Broens was convicted, under two counts: First, for the' possession of intoxicating liquor at Kansas City Junction, a railway crossing in the outskirts of Memphis; and, second, for transporting the liquor from Louisville to Kansas City -Junction — both in violation of the National Prohibition Act (41 Stat. 305). Separate sentences were imposed. His sole complaint is that there was no substantial evidence to support the verdict.
Dhe printed record is confused as to the bill of exceptions. The purpose of a bill of exceptions is to preserve and certify a record of the proceedings on the trial, before the judgment, and which do not otherwise appear upon the formal record of the proceedings in the case. In this record a certificate which would be appropriate at the foot of the bill of exceptions appears after the transcript of the proceedings after the -trial, and seems to include the assignments of error and bond for review. However, we assume that this is merely the result of some confusion, and consider the certificate as transposed to its proper place.
The utmost case which it can be thought the evidence tends to show against Broens is this: That an unknown man stepped from the Louisville train as it arrived at Kansas City Junction, slowing up with a momentary stop at the usual point therefor, and had with him four suit cases containing liquor; that Broens had come to this point in his automobile, by appointment, to meet this man, and, leaving his car at the curb close by the stopping place, was helping to put the liquor in the automobile, and one suit case had been so placed; that then the officers appeared, and the other escaped, but Broens was arrested.
This-state of facts was sufficient to justify the jury in finding that Broens was in possession of the liquor in violation of section 3 of the act. We cannot see in it any substantial basis which would support a conclusion that Broens was participating in, or aiding, or abetting the Louisville-Kansas City Junction transportation .charged. It raises a mere suspicion that the enterprise was a joint one from the beginning-; but it is equally probable that Broens had been engaged simply to meet this man upon the arrival of the train and take him and his luggage to his city, destination. The liquor had reached Kansas City Junction, the alleged terminal point. The facts are materially different from those ip Ousler v. U. S. (C. C. A. 6) 263 Fed. 968. The conviction for this transportation, therefore, stands upon surmise and not upon substantial evidence. .
The manual carrying of the suit cases for a few rods from one spot to another at Kansas City Junction is not the transportation alleged in the indictment, and for which the respondent was on trial.
■ The conviction and sentence under count 1 are affirmed. Those under count 2 are reversed, and the case is remanded for further proceedings under that count only. ;