Frank SMITH, Plaintiff in Error, v. UNITED STATES of America, Defendant in Error

Frank SMITH, Plaintiff in Error, v. UNITED STATES of America, Defendant in Error. (Circuit Court of Appeals, Ninth Circuit. October 20, 1924.) No. 4292. In Error to the District Court of the United States for the District of Oregon. John P. Hannon, of Portland, Or., for plaintiff in error. John S. Coke, Ü. S. Atty., and Millar E. MeGilchrist, Asst. U. S. Atty., both of Portland, Or., for the United States. Before HUNT and RUDKIN. Circuit Judges, and BOURQUIN, District Judge. [MAJORITY — BOURQUIN, District Judge.] BOURQUIN, District Judge. The case of plaintiff in error is so devoid of merit that the inference is warranted he seeks review to delay execution — a practice too common in cases of its class and that is not to be encouraged. To conviction for violations of the Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.) the errors assigned are (1) insufficiency of the evidence, and (2) improper instructions. The first was not challenged at the trial by motion to direct a verdict, there is substantial evidence in support of the verdict, the conflict was settled by the jury’s findings and the court’s denial of a new trial, and thus no detail and review of the evidence is required or warranted here. The second is based upon the instructions in respect to the joint enterprise of plaintiff in error and his codefendant, and upon exception thereto that plaintiff in error was satisfied save that he did not “think there is any evidence here showing that there was any joint enterprise. There was evidence to the contrary that there was not any joint enterprise; one was the employee of the other.” If this exception be other than that the evidence is insufficient, and so hereinbefore disposed of, if it suffices to review the law of the instructions, without more, it is obvious that the theory of the exception is erroneous, and that the instructions in principle are sound. The record discloses no error, and the judgment is affirmed.