260 F. 596 | 9th Cir. | 1919
“It has been held that in an indictment under an ordinance declaratory of the common law, for keeping a common disorderly house, no scienter need be alleged, for the specific charge of the offense contains within its terms the knowledge of the purpose.” 14 Cyc. 497.
Said the Supreme Court of Missouri, in State v. Malloch, 269 Mo. 235, 190 S. W. 266;
*598 “The charge presumes and includes such knowledge on the part of the defendant. To keep a house for such purposes certainly means that he had knowledge of the purpose for which the house was used.”
Other cases so holding are Brown v. Toledo, 5 Ohio S. & C. P. Dec. 210; Commonwealth v. Davis, 9 Ky. Law Rep. 494. _
_ The evidence in the case shows knowledge on the part of the plaintiff in error of the purpose for which the house was used. No objection to the form of the indictment was made in the court below, and we hold that the objection cannot now avail the plaintiff in error.
“All crimes and offenses committed against the provisions of chapter 7, title ‘Crimes,’ which are not infamous, may' be ■ prosecuted either by indictment or by information filed by a district attorney.”
“The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for tbe purpose of sustaining any proper action or prosecution for tbe enforcement of such penalty, forfeiture, or liability.”
The offense of which the plaintiff in error was accused is alleged to have been committed on June 3, 1918. Notwithstanding the act of July 9, 1918, the former statute remains in force for the purpose of sustaining prosecutions for offenses committed thereunder. It is true that section 13 has only the force of a statute of Congress, and as observed by the court in Great Northern R. Co. v. United States, 208 U. S. 462, 28 Sup. Ct. 313, 52 L. Ed. 567:
“Its provisions cannot justify a disregard of tbe will of Congress as manifested either expressly or by necessary implication in a subsequent enactment.”
In that case the court held that the provisions of section 13 are to be treated as if incorporated in and as a part of subsequent enactments of Congress, and that, under the general principle of construction requiring effect to be given to all parts of a law, that section must be enforced as forming a part of such subsequent enactments, except in those instances where either by express declaration or necessary implication such enforcement would nullify the legislative intent. Legislative intent to disregard section 13 is not to be found in the mere fact that in Act July 9, 1918, it is provided that “all acts or parts of acts inconsistent with the provisions of this act are hereby repealed.” Such a repeal as that is expressly contemplated by section 13. In brief, it is the purpose of that section not to place a limit upon thy power of succeeding Congresses, but to prescribe a rule of construction which shall be binding upon the courts, in substitution of the common-law rule in all cases where the repealing statute does not express a contrary intention.
We find no error. The judgment is affirmed