RACHEL v. UNITED STATES.

No. 9499.

Circuit Court of Appeals, Eighth Circuit.

October 5, 1932.

Sid Crumpton, of Texarkana, Tex. (J. F. Quillin, of Texarkana, Ark., on the brief), for appellant.

W. N. Ivie, U. S. Atty., of Fort Smith, Ark. (G. T. Sullins, Asst. U. S. Atty., of Fort Smith, Ark., on the brief), for the United States.

Before KENYON, GARDNER, and SANBORN, Circuit Judges.

PER CURIAM.

Appellant was found guilty in the District Court of the United States for the Western District of Arkansas of the crime of selling intoxicating liquor and maintaining a nuisance and appeals from the judgment and sentence of the court.

The indictment contained six counts, each of the first five stating a different sale, and the sixth alleging the maintenance of a nuisance wherein intoxicating liquor was sold. Appellant first entered a plea of guilty. Prior to sentence, he moved for permission to withdraw the plea of guilty and enter a plea of not guilty, which was denied.

The court thereupon sentenced the appellant to imprisonment in a United States penitentiary for a term of three years, and fined him $5,000. The judgment and sentence provided that the sentence imposed for the offense charged in the first, second, third, and fifth counts should be merged in the sentence on the fourth count. For the offense charged in the sixth count appellant was sentenced to imprisonment for one year in the city jail of Texarkana, Ark., and was fined $1,000, the imprisonment under this particular sentence to commence at the termination of the imprisonment under the sentence imposed under the first five counts.

Appellant says that the judgment and sentence is erroneous, because (1) this being a first offense, there was no evidence in the record authorizing the infliction of punishment other than as a casual violator of the liquor law and not as an habitual violator thereof; (2) there was no evidence submitted to the court to authorize the sentencing of appellant under the Jones Act (45 Stat. 1446, 27 U. S. C. § 91), this involving, also, an alleged denial of an opportunity to appellant to submit evidence that this was his first offense under the National Prohibition Act (27 USCA) and was not an habitual violator thereof, and was not engaged in commercializing violation thereof; and (3) because appellant was denied permission to withdraw his plea of guilty.

Appellant apparently makes the contention that he comes within the exception contained in the amendment to the Jones Act (46 Stat. 1036 27 USCA § 91), providing in substance that one who violates the intoxicating liquor law by a sale of not more than one gallon of intoxicating liquor, unless he has not theretofore been convicted of a violation of the law or is not engaged in habitual violation of the same, shall for each offense be subject to a fine of not to exceed $500 or to be confined in jail without hard labor, not to exceed six months or both, because in no one of the counts is alleged a sale of more than one gallon. If that is appellant's assumption, it is wrong, because the fourth count alleges the sale of 24 pints. This is more than a gallon, and would authorize the penalty imposed without more proof. This is the plain meaning of the statute. That is probably why the trial court sentenced the appellant on the fourth count. The sentence on that count being indisputably correct, the merger therein of any penalty for violation of the other four of the first five counts was without error. Palno v. U. S. (C. C. A. 8) 58 F.(2d) 111.

But conceding the propriety of this assumption, appellant is not entitled to any benefit of the amendment, because, while there is no contention that he previously had been convicted of a violation of the intoxicating liquor law, still the record justified the court in making its finding, appearing in the judgment and sentence, that "the court finds the defendant to be engaged in habitual violation of the National Prohibition Act (27 USCA), and in commercializing violations of the same."

The court itself prepared in large part the bill of exceptions, and relative to the proceedings on the sentence of the defendant said: "Thereupon the court asked the defendant Rachel whether he had anything other or further to say why sentence should not be pronounced pursuant to his pleas of guilty. Both the defendant and his attorney answered that he had not. Thereupon the court asked the United States Attorney for a statement of the facts on the part of the government. The United States Attorney stated the facts and gave the names of the witnesses by whom the facts could be proved. Neither the defendant nor his attorney disputed any of the facts stated by the United States Attorney. I concluded that these facts showed, taken together with the pleas of guilty that the defendant had entered, that he was an habitual violator of the Prohibition law and imposed a sentence under the Jones Act, as to the first five counts of the indictment."

This record precludes appellant from attacking the judgment and sentence because no evidence was submitted as to his being more than a casual, or non-habitual offender. He cannot be allowed thus, at least impliedly, to invite error, or sit by without objection or exception to what was taking place, and urge that the court had thereby committed error. Turner v. U. S. (C. C. A. 8) 35 F.(2d) 25; Pittman v. U. S. (C. C. A. 8) 42 F.(2d) 793; Rose v. U. S. (C. C. A. 8) 45 F.(2d) 459; Murphy v. U. S. (C. C. A. 8) 39 F.(2d) 412.

All the sales are alleged in the indictment to have taken place at 620 Ash street, Texarkana, Ark., and the five sales were made to three different persons. The first sale is alleged to have been one-half gallon, made on the 21st of April, 1931; the second, one gallon, and the third, one pint, both made on the 28th of April, 1931; the fourth, 24 pints, made on May 2, 1931; and the fifth, two pints, June 19, 1931. All the sales were whisky. The nuisance was alleged to have been maintained at the same place, on the 19th of June, 1931.

By his plea of guilty, appellant...