Olivito v. United States

JAMES ALGER PEE, District Judge.

Appellant was charged by indictment in count 1 with the sale of one quart of distilled spirits on November 18, 1932, and in the second count with a like sale upon the next day. Neither count contained any allegation of previous or habitual violation of the National Prohibition Act (27 USCA § 1 et seq.). At the close of the government’s case, the court dismissed the first count for lack of evidence. The appellant was found guilty on count 2, by the verdict of the jury.

The evidence showed the sale of one quart of distilled spirits. Appellant affirmatively proved…