282 F. 604 | 9th Cir. | 1922
(after the facts as above).
Under repeated rulings of various federal courts, we think it clear that the demurrer to each of the counts of the indictment in this case under which conviction was had was properly overruled.
The late decision of the Supreme Court in the case of United States v. Yuginovich et al., 256 U.S. 450, 41 S.Ct. 551, 65 L.Ed. 1043, held that the National Prohibí
“The appellate court, -in affirming a conviction, may modify the punishment imposed by the trial court, by mitigating, reducing, or otherwise changing it, so far as it exceeds the limits prescribed by the statute. This rule applies to a fine or a sentence to a term of imprisonment in excess of that permitted by a statute, to a fine rendered against defendants jointly, to a sentence on a general verdict of guilty where one of several counts is unsustained by any evidence, and to a premature sentence.” 12 Cyc. 938.
Respecting the conviction of the plaintiffs in error under count 1 of the indictment, and the judgment based thereon, the plaintiffs in error contend that the verdict of guilty under that count was inconsistent with the verdict of not guilty under counts 2 and 4. We see no such necessary inconsistency; for from the evidence in the case the jury may have believed that, although the plaintiffs in error did not at the time and place alleged sell any whisky to either Richard H. Gleason or James O’Brien, they nevertheless then and there knowingly, willfully, and unlawfully had such intoxicating liquor in their possession.
The case is remanded to the court below, with directions to so modify the judgment as to omit the prescribed imprisonment of the plaintiffs in error under count 3 of the indictment, and, as so modified, the judgment will stand affirmed.