Vincenti v. United States

272 F. 114 | 4th Cir. | 1921

WOODS, Circuit Judge.

The defendants were indicted October 28, 1920, for conspiracy on the 1st day of July, 1919, to violate section 1, paragraph 4, of the Act of Congress approved November 21, 1918, called the War Prohibition Act (40 Stat. 1046). A demurrer to the indictment was overruled, and the defendants were convicted on November 20, 1920. A motion in arrest of judgment was also overruled.

[1] Defendants’ first position is that the War-Time Prohibition Act at the time of their trial had become invalid by reason of the cessation of the war powers of Congress. That act provides:

“After June 30, 1919, until the conclusion of the present war and thereafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States, for the purpose of conserving the man power of the nation, and to increase efficiency in the production of arms, munitions, ships, food and clothing for the army and navy, it shall be unlawful to sell for beverage purposes any distilled spirits. * * * ”

In Kahn v. Anderson, 255 U. S. -, 41 Sup. Ct. 224, 65 L. Ed. ——, the Supreme Court decided, on January 31, 1921, that the government of the United States was still officially at war. This is also the effect of the decision in Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 40 Sup. Ct. 106, 64 L. Ed. 194.

[2, 3] The other contention is that the defendants could not be legally tried, convicted, and sentenced for a conspiracy to violate the War-Time Prohibition Act, because at the time of the trial that statute had been repealed by the National Prohibition Act, passed October 28, 1919 (41 Stat. 305), in pursuance to the Eighteenth Amendment, ratified in January, 1919. The general rule is that unqualified repeal of a criminal statute expresses the legislative will that acts which were offenses under it, done while the statute was in force, shall no longer be regarded criminal, and shall not be punished under the repealed statute. But obviously this cannot be the result when the Legislature has declared in the later statute a contrary intention, either by providing that the former statute shall not be repealed, or that it shall remain in force as to acts already done, which were offenses under it before the repeal. Section 7, title 1, of the National Prohibition Act, provides':

“None of the provisions of this act shall be construed to repeal any of the provisions of the ‘War Prohibition Act.’ ”

Section 35, title 2, contains this clause:

“Nor shall this act relieve any person from any liability, civil or criminal, heretofore or hereafter incurred under existing laws.”

These provisions can mean nothing less than that the War Prohibition Act was to remain in force as to acts already done which were by its terms made criminal offenses. Any other construction would be subversive of the language as well as the plain scheme and purpose of the later statute.

This conclusion removes from the case the question whether a conspiracy to violate a criminal statute can be punished after the repeal of such criminal statute.

Affirmed.