¶1Arthur A. Kestler, of Brooklyn, N. Y., for appellant.
¶2Howard W. Ameli, U, S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.
¶3Before L. HAND, SWAN, and CHASE, Circuit Judges.
¶5The trial was upon the two counts together ; the evidence proved that the defendant had deputed two persons to carry the liquors from his malt shop to the place appointed for delivery by the decoy who arranged the sale. The points argued do not require discussion, since the persons deputed to carry the liquors testified to the facts upon their own defense and proved the case against Rubin beyond question.
¶6It was, however, erroneous to convict upon both counts, because the possession was of the same liquors transported and was laid as being in the motor which did the transporting. Schroeder v. U. S., 7 F.(2d) 60 (C. C. A. 2); Schechter v. U. S., 7 F.(2d) 881 (C. C. A. 2); Friedman v. U. S., 13 F. (2d) 632 (C. C. A. 6); Segurola v. U. S., 16 F.(2d) 563 (C. C. A. 1); Brown v. U. S., 16 F.(2d) 682 (C. C. A. 1).
¶7Conviction on first count reversed; conviction on second count affirmed.