Witte v. Shelton

• Citation: 240 F. 265
• Decision Date: 28 February 1917
• Docket Number: 4691,4693.
• Parties: WITTE v. SHELTON, U.S. Marshal, et al. TIEDEMAN v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

240 F. 265

WITTE v. SHELTON, U.S. Marshal, et al.

TIEDEMAN v. SAME.

Nos. 4691, 4693.

United States Court of Appeals, Eighth Circuit.

February 28, 1917

[Copyrighted Material Omitted]

Paul A Ewert, of Joplin, Mo., and Norman R. Haskell, of Oklahoma

City Okl. (E. G. McAdams, of Oklahoma City, Okl., on the brief), for appellant in No. 4691.

Norman R. Haskell, of Oklahoma City, Okl. (E. G. McAdams, of Oklahoma City, Okl., Ralph W. Grier, of St. Joseph, Mo., and Harold Lee, of Oklahoma City, Okl., on the brief), for appellant in No. 4693.

William G. Lynch, Asst. U.S. Atty., of Kansas City, Mo. (Francis M. Wilson, U.S. Atty., and Sam O. Hargus, Asst. U.S. Atty., both of Kansas City, Mo., on the briefs), for appellees.

Before SANBORN and SMITH, Circuit Judges, and AMIDON, District Judge.

SANBORN Circuit Judge.

These are appeals from dismissals by the District Judge below of petitions for writs of habeas corpus and for the discharge of the petitioners. The stronger case for the petitioners is that of Witte v. Shelton, and if Witte is not entitled to a reversal of the order below the case of Tiedeman must follow that conclusion. The discussion of the cases is therefore confined to the Witte Case. Witte sought a discharge by writ of habeas corpus from the custody of the United States marshal for the Western District of Missouri, who held him under a final mittimus issued by the United States commissioner of that district, which commanded the marshal and the keeper of the jail of Newton county safely to keep the prisoner in custody to the end that he might be deported to the District Court of the United States for the Western District of Oklahoma for trial under an indictment for the violation of section 37 of the federal Penal Code. Section 37 of the Penal Code provides that if two or more persons conspire to commit any offense against the United States, and one or more of them does any act to effect the object of the conspiracy, each of the parties to the conspiracy shall suffer a fine or imprisonment. The indictment charged that Witte, Elkins, Creekmore, Filler, Franke, and Tiedeman, conspired together to commit the offense specified in section 238 of the Penal Code. Section 238 denounces, under penalty of a fine or imprisonment, the offense of the delivery by an agent or employe of an express company, or other common carrier, to any fictitious person, or to any person under a fictitious name, of any intoxicating liquor shipped in interstate commerce, and this section became effective January 1, 1910.

The mittimus under which the marshal held the prisoner was issued after a hearing before the commissioner at which the indictment, the testimony of the prisoner, and other evidence were introduced and considered by him. Counsel for Witte insist that the court below should have issued the writ and discharged him because the evidence before the commissioner, which was introduced in evidence before the court below, conclusively showed that neither that court nor the commissioner had any jurisdiction to hold him: (1) Because section 238 had been repealed by the Act of March 1, 1913, commonly known as the Webb-Kenyon Act, 37 Stat.c. 90, p. 699; (2) because, if it had not been repealed in whole, it had been suspended by the Webb-Kenyon Act as to the intoxicating liquor shipped into Oklahoma in interstate commerce intended for sale, barter, or gift in violation of the statutes of Oklahoma (1 Rev. Laws of Oklahoma 1910, Sec. 3605; Joplin Mercantile Co. v. United States, 236 U.S. 531, 546, 35 Sup.Ct. 291, 59 L.Ed. 705), and the commissioner committed a fatal error at his hearing in rejecting evidence offered by the prisoner to the effect that the person to whom the liquor specified in the indictment was alleged to have been shipped under a fictitious name intended to resell it to other persons in Oklahoma in violation of the laws of that state; (3) because no act to effect the object of the alleged conspiracy is alleged in the indictment or in the complaint for the arrest and removal of the prisoner or is proved by the evidence before the commissioner; and (4) because the testimony of the prisoner overcame the presumption of probable cause to believe that he was guilty of the offense charged in the indictment which arose from the allegations of that instrument.

Did the Webb-Kenyon Act repeal section 238 of the Penal Code? It contains no express repeal of it, and it makes no reference to it. If it is repealed, therefore, the repeal is by implication, and such a repeal is not presumed. It is only when the later statute is so repugnant to or inconsistent with the earlier one that it is clear that the intention of the legislative body must have been thereby to repeal the former that a repeal by implication may be lawfully inferred.

'To induce a repeal of a statute by the implication of inconsistency with a later statute, there must be such a positive repugnancy between the two statutes that they cannot stand together. ' Arthur v. Homer, 96 U.S. 137, 140, 27 L.Ed. 811; Gowan v. Harley, 56 F. 973, 978, 6 C.C.A. 190, 195.

Section 238 created, denounced, and prescribed the punishment for the specific offense of the delivery, by an agent, officer, or employe of a common carrier, of intoxicating liquor shipped in interstate commerce, to a fictitious person, or to any person under a fictitious name, or to any person but the consignee, except upon the latter's written order. The Webb-Kenyon Act, 37 Stat. 699, prohibited the shipment of intoxicating liquor in interstate commerce into any state, territory, or district of the United States wherever such intoxicating liquor was intended by any person interested therein to be received, possessed, sold, or used in violation of any law of such state, territory, or district. The latter act contains no provision repugnant to the former act, no provision indicating any intention of the members of Congress thereby to repeal or strike down the denunciation of the delivery by agents or officers of a common carrier of liquor in interstate commerce to persons under fictitious names, or to permit them so to do. The former act is of the nature of a special law creating and enacting special legislation as to the new offense it creates. The latter is of the nature of a general law prohibiting the shipment of intoxicating liquor in interstate commerce under the circumstances therein specifically noted. Specific legislation upon a particular phase of a single subject is not affected by a subsequent law relating to a general subject which neither refers to the earlier law nor is repugnant to nor inconsistent with it, but the two laws must stand together, the former as the law of its specific phase of the subject, and the latter as the general law relating thereto. State v. Stoll, 17 Wall. 425, 436, 21 L.Ed. 650; Gowen v. Harley, 56 F. 973, 978, 6 C.C.A. 190, 195; Board of Com'rs of Seward Co. v. AEtna Life Ins. Co., 90 F. 222, 227, 32 C.C.A. 585, 590; Christie-Street Commission Co. v. United States, 136 F. 326, 333, 69 C.C.A. 464, 471; Priddy v. Thompson, 204 F. 955, 959, 123 C.C.A. 277, 281. There is no such inconsistency or repugnancy between the Webb-Kenyon Act and section 238 of the Penal Code as will warrant the conclusion that Congress intended by the passage of the former to repeal the latter, and it was not repealed thereby.

The second contention is that, although section 238 has not been repealed in toto, yet it has been suspended by the Webb-Kenyon Act as to all shipments in interstate commerce of intoxicating liquor into Oklahoma which were intended, as the act reads, 'by any person interested therein, to be received, possessed, sold, or in any manner used * * * in violation of any law ' of that state, that as the laws of Oklahoma prohibit the manufacture, sale, barter, gift, or furnishing of such liquor only, and do not prohibit its receipt, possession or use by consignees for their own consumption (1 Revised Laws of Oklahoma 1910, Sec. 3605), section 238 is suspended as to the delivery by any officer or agent of a common carrier of such liquor as any one interested in intends to resell or give away in violation of the laws of that state, and is in force only as to the delivery of such liquor as persons interested in intend shall be received, possessed, and used for their own consumption or use; that consequently the evidence offered by the prisoner to show that the person to whom the indictment alleged the liquor was to be delivered under a fictitious name intended to resell it in violation of the laws of Oklahoma would have shown that the delivery in this case and the case itself were not within the reach of section 238, and consequently were never within the jurisdiction of the court in Oklahoma, the commissioner, or the court below.

The strongest argument in support of this contention is the argument by analogy based on the decision of the Supreme Court in Joplin Mercantile Co. v. United States, 236 U.S. 531, 546, 35 Sup.Ct. 291, 59 L.Ed. 705. It is said that the facts in the case at bar are analogous to the facts in that case, and that for that reason section 238 should be held to be suspended to the extent above stated, as section 8 of the Act of March 1, 1895, c. 145, 28 Stat. 693, was in that case held to be suspended in part though not repealed by the enabling act of Oklahoma of June 16, 1906, c. 3335, 34 Stat. 267. An argument by analogy never rises to the strength of a well-founded syllogism, is always liable to mislead, and its strength is measured by the closeness of the analogy of the facts. Let us compare the pertinent facts in the Joplin Mercantile Company's Case with those in the case at bar and observe their similarities and differences. In that case section 8 of the act...