Opinion
No. 4267.
May 7, 1925.
In Error to the District Court of the United States for the Western District of Kentucky; Charles H. Moorman, Judge.
Toney Palmer was convicted of possessing intoxicating liquor for beverage purposes, and he brings error. Affirmed.
Huggins Oldham, of Louisville, Ky., for plaintiff in error.
W.S. Ball, U.S. Atty., of Louisville, Ky.
Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges.
The points elaborately argued in the brief for plaintiff in error are largely raised for the first time in this court, and those cannot be considered.
The indictment charges that Palmer was informed against "as a first offense," and pleaded guilty of possession (section 3, title 2, National Prohibition Act [Comp. St. Ann. Supp. 1923, § 10138½aa]), August 12, 1922; that on March 5, 1923, he had a further information filed against him "as a second offense" for possession of intoxicating liquor, and was convicted on March 12, 1923; and charges that the third offense for which this indictment was brought was committed on January 4, 1924. We regard this indictment as sufficient to support a conviction for a third offense. Dolan v. U.S. (C.C.A. 6) 4 F.2d 251, filed March 16, 1925.
The indictment charges possession of "intoxicating liquor for beverage purposes." It is criticized because it does not say that the liquor was "fit" for beverage purposes. We know of no rule or principle which requires such further allegation. Fitness is only evidence of purpose.
The judgment is affirmed.