
    282 F. 604
    MILLICH et al. v. UNITED STATES.
    No. 3814.
    Circuit Court of Appeals, Ninth Circuit.
    Aug. 7, 1922.
    
      Hellenthal & Hellenthal, of Juneau, Alaska, for plaintiffs in error.
    A. G. Shoup, U. S. Atty., of Juneau, Alaska.
    Before GILBERT, ROSS and HUNT, Circuit Judges.
   ROSS, Circuit Judge

(after the facts as above).

Under repeated rulings of various federal courts, we think it clear that the demurrer to each of the counts of the indictment in this case under which conviction was had was properly overruled.

The late decision of the Supreme Court in the case of United States v. Yuginovich et al., 256 U.S. 450, 41 S.Ct. 551, 65 L.Ed. 1043, held that the National Prohibítion Act, commonly known as the Volstead Act (41 Stat. 305 [27 U.S.C.A. § 1 et seq.]), repealed the previously existing provisions of the internal revenue laws only'to the extent of the clear inconsistencies of the two, but further held that, where the later act mentioned fixes a less penalty than the former revenue laws for substantially the same acts, the penalty fixed by the latter repeals that prescribed by the former. Therefore it is clear that the attorney for the government is quite right in conceding that the penalty imposed by the court below on the plaintiffs in error under count 3 of the indictment should be reduced to the extent of remitting the jail sentence, since the National Prohibition Act does not authorize the imposition of imprisonment as well as a fine for a first offense, such as was the case here. Section 29, tit. 2, 41 Stat. 305, 316 (27 U.S.C.A. § 46).

“The appellate court, -in affirming a conviction, may modify the punishment imposed by the trial court, by mitigating, reducing, or otherwise changing it, so far as it exceeds the limits prescribed by the statute. This rule applies to a fine or a sentence to a term of imprisonment in excess of that permitted by a statute, to a fine rendered against defendants jointly, to a sentence on a general verdict of guilty where one of several counts is unsustained by any evidence, and to a premature sentence.” 12 Cyc. 938.

Respecting the conviction of the plaintiffs in error under count 1 of the indictment, and the judgment based thereon, the plaintiffs in error contend that the verdict of guilty under that count was inconsistent with the verdict of not guilty under counts 2 and 4. We see no such necessary inconsistency; for from the evidence in the case the jury may have believed that, although the plaintiffs in error did not at the time and place alleged sell any whisky to either Richard H. Gleason or James O’Brien, they nevertheless then and there knowingly, willfully, and unlawfully had such intoxicating liquor in their possession.

The case is remanded to the court below, with directions to so modify the judgment as to omit the prescribed imprisonment of the plaintiffs in error under count 3 of the indictment, and, as so modified, the judgment will stand affirmed.  