21 F.2d 827 | 5th Cir. | 1927
The plaintiff in error was convicted under a count of the indictment which charged that he and another person, at a time and place stated, did “unlawfully, willfully, knowingly and feloniously confederate and agree among themselves to commit an offense against the United States,, to wit, to violate an act of Congress known as the Prohibition Act, by transporting intoxicating liquors from the city of Savannah, Ga., to the city of Chicago, state of Illinois, in violation of said act.” That count was unsuccessfully demurred to on the following among other grounds: “That said count 1 is defective and insufficient in law, in that it avers that the said defendants confederated and agreed to violate an act of Congress by transporting ‘intoxicating liquors,’ whereas the words ‘intoxicating liquors,’ being descriptive, should have been more particularly defined; that the transportation of ‘intoxicating liquors’ does not state an offense, any offense against the United States; and whereas said averment should have said that the intoxicating liquors were ‘intoxicating liquors fit for beverage purposes,’ or ‘were fit for use for beverage pur-' poses.’ ”
The demurrer was well taken if the allegations of the count failed to show that what the accused conspired to do constituted an offense against the United States. Criminal Code, § 37 (18 USCA § 88); Williamson v. United States, 207 U. S. 425, 447, 28 S. Ct. 163, 52 L. Ed. 278; Anderson v. United States (C. C. A.) 260 F. 557; United States v. Eisenminger (D. C.) 16 F.(2d) 816. The allegations of the count show that what the accused confederated and agreed among themselves to do was to transport intoxicating liquors from Savannah, Ga., to Chicago, 111. Those allegations do not show that the liquor agreed to be transported was to he fit for use for beverage purposes. They are consistent with the conclusion that what the accused agreed to transport was liquor not fit for use for beverage purposes. There are liquors which are intoxicating, but not fit for use for beverage purposes, which are not subject to the provisions of the National Prohibition Act. Section 4, tit. 2, 41 Stat. 309 (27 USCA § 13). The allegations of fact contained in the count in question could be sustained by proof that the accused agreed to transport from Savannah, Ga., to Chicago,
Because of that error, the judgment is reversed.