Robertson v. United States

• Decision Date: 17 December 1919
• Docket Number: 5382.
• Citation: 262 F. 948
• Parties: ROBERTSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

262 F. 948

ROBERTSON v. UNITED STATES.

No. 5382.

United States Court of Appeals, Eighth Circuit.

December 17, 1919

J. E Grigsby, of Albuquerque, N.M. (W. C. Heacock, of Albuquerque N.M., on the brief), for plaintiff in error.

J. O Seth, Asst. U.S. Atty., of Santa Fe, N.M. (Summers Burkhart U.S. Atty., of Albuquerque, N.M., on the brief), for the United States.

Before CARLAND and STONE, Circuit Judges, and ELLIOTT, District Judge.

STONE Circuit Judge.

Error from conviction for violation of presidential regulations of June 27, 1918, promulgated under section 12 of the Draft Act (40 Stat. 82 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 2019a)), prohibiting the transportation of intoxicants within a five-mile zone surrounding a military encampment. There are no properly preserved exceptions presenting any of the questions here argued. However, as the sentence involves imprisonment we have examined the points presented. The first contention is that no offense is stated in the information in violation of section 12. That section is:

'Sec. 12. That the President of the United States, as Commander-in-Chief of the Army, is authorized to make such regulations governing the prohibition of alcoholic liquors in or near military camps and to the officers and enlisted men of the Army as he may from time to time deem necessary or advisable: Provided, that no person, corporation, partnership, or association shall sell, supply, or have in his or its possession any intoxicating or spirituous liquors at any military station, cantonment, camp, fort, post, officers' or enlisted men's club, which is being used at the time for military purposes under this act, but the Secretary of War may make regulations permitting the sale and use of intoxicating liquors for medicinal purposes. It shall be unlawful to sell any intoxicating liquor including beer, ale, or wine, to any officer or member of the military forces while in uniform, except as herein provided. Any person, corporation, partnership, or association violating the provisions of this section or the regulations made thereunder shall, unless otherwise punishable under the Articles of War, be deemed guilty of a misdemeanor and be punished by a fine of not more than $1,000 or imprisonment for not more than twelve months, or both.' It is true that this section does not designate the 'transportation' of liquor as an offense, but it does provide for regulations to be promulgated by the President, and section 1 of the regulations promulgated June 27, 1918, specifically prohibits that any liquor be 'transported to any place within any such zone.'

It is next claimed that the information was vitally defective in not alleging that the offense here charged was not punishable under the Articles of War. Such exception in the statute was no part of the definition of the offense, and...