Carnahan v. United States

• Citation: 35 F.2d 96,67 ALR 1035
• Decision Date: 16 September 1929
• Docket Number: No. 8393.,8393.
• Parties: CARNAHAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

67 ALR 1035, 35 F.2d 96 (1929)

CARNAHAN v. UNITED STATES.^*

No. 8393.

Circuit Court of Appeals, Eighth Circuit.

September 16, 1929.

Walter W. Calvin, of Kansas City, Mo. (Frank P. Walsh and James P. Aylward, both of Kansas City, Mo., on the brief), for appellant.

William L. Vandeventer, U. S. Atty., of Kansas City, Mo.

Before STONE, BOOTH, and GARDNER, Circuit Judges.

STONE, Circuit Judge.

Appellant, Carnahan, and others, were indicted for conspiracy to violate the National Prohibition Act (27 USCA). Carnahan and one De Mayo separately appealed. De Mayo has dismissed his appeal. This is the appeal of Carnahan. The claimed errors argued here involve the sufficiency of the indictment; the sufficiency of the evidence; the admission of evidence; the charge as given and refusal of requests to charge.

I. The indictment was in three counts. The government elected, at the beginning of the trial, to proceed on the first count. That count charged a conspiracy to violate the National Prohibition Act and set forth five overt acts.

Appellant attacks the indictment upon two grounds. A third matter is argued under the same heading of the brief. That matter is one of a claimed variance between the proof and the indictment. It has no bearing upon the sufficiency of the indictment except to throw light upon the result to which one of the contentions as to the indictment would lead.

The first and main attack upon the indictment is that it fails to allege that the conspiracy was formed to sell intoxicating liquor for beverage purposes. As to this matter the indictment charges as follows: That the accused and others "did unlawfully, knowingly, willfully and feloniously confederate, combine, conspire and agree * * * to continuously commit offenses against the laws of the United States; * * * that is to say, that the said * * * did then and there unlawfully, willfully, knowingly and feloniously conspire, combine, confederate and agree * * * in violation of title II of the National Prohibition Act, and more particularly section 3 and section 29 thereof * * * engage in the business of unlawfully selling intoxicating liquors fit for beverage purposes, to wit, in the business of unlawfully selling whisky and alcohol, and * * * would * * * in violation of title II of the National Prohibition Act, and more particularly of sections 3 and 29 thereof, unlawfully sell to divers other persons * * * large quantities of whisky and alcohol suitable for beverage purposes, and containing more than one-half of one per cent. of alcohol by volume and * * * the said * * * made and caused to be made each and every one of the sales of whisky and alcohol hereinafter specifically described and charged in this indictment, and that each and every sale, and each and every act hereinafter charged was an overt act performed in pursuance of and to effect the purpose and object of the said unlawful conspiracy, combination, confederation and agreement between the several defendants herein named." This is followed by statement of five overt acts. The first overt act is a sale of 24 pints of whisky "suitable for beverage purposes and contained more than one-half of one per cent. of alcohol by volume in violation of title II of the National Prohibition Act, and more particularly of section 3 and section 29 thereof." Two other acts were for sales, and one other for agreement to sell, whisky or alcohol described as just above quoted. The fifth act was in setting up and maintaining an office where the conspirators "who were engaged in the unlawful manufacture, sale and transportation of intoxicating liquor * * * secreted, bargained and sold whisky and alcohol in violation of title II of the National Prohibition Act. * * *"

The argument is that the Eighteenth amendment was not directed at the manufacture, sale, transportation, importation, or exportation of all intoxicating liquors but at only such as were so dealt with for beverage purposes. "Congress is, therefore, limited in its power to legislate to certain specified acts which are committed for a designated purpose; that is to say, the manufacture and sale, etc., of intoxicating liquor, and that the power of Congress is further limited to the prohibition of the act proscribed only when the product or result of the proscribed act is to be used for stated purposes, to wit, for beverage purposes. In any prohibition or criminal legislation under this Amendment, two elements are ever present: (1) The proscribed act, and (2) the forbidden purpose. The power delegated to Congress to legislate on the subject cannot be broader than the plain intention and words of the Amendment." (Appellant's brief, p. 35.)

"We respectfully submit that the Act can be and should be, because of its own words, interpreted so as to be in perfect harmony with the Amendment. The Amendment is operative only to a limited extent, viz; intoxicating liquors used for beverage purposes. The Amendment does not govern or regulate the entire subject of `intoxicating liquors,' and then by exception or proviso exclude from its operation intoxicating liquors intended to be used for non-beverage purposes. The scope of the Amendment is distinctly limited by its provisions, to wit, to `intoxicating liquors for beverage purposes.'

"The same limited scope or operation is imposed upon the Act of Congress." (Appellant's brief, p. 36.)

The argument concludes that it is essential to aver that liquor dealt with in violation of the act is so dealt with "for beverage purposes."

We need not determine the scope of the amendment because it certainly goes to the extent argued and the statute goes no farther. The sole purpose of the act is to prevent the manufacture, sale, transportation, importation or exportation of intoxicating liquors for beverage purposes. To accomplish that purpose, Congress thought it necessary and deemed it wise to take complete control of all manufacture, sale, transportation, importation and exportation of intoxicants. United States v. Katz, 271 U. S. 354, 358, 46 S. Ct. 513, 70 L. Ed. 986. The second section of the amendment expressly empowers Congress to enforce the amendment "by appropriate legislation." Irrespective of this expression, the last paragraph of section 8, art. 1, of the Constitution gives Congress the power "to make all laws which shall be necessary and proper for carrying into execution * * * all other powers vested by this Constitution in the government of the United States. * * *" This certainly was within the grant of power by the amendment if such control is reasonably related to the power of controlling intoxicants for beverage purposes because a grant of power carries with it all reasonable means to render the exercise of that power effective. Lambert v. Yellowley, 272 U. S. 581, 47 S. Ct. 210, 71 L. Ed. 422, 49 A. L. R. 575. There can be no doubt that any attempt to control intoxicants for beverages would be very ineffective were the manufacture, sale, etc., of intoxicants for other purposes left entirely free. One of the difficulties in the enforcement of this very act has been to prevent diversions of intoxicants from legitimate uses to that of beverages — even with the control and restrictions placed by the act upon legitimate usage. The title of the act is "An act to prohibit intoxicating beverages, and to regulate the manufacture, production, use, and sale of high proof spirits for other than beverage purposes, and to insure an ample supply of alcohol and promote its use in scientific research and in the development of fuel, dye, and other lawful industries." 41 Stat. 305. The act is divided into three titles with distinct, though related, subjects. Title 1 is entitled "To provide for the enforcement of war prohibition." We have no concern with that title as it was intended to meet a temporary situation and to cease when that situation vanished — that is, with complete demobilization of the World War troops. 41 Stat. 305. Title 2 is entitled "Prohibition of Intoxicating Beverages." Title 3 is entitled "Industrial Alcohol." The very heart of the entire act is contained in the first paragraph of section 3 of title 2, which is as follows:

"No person shall on or after the date when the eighteenth amendment to the constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this Act, and all the provisions of this Act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented" 41 Stat. 308 (27 USCA § 12, par. 1).

A summary of all other provisions of the act (see Donnelley v. United States, 276 U. S. 505, 513, 48 S. Ct. 400, 72 L. Ed. 676) convinces that the entire purpose is to set forth in workable detail what has been generally announced in the above quotation from section 3. The plan of the act is to so control the production, handling and dealing in all intoxicants which are fit for beverage purposes or could be made so fit that use of such as beverages may be prevented. The rule announced by the act is that no intoxicating liquor fit for beverage can be manufactured, sold, etc. To this general and controlling rule, the statute specifies several carefully guarded exceptions. Obviously, these exceptions are in the nature of defensive negatives. Of such nature is a defense that liquor "fit for beverage purposes" was sold for sacramental, scientific or industrial purposes by one having the right to so sell.

Section 32 of title 2 of the act expressly states that "it shall not be necessary in any * * * information, or indictment * * * to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful, but this provision shall not be construed to preclude the trial court from directing the furnishing the defendant a bill of particulars when it deems it...