Davis v. United States
| Decision Date | 01 August 1921 |
| Docket Number | 3640. |
| Citation | 274 F. 928 |
| Parties | DAVIS et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Albert Schoonover, of San Diego, Cal., for plaintiffs in error.
Robert O'Connor, U.S. Atty., and Herbert N. Ellis, Asst. U.S Atty., both of Los Angeles, Cal., for the United States.
Before GILBERT, ROSS, and HUNT, Circuit Judges.
The plaintiffs in error were convicted under an indictment which charged them with conspiring to commit the offense of knowingly, willfully, and unlawfully transporting, selling bartering, furnishing, and possessing intoxicating liquor namely, whisky, in violation of the National Prohibition Act of October 28, 1918 (41 Stat. 305). The indictment set forth overt acts, among which it was charged that on a date named the plaintiffs in error did knowingly, willfully, and unlawfully advise, counsel, and abet Adolpho C. Olivas to knowingly, willfully, and unlawfully transport and attempt to transport 13 five-gallon demijohns of whisky containing alcohol in excess of one-half of 1 per cent. by volume, from Calexico, Cal., to the ranch of said plaintiff in error Davis, within the state of California.
The only error assigned is that the trial court, after the conviction of the plaintiffs in error, denied their motion in arrest of judgment, and the sole question presented to this court is whether the indictment charges an offense against the United States. It is contended that it is fatally defective, in that it fails to allege that the liquor, the transportation of which was the object of the conspiracy, was not to be used for nonbeverage purposes, under the provisions of section 3 of title 2 of the act. The plaintiffs in error cite authorities to the proposition that where a statute in defining an offense 'contains an exception or proviso in its enacting clause which is so incorporated with the language describing and defining the offense, that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, it must be shown that the accused is not within the exception,' citing 14 R.C.L. 188. But the text-writer so quoted goes on to say:
'On the other hand, if the language of the section defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the pleader may safely...
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Massey v. United States
... ... section 3 of title 2 of the National Prohibition Act was a ... sufficient statement of the unlawful possession, and it was ... not necessary to negative the purposes for which the accused ... might have possessed the liquor. Davis v. United States ... (C.C.A.) 274 F. 928, 929 ... By the ... terms of section 1 of title 2 of the act, the words ... 'intoxicating liquor,' as used therein, are to be ... construed to include any spirituous, vinous, malt, or ... fermented liquor, liquids or compounds, whether ... ...
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Feinberg v. United States
...especially in view of the provisions of section 32 of the National Prohibition Act, tit. 2 (section 10138½s). Davis v. United States (C. C. A.) 274 F. 928, 929; Massey v. United States (C. C. A.) 281 F. 293, 296. Moreover, the allegation that the defendants "unlawfully" possessed this intox......
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Scaffidi v. United States, 2336.
...and it was not necessary to negative the purposes for which the accused might have possessed the liquor." In the case of Davis v. United States (C. C. A.) 274 F. 928, the precise question involved in the case at bar was before the Ninth Circuit, and it was held that: In an indictment chargi......
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Rose v. United States
...the criminal conspiracy in this case. It is in such a case that exceptions need not be negatived in the indictment. Davis v. United States, 9 Cir., 1921, 274 F. 928; Hockett v. United States, 9 Cir., 1920, 265 F. Enough is stated in the indictment to reveal the offense to be met and to prot......