TURNER v. UNITED STATES; NESBIT v. SAME

TURNER v. UNITED STATES. NESBIT v. SAME. (Circuit Court of Appeals, Sixth Circuit. March 5, 1919.) Nos. 3226, 3227. 1. Criminal Law <©=1030(3), 1048 — Appeal—Exceptions. Where it is sought to differentiate the case of an employe from that of his employer, charged together with an offense, in view of Criminal Code, § 332 (Comp. St. § 10506), making aiders and abettors principals, the points relied on must be brought to the attention of the trial court, and exceptions saved to its rulings, to insure review by the appellate court. 2. Criminal Law ©=935(2) — Motion for New Trial — Failure to Prove Venue. It is not proper practice to reserve a claim that venue was not sufficiently proved for determination on a motion for new trial. <@z^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes In Error to the District Court of the United States for the Western District of Tennessee; John E. McCall, Judge. Criminal prosecutions by the United States against Richard D. Turner and against Tom Nesbit. Judgments of conviction, and defendants bring error. Affirmed. Phil. M. Canale, of Memphis, Tenn., for plaintiffs in error. Wm. D. Kyser, U. S. Atty., of Memphis, Tenn. Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. The proprietor of a roadhouse near Memphis, and his negro porter, were convicted of engaging in business as retail liquor dealers without paying the tax (R. S. § 3244; U. S. Comp. St. § 5971), and bring separate writs of error. The proof was ample to support the conviction against the proprietor. The particular claims now made for the porter, because he was only an employe, were not brought to the attention of the court during the trial or saved by exceptions. The effect of section 332 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1152 [Comp. St. § 10506]) is such that we cannot overlook the lack of exception. likewise the claim that the venue was not sufficiently proved was reserved for a motion for new trial. We cannot approve that practice; nor is the claim as to Turner supported by the record. Each judgment is affirmed.