February 3, 1930
FRANK C. PETERS
UNITED STATES OF AMERICA; JOHN CONEY V. UNITED STATES OF AMERICA
Appeal from the District Court of the United States for the Western District of Pennsylvania; Nelson McVicar, Judge.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
In the court below, the Union Fishing Club was indicted, found guilty, and sentenced for sundry violations of the National Prohibition Law (27 USCA). It took no appeal. At the same time, John Coney, the cook of the Club, was indicted, in one count, for having in possession and for transporting liquor, and, in another, for selling liquor. On the first two counts he was acquitted. On the one for selling he was convicted and sentenced, whereupon he took this appeal, and the question involved is whether there was testimony in the case which warranted conviction. We are of opinion there was not. All the incriminating testimony bore on transportation and possession, on which Coney was acquitted. Outside of this, there was no testimony to support the count for selling. As to Peters, the other defendant, who was a waiter, the admission made by him when arrested warranted his conviction.
The sentence of judgment of Coney is reversed; that of Peters is affirmed.
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