Opinion
No. 5872.
November 25, 1929.
Appeal from the District Court of the United States for the District of Montana; George M. Bourquin, Judge.
W.E. Keeley, of Deer Lodge, Mont., and Virginia McGuire, of Seattle, Wash., for appellant.
Wellington D. Rankin, U.S. Atty., and Howard A. Johnson and Arthur P. Acher, Asst. U.S. Attys., all of Helena, Mont.
Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.
Appellant was convicted on two counts for the violation of the National Prohibition Act (27 USCA). The first count charged unlawful possession of intoxicating liquor, and the second charged the maintenance of a common nuisance where intoxicating liquors were possessed and kept. The indictment alleged the commission of four previous offenses. Appellant urges as a ground for the reversal of the judgment the insufficiency of the evidence to support the verdict. This question was not raised in the court below. Appellant did not move for a directed verdict. Bilboa v. United States (C.C.A. 9) 287 F. 125; Moore v. United States (C.C.A. 9) 1 F.2d 839; Lucis v. United States (C.C.A. 9) 2 F.2d 975; Utley v. United States (C.C.A. 9) 5 F.2d 963; Rossi v. United States (C.C.A. 8) 9 F.2d 362; McWalters v. United States (C.C.A. 9) 6 F.2d 224; Stubbs v. United States (C.C.A. 9) 1 F.2d 837; Schindler v. United States (C.C.A. 9) 24 F.2d 204; Marco v. United States (C.C.A. 9) 26 F.2d 315.
Appellant recognizes the insufficiency of the record to raise the question here presented, but urges the court to exercise its power to consider the question of the sufficiency of the evidence notwithstanding that fact. We have examined the record, and the proof of the defendant's guilt is not so unsubstantial as to either justify or require the court to ignore the failure of the appellant to bring to the attention of the trial court the point he now urges upon us for decision. There is testimony in the record tending to support the verdict.
Judgment affirmed.