Kuehn v. United States

8 F.2d 265, 1925 U.S. App. LEXIS 3269

Opinion

GILBERT, Circuit Judge.

On an information which contained five counts, the plaintiff in error was convicted under the first two, the one charging him with the unlawful possession of a pint of moonshine whisky on July- 2, 1924, and-the other charging him with the unlawful sale of a pint of moonshine whisky on that date. He contends that the two offenses so charged are, in fact, but one, and he assigns error on the ground that he is twice punished for a single offense.- We need not pause to inquire whether the two offenses are in fact but one. No demurrer was interposed to the information on that ground, nor was any motion made for election, and no exception was taken to the admission of evidence or to the instructions of the court on these charges. Bilboa v. United States (C. C. A.) 287 F. 125. Again, if indeed the two offenses were but one, the fact cannot avail the plaintiff in error. There was but one sentence, and it was a permissible sentence for the offense charged in the second count. Where conviction is had upon more than one count, the sentence, if it does not exceed that which might be imposed on one count, is good if that count is sufficient. Dunbar v. United States, 156 U. S. 185, 15 S. Ct. 325, 39 L. Ed. 390; Wetzel v. United States, 233 F. 984, 147 C. C. A. 658; Kalen v. United States, 196 F. 888, 116 C. C. A. 450; Bacigalupi v. United States (C. C. A.) 274 F. 367.

Error is assigned to certain instructions given by the court and certain evidence admitted upon the trial, but those instructions and evidence relate wholly to counts of the information upon which the jury failed to convict the plaintiff in error.. They do not affect the question of his conviction upon the first two counts.

The judgment is affirmed.