Dunn v. United States

• Decision Date: 24 June 1938
• Docket Number: No. 1557.,1557.
• Citation: 98 F.2d 119,117 ALR 1302
• Parties: DUNN v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

117 ALR 1302, 98 F.2d 119 (1938)

DUNN v. UNITED STATES.

No. 1557.

Circuit Court of Appeals, Tenth Circuit.

June 24, 1938.

Douglas Garrett, of Muskogee, Okl., for appellant.

Charles N. Champion, Asst. U. S. Atty., of Muskogee, Okl. (Cleon A. Summers, U. S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before LEWIS, PHILLIPS, and WILLIAMS, Circuit Judges.

PHILLIPS, Circuit Judge.

Dunn was tried, convicted and sentenced on an indictment which charged him with having transported intoxicating liquor, to wit, whisky, from the state of Arkansas into the state of Oklahoma, in violation of the Liquor Enforcement Act of 1936 (27 U. S.C.A. § 223(a).¹

The cause had been submitted and was ripe for decision here when the United States Attorney at the direction of the Attorney General filed a brief raising the question of the applicability of Section 223 (a) to importation or transportation of intoxicating liquor into the state of Oklahoma and requested our decision thereon. We permitted the Attorney General of Oklahoma to file a brief as amicus curiae and the cause has been resubmitted.

At the close of the government's evidence Dunn filed a motion to quash the indictment and a motion to suppress the evidence of the arresting officers on the ground that the evidence adduced was obtained by means of an unlawful search of his automobile in violation of the Fourth Amendment. U.S.C.A. Const. Amend. 4.

The trial court overruled the motions.

The search complained of was made on December 21, 1936. All of the facts on which the motions were predicated became known to Dunn at that time. He was indicted on February 19, 1937, and tried on April 5, 1937. Such objections must be seasonably made. Except where there has been no opportunity to present them in advance of trial, a court when engaged in trying a criminal case will not stop to inquire into the legality of a search by which otherwise competent evidence has been obtained. The court will not thus halt the orderly progress of the trial to inquire into a collateral matter.²

The motions not having been seasonably made were properly overruled.

Oklahoma does not prohibit the importation of grain alcohol for medicinal, scientific and mechanical purposes, or intoxicating wine for sacramental purposes,³ and does not provide for a permit or licensing system with respect to intoxicating liquor imported or transported into the state. This the Attorney General concedes in his brief.

Report No. 1258, 74th Congress, prepared by Mr. Celler of the Committee of the House of Representatives on the Judiciary to accompany the Liquor Enforcement Act of 1936, 27 U.S.C.A. § 221 et seq., in part reads:

"The determination of whether an offense has been committed turns upon the existence of a State license or permit system, or a complete embargo on all bringing of liquor into the State. In the former case, it will be an offense to ship intoxicating liquor unaccompanied by a permit or license into the State; in the latter, it will be an offense merely to transport such liquor into the State.

"In the absence of either one of these two control methods, it would be exceedingly difficult to make effective administration of a Federal protective system feasible, since the legality of a liquor shipment into a State could be determined only by investigation of the use for which it was intended. The establishment of Federal machinery as elaborate as that of prohibition day would be required in the absence of State cooperation taking the form of one or the other of the control methods devised."

On February 27, 1937, the General Counsel of the Treasury Department rendered an opinion holding that the Liquor Enforcement Act of 1936 was inapplicable to Oklahoma because it had not adopted either one of the control methods.

The intention of Congress manifest by the language of Section 223(a), supra, when read in the light of the committee report is clear. It is to make it a federal offense to import or transport liquor into a dry state only when that state by its laws prohibits all importation or transportation of intoxicating liquor thereinto, or provides for and requires a permit or license to accompany intoxicating liquor that may be lawfully imported or transported thereinto.

Absent both of these control methods the federal officers charged with the enforcement of the Liquor Enforcement Act of 1936 would be required to make an investigation and ascertain the use intended to be made of intoxicating liquor being imported or transported into the dry state. It was to obviate this necessity that Congress made the federal act applicable only to dry states which had adopted one or the other of the two control methods. To require such cooperation on the part of dry states as a condition to federal assistance in the enforcement of its prohibitory laws is not unreasonable.

Section 2 of the Twenty-First Amendment U.S.C.A. Amend. 21, § 2 reads:

"The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

It is urged that this provision is self-executing and makes the acts charged in the indictment herein a federal offense.

In Vance v. W. A. Vandercook Co., 170 U.S. 438, 444, 18 S.Ct. 674, 676, 42 L.Ed. 1100, the court said:

"Equally well established is the proposition that the right to send liquors from one state into another, and the act of sending the same, is interstate commerce, the regulation whereof has been committed by the constitution of the United States to congress, and hence that a state law which denies such a right, or substantially interferes with or hampers the same is in conflict with the constitution of the United States."

The effect of Section 2 of the Twenty-First Amendment U.S.C.A. Amend. 21, § 2, was to qualify the Commerce Clause, U.S.C.A.Const. art. 1, § 8, cl. 3 so as to permit a state to prohibit or condition the importation or transportation of intoxicating liquor thereinto.⁴

Referring to Section 2 of the Twenty-First Amendment, U.S.C.A.Const. Amend. 21, § 2 the Supreme Court in State Board of Equalization of California v. Young's Market Co., 299 U.S. 59, 62, 57 S.Ct. 77, 78, 81 L.Ed. 38, said:

"The words used are apt to confer upon the state the power to forbid all importations which do not comply with the conditions which it prescribes."

In Sancho v. Corona Brewing Corp., 1 Cir., 89 F.2d 479, 481, the court said:

"The Twenty-First Amendment simply withdraws the exclusive control of Congress, under the commerce clause (article 1, § 8, cl. 3), over commerce in intoxicating liquors, when their importation is in violation of the laws of a state, territory, or possession of the United States."

While since the adoption of the Twenty-First Amendment a state may prohibit or condition the importation or transportation of intoxicating liquor thereinto, we do not think Section 2 of the Amendment can be regarded as a penal section.⁵

The judgment is reversed and the cause remanded with instructions to dismiss the indictment.

WILLIAMS, Circuit Judge (dissenting).

I am unable to concur in the holding that Section 2 of the Twenty-first Amendment, U.S.C.A.Const. Amend. 21, § 2, is not self-executing.

The Senate of the United States, on May 28, 1938, passed Bill (H.R. 7508) to amend the Liquor Enforcement Act of 1936, so as to read as follows, to-wit:

"Sec. 3. Whoever shall import, bring, or transport any intoxicating liquor into any State in which all sales (except for scientific, sacramental, medicinal, or mechanical purposes) of intoxicating liquor containing more than 5 percent of alcohol by weight are prohibited, otherwise when in the course of continuous interstate transportation through such State, or attempt so to do, or assist in so doing, shall, if the importation, bringing, or transportation of such intoxicating liquor into, or the transportation thereof within, such State is prohibited by the laws thereof, be guilty of a misdemeanor and shall be fined not more than $1,000 or imprisoned not more than 1 year, or both. All importation, bringing, or transportation of intoxicating liquor into any such State for delivery or use therein, or through such State in the course of continuous interstate transportation, shall be evidenced by shipping documents in the manner and form prescribed by the Commissioner of Internal Revenue in regulations approved by the Secretary of the Treasury. Whenever the officers charged with the enforcement of this act shall discover intoxicating liquor in the course of importation, bringing, or transportation into any such State, such intoxicating liquor shall, except when it is consigned to a person entitled under the laws of such State to procure, possess, or dispose of such intoxicating liquor for scientific, sacramental, medicinal, or mechanical purposes, or except when it is consigned for delivery in another State and is in the course of continuous interstate transportation through the State in which discovered, and such consignment to such a person or for delivery in another State is evidenced by shipping documents as hereinbefore required, be presumed to be in the course of importation, bringing, or transportation into such State contrary to the provisions of this section, and the burden of proof shall be on the claimant or the accused to rebut such presumption."

Congressional Record, Vol. 83, No. 110, Saturday, May 28, 1938, pages 10148 and 10149, is as follows:

"The bill was read the third time and passed.

"Mr. King. Mr. President, the report submitted by the Judiciary Committee on this bill contains, I believe, an important discussion of its provisions, and also of some features of the twenty-first amendment to the Constitution. I ask that it may be inserted in the Record as part of my remarks.

"The Presiding Officer. Is there objection? The Chair hears none, and it is so...