Joplin Mercantile Company v. United States

• Decision Date: 23 February 1915
• Docket Number: No. 648,648
• Parties: JOPLIN MERCANTILE COMPANY and Joseph Filler, Petitioner, v. UNITED STATES
• Court: U.S. Supreme Court

236 U.S. 531

35 S.Ct. 291

59 L.Ed. 705

JOPLIN MERCANTILE COMPANY and Joseph Filler, Petitioner,

v UNITED STATES.

No. 648.

Argued January 11, 1915.

Decided February 23, 1915.

Mr. Paul A. Ewert for petitioners.

Assistant Attorney General Wallace for respondent.

Messrs. E. G. McAdams, Norman R. Haskell, C. B. Stuart, A. C. Cruce, and M. K. Cruce as amici curioe.

[Amicus Curiae Information from pages 532-534 intentionally omitted] Mr. Justice Pitney delivered the opinion of the court:

In the district court of the United States for the southwestern division of the western district of Missouri the petitioners, Joplin Mercantile Company and Joseph Filler, with others, were indicted, under § 37 of the Criminal Code (act of March 4, 1909, 35 Stat. at L. 1096, chap. 321, Comp. Stat. 1913, § 10,201), formerly § 5440 Rev. Stat.; the charge being that at Joplin, Missouri, within the jurisdiction of the court, the defendants did unlawfully, feloniously, etc., 'conspire together to commit an offense against the United States of America, to wit, to unlawfully, knowingly, and feloniously introduce and attempt to introduce malt, spirituous vinous, and other intoxicating liquors into the Indian country which was formerly the Indian Territory, and now is included in a portion of the state of Oklahoma, and into the city of Tulsa, Tulsa county, Oklahoma, which was formerly within and is now a part of what is known as the Indian country, and into other parts and portions of that part of Oklahoma which lies within the Indian country.' Overt acts are alleged, each of which consisted in delivering to an express company in Joplin certain packages of intoxicating liquors, to be transported thence to Tulsa, Oklahoma, alleged to be within the Indian country. A demurrer and a motion to quash having been overruled, petitioners pleaded to the indictment, were tried and found guilty. A motion in arrest of judgment having been denied, they sued out a writ of error from the circuit court of appeals, where the only question raised was whether the indictment charged an offense against the laws of the United States; neither the evidence nor the charge of the trial court being brought up. The judgment of the district court was affirmed (213 Fed. 926), and the present writ of certiorari was applied for, principally upon the ground that the decision of the court of appeals was to some extent in conflict with the views expressed by this court in Ex parte Webb, 225 U. S. 663, 56 L. ed. 1248, 32 Sup. Ct. Rep. 769, and United States v. Wright, 229 U. S. 226, 57 L. ed. 1160, 33 Sup. Ct. Rep. 630.

That clause of the indictment which sets forth the conspiracy does not in terms allege, as a part of it, that the liquor was to be brought from without the state of Oklahoma; nor does this clause refer, for light upon its meaning, to the clauses that set forth the overt acts. Hence, we do not think the latter clauses can be resorted to in aid of the averments of the former. It is true, as held in Hyde v. Shine, 199 U. S. 62, 76, 50 L. ed. 90, 94, 25 Sup. Ct. Rep. 760, and Hyde v. United States, 225 U. S. 347, 759, 56 L. ed. 1114, 1123, 32 Sup. Ct. Rep. 793, Ann. Cas. 1914A, 614, that a mere conspiracy, without overt act done to effect its object, is not punishable criminally under § 37 of the Criminal Code. But the averment of the making of the unlawful agreement relates to the acts of all the accused, while overt acts may be done by one or more less than the entire number, and although essential to the completion of the crime, are still, in a sense, something apart from the mere conspiracy, being 'an act to effect the object of the conspiracy.' For this reason, among others, it seems to us that where, as here, the averment respecting the formation of the conspiracy refers to no other clause for certainty as to its meaning, it should be interpreted as it stands. United States v. Britton, 108 U. S. 199, 205, 27 L. ed. 698, 700, 2 Sup. Ct. Rep. 531. We therefore think the court of appeals properly treated this indictment as not charging that the liquors were to be introduced from another state, and correctly assumed in favor of the accused (supposing the law makes a distinction) that the design attributed to them looked only to intrastate commerce in intoxicants. The suggestion of the government that the omission of a distinct averment that the conspiracy was to introduce the liquors from without the state did not prejudice petitioners, and should be regarded after verdict as a defect in form, to be ignored under § 1025, Rev. Stat. (Comp. Stat. 1913, § 1691), cannot be accepted, since we have before us only the strict record, and therefore cannot say that the trial proceeded upon a different theory from that indicated by the indictment, or that its averments were supplemented by the proofs.

The offense against the laws of the United States that was the object of the conspiracy must have had reference to one or the other of two distinct prohibitions. The one is that arising from the act of July 23, 1892 (27 Stat. at L. 260, chap. 234), amending § 2139, Rev. Stat., and amended in its turn by the act of January 30, 1897 (29 Stat. at L. 506, chap. 109, Comp. Stat. 1913, § 4137). The other is § 8 of the act of March 1, 1895 (28 Stat. at L. 693, chap. 145). These are set forth in chronological order in 225 U. S. 671. The distinction now pertinent is that under the act of 1897: 'Any person who shall introduce or attempt to introduce any malt, spirituous, or vinous liquor . . . or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, which term shall include any Indian allotment while the title to the same shall be held in trust by the government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be punished,' etc.; while the act of 1895 declares: 'That any person, . . . who shall, in said [Indian] Territory, manufacture . . . any vinous, malt, or fermented liquors or any other intoxicating drinks . . . or who shall carry, or in any manner have carried, into said territory, any such liquors or drinks . . . shall, upon conviction thereof, be punished,' etc. The former has to do with the introduction of liquor into the 'Indian country;' the latter relates not to the Indian country as such, but to the Indian Territory as a whole, irrespective of whether it, or any particular part of it, remained 'Indian country.'

In Ex parte Webb, supra, we dealt with the effect of the Oklahoma enabling act, and the admission of the state thereunder, upon the prohibitions contained in the act of 1895, and held that this act remained in force so far as it prohibited the carrying of liquor from without the new state into that part of it which was formerly the Indian Territory. In United States v. Wright, supra, we held that the prohibition against the introduction of intoxicating liquors into the Indian country, found in the act of 1897, was not repealed with respect to intrastate transactions by the enabling act and the admission of the state. In the present case, the court of appeals held that transportation of intoxicating liquors from the westerly portion of Oklahoma to that part which was formerly Indian Territory was prohibited not only by the act of 1897, but by the act of 1895; holding that this act remained unrepealed as to intrastate commerce in intoxicating liquors, notwithstanding the intimations of this court to the contrary in the Webb and Wright Cases. In behalf of the government it is now insisted that the indictment is clearly sustainable under the act of 1897, and that it is therefore unnecessary to pass upon the question raised about the act of 1895. But, in view of its importance, and the confusion that would probably result if the matter were left in uncertainty, we deemed it proper to allow the writ of certiorari, and now deem it proper to pass upon the merits of the question with respect to both acts.

The court of appeals correctly considered that the question whether the act of 1895 remains in force respecting intrastate transactions was not concluded by our decision in either the Webb or the Wright Cases. The declaration upon the subject in 225 U. S., at p. 681, was based upon a concession by the government, and was stated in unqualified form in order to emphasize that the concession was fully accepted for the purposes of the decision. In the Wright Case, 229 U. S. at p. 236, we saw no reason to recall it, and so stated; but here again the point was not involved in the question to be decided. It was accepted arguendo, rather as an obstacle in the way of reaching the conclusion that the court did reach, upon grounds that held good, as we thought, notwithstanding the point conceded. As was well said by Mr. Chief Justice Marshall, in one of his great opinions, Cohen v. Virginia, 6 Wheat. 264, 399, 5 L. ed. 257, 290: 'It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.' And if this be true with respect to mere dicta, it is no less true of concessions made for the purpose of narrowing the range of discussion, or of testing, by assumed obstacles, the validity of the reasoning by which the court reaches its conclusions upon the point submitted for decision.

The court of appeals declared that the effect of holding that the enabling act and the admission of the state repealed the law of 1895 as to importations from parts of Oklahoma not in Indian Territory would be that importations would remain prohibited from the north, south, and east of the territory, while those from the west would be turned over to the state; and that the provision of the enabling act requiring the Constitution of the new state to provide a...