Weiderman v. United States

• Citation: 10 F.2d 745
• Decision Date: 08 February 1926
• Docket Number: No. 7059.,7059.
• Parties: WEIDERMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

10 F.2d 745 (1926)

WEIDERMAN v. UNITED STATES.

No. 7059.

Circuit Court of Appeals, Eighth Circuit.

February 8, 1926.

M. A. Breckenridge, of Tulsa, Okl. (Charles R. Bostick, of Tulsa, Okl., on the brief), for plaintiff in error.

W. F. Rampendahl, Asst. U. S. Atty., of Muskogee, Okl. (Frank Lee, U. S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and YOUMANS, District Judge.

YOUMANS, District Judge.

The errors urged by counsel for plaintiff in error, in oral argument and in their brief, are four in number.

1. The first is that the verdict is inconsistent, in that plaintiff in error was found guilty on the first count of the information and not guilty on the second. The testimony on the part of the government tended to show sales of alcohol to two individuals on the same occasion. It is argued on behalf of plaintiff in error that, if the testimony warranted a conviction on the first count, it also warranted a conviction on the second. While that is true, it does not follow that a verdict of not guilty on one count necessitated a verdict of not guilty on the other. In the language of the Supreme Court of Arkansas in the case of Burnett v. State, 96 S. W. 1007, 80 Ark. 225, 226, "necessarily the evidence justifying an acquittal was rejected when the jury found this verdict."

In their brief counsel for plaintiff in error quote extensively from the dissenting opinion in the case of Boone v. United States, 257 F. 963, 169 C. C. A. 113 (Eighth Circuit), but disregarded the opinion of the majority of the court. Judge Trieber, speaking for the majority in that case, said:

"It is true, as claimed by counsel, that the evidence as to some of the other counts, especially the sixth and eighth, on which the defendant was acquitted, is stronger against the defendant than that on this count; but it was for the jury to determine on what counts, if any, the defendant should be found guilty, and he certainly cannot complain of not having been found guilty on these counts. It is a well-known fact that juries frequently hesitate to return verdicts of guilty on a large number of counts, when the punishment which may be imposed on each count is as severe as that provided for violations of this statute (the minimum punishment on each count is five years). They therefore satisfy their consciences by a verdict of guilty on one or two counts, and not always on the counts supported by the strongest evidence."

2. The second contention is that the court erred in the instruction given on entrapment. On that point the court instructed the jury as follows:

"It is claimed that, the government officials having induced the defendant to commit a crime, the government would be estopped from insisting upon a conviction. It is true in law that government officers cannot be permitted to induce otherwise innocent persons to commit crime, with a view to having them prosecuted for such offense. In other words, if the crime originates in the mind of the government official, and in order to secure prosecutions against innocent persons such innocent person is induced to embark in a criminal enterprise, that in contemplation of law would be what is known as an entrapment. And if you believe from the evidence that the defendant was induced to make the sales by the government witnesses, who were government officials, and but for the inducement of these officials he would not have made the sales, or you entertain a reasonable doubt as to these facts, you should acquit the defendant. In the present case you are instructed that, if the defendant was engaged in the criminal business of selling intoxicating liquor, to wit, alcohol, and that in due course of such criminal business he made the sale or sales to the government officers, this would not constitute an entrapment. In other words, if the sales alleged to have been made were made in due course of the business in which the defendant was engaged — that is, of committing crime and selling intoxicating liquors — then it would be no entrapment for government officials to purchase liquor from him, and he would be as guilty as if he had sold the liquor to any other individual."

This instruction was a fair statement of the law upon the proposition involved. Ritter v. United States (C. C. A.) 293 F. 187; Rossi v. United States (C. C. A.) 293 F. 896; Newman v. United States (C. C. A.) 299 F. 128; De Long v. United States (C. C. A.) 4 F.(2d) 244.

Counsel for plaintiff in error requested an instruction upon this point, in which certain facts in testimony were particularized. It was not...