Butterfield v. United States

• Decision Date: 19 March 1917
• Docket Number: 4527.
• Citation: 241 F. 556
• Parties: BUTTERFIELD et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

241 F. 556

BUTTERFIELD et al. v. UNITED STATES.

No. 4527.

United States Court of Appeals, Eighth Circuit.

March 19, 1917

Pat Malloy, of Tulsa, Okl., for plaintiffs in error.

W Boothe Merrill, Asst. U.S. Atty., of Oklahoma City, Okl (John A. Fain, U.S. Atty., of Lawton, Okl., on the brief) for the United States.

Before HOOK and SMITH, Circuit Judges, and REED, District Judge.

PER CURIAM.

Butterfield and Hall complain of their conviction and sentence for violating the act of January 30, 1897 (29 Stat. 506), by introducing liquor into the Indian country. The undisputed facts at the trial were as follows: The accused were employed to transport seven barrels of bottled beer by a team and wagon from a town in Kansas to Avant, Okl., a distance of about 40 miles. They did not own the team, wagon, or beer, and were not interested in the disposition of the beer after arrival and delivery to their employer at Avant. One of the main traveled roads between the two towns ran across an 80-acre tract of land of an Indian allottee, the title to which was then held in trust by the government and was inalienable without its consent. The allotment was therefore Indian country within the meaning of the statute. The accused were ignorant of the ownership of the land and of its restricted character. They did not intend to stop on that part of the road or to deliver any of the beer to any person there. The town of Avant is within the limits of the Osage Indian Reservation in what was Oklahoma Territory before the admission of the state, but the Indian title had been extinguished and it was not then Indian country. While the accused were traveling towards Avant on the road running through the allotment, Government officers stopped the wagon, arrested them, and destroyed the beer.

The question in the case is presented by the instruction of the trial court that the mere transportation of the liquor across the Indian allotment was not by itself a violation of the act of January 30, 1897, but that it would be so if it was being taken to Avant for sale there contrary to the laws of the state and the accused knew it. There was evidence of the unlawful purpose of the employer at Avant and of the knowledge of the accused. The question is thus stated by counsel for the government:

'Further, we do not contest the proposition that intoxicating liquor may be transported across an Indian allotment without subjecting the person so transporting it to the charge of introducing liquor upon an Indian allotment. This, however, is to be qualified to the extent that the transportation across such allotment must always be for a lawful purpose.'

We think the court erred. The intent of the act of 1897 and the precise nature of the offense charged should be kept in view. Avant, the destination of the liquor, was not in the part of the state that was formerly Indian Territory. There was therefore no attempt to violate the part of the act of March 1, 1895 (28 Stat. 693, c. 145), left in force by the Oklahoma Enabling Act of June 16, 1906 (34 Stat. 267). The Enabling Act may also be laid aside. Its prohibitions of shipment and conveyance were confined to those from points within the state to other designated points therein. Besides, upon the admission of the state into the Union their enforcement was committed to the state courts. Ex parte Webb, 225 U.S. 663, 32 Sup.Ct. 769, 56 L.Ed. 1248. In the case at bar the conveyance was from state to state. The utmost that can be said is that the interrupted transportation towards Avant was an attempt to violate the laws of Oklahoma, and that the unlawful intent subjected the traffic to the prohibition of the Webb-Kenyon Act of March 1, 1913 (37 Stat. 699). But that act imposed no penalties of its own. Its purpose was to extend the policy of the Wilson Act of 1890 (Act Aug. 8, 1890, c. 728, 26 Stat. 313 (Comp. St. 1916, Sec. 8738) by removing a further impediment to the enforcement of state laws regarding intoxicating liquors. Adams Express Co. v. Kentucky, 238 U.S. 190, 198, 35 Sup.Ct. 824, 59 L.Ed. 1267, L.R.A. 1916C, 273, Ann. Cas. 1915D, 1167.

We refer to the above statutes because counsel has cited most of them as bearing on the case at bar, but the offense charged cannot be made out in that way nor by our conviction in a general sense of wrongdoing by the accused. In a criminal statute all of the elements of the offense must be definitely prescribed or be definitely ascertainable, and the offense must be against the sovereignty which prosecutes. Congress cannot provide for the punishment of a violation of the laws of a state justiciable only in its courts. United States v. Hall, 98 U.S. 343, 345, 25 L.Ed. 180. It may, in certain cases having a federal aspect or relevance, make the violation of state laws an element of a federal offense, but the courts cannot do so by construction. They cannot group two or more laws together to find enough in the assemblage to fit the conduct of defendants. The object of the act of January 30, 1897, under which alone the indictment was framed, is plain. It is to protect Indians of certain classes from the evils of the use of intoxicating liquor, and the better to accomplish it the prohibition was extended to the introduction of such liquor into places where such Indians would most likely be found. The trial court evidently held, and counsel for the government agrees, that the term 'introduce' in the statute signifies a stoppage or destination within the prohibited district, and not a continuous transit through it, unless the intent beyond is unlawful. But we cannot see what bearing the intent of the employer of the accused as to the disposition of the liquor at Avant has upon the object of the statute. Whatever the intent of the employer might have been, lawful or unlawful, the wagon and its contents would have been driven through the allotment with no difference in relation to the land or effect upon the occupants. Except for the adventitious circumstance that the transportation by team and wagon afforded greater facility for violating the statute, the case would not have been different had it been by railroad train without stop.

The sentences are reversed, and the cause is remanded for a new trial.

SMITH Circuit Judge (dissenting).

With all possible respect for the opinions of my Associates I feel compelled to unqualifiedly dissent from the foregoing opinion. The defendants below, plaintiffs in error here, were indicted, charged with a violation of the act of January 30, 1897. Chapter 109, 29 Stats. 506, U.S. compiled Statutes 1916, Sec. 4137, which so far as material is as follows:

'Any person who shall introduce or attempt to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, 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 by imprisonment for not less than sixty days, and by a fine of not less than one hundred dollars for the first offense and not less than two hundred dollars for each offense thereafter: Provided however, that the person convicted shall be committed until fine and costs are paid.'

The defendant Butterfield, a teamster, got a team and wagon at a ranch near Avant, which is in Osage county, formerly the Osage Indian Reservation, Okl., and drove to Hewins, Kan. The exact distance between Avant and Hewins does not appear, but it does appear that in making the trip from Avant to Hewins, Butterfield camped all night on the road, but expected to return in a continuous journey of all day and most of the night. At Hewins he met Hall, his codefendant, and they went to the express office and got seven barrels of beer and started to Avant with them. At some time before the capture the cards showing the consignee of the liquors were defaced and destroyed, and one of the beer barrels was opened so that bottles could be extracted, and five bottles were taken from the barrel and given to an automobile party they met on the road. How many other bottles were taken from this open barrel does not appear. Shortly thereafter they were arrested, while actually on an allotment within the meaning of the section of the statutes referred to, with substantially the balance of the liquor in their possession.

In Parsons on Contracts (9th Ed.) vol. 2, p. 647, the distinction is pointed out between interpretation and construction according to the celebrated work of Prof Francis Lieber on Legal and Political Hermeneutics, or the Principles of Interpretation and Construction in Law and Politics. The Supreme Court has also approved the distinction as laid down by the same distinguished professor in United States v. Farenholt, 206 U.S. 226, 229, 27 Sup.Ct. 629, 51 L.Ed. 1036....