Ward v. United States

• Decision Date: 11 May 1925
• Docket Number: No. 4392.,4392.
• Citation: 4 F.2d 772
• Parties: WARD et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

4 F.2d 772 (1925)

WARD et al. v. UNITED STATES.

No. 4392.

Circuit Court of Appeals, Ninth Circuit.

March 30, 1925.

Petition for Rehearing Denied May 11, 1925.

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

Walter Metzenbaum, of Seattle, Wash., for plaintiff in error Furihata.

John J. Sullivan, of Seattle, Wash., for plaintiffs in error.

Thos. P. Revelle, U. S. Atty., and John A. Frater, Asst. U. S. Atty., both of Seattle, Wash.

Before GILBERT, ROSS, and RUDKIN, Circuit Judges.

Furihata's Petition for Rehearing Denied May 11, 1925.

GILBERT, Circuit Judge.

The plaintiffs in error, together with one Hoffman, were tried upon an information in three counts, which charged them with the possession of intoxicating liquors, the sale of intoxicating liquors, and the maintenance of a nuisance. Furihata and Hoffman were found guilty on all three counts. Ward was found guilty on the second count, and was found not guilty on the first and third counts.

Ward contends that the acquittal of the charge of the possession of liquor, being inconsistent with the verdict of guilty on the charge of selling the same liquor, is tantamount to an acquittal of the latter charge. We do not think the conclusion follows. In view of the evidence in the case, the jury might have found that, while Ward was not in possession of the liquor, which was sold in the particular instance disclosed by the evidence, yet that he aided and abetted and participated therein.

But we think a new trial should be ordered as to Ward on account of an instruction of the court to the jury, to which he duly excepted. The instruction was: "If the defendant Ward is guilty in this case, it is upon what he did that day, his conduct in operating the elevator, his relation to the transaction between Hoffman and the agents who bought it, and what, if anything, he said to the operators when they came there for the purpose of purchasing it. He said he did nothing except to operate the elevator as a favor, which he did sometimes. The government witnesses testified that they asked Ward for some whisky, or some liquor, and he said, `We haven't that,' and you remember what their testimony was, and if he did actively participate in the operation of the elevator, and carried these parties up, and was conscious of what was transpiring, and did it in the advancement of a sale between the parties participating in it, and did use the conversation and statements that I have indicated, directing or suggesting some other brand instead of that which was demanded, and actively participated in the transaction and closing of the sale, why then he would be...