
    No. 185
    KIRKPATRICK v. U. S.
    U. S. Court of Appeals, 9th Circuit
    No. 4198.
    June 9, 1924.
    313. CRIMINAL LAW—Statement of theory of prosecution, by court to jury, held in-material.
    316. CONSPIRACY—Conspiracy unlawfully to sell intoxicating liquors may be shown without proof of actual sale.
    Published only in Ohio Law Abstract
    Attorneys—Plummer, Tent and Lowell for Kirkpatrick; E. G. Davis, U. S. Atty., for U.S.
   HUNT, Cir. J.

Epitomized Opinion

Kirkpatrick was indicted for conspiracy to have and possess for sale for beverage purposes, certain intoxicating liquor. The trial court charged the jury that he understood the theory of the government’s case to be that of there was a band of bootleggers in Spokane; that they had arranged to have a quantity of liquor shipped from Canada through Sand-point to Spokane; that Kirkpatrick belonged to another gang of bootleggers at Sandpoint and that he conceived the idea of “hijaeking”— that is, arranging with officers to seize the liquor at Sandpoint, and then divide the liquor with them.

“I did not intend to intimate, and now disclaim any intention of intimating that that theory is supported by the evidence. That is a question entirely for you.”

The evidence failed to show that there was a band of bootlegers at Spokane or that they arranged the shipment of liquor. There was evidence that Kirkpatrick aided the officers in seizing the liquor at Sandpoint and that he took possession of a quantity of it. There was no proof of a sale of the liquor.

Kirkpatrick being convicted, prosecuted error, contending that the charge of the court was error not cured by the supplement statement. The Circuit Court held:

1. The statement by the Court as to the theory of the government’s case was wholly immaterial and was without possible prejudice to Kirkpatrick.

2. The lack of proof of actual sale cannot wipe out the evidence that there was a concerted plan to seize the liquor with intent to sell.  