Vesely v. United States
| Decision Date | 05 December 1921 |
| Docket Number | 3707. |
| Citation | 276 F. 693 |
| Parties | VESELY v. UNITED STATES. [1] |
| Court | U.S. Court of Appeals — Ninth Circuit |
L. E Dadmun, of San Diego, Cal., for plaintiff in error.
Robert O'Connor, U.S. Atty., of Los Angeles, Cal.
Before GILBERT, ROSS. and MORROW, Circuit Judges.
ROSS Circuit Judge (after stating the facts as above).
We see no merit whatever in either of the points made on behalf of the plaintiff in error. The contention that the cases did not admit of consolidation is sufficiently answered, first, by section 1024 of the Revised Statutes (Comp. St. Sec. 1690) and section 32 of title 2 of the National Prohibition Act, by the first of which it is declared that--
'When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate counts and if two or more indictments are found in such cases, the court may order them to be consolidated.'
And section 32, tit. 2, of the Prohibition Act provides, among other things, that--
'In any affidavit, information, or indictment for violation of this act, separate offenses may be united in separate counts and the defendant may be tried on all at one trial and the penalty for all offenses may be imposed.'
Moreover, there was no verdict against the plaintiff in error under the second information.
The record shows that during the selection of a jury the court was of the opinion that the answers of one of the veniremen disclosed that he would not be an impartial juror, and for that reason of its own motion excused him. Complaint is made of that action by the plaintiff in error, to which it is enough to say that it appears that a duly qualified jury was readily secured and was accepted by both parties without objection. It is needless to cite the numerous cases to the effect that under such circumstances there is no valid ground of complaint, regardless of whether or not there was sufficient ground for the excusing of the juror referred to.
The sufficiency of the second count of the first information, to which objection is made, is shown by the decision of this court in the case of Young v. United States (C.C.A.) 272 F. 967.
It is contended that the conviction under that count cannot be sustained, for the reason that it was not shown that the plaintiff in error was the 'proprietor' of the place where he sold the liquor. The answer to that is that there was evidence going to show that he sold whisky in the place to one Kinney on the 5th, 6th, 7th, 8th, and 9th days of October, 1920, and thereby aided and abetted the maintenance of the place for that purpose. Plaintiff in error was therefore properly prosecuted and convicted as a principal. See Rooney v. United States, 203 F. 928, 122 C.C.A. 230, and cases there cited.
It is further contended on the part of the plaintiff in error that the whisky sold by him was not intoxicating. Respecting that matter we insert this...
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...Cf. Rooney v. United States, 9 Cir., 1913, 203 F. 928; see Kelly v. United States, 6 Cir., 1919, 258 F. 392, 402; Vesely v. United States, 9 Cir., 1921, 276 F. 693, 695; Bacon v. United States, 10 Cir., 1942, 127 F.2d 985, 987; Von Patzoll v. United States, 10 Cir., 1947, 163 F.2d 216, cert......
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