RAMSEY v. UNITED STATES, 268 F. 825

KNAPPEN, Circuit Judge. Plaintiff in error was convicted of selling distilled spirits for beverage purposes on July 12, 1919, in violation of the War-Time Prohibition Act, Nov. 21, 1918, c. 212, sub,d. 4 (Comp. St. Ann. Supp. 1919, §§ 311511/12f-311511/12ggg)- This writ is to review the judgment. A motion in arrest of judgment, on the ground that the War-Time Prohibition Act (

a) was unconstitutional» and (

b) had ceased to be operative, was overruled. A motion for new trial was denied. The sufficiency of the evidence to sustain conviction is challenged, and complaint is made of the exclusion of certain proffered evidence. There was no exception to the charge of the jury, which is not sent up. 1. The contentions of plaintiff in error made under the motion in arrest of judgment have been foreclosed by the decision of the Supreme Court in Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 40 Ct. 64 L. Ed. 194. 2. There was no motion to direct verdict.

We are therefore under no obligation to consider the sufficiency of the evidence, although we may do so. Crawford v. United States, 212 U. S. 183, 194, 29 Sup. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392; Sylvia v. United States (C. C. A. 6) 264 Fed. 593, 594. There was substantial evidence tending to sustain the conviction. We cannot weigh the testimony. Burton v. United States, 202 U. S. 345, 26 Sup. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 392; Kelly v. United States (C. C. A. 6) 258 Fed. 392, 406, 407, 169 C. C. A. 408; West v. United States (C. C. A. 6) 258 Fed. 413, 421, 169 C. C. A. 429. 3.

The motion for new trial was addressed to the judicial discretion of the trial judge. This discretion was not abused in the denial of the motion, and we therefore cannot review the exercise of discretion in so doing. Robinson v. Van Hooser (C. C. A. 6) 196 Fed. 620, 116 C. C. A. 294. 4. The evidence excluded was offered by way of cross-examination to show the motive and intent of the respective witnesses in their activities with reference to the sale in question. There had already been cross-examination evidently addressed to the same purpose.

Plainly there was no abuse of discretion in rejecting further examination in the same general line. Memphis St. Ry. Co. v. Bobo (C. C. A. 6) 232 Fed. 708, 712, 146 C. C. A 634. 5. The record contains what appears to be a suggestion that the conviction ought not to stand, or, perhaps more specifically, that the government is estopped from prosecuting the case on the ground that the commission of the offense, if any, was procured by one of the witnesses referred to, acting on behalf of a government officer. The record is not such as to give this proposition any force.

The fact that the witness was a decoy is not a defense to prosecution for the sale. Grimm v. United States, 156 U. S. 604, 610, 15 Sup. Ct. 470, 39 L. Ed. 550; Goode v. United States, 159 U. S. 663, 669, 16 Sup. Ct. 136, 40 L. Ed. 297; Goldman v. United States (C. C. A. 6) 220 Fed. 57, 62, 135 C. C. A. 625; Goldstein v. United States (C. C. A. 7) 256 Fed. 813, 168 C. C. A. 159. The case does not fall within Woo Wai v. United States (C. C. A. 9) 223 Fed. 412, 137 C. C. A. 604. The judgment is affirmed.