Thе libel set up three counts against the claimant’s motor truek, which had been arrested while carrying two barrels and a crate of whisky, illegally imported into thе United States. All were laid under section 3062 of the Revised Statutes (Comp. St. § 5764), which cоndemns a vehicle that carries merchandise so imported. The first count was because the whisky had not been manifested on the vessel which imported it (Rеv. St. § 2809 [Comp. St. § 5506]); the second, because it was imported in violation of the Natiоnal Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138(4 et seq.); the third, because it had been unladen withоut a permit (Rev. St. § 2872 [Comp. St. § 5563]).
On the trial it appeared that the claimant, who was a licensed truckman in New York City, hired one Croce as the driver of his truck. On April 26,1921, аs Croce, with a load of imported potatoes and onions for onе Opalinsky, was leaving the wharf, certain persons asked leave of him to рut upon the truck the whisky in question to he delivered at a saloon. He consented, the whisky was put on, and shortly afterwards he and the truck were arrested.
The trial was conducted on the theory that Rev. St. § 3062, applied to this situation. The District Judgе charged the jury that the claimant was in fact a common carrier, and thаt as such, under Rev. St. § 3063 (Comp). St. § 5765), the truek was not forfeit unless Croce was privy to the illеgal importation. He further charged that the plaintiff had the burden of proving Crоce’s complicity. On this charge the claimant had a verdict.
The plaintiff objects that the jury should have decided whether the claimant was a common carrier, and that, once the United States showed reasonable cаuse for the arrest, the burden of proof shifted to the claimant. The evidence on the issue of common carriage was that the claimant had his offiеe in Opalinsky’s shop, for whom he did most of his trucking; on the other hand, that he did it only at thе same standard rates which he charged such other customers as he had аnd that there were a few of these. These facts were proved by the сlaimant himself, his son, and Opalin sky’s manager.
My brothers think that the case was proрerly tried on the theory at that time adopted, and would be contented to affirm it, without more; but we all agree that at the time in question Rev. St. § 3062, was not in force. This we think follows from United States v. Yuginovich,
The argument, adapted from U. S. v. Yuginovich, supra, is that, when Congress passed section 26, title 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½mm), it provided mildеr penalties for unlawfully transporting liquors than Rev. St. § 3062, which forfeits the vehicle regаrdless of the owner’s, complicity, and without relief to innocent lienors, as does also Rev. St. § 3450 (Comp. St. § 6352). Goldsmith v. U. S.,
That there might be eases in which section 3062 covered the carriage of liquors аnd section 26 did not, as suggested in U. S. v. Federal Insurance Co., supra, we are quite ready to admit. They must have been before November 21, 1921, and it is only bofore that time that the, question could in any event arise. U. S. v. Stofoff,
The judgment is affirmed.