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(289 F.)

tillery-in each of the three sections mentioned, so far at least as concerns liquor for beverage purposes (United States v. Yuginovich, 256 U. S. 450, 41 Sup. Ct. 551, 65 L. Ed. 1043); and R. S. § 3257 (Comp. St. § 5993), which punishes a distiller for defrauding the United States of the tax on spirits; also section 3258 (Comp. St. § 5994), relating to the registering of stills, and section 3242 (Comp. St. § 5965), punishing the carrying on of the business of rectifier or wholesale or retail liquor dealer without payment of the special tax (United States v. Stafoff, 43 Sup. Ct. 197, 67 L. Ed., decided by the Supreme Court January 2, 1923). This court has held R. S. § 3265 (Comp. St. § 6003), punishing the setting up of a still without permit therefor, likewise repealed by implication (Rossman v. United States, 280 Fed. 950); and has held so repealed (as have several other courts) R. S. § 3450 (Comp. St. § 6352), so far as concerns vehicles used in transporting or selling intoxicating liquor manufactured and intended for beverage purposes (Lewis v. United States [C. C. A.] 280 Fed. 5).

With respect to each of these revenue sections which have been held so repealed, the basis of such conclusion is that under the National Prohibition Act the production of liquor, etc., for beverage purposes is forbidden by law, or that the subject-matter of the revenue section was covered by the Prohibition Act, or that under that act penalties and results were provided differing from and inconsistent with those imposed by the Revenue Act. R. S. § 3268 (Comp. St. § 6006), which we are considering, provides:

"Every person who destroys, breaks, injures or tampers with any lock or seal which may be placed on any cistern room or building by the duly authorized officers of the revenue, or opens said lock or seal, or the door to said cistern room or building, or in any manner gains access to the contents therein, in the absence of the proper officer, shall be" punished, etc.

[2] Section 3268 plainly does not relate to a business rendered unlawful by the National Prohibition Act. By section 600a of the Revenue Act of 1918 (40 Stat. 1105 [Comp. St. Ann. Supp. 1919, § 5986e]) taxes were imposed upon "all distilled spirits now in bond, or that have been or that may be hereafter produced in or imported into the United States [with an exception not here important], to be paid by the distiller or importer when withdrawn, and collected under the provisions of existing law." Section 37 of title 2 of the National Prohibition Act expressly permits continued storage in United States bonded warehouses of all liquor manufactured prior to the taking effect of the act, and for limited transportation thereof under permit therefor, creating conditions recognized by cases such as Corneli v. Moore, 257 U. S. 491, 42 Sup. Ct. 176, 66 L. Ed. 332; Small Grain Distilling Co. v. Hamilton (C. C. A. 6) 276 Fed. 544; Parilla v. United States (Č. C. A. 6) 280 Fed. 761; Hamilton v. Ky. Distilleries & W. H. Co., 288 Fed. 326, decided by this court April 3, 1923.

The National Prohibition Act did not expressly repeal the revenue sections generally. It merely provides (section 35, title 2) that "all provisions of law that are inconsistent with this act are repealed only to the extent of such inconsistency." We find nothing in section 3268 inconsistent with the provisions of the National Prohibition Act; nor

is the subject-matter of that section in terms covered by the act referred to. It is true that section 9, title 3, which relates to industrial alcohol, exempts from the provisions of numerous sections, including section 3268, industrial alcohol plants and bonded warehouses established under the provisions of the title referred to; but there is nothing in this record suggesting that the distillery in question was an industrial alcohol plant. On the contrary, access to whisky stored in the warehouse (not industrial alcohol) is the subject of the conspiracy charged. The exemption of revenue section 3268 from the provisions of the National Prohibition Act so far as it relates to industrial alcohol plants is inconsistent with an intention to repeal that revenue section generally. This feature apart, section 3 of title 2 provides that no person shall, after the Eighteenth Amendment goes into effect, "manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this act." Section 25 of the same title makes it unlawful "to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used"; and section 29 provides specific punishment for manufacturing or selling liquor in violation of that title, with general provision for punishment for violations for which special penalty is not prescribed, to the extent of fine for a first offense, fine or imprisonment for a second offense, and for subsequent offenses fine and imprisonment. We cannot think that the provisions in any or either of these sections of the National Prohibition Act relating to the possession and transportation of liquor cover or are intended to cover violations of section 3268.

[3, 4] In our opinion defendant's contention of lack of evidence to support his conviction of conspiracy to violate R. S. § 3268, cannot be sustained. If the jury believed the testimony of one of the government's witnesses there was substantial evidence tending to sustain that charge. It was for the jury to pass upon the facts. The credibility of witnesses is peculiarly within its province. This court cannot determine the weight of the evidence. Burton v. United States, 202 U. S. 344, 373, 26 Sup. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 392; Kelly v. United States (C. C. A. 6) 258 Fed. 392, 406, 169 C. C. A. 408; West v. United States (C. C. A. 6) 258 Fed. 413, 421, 169 C. C. A. 429. The fact that the overt act alleged in the count charging conspiracy to violate R. S. § 3268 was the substantive offense charged in the count on which plaintiff in error was acquitted is not fatal to the conviction. It was not necessary, under the conspiracy charge, that all the conspirators take part in the overt act. U. S. Criminal Code, § 37 (Comp. St. 10201); Grayson v. United States (C. C. A. 6) 272 Fed. 553, 557, and cases there cited. There was thus no inconsistency between the acquittal of the substantive act and the conviction of conspiracy to commit such offense. The fact that "they, the said defendants," generally were alleged to have committed the overt act does not change the situation.

The judgment of the District Court is affirmed.

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(289 F.)

COCO et al. v. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit. April 23, 1923.)

No. 5839.

Criminal law 877-Under joint indictment, conviction of different defendants of distinct and separate offenses improper.

Under joint indictment, conviction of different defendants of distinct and separate offenses is improper.

In Error to the District Court of the United States for the Eastern District of Missouri; Charles B. Faris, Judge.

Sebastiano Coco, alias Sam Coco, and others, were convicted of an offense, and bring error. Reversed and new trial granted.

Willis H. Clark, P. H. Cullen, and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, Mo., for plaintiffs in error.

Vance J. Higgs, Sp. Asst. Atty. Gen., for the United States.

Before LEWIS and KENYON, Circuit Judges, and JOHNSON, District Judge.

JOHNSON, District Judge. Plaintiffs in error, who will be hereafter referred to as defendants, in November, 1919, were residing on Wilson avenue in the city of St. Louis. Defendants Puglisi, Grasso, and Coco lived at No. 5033, and Cantigli at No. 5035.

The defendants were jointly indicted under sections 3258 and 3282 of the Revised Statutes (Comp. St. §§ 5994, 6022). The indictment contains five counts. The first and second are identical in language, and charge that on or about the 8th day of November, A. D. 1919, at No. 5035 Wilson avenue, in the city of St. Louis, etc., the defendants "unlawfully and feloniously did have in their possession a certain still set up, without having registered the same with the collector of internal revenue," etc. The third count is in identical language except No. 5033 is alleged, instead of No. 5035. The fourth count charged that on or about the 8th day of November, A. D. 1919, at No. 5033 Wilson avenue, in the city of St. Louis, etc., the defendants "unlawfully and feloniously did make a certain mash, consisting of thirteen barrels, more or less, of dried raisins and water, and which said mash was then and. there fit for distillation and production of spirits to wit, brandy," etc. The fifth count is the same as the fourth count, except No. 5035 is alleged, instead of No. 5033, and nine barrels instead of thirteen barrels. At the opening of the trial defendants Puglisi and Grasso moved the court for a severance, alleging in substance that the evidence to be produced by the government would wholly fail to connect them with the offenses alleged in the first, second, and fifth counts of the indictment. The motion was overruled by the trial court, although the facts set up in the motion and affidavit were not in any way denied by the government. At the conclusion of the trial the defendant Cantigli was acquitted by direction of the court upon counts 2, 3, and 4, and convicted upon counts 1 and 5. The defendants Puglisi, Grasso

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 289 F.-3

and Coco were convicted upon counts 3 and 4, and acquitted by direction of the court upon counts 1, 2, and 5.

There was no evidence in the record connecting or tending to connect any one of the defendants, Puglisi, Grasso, and Coco, residing at No. 5033, with the offenses alleged in the indictment to have been committed at No. 5035, and there was no evidence in the record connecting or tending to connect the defendant Cantigli, residing at No. 5035, with the offenses alleged in the indictment to have been committed at No. 5033. The outcome of the trial was that, upon a joint indictment, the defendant Cantigli was convicted of distinct and separate offenses committed at No. 5035, and the defendants Puglisi, Grasso, and Coco were convicted of distinct and separate offenses committed at No. 5033. Counsel for defendants contend that the refusal of the trial court to grant separate trials to the two groups of defendants was such an abuse of discretion as to require the reversal of the judgment, and cite cases appropriate to and supporting their contention. Counsel for the government reply with counter arguments and opposing authorities. There is apparent upon the face of the record another question of more importance to be considered and disposed of. That question is: What disposition should be made of a case where, under a joint Indictment, different defendants have been convicted of distinct and separate offenses:

In Stephens & Everett v. State, 14 Ohio, 386, the defendants were jointly indicted for selling liquor without a license. The appellate court said:

"If the proof only showed that they had separately engaged in distinct acts, it by no means supported the indictment, and the verdict was wholly without proof to sustain it."

In Elliott v. State, 26 Ala. 78, the court said:

"We are therefore clear in the opinion that an indictment would be fatally defective, if upon its face it charged several defendants for several offenses committed by them independently of each other, some of which were committed by some of the defendants at one time, and some of which were committed by others of the defendants at a different time. Where these facts do not appear upon the face of the indictment, but do appear on the trial from the evidence, the defendants are as much entitled to the benefit and protection of the rules of law above laid down, as if the indictment had fairly stated the facts. However unobjectionable,

on its face, an indictment may be, a conviction under it cannot lawfully result from proof of the identical facts which would, if distinctly stated in it, vitiate the indictment, and enable the defendants, even after conviction, to arrest or reverse any judgment rendered on it against them."

In Lindsey v. State, 48 Ala. 169, defendants were indicted for playing cards in violation of the statute. The evidence showed part of the defendants were playing cards at one table, and that the other defendant played at another table with other persons not indicted, and that the two games were separate and distinct and had no connection with each other. The appellate court said:

"The charge made in the indictment is a single offense.

There

was but one act charged--but one playing. Yet the proof showed two acts-two playings. These were each the subject of an indictment; and the evidence which would establish the one act could not establish the other. It would necessarily be variant. There should have been

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(289 F.)

two indictments, as there were two distinct offenses, in which the same persons did not participate."

In McGehee v. State, 58 Ala. 360, the court said:

If two offenders be charged in one indictment, which is faultless in form, and it be developed in the evidence that the two defendants committed their several offenses at different times or places-in other words, that they are not guilty of one and the same offense-the proof does not sustain the indictment. * * In the present case, according to the recitals in the bill of exceptions, each defendant was equally guilty, but they did not participate in one and the same offense. This was not shown until the evidence was given to the jury. At that stage of the trial, each defendant was placed in legal jeopardy, and was entitled to have a verdict of the jury on the question of his guilt, in the absence of some statutory or legal ground, authorizing a nolle prosequi, or other withdrawal from the jury, that an her indictment might be preferred, or continuance granted. The defendants, having been placed in jeopardy, and being entitled to a verdict of acquittal on the proof made, not be again tried for the same offense."

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In State v. Daubert, 42 Mo. 242, Henry and Louisa Daubert were jointly indicted in an indictment containing two counts-the first count charging the defendants jointly with larceny of certain goods, and the second count charging them jointly with receiving the same goods knowing them to be stolen. Defendants were jointly put on trial, and after all the testimony was in the prosecuting attorney nolled as to Henry on the first count and as to Louisa on the second count. Defendants then moved to quash the indictment, but the motion was overruled. When the case was submitted to the jury, they failed to agree on a verdict as to Louisa, but found Henry guilty. The court said:

"The action of the circuit attorney, in entering of record a nolle prosequi against Louisa on the second count, and Henry on the first count, changed the whole scope, tenor, and meaning of the indictment. It then, in effect, amounted to an indictment charging two several offenses against distinct defendants, who had no necessary connection with each other. * * We think the indictment should have been quashed, or that motion in arrest of judgment should have been sustained."

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In Brimie v. United States, 200 Fed. 726, 119 C. C. A. 170, the two defendants were indicted and tried for a violation of the Oleomargarine Act. A joint verdict of guilty was returned on all the counts, although there was no evidence at all to show that the defendants jointly committed the offenses set forth in the indictment with the exception of the offenses mentioned in the first two counts. After discussion of the question now under consideration, the court reversed the judgment with directions to the court below to grant a new trial upon all the counts except the first and second.

In the opinion in United States v. Dietrich (C. C.) 126 Fed. 664, will be found an interesting discussion by Judge (now Justice) Van Devanter on the questions discussed in the above cited cases.

In McElroy v. United States, 164 U. S. 76, 17 Sup. Ct. 31, 41 L. Ed. 355, four indictments were consolidated. Referring to section 1024 of the Revised Statutes (Comp. St. § 1690), which authorizes in certain cases the joinder of several offenses in one indictment, and the consolidation of two or more indictments for trial, the court said:

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