Lott v. United States

• Citation: 205 F. 28
• Decision Date: 05 May 1913
• Docket Number: 2,201.
• Parties: LOTT v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

205 F. 28

LOTT v. UNITED STATES.

No. 2,201.

United States Court of Appeals, Ninth Circuit.

May 5, 1913

The plaintiff in error was convicted in the Commissioner's Court in Alaska of the offense of soliciting and inciting another to commit the crime of furnishing liquor to an Indian, in that he solicited and incited the other to sell whisky to him, the said plaintiff in error, he being an Indian. An appeal was taken to the District Court, where the matter was brought on de novo, and the plaintiff in error was again found guilty. A demurrer was interposed to the complaint, on the ground that the facts set forth therein did not constitute a crime, and a motion in arrest of judgment was made on the same ground. The conviction was had under section 142 of the Alaska Criminal Code (Act March 3, 1899 c. 429, 30 Stat. 1274, as amended by Act Feb. 6, 1909, c. 80 Sec. 9, 35 Stat. 603), which provides as follows: 'That if any person shall, without the authority of the United States, or some authorized officer thereof, sell, barter, or give to any Indian or half-breed who lives and associates with Indians, any spirituous, malt, or vinous liquor, or intoxicating extracts, such person shall be fined not less than one hundred nor more than five hundred dollars or be imprisoned in the penitentiary for a term not to exceed two years.' Kazis Krauczunas, of Ketchikan, Alaska, and Wm. J. Claassen of Seattle, Wash., for plaintiff in error.

Roy V. Nye, Asst. U.S. Atty., of Ketchikan, Alaska.

Before GILBERT and MORROW, Circuit Judges, and WOLVERTON, District judge.

GILBERT Circuit Judge (after stating the facts as above).

The question which this case presents is whether an Indian, who attempts to purchase liquor from another or solicits another to sell him liquor, solicits or incites the other to commit the offense prohibited by section 142 of the Alaska Criminal Code, so as to be liable to indictment and punishment therefor. That statute does not differ in its essential features from the ordinary state statutes prohibiting the sale of intoxicating liquors, except in the fact that it provides for punishment in the penitentiary for a term not to exceed two years, and therefore, under section 335 of the new Criminal Code, the offense is made a felony. It is uniformly held that statutes prohibiting the sale of intoxicating liquors are directed against the act of selling only, and that the offense is committed only by the vendor or some one who aids him in selling, and that the purchaser and those who aid him in the purchase are not guilty of aiding or abetting in the commission of the offense.

In Wakeman v. Chambers, 69 Iowa, 169, 28 N.W. 498, 58 Am.Rep. 218, the court said:

'The sale of intoxicating liquor is lawful at common law, and it becomes unlawful simply because the statute so provides. Under the statute, the sale, or keeping with intent to sell, is a public offense, because the statute so declares. The statutory crime is bounded by the statute creating it, and the statute operates on, and has force and effect against, the persons therein named, and no others. As the prohibitory statute does not provide that the purchaser is guilty of any crime, it seems to us this fact practically ends the inquiry. If such had been the intent, it would certainly have been so provided in express terms.'

In State v. Baden, 37 Minn. 212, 34 N.W. 24, the court said that the prosecuting witnesses were not accomplices within the meaning of the statute.

'The section of the statute under which this prosecution is brought is directed against the seller, not the purchaser.'

In Commonwealth v. Willard, 22 Pick. (Mass.) 476, the court held that a purchaser of intoxicating liquors sold in violation of law was not subject to prosecution. The court said:

'The statute imposes a penalty upon any person who shall sell. But every sale implies a purchaser; there must be a purchaser as well as a seller. * * * This must have been known and understood by the Legislature. Now, if it were intended that the purchaser should be subject to any penalty, it is to be presumed that it would have been declared in the statute, either by imposing a penalty on the buyer in terms, or by extending the penal consequences of the prohibited act to all persons aiding, counseling, or encouraging the principal offender.'

In Harrington v. State, 36 Ala. 236, the indictment was for violating the law prohibiting the sale of liquor to salves. The court said:

'The statutory offense consists in the act of selling, not in that of buying; and neither the purchaser, nor one participating in the purchase, can be deemed an accomplice of the seller.'

In State v. Teahan, 50 Conn. 92, the court said:

'The fact that the question has not before been raised in this state is an indication that the almost universal sentiment of the profession is that the purchaser is guilty of no offense.'

And referring to the statute which provided that every person who shall aid or abet, etc., another to commit any offense, might be prosecuted and punished as if he were the principal offender, the court said:

'But we are satisfied that the purchaser is not an abettor of the offense within the meaning of the statute. * * * The abettor, within the meaning of the statute, must stand in the same relation to the crime as the criminal--approach it from the same direction, touch it at the same point. This is not the case with the purchaser of liquor. His

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