Woods v. United States

290 F. 957, 1923 U.S. App. LEXIS 1899

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 18, 1923
• Docket: No. 3991
• Status: Published

Opinions

HUNT, Circuit Judge.

Under an information containing four counts, Woods, plaintiff in error, was convicted under count 3. Count 1 charged unlawful possession of certain intoxicating liquor, to wit, 24 ounces called distilled spirits, and one quart of whisky intended for use in violating the National Prohibition Act (41 Stat. 305); count 2 charged that, upon the same day named in count 1, Woods unlawfully sold 8 ounces of distilled spirits; count 3 charged that upon the same day Woods unlawfully sold 16 ounces of liquor called distilled spirits; and count 4 charged Woods with conducting and maintaining a common nuisance, a drug store where intoxicating liquor was kept in violation of the National Prohibition Act. There was acquittal under counts 1, 2, and 4, and conviction under count 3.

The main point urged is that one cannot be guilty of selling liquor and be innocent of possessing the identical liquor with the intention of selling the same. That depends upon the facts. Defendant is a druggist, and admitted having the alcohol in his possession, but contended that the sale was lawful. Of course, as 'a druggist defendant might lawfully have possession of the quantity of alcohol described in count 1, and might lawfully have sold alcohol in his possession. The court recognized this, and charged the jury that defendant as a dealer had a right to sell medicated alcohol in accordance with formulas listed in the rules and regulations of the United States authorities, and further called the attention of the jury to the testimony of the defendant that he had sold under formula No. 1, which includes bichloride of mercury 1 part, and alcohol 2,000 parts. A druggist may obtain a permit to possess and use alcohol and sell the same in medicated forms in limited quantities, and yet may violate the law in selling what lawfully came into his possession. There is, therefore, no necessary inconsistency in the verdict.

The verdict, is supported by testimony to the effect that the man to whom the sale was made had no bottles or liquor upon his person when he went into defendant’s drug store; that in the store defendant passed two bottles to the man, who passed to the defendant what seemed to be money; that the officers then entered the store, and that one of them took two eight-ounce bottles of alcohol from the man; that the marked money, which had been previously furnished the purchaser, was on the counter; and that the purchaser said the defendant had put the money there. Whether the testimony of the witness for the prosecution was credible was for the jury.

We find no error and affirm the judgment.