Wigington v. United States ( 1924 )

ROSE, Circuit Judge.

The plaintiff in error, defendant below and so spoken of herein, was convicted of having on September 10, 1923, sold whisky in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.).

The defendant’s account of the transaction, in so far as it is relevant to the error he assigns, is that on September 9 a man previously unknown to him, but giving the name of “Stead,” or some name of similar sound, had called on him at his shop with a sample of Irish whisky and told defendant he could sell him any quantity he desired; that defendant told his visitor that he did not want any whisky, but the latter replied he would be at room 60, Gilbert’s Hotel, and if he wanted any whisky to come to him. On September 10 a person, who it now turns out was a prohibition agent, came to defendant’s garage and asked defendant to get him some whisky, explaining that he wanted it to aid the next day in the celebration of a Jewish holiday. Defendant said he at first refused and the applicant left, but later came back and renewed his request, and defendant finally told him that he knew a man from whom he could obtain the whisky. The would-be purchaser then handed him $15, and he (the defendant) went to Gilbert’s Hotel and got two pints of Irish whisky from the occupant of room 60, and later on the same day, the same buyer returned with another party, whom it also turned out was a prohibition agent, and asked for two more pints, and gave him $15, with which he (the defendant) went back to the room of the hotel and purchased the whisky.

Much of the story was in conflict with the testimony for the government, but, if it constitutes a legal defense to the charge made against him, defendant was entitled to have its truthfulness submitted to the jury, and this was not done. Putting on one side all question as to whether a buyer of whisky does not necessarily aid and abet in the illegal act of its sale, and is therefore punishable as a seller (Jin Fuey Moy v. United States, 254 U. S. 189, 41 Sup. Ct. 98, 65 L. Ed. 214), it was perfectly clear, from defendant’s own account of the transaction, that he was in part, at least, acting as an agent for the seller. The seller’s address had been left with him the day before, in order that just such use of it should be made as defendant did make. Without his aid and assistance, that particular seller could not have made the sales charged, and therefore, according to his own story, he did aid and assist in the making of them.

Affirmed.