Allen v. United States

26 F.2d 246, 1928 U.S. App. LEXIS 3651

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 10, 1928
• Docket: No. 5035
• Status: Published

Opinion

PER CURIAM.

Upon the third and fourth counts of the indictment, charging that defendant sold and unlawfully possessed intoxicating liquor in January of 1926, there was sufficient evidence for the jury. There' was, it is true, some evidence discrediting the witness whose evidence the government mainly relied upon to prove these offenses; but the witness testified unequivocally to the purchase of liquor from defendant at that time under circumstances which tended to show that what he purchased was only a part of what defendant then had on hand. This evidence, with the discrediting evidence, was for the jury. Manzel v. United States (6 C. C. A.) 19 F. (2d) 139.

The first and second counts charged the sale and unlawful possession of intoxicating liquor in December, 1925. Upon the trial, the court permitted Davis, a deputy marshal, to testify in corroboration of the prosecuting witness to certain statements that the witness had made prior to the trial. There were convictions on all four of the counts, but the court granted a new trial on the first two. Whether this was done because the court concluded that the evidence of Davis was inadmissible does not appear; but, if there was reversible error in admitting it, it was cured by the setting aside of the convictions on the first two counts, as the statements related directly to those charges and not to the charges in the counts on which the convictions were permitted to stand. Such incidental effect as Davis’ testimony may have had on the trial as to the third and fourth counts cannot, we think, be said to constitute reversible error. Nor was it error to refuse to grant a new trial because of newly discovered evidence, as that evidence related to tbe offenses charged in the counts upon which a new trial was granted. There was no double punishment inflicted because of conviction of the sale and also of the unlawful possession of liquor. The evidence clearly warranted the jury in believing that defendant unlawfully possessed liquor other than that sold to the prosecuting witness. Schutte v. United States (6 C. C. A.) 21 F.(2d) 830.

Judgment affirmed.