Rupert v. United States
181 F. 87
8th Cir.
1910
Check Treatment
SMITH McPHERSON, District Judge

(аfter stating the facts as above).. The record contains that which purports to be the testimony, the charge of the court, instructions refused, objeсtions, rulings and exceptions, with recitals of what occurred during the trial, including motions for a new trial. None of these are evidenced by a bill of excеptions, and are, therefore, not of record. We cannot consider any of them. The office and necessity of a bill of exceptions in all actions at law and in criminal cases have long been recognized by the profession and required by all Appellate Courts. The practicе, whatever it is, in Oklahoma as to bills of exception in actions at law and criminal cases, is of no effect here. The laws of the state do not сontrol as to this. The common law, in conjunction with the United States Statutes, only must prevail. Michigan Insurance Bank v. Eldred, 143 U. *89S. 293, 298, 9 Sup. Ct. 690, 32 L. Ed. 1080; Fishburn v. R. R., 137 U. S. 60, 11 Sup. Ct. 8, 34 L. Ed. 585; The Chateaugay Company, Petitioner, 128 U. S. 544, 553, 9 Sup. Ct. 150, 32 L. Ed. 508. Revised Statutes of United States, § 953, as amended by Act June 5, 1900, c. 717, § 1, 31 Stat. 270 (U. S. Comp. St. 1901, p. 696). Courts make the records, and the trial judge must sign the bill of exceptions. The clerk is without authority to certify up anything, exceрt that made of record by the orders of the court.

It therefore follows that the only questions we can consider are those pertaining to the indiсtment. The demurrers are to the same effect as the motion in arrest of judgment. And the motion in arrest of judlgment is the same in every of the four cases, and is аs follows:

“(1) That the indictment filed herein does not state facts sufficient to constitute a crime known and punishable under the laws of the United States.
“(2) That the law on which said indictment ‍‌‌‌​‌‌​‌‌‌​​​‌​​‌​​‌​‌​​​‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌​​‍is based is unconstitutional and void.”

It appears from the foregoing that in two of the cases the indictments charge that the defendant willfully and unlawfully delivered quail to a railway company for transportation from points within Oklahoma to Chicago, Ill., which quail had theretofore been killed in Oklahoma in violation of the laws of said territory.

The indictments in the other two cases charge defendant with willfully and unlawfully delivering to a railway boxes cоntaining the dead bodies of quail which had theretofore been unlawfully killed within the territory, which delivery was for the purpose of shipping said quail by interstate shipments, to wit, to Illinois, and without having the boxes marked showing the contents.

Section 3 of the act of Congress of 1900 (Eacey act) provides that it shall be unlawful to ship from one state or territory to another state or territory any animals or bird's when such animals or birds have been killed in violation of the laws of the stаte. Act May 25, 1900, c. 553, 31 Stat. 188 (U. S. Comp. St. 1901, p. 3181).

The local laws of the territory of Oklahoma allowed quail to be killed during certain months (from October 15th to February 1st). But the Oklahoma statutes prohibited the exportation of quail at any time. Therefore it follows that it was unnecessary for the indictment to allege in which months the quail were killed. It was lawful to kill quail in the territory for use within the territory during three and one-half months of every year. But it was unlawful every day of the year to kill quail for shiрment elsewhere. So that any date within the statute of limitations could be alleged in the indictment. Wilson’s Rev. & Ann. St. Okl. 1903, §§ 3069, 3078.

The purpose of the Eacey act as expressed in the statute (section 1) “is to aid in the restoration of such birds in those parts of the United States adapted thereto where the same havе become scarce or extinct.” Section 4 of that statute provides that all packages containing such dead birds, when shipped by interstate ‍‌‌‌​‌‌​‌‌‌​​​‌​​‌​​‌​‌​​​‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌​​‍commerce, shall be plainly and clearly marked, so that the nature of the contents may be readily ascertained on the inspection of the outside of such packages. Or, to restate, it was unlawful to kill at any time, if for the purpose of export, and such were the indictments in two of the cases. And it was *90unlawful to export without marking the packages making known the contents, and such were the other two indictments.

The familiar rule that an indictment in сharging a statutory crime need only follow the language of the statute will suffice, particularly when the words of the statute, fully, directly, and with certainty, set forth аll the elements of the crime. Evans v. U. S., 153 U. S. 584, 14 Sup. Ct. 934, 33 L. Ed. 30; Cochran v. U. S., 157 U. S. 286, 290, 15 Sup. Ct. 628, 39 L. Ed. 704; Ledbetter v. U. S., 170 U. S. 606, 609, 18 Sup. Ct. 774, 43 L. Ed. 1162. There are exceptions to this form of pleading, when the statute does not with definiteness cover all the elements of the crime. Keck v. U. S., 172 U. S. 434, 19 Sup. Ct. 254, 43 L. Ed. 505. Eor a discussion of this question, and the holding by this court, see the case of Morris v. United States, as reported in 161 Fed. 672, 680, 88 C. C. A. 532. The contention of counsel for plaintiff in error that the recitals are .not sufficiently ‍‌‌‌​‌‌​‌‌‌​​​‌​​‌​​‌​‌​​​‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌​​‍specific is not in accord with the authorities. The indictments are good as to fоrm.

Quail belong to the state or territory, or rather the people collectively thereof, and are subject to the local laws as to killing, and the times therefor, and the shipment. These propositions have been put at rest by the Supreme Court. Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. 600, 40 L. Ed. 793; Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385. It is for the state Legislaturе to say when quail may be killed. It may provide that they shall not be killed at any time. It may provide that they may be killed for use at home only, and not killed for shipmеnt out of the state, which if allowed would result in the extinguishment locally of such game. And no one doubts the validity of game laws, which prohibit killing of game on the lands оf another. It is quite likely that every state of the Union has such laws, and such was the common law. The individual having no ownership in the game, and allowed at cеrtain times, if at all, to kill the same at certain places, for particular uses only, it does not become the general subject of commerсe free from all inhibitions. And as Congress is vested with the power under the commerce clause to regulate commerce between the states, it hаs the power to provide that there shall not be unrestrained commercial intercourse.

Thus in Cook v. Marshall County, 196 U. S. 261, 25 Sup. Ct. 233, 49 L. Ed. 471, it was. held that a state law limiting the right to sell cigarettes wоuld be upheld, even though brought in from another state. This was so held, because the prohibition of the sale was a valid exercise of the policе power of the state, and the commerce clause cannot be used to override that which is clearly within the police power of thе state.

And so in Manchester v. Massachusetts, 139 U. S. 240, 11 Sup. Ct. 559, 35 L. Ed. 159, a statute regulating the taking of fish was upheld and enforced, when it was sought to avoid the statute by showing that the fish were carried to the ports of оther states on a vessel licensed under national authority. And a like holding was made as to oysters in McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248. It is one thing to prohibit property from being carried out of the state, and another ‍‌‌‌​‌‌​‌‌‌​​​‌​​‌​​‌​‌​​​‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌​​‍to prohibit property from being brought into the state. And yet in Re Rahrer, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572, the Supreme *91Court upheld the act of Congress of August 8, 1900, commonly called the “Wilson Bill,” which makes intoxicating liquors when brought into the state subject to the local laws. Such being the holdings, it surely follows that a congressiоnal enactment like the Lacey act, which makes it a crime to carry out of the state that which can he and is lawfully prohibited by local or stаte laws, must be upheld.

Our holdings are :

(1) The territory of Oklahoma had the authority to provide by legislation, as it did, that wild game, such as quail, should not be shipped out of the statе, even though the game was killed during the open season.

(2) The act of Congress is valid wherein it is declared that the shipment out of the territory in violation of the territorial law constitutes a crime under the national law.

(3) And to aid in the detection of such crimes," Congress had the authority to provide that all such interstate shipments should be plainly marked so that any person by a casual inspection would know the contents of the package.

All four of the judgments brought to this court for review ‍‌‌‌​‌‌​‌‌‌​​​‌​​‌​​‌​‌​​​‌‌​​‌​‌‌‌‌‌‌‌‌‌‌​​‌‌‌​​‍by writ of error are affirmed; and it is so ordered.