DAVIS v. UNITED STATES

DAVIS v. UNITED STATES. Circuit Court of Appeals, Eighth Circuit. April 19, 1929. No. 8253. Warren K. Snyder and Edward C. Snyder, both of Oklahoma City, Okl., for appellant. Roy St. Lewis, U. S. Atty., and Herbert K. Hyde, Asst. U. S. Atty., both of Oklahoma City, Okl. Before KENYON, Circuit Judge, and FARIS and SANBORN, District Judges. [MAJORITY — KENTON, Circuit Judge.] KENTON, Circuit Judge. The appellant, defendant in the trial court, was charged by information in two counts with violation of the National Prohibition Act (27 USCA). He was acquitted on the second count, and convicted on the first, which charged unlawful sale of intoxicating liquor, to wit, whisky, to W. C. Sexton and W. C. Adams. The only question urged here is that the evidence was insufficient to support the charge of illegal sale. It is doubtful if the question is here at all, as no motion for an instructed verdict was made at the close of all the evidence. A demurrer to the evidence in the nature of a motion was filed at the close of the government’s case, and no evidence was introduced on the part of the defense except that of the defendant himself. One witness, W. C. Sexton, testified directly to the purchase of a quart of whisky from the defendant and the payment of $10 therefor. He was an undercover man for the government working under Mr. Dowell, who was a special officer in the Indian service. The defendant, Davis, denied the sale. That was all the direct evidence on the subject. Evidently the jury believed the government’s witness, and did not believe the defendant. It was within the province of the jury so to do. It is not for us to pass on the credibility of the witnesses. There is nothing of merit in this appeal, and the judgment is affirmed.