7 F.2d 615 | 8th Cir. | 1925
The indictment in this action contains three counts. The first charges conspiracy to violate the Prohibition Law (Comp. St. Ann. Supp. 1923, § 3013814 et seq.); the object of the conspiracy being to possess and sell intoxicating liquors. The overt aets charged are two sales, of liquor to W. Y. German and E. T. Woods, both occurring at different hours on tho same day. The second count charges tho unlawful sale which is made the first overt act in the first count, and the third count charges the sale which is made the second overt act in the first count. The jury found defendant not guilty on the last two counts, and guilty on the first.
It is contended that the verdict of the jury is so inconsistent as not to support or justify the judgment here under review. There is in fact no inconsistency in the verdict. The conspiracy is charged to have been made by and between the defendant and three other persons. In tho paragraph of the first count dealing i\ "th the sale charged as the first overt act, the indictment states that the sale was made not by tho defendant Matt Collins, but by bis three co-conspirators. In both tbe second and third counts the charge is that the sale was made by Collins and the three other defendants. Defendant Collins alone was upon trial. The question under the second and third counts was: Did he sell tho liquor? The jury found that he did not. Tho question under the first count is whether he conspired with the other three persons named to sell intoxicating liquors, and, as to tbo overt acts, whether while tbe conspiracy was afoot, the co-conspirators of defendant made the sales charged as the overt aets. Tho finding of the jury that defendant did not make the sales in no way conflicts with the charge in the first count that the same were made by his co-conspirators, and were made in furtherance of the conspiracy to which defendant was a party. The judgment must therefore be affirmed.
The defense relies on Rosenthal v. United States (C. C. A.) 276 F. 714. Defendant there, and two others, were indicted on two
The judgment is affirmed.