Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge.
Before BUFFINGTON and DAVIS, Circuit Judges, and JOHNSON, District Judge.
Radov, Brown, and Bard, hereinafter called defendants, were charged with others, whose cases are not before us, in an indictment of two counts with illegal possession of intoxicating liquor on May 19, 1929, and with illegal transportation of intoxicating liquor on the same day. On the trial Radov was found guilty of possession and Brown and Bard were found guilty of transportation. They appealed to this court on the ground that the trial judge erred in not allowing the plea of former jeopardy, in admitting telephone slips and telephone directories, and in refusing to direct a verdict because of insufficiency of evidence to sustain the verdict.
The indictment in this case charges that the defendants on May 19, 1929, unlawfully possessed intoxicating liquor, namely, six cases of Old Log Cabin whisky and six cartons of assorted French wines.
As to the question of former jeopardy, it seems necessary to have before us exactly what was said by counsel in opening the case:
"Counsel for defendants also ask leave of Court to enter plea of former jeopardy by reason of the fact that the four defendants now on trial or about to be tried have been tried at this term of Court upon an indictment charging substantially the same offenses.
"Motion denied. Exception noted to defendants.
"Mr. Rossiter: In addition to the motion to quash the second count, if your Honor please, we also submit as to that, that was included in the previous indictment.
"Mr. Richardson: No, it was not. The possession in the previous indictment was on the sixth day of June.
"Mr. Rossiter: Now, if your Honor please, the possession charged in this indictment was on the 19th of May. Now, anything, within the Statute of Limitations, in a previous indictment could have been urged against these men if it was in the possession of the Government. Now, we say that those two counts cannot stand, irrespective of the question of possession or transportation, on this present indictment.
"Mr. Richardson: There has been no conviction, your Honor. The jury is still out.
"Mr. Rossiter: He has been arraigned, he has been placed in jeopardy, the jury has been sworn. The fact that the jury is still out does not give us the privilege of saying autrefois acquit or autrefois convict, but he has been placed in jeopardy. Therefore, if he had possession on the 19th of May, that would have been perfectly competent evidence in a charge of possession on June 6th, and it was ...