Ford v. United States

269 F. 609, 1921 U.S. App. LEXIS 2326

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 21, 1921
• Docket: No. 3517
• Status: Published

Opinion

WALKER, Circuit judge.

The plaintiffs in error were convicted on counts of an. indictment, filed on October 13, 1919, charging sales of intoxicating liquor in violation of the War-Time Prohibition Act of November 21, 1918 (Comp. St. Ann. Supp. 1919, §§ 311511/12f-311511/12h).

m There is no merit in the suggestion that the law mentioned was not in force when the trial and conviction occurred, as section 35 of the National Prohibition Act of October 28, 1919 (41 Stat. 305), contains the provision:

“Nor shall this act relieve any person from any liability, civil or criminal, heretofore of hereafter incurred under existing laws.”

[2] Each of the ¿bunts upon which there was a conviction charged a sale of a glass of- alcohol mixed with some substance to the grand jury unknown.. Error is assigned on the court’s refusal to give the following instruction requested in behalf of the defendants:

“You are instructed that if the evidence shows that the grand jurors could by reasonable diligence have ascertained what was the substance mixed with the alcohol, alleged to.have been sold in the various counts of the indictment, you will acquit each of the defendants on all of the counts of the indictment.”

The refusal to give that charge was not reversible error. There was no evidence tending to prove that the grand jurors knew or were informed what was the substance which was mixed with the alcohol charged to have been sold. In that condition of the evidence there was a presumption that such substance was unknown to the grand jury, and such presumption dispensed with the necessity of adducing evidence to prove the averment of. the indictment in that regard. United States v. Riley (C. C.) 74 Fed. 210.

Of the other rulings complained no more need be said than that no one of them was erroneous.

The judgment is affirmed.