Kachnic v. United States, 6572.

• Decision Date: 30 November 1931
• Docket Number: No. 6572.,6572.
• Parties: KACHNIC v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

79 ALR 1366, 53 F.2d 312 (1931)

KACHNIC v. UNITED STATES.

No. 6572.

Circuit Court of Appeals, Ninth Circuit.

October 26, 1931.

Rehearing Denied November 30, 1931.

John A. McGuire, of Prescott, Ariz., for appellant.

John C. Gung'l, U. S. Atty., of Tucson, Ariz., and J. S. Wheeler and Benton Dick, Asst. U. S. Attys., both of Phoenix, Ariz., for the United States.

Before WILBUR and SAWTELLE, Circuit Judges, and JAMES, District Judge.

SAWTELLE, Circuit Judge.

This is an appeal from the United States District Court for the District of Arizona.

A grand jury found an indictment charging jointly one John Kachnic, one Elve Upton, and appellant, Joe Kachnic, on two counts: (1) That on July 3, 1931, they did "knowingly, wilfully and unlawfully, in violation of the National Prohibition Act, have in their possession approximately 40 gallons of intoxicating liquor known as whiskey"; (2) that on July 3, 1931, they did "knowingly, wilfully, unlawfully and feloniously" transport by certain specified automobiles "more than one gallon of intoxicating liquor, to-wit: approximately 40 gallons of intoxicating liquor known as whiskey, from a point near the City of Humboldt, to another point approximately five miles northeast of the City of Prescott" in Yavapai county, Ariz.

The indictment followed the offense within twenty-four hours. Appellant was arraigned on this indictment on July 6, and, waiving counsel, he pleaded guilty. No witnesses were sworn, but Assistant United States Attorney J. S. Wheeler and Prohibition Agent F. P. Collins made statements regarding the apprehension of appellant. There was no record of any previous conviction. Appellant, when asked if there were any reason why judgment should not be pronounced against him, said that he had a wife and family to support, and had been hired to transport said liquor for $20 (in his own automobile). Whereupon sentence was pronounced by the court as follows: "That you be imprisoned for the period of two years and six months in the Federal penitentiary at McNeil Island, to date from your arrival and fined $3,000.00 on each count, said fines to run concurrently with each other and in default thereof consecutively with imprisonment."

On July 22, John A. McGuire appeared as counsel for appellant, and filed a motion to modify the sentence to not to exceed $500 fine and six months' imprisonment on the second count, and such relief as might be proper on the first count, and for such other relief as might be proper. To this motion was attached the affidavit of appellant to the effect that "he was assisting in said unlawful transportation as a casual employee only, having been hired to drive said car and to transport the liquor therein for the sum of $20.00." There was no motion for a new trial nor any motion or request seeking to withdraw the plea of guilty; on argument of the motion the same was denied, the court refused to enter upon a further investigation of the facts in the case, to which exception was taken.

Appellant's first assignment of error is "that the court erred in holding and deciding that the indictment in this case charged a felony, whereas said indictment charges a misdemeanor only," in that the indictment failed to recite whether or not the defendant took part as a casual employee only.

The act of March 2d, 1929, 45 Stat. 1446, commonly known as the Jones Law, provided that: "Wherever a penalty or penalties are prescribed in a criminal prosecution by the National Prohibition Act, as amended and supplemented, for the illegal manufacture, sale, transportation, importation, or exportation of intoxicating liquor, as defined by section 1, Title II, of the National Prohibition Act, the penalty imposed for each such offense shall be a fine not to exceed $10,000 or imprisonment not to exceed five years, or both: Provided, That it is the intent of Congress that the court, in imposing sentence hereunder, should discriminate between casual or slight violations and habitual sales of intoxicating liquor, or attempts to commercialize violations of the law." Section 1.

In the case of Husty v. United States, 282 U. S. 702, 51 S. Ct. 240, 242, 75 L. Ed. 629, the Supreme Court, construing an indictment in the light of the above act, said: "It is urged that the indictment is defective, because it fails to state whether the offenses charged were felonies or misdemeanors, and whether the petitioners were charged with casual or slight violations, or habitual sales of intoxicating liquor, or attempts to commercialize violations of the law, which, petitioners argue, were made new or aggravated offenses by the Jones Act. But the Jones Act created no new crime. It increased the penalties for `illegal manufacture, sale, transportation, importation, or exportation,' as defined by section 1, title 2 of the National Prohibition Act (27 USCA § 4), to a fine not exceeding $10,000, or imprisonment not exceeding five years, or both, and added as a proviso, `that it is the intent of Congress that the court, in imposing sentence hereunder, should discriminate between casual or slight violations and habitual sales of intoxicating liquor, or attempts to commercialize violations of the law.' As the act added no criminal offense to those enumerated and defined in the National Prohibition Act, it added nothing to the material allegations required to be set out in indictments for those offenses. The proviso is only a guide to the discretion of the court in imposing the increased sentences for those offenses for which an increased penalty is authorized by the act."

However, since the Husty decision, supra, there has been an amendment to the Jones Act, January 15, 1931 (27 USCA § 91), that provides:

"That any person who violates the provisions of this title in any of the following ways:

"(1) by a sale of not more than one gallon of liquor as that word is defined by section 4 of this title: Provided,...