SAMICH v. UNITED STATES, 22 F.2d 672

RUDKIN, Circuit Judge. This is a writ of error by one of the defendants to review a judgment of conviction under three counts of an indictment charging numerous violations of the National Prohibition Act (27 USCA). The information contains 11 counts in all.

The first 9 counts charge the plaintiff in error and two others jointly with the sale of intoxicating liquor on diverse dates between February 20 and December 9, 1925; the tenth count charges the same three parties with the unlawful possession of intoxicating liquor on December 10, 1925; and the eleventh count charges them with the maintenance of a common nuisance during the entire period covered by the several sales.

Counts 1, 2, and 5 were dismissed on motion of the United States attorney, and the jury returned a verdiet of guilty against the plaintiff in error as to counts 3, 7, and 10, against another defendant as to count 10, and against the third defendant as to counts 7, 8, and 10. A verdiet of not guilty was returned as to the remaining counts. When the government closed its case, the plaintiff in error moved the court to require it to elect on which of the several counts it would proceed, and the denial of this motion is assigned as error.

If, as contended by the plaintiff in error, the testimony on the part of the government went no further than to show that the offenses charged in the information were all several, and not joint, there might be merit in the motion to require an election. See 1 Zoline’s Federal Criminal Law and Procedure, § 218; Birmie v. United States, 200 Fed. 726. But, as wo view the record, that question is not here involved.

The testimony before the court at the time the motion to require an election was interposed tended to show that the sales were all made in a soft drink parlor, containg a lunch counter; that the plaintiff in error made sales at the place on April 24, 1925, and May 25, 1925; that he assisted in making a sale on December 8, 1925; that he was seen in the place on other occasions; that Graham, another defendant, was present in the place and made a sale on August 1; that he was again present when the place was raided on December 10; that receipts for light bills in the place from May to August, inclusivo, were found’ on his person when arrested; that the third defendant was tending bar thereon November 9, 1925; that he assisted in making a sale on December 8,1925; and that he was present at the time of the raid.on December 10, 1925.

The testimony offered in support of the remaining counts has not been brought up, but from the testimony in the record the jury would have been warranted in finding that each of the parties charged aided and abetted the others in the sale and possession of intoxicating liquor at the place, or that all three parties were engaged in a common conspiracy to possess and sell intoxicating liquor there, and in either case each of the parties so charged would be responsible for all sales made by the others. There was, therefore, no error in the denial of the motion to require an election.

A motion for a directed verdiet of not guilty was interposed on the same ground, and the denial of this motion, or request, is assigned as error. The jury by their verdiet apparently found each of the defendants guilty of the particular sale or sales made by him, and net guilty of sales made by the others ; hut of this the plaintiff in error cannot complain.

In other words, he was not prejudiced by the fact that the jury failed to find him guilty of sales made by the other defendants, when they might have done so; nor can he complain of the fact that the other defendants were found not guilty of the sales made by Mm. The judgment of the court below is affirmed.