Withrow v. United States

• Decision Date: 29 September 1924
• Docket Number: No. 2262.,2262.
• Citation: 1 F.2d 858
• Parties: WITHROW et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

1 F.2d 858 (1924)

WITHROW et al. v. UNITED STATES.

No. 2262.

Circuit Court of Appeals, Fourth Circuit.

September 29, 1924.

J. Raymond Gordon, of Charleston, W. Va., for plaintiffs in error.

Ellis A. Yost, Asst. U. S. Atty., of Huntington, W. Va. (Elliott Northcott, U. S. Atty., of Huntington, W. Va., and B. J. Pettigrew, Asst. U. S. Atty., of Charleston, W. Va., on the brief), for the United States.

Before WOODS, WADDILL, and ROSE, Circuit Judges.

WOODS, Circuit Judge.

The defendants, Taylor Withrow and Arthur Vinson, alias Happy Riggs, were convicted on informations charging unlawful possession of intoxicating liquors and maintenance of a nuisance. The evidence on behalf of the government was as follows:

On an afternoon in June, 1923, O. C. Johnson, a motorcycle police officer of Huntington, W. Va., met the defendants and Charles Boyd driving an automobile in the suburbs of Huntington. The officer called to them to stop. In response they increased speed and dashed through the streets of the city. The officer pursued, again ordering them to stop, and firing his gun. They threw a gallon of whisky at him in an attempt to knock him from his motorcycle. The chase continued through the streets until the automobile stuck in a mud hole near the railroad tracks. The officer saw Withrow and Vinson throw something over a fence into a patch of weeds. Vinson and Withrow ran, but Boyd stayed with the car. Johnson arrested all of them, and upon examination found that the sacks thrown over the fence contained several gallons of whisky. The officer had no warrant for the search of the car or the arrest of the defendants. He had no suspicion that the defendants were illegally transporting whisky, and hailed them merely because he wished to talk with them. When they refused to stop and began to speed, he followed to arrest them.

It was admitted on the trial that both defendants had previously been convicted of violation of the prohibition laws, and certified copies of the record of former convictions in federal court were introduced in evidence. The defendants admitted that they were chased by Officer Johnson, but stated that it was on August 18, 1923, and not in June. They denied having whisky in the car on that occasion, or that they had thrown any at the officer. Withrow said he saw the officer pick something up in the field near where the car had stuck in the mud, but denied any knowledge of the liquor found in the sacks.

The defendants relied on a plea of former jeopardy, admitting that they had been arrested for violation of the prohibition laws, to which they pleaded guilty at the March term, 1923, and were fined $50 each. The informations in those cases contained three counts. The judge imposed a fine on the first count, and continued sentence on the other counts until the September term in this language:

"And the court, not now being advised as to its judgment as to other counts of said information, takes time to consider thereof, and this cause is continued as to other counts until the first day of the next term of this court."

On September 18, 1923, both defendants were brought into court and each sentenced to pay a fine of $500, and serve 12 months in jail on the two counts on which sentence had been postponed. Defendants now contend that the sentence of the court in September, 1923, was a sentence for the same offense for which they were indicted and tried in the instant case. On the issue of former jeopardy the jury found against the defendants.

There was a demurrer to the informations for insufficiency. The record does not disclose that the grounds were made known to the District Judge, nor do the assignments of error point out any defect to this court. Assignment of error in overruling the demurrer is, therefore, without foundation. Hedderly v. United States, 193 Fed. 561, 565, 114 C. C. A. 227; 31 C. J. 817; 14 R. C. L. 201.

An objection to one of the informations, indicated in the argument, is that it alleged no time and place of the commission of the...