Steckler v. United States, 310.
| Decision Date | 06 April 1925 |
| Docket Number | No. 310.,310. |
| Citation | 7 F.2d 59 |
| Parties | STECKLER v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Louis Bennett, of New York City, for plaintiff in error.
Emory R. Buckner, U. S. Atty., of New York City (John M. Cashin, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before ROGERS, HOUGH, and HAND, Circuit Judges.
Steckler was a druggist with a permit to possess liquor. It was therefore essential to a conviction under count 2 to show that his possession, prima facie legal, had been abused, and that he was holding the liquors for sale contrary to the regulation under which he did his business. This the prosecution tried to do by proving sales of liquor at the defendant's shop. Two of such sales were laid in counts 3 and 4, and proved as of that day. A third was not laid at all, but proved as of April 11. The jury acquitted the defendant on the sale counts and on count 1 for maintaining a nuisance. The defendant's possession would not be protected under his permit, if it were shown that he was engaged habitually in unlawful sales. We accept the ruling in Lipschutz v. Quigley (D. C.) 287 F. 395. Francis Drug Co. v. Potter (D. C.) 275 F. 615, and In re Alpern et al. (D. C.) 280 F. 432, are to be read as depending upon the fact that a single sale was not enough to prove that all liquors were intended for sale. Yet, as in the case of a nuisance, a single sale may be enough to show that it was an instance of a habitual practice; that depends upon the circumstances which attended it. The evidence at bar would have justified a jury in concluding that the whole stock was held for illicit sale, whenever there was an opportunity.
The real point in the case is the inconsistency in the verdict. Count 2 could have been proved only by showing that the defendant had been guilty of unlawful sales, and the verdict in counts 3 and 4 showed that the jury were not willing to find the defendant guilty on the sales of April 8. It is theoretically possible that they might still have found that the sale of April 11 took place, especially as the defense was not so strong in respect of that. But, if that had been the jury's reasoning, it is impossible to account for their verdict on the nuisance count. There is a plain inconsistency in saying that the liquors were kept for sale, and in saying that the shop in which they were was not one in which the same liquors were kept for sale. We cannot, therefore, avoid the question whether this inconsistency invalidated the verdict of guilty on count 2.
The point has usually arisen where the verdict was in fact not inconsistent. Thus in Panzich v. United States, 285 F. 871 (C. C. 9), acquittal on the sale count could stand with a conviction on the count for a nuisance. The general character of the business might have persuaded the jury though they had doubts about the sale. The same was true of Carrignan v. United States, 290 F. 189 (C. C. A. 7), though the court took a broader ground. In Woods v. United States, 290 F. 957 (C. C. A. 9), the acquittal on the possession count...
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