Ahearn v. United States

RUDKIN, Circuit Judge.

This is a writ of error to review a judgment of conviction under the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.). The information names two defendants and. contains three counts. The first count charges the sale of one gallon of whisky; the second count, the sale of 15 gallons of whisky; and the third count, the transportation of 15 gallons of whisky — all on the 8th day of November, 1922.

The plaintiff in error D. J. Aheam entered a plea of guilty as to counts 1 and 3, and not guilty as to count 2. The plaintiff in error W. J. Aheam entered a plea of not guilty as to all three counts. Upon the trial both defendants were found guilty as charged. The brief on the part of the plaintiffs in error contains no assignment of errors, but their contention seems to be that the evidence was insufficient to prove the sale charged in the second count, or to connect the plaintiff in error W. J. Aheam with either the sales or the transportation.

These contentions are without substantial merit. As to the whisky mentioned in the secdnd count, it clearly appears from the testimony that the parties had fully agreed upon all the terms of sale, the quantity to he sold, the purchase price, the time and place of delivery, and that delivery was in fact made. Nothing remained to be done but the payment of the purchase price, and for this an action would lie. Hammer v. United States, 249 F. 336, 161 C. C. A. 344; Reyff v. United States (C. C. A.) 2 F.(2d) 39, decided November 3, 1924.

The testimony was also ample to show that the plaintiff in error W. J. Aheam aided and abetted in the commission of the crimes charged. There seems to be a further contention that the prohibition officers to whom the sale was made were eoeonspirators, and it is claimed that their uncorroborated testimony will not support a conviction. If we were to concede that they were co-conspirators, as claimed, which we do not, the conclusion would not follow. Caminetti v. United States, 242 U. S. 470, 495, 37 S. Ct. 192, 61 L. Ed. 442.

The judgment is affirmed.