Dunn v. United States

Mr. Justice Holmes

delivered the opinion of the Court.

The petitioner was indicted in three counts, first, for maintaining a common nuisance by keeping for sale at a specified place intoxicating liquor, second, for unlawful possession of intoxicating liquor, and third, for the unlawful sale of such liquor. The jury acquitted him on the second and third counts, and found him guilty on the first. No question was raised in the courts below with respect to the sufficiency of the indictment on the first count, and no such question has been presented here. The case was tried upon the assumption that the indictment was good as to that count, and, in the opinion of the majority, we should make the same assumption.

The defendant says that the evidence did not warrant a conviction; and that the verdict on the second and third counts is inconsistent with that upon the first, and that for this reason also he is entitled to be discharged. The evidence was the same for all the counts.. The; defendant owned the establishment where the alleged sale took place. It consisted of a front room where fishing tackle, sporting goods, cigars and soft drinks were sold, and a larger room in the rear with pool tables and a bar. Two prohibition agents and two unknown .men walked in and ordered from the defendant three glasses of whiskey and one of beer and were served without further conversation. A little later two more drinks were called for and furnished. The whiskey was served in ordinary. whiskey glasses from underneath the bar and the money paid for, it, twenty-five cents a glass, was put into a cash register behind the bar. The testimony, if believed, showed a regular course of business, which manifestly was continuous, Fisher v. United States, 32 F. (2d) 602, 604, and warranted a verdict of guilty on the nuisance count. The defendant gave evidence that he- was elsewhere at the time of the alleged sale and did not make it. He contends, that the verdict is inconsistent, since .it negatives possession and affirms the nuisance, the proof of the commission of both alleged offenses consisting of identical evidence. The Government says that even though, the jury seems to have believed that the defendant was elsewhere at the time of the alleged sale and did not make it, the verdict is not necessarily inconsistent, for some third perso»., with defendant’s knowledge, may have been doing business on the premises, and if so they were a nuisance, and the defendant was guilty although he neither possessed nor sold intoxicating liquors upon them; that whereas the Government’s witnesses may have been mistaken in saying that the defendant sold, they may have been right to the extent that someone did, and' if that be true the defendant’s knowledge could be inferred, this being his place of business' and he being habitually present there. It is- further argued that it may be inferred that he received the money coming from the sale, and that he knowingly abetted, the seller in the acts that created the nuisance on the premises that the defendant controlled.

Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment. Latham v. The Queen, 5 Best & Smith 635, 642, 643. Selvester v. United States, 170 U. S. 262. If separate indictments had been presented against the defendant for possession and for maintenance of a nuisance, and had been separately tried, the same evidence- being offered in support of each, an acquittal on one could nót be pleaded as.res judicata of the other. Where the offenses are separately charged in the counts of a single indictment the same rule must hold. As was said in Steckler v. United States, 7 F. (2d) 59, 60:

“ The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not-speak their real conclusions, but that does not' show that they were not convinced of the defendant’s guilt. ’ We interpret the acquittal as no more than their assumption of a, power which they had no right to exercise, but to which they were disposed through lenity.”

Compare Horning v. District of Columbia, 254 U. S. 135.

That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.

Judgment affirmed.