Biddle v. Hays

• Decision Date: 29 October 1925
• Docket Number: No. 6868.,6868.
• Citation: Biddle v. Hays, 8 F.2d 937 (8th Cir. 1925)
• Parties: BIDDLE, Warden, v. HAYS.
• Court: U.S. Court of Appeals — Eighth Circuit

8 F.2d 937 (1925)

BIDDLE, Warden, v.HAYS.

No. 6868.

Circuit Court of Appeals, Eighth Circuit.

October 29, 1925.

Al. F. Williams, U. S. Atty., and Alton H. Skinner, Asst. U. S. Atty., both of Topeka, Kan., for appellant.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

VAN VALKENBURGH, Circuit Judge.

The appellee was convicted in the District Court of the United States for the Western District of Arkansas upon three counts of an indictment, which, omitting formal parts, is in the following language:

"The grand jurors of the United States, impaneled, sworn, and charged at the term aforesaid of the court aforesaid, on their oath present that Lee Hays on or about the 21st day of November, in the year 1923, in said division of said district, and within the jurisdiction of said court, as a third offense of the kind on his part, the said Lee Hays having heretofore, to wit, on the ______ day of January, 1921, term of this court, been convicted of a similar charge, that is, the unlawful possession of intoxicating liquor, also having been tried and convicted in this court on the 25th day of October, 1922, of the unlawful possession of intoxicating liquor, unlawfully did possess a large quantity, to wit, 15 gallons, more or less, of intoxicating liquor, to wit, whisky, otherwise than as authorized by the National Prohibition Act, that is to say for intoxicating beverage purposes, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.

"Second Count.

"And the grand jurors aforesaid, upon their oaths aforesaid, do further present that Lee Hays, on or about the 15th day of September, in the year of our Lord 1923, in and for the division and district aforesaid, and within the jurisdiction of this court, did then and there unlawfully possess, as third offense of the kind on his part, the said Lee Hays, having heretofore, to wit, on the _____ day of January, 1921, term of this court, been convicted of a similar charge, that is, the unlawful possession of intoxicating liquor, also having been tried and convicted in this court on the 25th day of October, 1922, of the unlawful possession of intoxicating liquor, a large quantity, to wit, one-half gallon, more or less, of intoxicating liquor, to wit, whisky, otherwise than as authorized by the National Prohibition Act, that is to say, for intoxicating beverage purposes, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.

"Third Count.

"And the grand jurors aforesaid, on their oath aforesaid, do further present that the said Lee Hays, on or about the 15th day of September in the year 1923, in the said division of said district, and within the jurisdiction of said court, unlawfully did knowingly sell to Charles Swisher and Roy Sloan each one quart, more or less, of intoxicating liquor, to wit, whisky, then and there in a vessel the kind of said vessel being to the grand jurors unknown, and that the said Lee Hays then and there well knew the same to be intoxicating liquor, and sold said whisky for intoxicating beverage purposes, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

The sentence imposed is thus stated:

"It is by the court considered, ordered, and adjudged that the said Lee Hays, for his offense as charged in the first count of the indictment, be imprisoned in the United States penitentiary, situated at Leavenworth, in the state of Kansas, for the term and period of two years, and that he pay to the United States of America a fine of $500; that it have execution therefor, and that the said Lee Hays be committed to said penitentiary until said fine is paid; that the said Lee Hays for his offense as charged in the second count of the indictment, it being a third offense of the kind on his part as herein charged, be imprisoned in the United States penitentiary for the term and period of two years, and that he pay to the United States of America a fine of $500, that it have execution therefor, and that the said Lee Hays be committed to said penitentiary until said fine is paid; that the said Lee Hays, for his offense as charged in the third count of the indictment, be imprisoned in said United States penitentiary for the term and period of three months.The term of imprisonment herein adjudged on the second count of the indictment shall run concurrently with the term of imprisonment herein adjudged on the first count of the indictment, and that the term of imprisonment herein adjudged on the third count of the indictment shall begin at the expiration of the terms of imprisonment herein adjudged on the first and second counts of the indictment.Commitment for nonpayment of fine adjudged on the first count of the indictment shall begin at the expiration of the terms of imprisonment herein adjudged, and commitment for nonpayment of the fine adjudged on the second count of the indictment shall begin at the expiration of commitment for nonpayment of fine adjudged on the first count."

The acts upon which the prosecution was founded provide as follows:

"Sec. 25,title II.It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used, and no property rights shall exist in any such liquor or property. * * *"Comp. St. Ann. Supp. 1923, §...