Olivito

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 he had never been, convicted in any court, municipal, state, or federal, of any offense against the liquor laws, except that he admitted he was five times found guilty of possession of intoxicating liquor, in the police court of the city of Aberdeen, Wash., in a period of a year and a half ending June 9, 1927.

The appellant was sentenced to a penitentiary for thirteen months. A petition for modification of sentence was denied upon the ground that as the indictment did not affirmatively show that the defendant came within the exceptions to National Prohibition Act, as amended by Act January 15,1931, section 91, USCA, c. 4,…