294 F. 593 | 2d Cir. | 1923
The plaintiff in error was indicted on four counts for violation of the National Prohibition Act. Rev. Stat. § 1022, Comp. Stat. § 1686; Criminal Code, § 335, Comp. St. § 10509. The first count alleged that on November 25, 1920, he unlawfully did have in his possession, contrary to the provisions of the Act of October 28, 1919 (Comp. St. Ann. Supp. 1923, § lOlSS^Aet seq.), and the regulations thereunder, 500 cases of whisky for beverage purposes. The second count alleged that on November 25, 1920, the plaintiff in error unlawfully did sell, for nonbeverage purposes, 500 qases of whis-ky, which had been consigned to a person in Buffalo. The third count alleged that on November 14, 1920, the plaintiff in error unlawfully did have in possession, contrary to the provisions of the Act of October 28, 1919, and the regulations thereunder, 500 cases' of whisky for beverage purposes, to wit, 500 cases of whisky consigned to Agatha M. Moehlau, No. 21 Illinois street, Buffalo, Ñ. Y., by H. E. Pogue Distilling Company, Maysville, Ky., which was in the custody of the American Railway Express Company in a car marked and known as “P. R. R. 2471.” In the fourth count it was alleged that on November 14, 1920, the plaintiff in error unlawfully did sell for nonbeverage purposes 500 cases of whisky, which had been consigned to Agatha M. Moehlau, No. 21 Illinois street, Buffalo, N. Y., by H. E. Pogue Distilling Company, Maysville, Ky., in the custody of American Railway Express Company, in a car marked and known as “P. R. R. 2471,” and which cases had been delivered by the agents and employees of said express company to the plaintiff in error at No. 21 Illinois street, Buffalo, N. Y.
The court submitted proofs as to each of the counts to the jury, and it returned a sealed verdict the morning after its submission, in which it found the plaintiff in error guilty as charged in counts 1 and 2 of the indictment. Thereupon the court inquired of the foreman whether it was the intention of the jury to find the plaintiff in error guilty on .the first shipment. The foreman said it was, and after the jury was polled the court reported the verdict as guilty upon the third and fourth counts of the indictment. Thejr were deemed acquitted on the first and second counts. Thereupon sentence was imposed of a fine of $500 on the third count and imprisonment of three months on the fourth count. • '
“In any affidavit, information, or indictment for the violation of this act, separate offenses may he united in separate counts and the defendant may be uioU on all at one trial and the penalty for ail offenses may be imposed. It shall not be necessary in any affidavit, information, or indictment to give the.name of the purchaser or to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful, tout this provision shall not be construed to preclude the trial court from directing the furnishing the defendant a bill of particulars when it deems it proper to do so.”
Section 3, title 2 (Comp. St. Ann. Supp. 1923, § 10138!4aa), provides:
“No person shall on or after the date when the Eighteenth Amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating*596 liquor except as authorized in this act, and all the provisions of this act shall he liberally construed to. the end that the use of intoxicating liquor as a bev erage may be prevented.”
When it was declared unnecessary for the information to include any defensive negative averments, this was in harmony with the general rule of pleading as announced by'the Supreme Court in United States v. Cook, 84 U. S. (17 Wall.) 168, 21 L. Ed. 538. There it was said:
“Where a statute defining an offense contains an exception, in the enacting clause of the statute, which is so incorporated with the language defining the offense that the ingredients of the offence cannot be accurately and clearly described if the exception is omitted, the rules of goqd pleading require that ■an indictment founded upon the statute must allege enough to show that the accused is not within the exception, but if the language of the section defining the offense is so entirely separable from the exception that the ingredients •constituting the offense may be accurately and clearly defined without any reference to the exception [indictment], the pleader may safely omit any such reference, as the matter contained in the exception is matter of defense and must be shown by the accused.”
See, also, United States v. Illig (D. C.) 288 Fed. 939.
“Liquor for nonbeverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, •delivered, furnished and possessed, but only as herein provided, and the Commissioner -may upon application, issue permits theréfor.”
By title 2, § 6 (Comp. St. Ann. Supp. 1923, § 10138%c), it is provided that no one shall manufacture, sell, purchase, transport, or prescribe any liquor without first obtaining a permit from the Commissioner so to do. Therefore it was lawful to sell liquor for nonbeverage purposes. To do so without a permit is an offense. The lack of a permit is an essential allegation of the crime. We think it must be alleged. United States v. Standard Brewery, 251 U. S. 210, 40 Sup. Ct. 139,
Judgment affirmed on the third count, and reversed on the fourth count.
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