Creel v. United States
| Decision Date | 09 September 1927 |
| Docket Number | No. 7638.,7638. |
| Citation | 21 F.2d 690 |
| Parties | CREEL v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
T. H. Davidson, of Muskogee, Okl., for plaintiff in error.
Frank Lee, U. S. Atty., of Muskogee, Okl., (W. F. Rampendahl, Asst. U. S. Atty., of Muskogee, Okl., on the brief), for the United States.
Before WALTER H. SANBORN and BOOTH, Circuit Judges, and MILLER, District Judge.
This is a writ of error to a judgment convicting plaintiff in error, hereafter called defendant, of violation of the National Prohibition Act, U. S. C. tit. 27 (27 USCA).
The information contained two counts. Each charged that defendant "did * * * unlawfully sell and furnish to * * * a quantity of intoxicating liquor," etc. Defendant demurred to each count of the information on various grounds, among them that of duplicity. The demurrer was overruled. At the close of the government's case, and again at the close of all the evidence, defendant moved for a directed verdict, on the ground that the evidence was insufficient to support a verdict of guilty. The motions were overruled. Defendant was found guilty.
There are a number of assignments of error, but the only question which we find it necessary to discuss is whether the information was duplicitous.
Duplicity is the joining in one count of two or more distinct offenses. The question of duplicity may properly be raised by demurrer. Lemon v. United States, 164 F. 953 (C. C. A. 8); John Gund Brewing Co. v. United States, 204 F. 17 (C. C. A. 8); Wright v. United States, 227 F. 855 (C. C. A. 8); United States v. L. & N. R. Co. (D. C.) 165 F. 936.
It is the contention of defendant that in each count of the information two distinct offenses were joined, viz.: The sale of intoxicating liquor and the furnishing of intoxicating liquor. Turning to the National Prohibition Act, it is found that section 3, tit. 2 (U. S. C. tit. 27, § 12 27 USCA § 12), reads 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."
It is clear that there are a number of distinct offenses here enumerated. This has been at various times meticulously pointed out. Albrecht v. United States, 273 U. S. 1, 47 S. Ct. 250, 71 L. Ed. 505; Berry v. United States, 18 F.(2d) 276 (C. C. A. 8).
Punishment for the various offenses is provided in section 29, tit. 2 (U. S. C. tit. 27, § 46 27 USCA § 46). That section reads, so far as here material, as follows:
It is apparent from these provisions that the punishment for the offense of selling is different from the punishment for the offense of furnishing. It is also clear that Congress, by providing different punishments for selling and for furnishing, emphasized the distinctness of the two offenses.
The case at bar does not fall within that class of cases in which a statute prohibits the doing of a thing in any one of several modes, and in which consequently each of the modes may be alleged in the same count without duplicity resulting. Examples of such cases are Crain v. United States, 162 U. S. 625, 16 S. Ct. 952, 40 L. Ed. 1097; Egan v. United States, 52 App. D. C. 384, 287 F. 958; Wright v. United States, supra.
In the instant case the allegations do not set forth different modes of committing the same offense, but they set forth the commission of two different offenses. It is, of course, possible to furnish without selling; and it is also possible, though not so frequent, to sell without furnishing.
It is suggested that the word "furnish" may be disregarded as surplusage. We do not think this can be done. Words adequately charging a distinct offense cannot be rejected as surplusage. If they could, the vice of duplicity in criminal pleading could be practiced with impunity. The language of the information adequately charges two distinct offenses. If the words "and furnish" are stricken out,...
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...76 L.Ed. 861. Where, however, two or more distinct offenses are pleaded in one count, the count is void for duplicity. Creel v. United States, 8 Cir., 1927, 21 F.2d 690. In an indictment for conspiracy the facts showing the conspiracy must be sufficiently alleged and they cannot be aided by......
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