290 F. 957 | 9th Cir. | 1923
Lead Opinion
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 unlaw
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.
Rehearing
On Petition for Rehearing.
In a petition for rehearing plaintiff in error points out that in the opinion handed down we referred to certain instructions given by the court to the jury, and says that an examination of the transcript will show there are no instructions in it. The references we made to the instructions were based upon statements of instructions given contained in the opinion of the District Judge, which is incorporated in the record, and upon an instruction quoted verbatim in the brief of .the defendant in error as having been given by the court to the jury. How;ever, in the absence of the instructions themselves as a part of the record in the case, we concede that the opinion of the District Judge cannot be resorted to by this court as a substitute for the instructions, and the brief of defendant in error should not have contained the instruction quoted.
We have therefore attentively re-examined the whole case upon a
The petition for rehearing is denied.
