Morris v. United States
| Decision Date | 11 April 1927 |
| Docket Number | No. 7454.,7454. |
| Parties | MORRIS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lewis J. Bicking, of Tulsa, Okl. (Bicking & Wilson, of Tulsa, Okl., on the brief), for plaintiff in error.
John M. Goldesberry, U. S. Atty., and W. B. Blair, Asst. U. S. Atty., both of Tulsa, Okl.
Before KENYON, Circuit Judge, and SYMES and MOLYNEAUX, District Judges.
Plaintiff in error was convicted in the United States District Court for the Northern District of Oklahoma upon an indictment charging possession of a large amount of intoxicating liquor at a place within the limits of what was known as the Indian Territory prior to the admission of Oklahoma into the Union as a state. The indictment was based on the Act of Congress of June 30, 1919, which is as follows:
U. S. Comp. Stat. 1925, Cumulative Supp., Compact Ed.:
Plaintiff in error filed motion to quash the indictment, which was overruled; likewise a motion in arrest of judgment. At the close of the government's case, plaintiff in error demurred to the evidence on the ground that it was insufficient to show he had possession of the intoxicating liquor alleged in the indictment, and that it was insufficient to show the premises were those alleged in the indictment, and that there was a variance between the indictment and the evidence. The demurrer was overruled. No evidence was introduced by plaintiff in error. He was sentenced to 18 months in the penitentiary and to pay a fine of $300.
Eighteen assignments of error are presented. A number thereof are not argued — hence waived. We group and discuss these assignments, which present practically the same questions. The first four relate to the indictment and the claim that it does not state an offense under the federal statutes. This indictment is not drawn under the National Prohibition Act (Comp. St. § 10138¼ et seq.), but under the Act of June 30, 1919, supra. This statute makes it an offense to be in possession of intoxicating liquor in a place where the introduction of intoxicating liquor "is or was" prohibited by treaty or federal statute. The indictment charges that the place is one "where the possession of spirituous and intoxicating liquor is and was prohibited by federal statute."
Plaintiff in error contends that the indictment, to be sufficient, should have charged that the place was one where the introduction of spirituous or intoxicating liquors is or was prohibited. The Act of June 30, 1919, makes possession in territory where introduction was prohibited the offense. Whether or not possession of intoxicating liquor was an offense in the Indian Territory prior to its admission as part of Oklahoma as a state in the Union is immaterial. There is no contention that Tulsa county, where the possession was charged to have occurred, was not a part of the old Indian Territory. The statute prohibits the possession of intoxicating liquor in two classes of cases: (a) Indian country; (b) places where the introduction of liquor was or is prohibited by treaty or federal statute. The government does not claim the place was Indian country, but that the place was one where the introduction of liquor had been prohibited by federal statute. That statute is the Act of March 1, 1895 (28 Stat. c. 145, p. 697), section 8 of which is as follows:
"Any person, whether an Indian or otherwise, who shall, in said territory, manufacture, sell, give away, or in any manner, or by any means furnish to any one, either for himself or another, any vinous, malt, or fermented liquors, or any other intoxicating drinks of any kind whatsoever, whether medicated or not, or who shall carry, or in any manner have carried, into said territory any such liquors or drinks, or who shall be interested in such manufacture, sale, giving away, furnishing to anyone, or carrying into said territory any of such liquors or drinks, shall, upon conviction thereof, be punished by fine not exceeding five hundred dollars and by imprisonment for not less than one month nor more than five years." U. S. Comp. Stat. 1918, Compact Ed., § 4136b.
This act remained in force after the admission of Oklahoma as a state — at least that part of the act prohibiting the introduction of liquor into what had been Indian Territory. Ex parte Webb, 225 U. S. 663, 32 S. Ct. 769, 56 L. Ed. 1248; Browning v. United States (C. C. A.) 6 F.(2d) 801. The indictment in this case was sufficient to charge an offense under the Act of June 30, 1919, supra.
The fifth assignment of error is that the indictment does not state facts sufficient to show that the premises described in the indictment on the date the crime was charged to have been committed was Indian Territory. For the reasons expressed in other parts of the opinion, this assignment is without merit.
The sixth assignment of error, raising the question that the place where the liquor was found was not Indian country, and that the restrictions on the land where the liquor was found had been removed, is without merit, in view of the decision of this court in Lucas v. United States, 15 F.(2d) 32.
The alleged error charged in the seventh assignment relates to the constitutionality of the Act of June 30, 1919. Plaintiff in error argues that the federal government has no police power over the morals or welfare of the citizens of Oklahoma. Congress was not attempting in the passage of this act to exercise police power as to those matters entirely within the jurisdiction of the state of Oklahoma. It was dealing with the question of controlling liquor traffic with the Indian tribes, which power rests with...
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