Opinion
No. 369.
April 20, 1931.
Appeal from the District Court of the United States for the Eastern District of New York.
Max Rubin was convicted for possessing liquor unlawfully and for transporting the same liquor in a motor, and he appeals.
Affirmed in part, and in part reversed.
Arthur A. Kestler, of Brooklyn, N.Y., for appellant.
Howard W. Ameli, U.S. Atty., of Brooklyn, N.Y. (Herbert H. Kellogg, Asst. U.S. Atty., of Brooklyn, N.Y., of counsel), for the United States.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The trial was upon the two counts together; the evidence proved that the defendant had deputed two persons to carry the liquors from his malt shop to the place appointed for delivery by the decoy who arranged the sale. The points argued do not require discussion, since the persons deputed to carry the liquors testified to the facts upon their own defense and proved the case against Rubin beyond question.
It was, however, erroneous to convict upon both counts, because the possession was of the same liquors transported and was laid as being in the motor which did the transporting. Schroeder v. U.S., 7 F.2d 60 (C.C.A. 2); Schechter v. U.S., 7 F.2d 881 (C.C.A. 2); Friedman v. U.S., 13 F.2d 632 (C.C.A. 6); Segurola v. U.S., 16 F.2d 563 (C.C.A. 1); Brown v. U.S., 16 F.2d 682 (C.C.A. 1).
Conviction on first count reversed; conviction on second count affirmed.