Ford v. United States

• Decision Date: 01 September 1919
• Docket Number: 5331.
• Citation: 260 F. 657
• Parties: FORD v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

260 F. 657

FORD v. UNITED STATES.

No. 5331.

United States Court of Appeals, Eighth Circuit.

September 1, 1919

Guy H Sigler, of Ardmore, Okl., for plaintiff in error.

Cliff V. Peery, Asst. U.S. Atty., of Muskogee, Okl. (W. P McGinnis, U.S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before HOOK and CARLAND, Circuit Judges, and YOUMANS, District Judge.

CARLAND Circuit Judge.

Writ of error to reverse a judgment forfeiting one Maxwell automobile for being used in introducing intoxicating liquor from without the state of Oklahoma, into the eastern part of said state, formerly Indian Territory, in violation of section 8 Act of Congress of March 1, 1895 (28 Stat. 697, c. 145 (Comp. St. Sec. 4136b)). The case was tried by the court, which found the facts and entered a judgment of forfeiture.

There is no claim that the facts found do not support the judgment, but it is assigned as error that the evidence does not support the same. If a jury had been waived in writing, this assignment could not be considered, as the question was in no wise raised at the trial. Section 700 R.S. (Comp. St. Sec. 1668); Mason v. United States, 219 F. 547, 135 C.C.A. 315, and cases cited. It cannot now be considered, for the reason that it does not appear that a jury was waived in writing. Bond v. Dustin, 112 U.S. 604, 5 Sup.Ct. 296, 28 L.Ed. 835; Ladd & Tilton Bank v. Louis A. Hicks Co., 218 F. 310, 134 C.C.A. 106. The judgment contains the following recital:

'And now both parties announce ready for trial and waive jury and agree to try the case before the court.'

It is further assigned as error that the facts pleaded in the libel do not support the judgment. This assignment is based upon the contention that the libel does not show that the intoxicating liquor was being introduced into the Indian country. Section 2140, R.S. (Comp. St. Sec. 4141). Since the Indian Appropriation Bill, approved March 2, 1917 (39 Stat. 969, 970, c. 146 (Comp. St. 1918, Sec. 4141a)), this is not necessary. A proviso in that act reads as follows:

'Provided, that automobiles or any other vehicles or conveyances used in introducing, or attempting to introduce, intoxicants into the Indian country, or where the introduction is prohibited by treaty or federal statute, whether used by the owner thereof or other person, shall be subject to the seizure, libel, and forfeiture provided in section 2140 of the Revised Statutes of the United States.'

This law would apply to the facts pleaded in this case. United States v. One Cadillac Automobile (D.C.) 255 F. 173; United States v. One Buick Automobile (D.C.) 244 F. 961; United States v. One Buick Automobile (D.C.) 255 F. 793. The history of this legislation, when being passed by Congress, shows that it was intended for such a situation as exists in Oklahoma. 54 Congressional Rec. 2052, 2931, 2970, 3808, 3811.

The United States District Court did not lose jurisdiction over the automobile by the wrongful seizure of the same in a replevin action commenced in the county court of Carter county, Okl. The automobile was seized by the United States deputy marshal on May 18, 1917, who at once notified the proper officer of the United States, so that proceedings for the forfeiture of the automobile could be instituted. The libel in the present case was filed June 15, 1917. The seizure was necessary...