Opinion
No. 4257.
March 16, 1925.
In Error to the District Court of the United States for the Western District of Kentucky; Charles H. Moorman, Judge.
Criminal prosecution by the United States against Charles T. Dolan. Judgment of conviction, and defendant brings error. Affirmed.
Walter P. Lincoln, of Louisville, Ky. (Edwards, Ogden Peak, of Louisville, Ky., on the brief), for plaintiff in error.
Lilburn Phelps, Asst. U.S. Atty., of Louisville, Ky. (W.S. Ball, U.S. Atty., and Claude Hudgins, Asst. U.S. Atty., both of Louisville, Ky., on the brief), for the United States.
Before DENISON and DONAHUE, Circuit Judges, and WESTENHAVER, District Judge.
We have here conviction and punishment as for a third offense. An allegation in an indictment that an offense is a second one is a conclusion, and it should be sufficiently shown that the later offense occurred after the conviction for the earlier one. Even so, this indictment alleges and the proof shows a sufficiently early conviction as and for a second offense; it must be presumed that such conviction was rightful, and this presumption sufficiently cures any possible lack of particularity by not stating the date of the offense which was the basis of that conviction.
The judgment is affirmed, and the mandate will issue forthwith.