Samich v. United States

• Decision Date: 28 November 1927
• Docket Number: No. 5149.,5149.
• Citation: 22 F.2d 672
• Parties: SAMICH v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

22 F.2d 672 (1927)

SAMICH v. UNITED STATES.

No. 5149.

Circuit Court of Appeals, Ninth Circuit.

November 28, 1927.

John F. Dore and F. C. Reagan, both of Seattle, Wash., for plaintiff in error.

Thos. P. Revelle, U. S. Atty., and Arthur E. Simon and David Spalding, Asst. U. S. Attys., all of Seattle, Wash., for the United States.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judge.

RUDKIN, Circuit Judge.

This is a writ of error by one of the defendants to review a judgment of conviction under three counts of an indictment charging numerous violations of the National Prohibition Act (27 USCA). The information contains 11 counts in all. The first 9 counts charge the plaintiff in error and two others jointly with the sale of intoxicating liquor on diverse dates between February 20 and December 9, 1925; the tenth count charges the same three parties with the unlawful possession of intoxicating liquor on December 10, 1925; and the eleventh count charges them with the maintenance of a common nuisance during the entire period covered by the several sales. Counts 1, 2, and 5 were dismissed on motion of the United States attorney, and the jury returned a verdict of guilty against the plaintiff in error as to counts 3, 7, and 10, against another defendant as to count 10, and against the third defendant as to counts 7, 8, and 10. A verdict of not guilty was returned as to the remaining counts.

When the government closed its case, the plaintiff in error moved the court to require it to elect on which of the several counts it would proceed, and the denial of this motion is assigned as error. If, as contended by the plaintiff in error, the testimony on the part of the government went no further than to show that the offenses charged in the information were all several, and not joint, there might be merit in the motion to require an election. See 1 Zoline's Federal Criminal Law and Procedure, § 218; Birmie v. United States, 200 Fed. 726. But, as we view the record, that question is not here involved.

The testimony before the court at the time the motion to require an election was interposed tended to show that the sales were all made in a soft drink parlor, containg a lunch counter; that the plaintiff in error made sales at the place on April 24, 1925, and May 25, 1925; that he assisted in making a sale on December 8, 1925; that he was seen in the place on other occasions; that Graham, another defendant, was present in the place and made a sale on August 1;...