
    COLLINS v. UNITED STATES.
    Circuit Court of Appeals, Eighth Circuit.
    July 27, 1925.
    Rehearing Denied October 20, 1925.
    No. 6909.
    Criminal law <S=3878(4)- — ’Verdict iie’.i not itioonsisfoní.
    Where indictment in three c-ounts charged, first, conspiracy to violate the National Prohibition Act (Ooinp. St. Ann. Supp. 3823,. § 1018814 et seq.), to possess and sell intoxicating liquor, based on two unlawful sales made by co-conspirators, and in the second and third counts charged as specific offenses unlawful sale.s, alleged in count 1, verdict oí not guilty on counts 2 and 3, but guilty on count 1, held, not inconsistent.
    In Error to the District Court of the United States for the Eastern District of Oklahoma; Robert L. Williams, Judge.
    Matt Collins was convicted of a conspiracy to violate the Prohibition Act, and he brings error.
    Affirmed.
    Kelly Brown and P. A. Gavin, both of Muskogee, Okl., for plaintiff in error.
    W. P. Rampendahl, Asst. U. S. Atty., of Muskogee, Okl. (Frank Lee, U. S. Atty., of Muskogee, Old., on the brief), for the United States.
    Before KENYON and BOOTH, Circuit Judges, and AMIDON, District Judge.
   AMIDON, District Judge.

The indictment in this action contains three counts. The first charges conspiracy to violate the Prohibition Law (Comp. St. Ann. Supp. 1923, § 3013814 et seq.); the object of the conspiracy being to possess and sell intoxicating liquors. The overt aets charged are two sales, of liquor to W. Y. German and E. T. Woods, both occurring at different hours on tho same day. The second count charges tho unlawful sale which is made the first overt act in the first count, and the third count charges the sale which is made the second overt act in the first count. The jury found defendant not guilty on the last two counts, and guilty on the first.

It is contended that the verdict of the jury is so inconsistent as not to support or justify the judgment here under review. There is in fact no inconsistency in the verdict. The conspiracy is charged to have been made by and between the defendant and three other persons. In tho paragraph of the first count dealing i\ "th the sale charged as the first overt act, the indictment states that the sale was made not by tho defendant Matt Collins, but by bis three co-conspirators. In both tbe second and third counts the charge is that the sale was made by Collins and the three other defendants. Defendant Collins alone was upon trial. The question under the second and third counts was: Did he sell tho liquor? The jury found that he did not. Tho question under the first count is whether he conspired with the other three persons named to sell intoxicating liquors, and, as to tbo overt acts, whether while tbe conspiracy was afoot, the co-conspirators of defendant made the sales charged as the overt aets. Tho finding of the jury that defendant did not make the sales in no way conflicts with the charge in the first count that the same were made by his co-conspirators, and were made in furtherance of the conspiracy to which defendant was a party. The judgment must therefore be affirmed.

The defense relies on Rosenthal v. United States (C. C. A.) 276 F. 714. Defendant there, and two others, were indicted on two counts. The first charged them with having bought 39 eases of cigarettes which had theretofore been stolen from an interstate shipment, and that defendants knew that the property had been stolen at the time they purchased it. The second count charged defendants with having the same property in their possession with like knowledge. They were found not guilty on the first count and guilty on the second. The court based its decision holding the verdict void upon the ground that there was but a single transaction. That, it seems to us, was a misconstruction of the indictment. The first count charges the transaction to have been a purchase of the stolen property with guilty knowledge. The second count charges defendants with having the property in their possession with like knowledge. It is quite plain that they might have the property in their possession without having purchased it. The cases cited to support this decision are not in point.

The judgment is affirmed.  