Sharp v. United States

• Decision Date: 06 December 1926
• Docket Number: No. 7531.,7531.
• Citation: 16 F.2d 876
• Parties: SHARP v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

16 F.2d 876 (1926)

SHARP v.UNITED STATES.

No. 7531.

Circuit Court of Appeals, Eighth Circuit.

December 6, 1926.

John T. Harley, of Tulsa, Okl., for plaintiff in error.

John M. Goldesberry, U. S. Atty., of Tulsa, Okl.

Before LEWIS, Circuit Judge, and MUNGER and FARIS, District Judges.

LEWIS, Circuit Judge.

Plaintiff in error (he should have come here on appeal) was charged before United States Commissioner with having in his possession and under his control at No. 206 South Boulder Street, in the City of Tulsa, Oklahoma, "certain intoxicating liquor, to wit, eight (8) bottles each containing two fluid ounces of tincture of ginger, and eight bottles containing four fluid ounces each of imitation apricot extract all of said intoxicating liquor containing more than one-half of one per cent. of alcohol measured by volume and capable and fit for use for beverage purposes, and when so used for beverage purposes would produce intoxication; the place within Tulsa County, Oklahoma, where said intoxicating liquors aforesaid were kept and possessed by said defendant having been within the limits of the Indian Territory and a part thereof prior to the admission of the state of Oklahoma into the Union as one of the United States of America," etc.We think the clause which we have inclosed in brackets is surplusage and will disregard it.After hearing, the commissioner found probable cause, ordered that Sharp be held to appear at the next term of court and fixed his bail in the sum of one thousand dollars.He failed to furnish the bail and was committed to the marshal to be held in jail until discharged by due course of law.He thereupon sued out the writ of habeas corpus, alleging in his verified petition therefor that the complaint against him did not charge any offense against the United States, that the proof taken on preliminary hearing did not show probable cause to believe that any offense against the laws of the United States had been committed and that neither the Jamaica ginger nor the apricot extract was an intoxicating liquor and that they were not fit for use as a beverage.He submitted with his petition a transcript of the testimony taken at the preliminary hearing.The writ prayed for was issued.The marshal made return that petitioner was held under commitment from the United States Commissioner because of the criminal charge made against him and his failure to furnish bail.At the hearing on the petition for discharge the district attorney offered further evidence additional to that offered on the preliminary hearing.The application of the petitioner for discharge from custody was then denied; and he has brought that order here for consideration, complaining of error.

The charge made before the commissioner on which Sharp was being held in custody is based on the Act of June 30, 1919 (41 Stat. 4,U. S. Comp. Stat. 1916, 1923 Supp. § 4137aa, which reads:

"On and after July 1, 1919, possession by a person of intoxicating liquors in the Indian Country, or where the introduction is or was prohibited by treaty or Federal statute, shall be an offense and punished in accordance with the provisions of the Acts of July 23, 1892(Twenty-Seventh Statutes at Large, page 260), and January 30, 1897(Twenty-Ninth Statutes at Large, page 506)."

The Federal statute which prohibits the introduction of intoxicating liquor into Indian Territory(now a part of Oklahoma), referred to in the Act of June 30, 1919, is Section 8 of the Act of March 1, 1895(28 Stat. 693), which reads as follows:

"That 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 any one, 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."Comp. St. § 4136b.This section of the Act of March 1, 1895, remained in force and effect after the admission of the State of Oklahoma.Ex parte Webb, 225 U. S. 663, 32 S. Ct. 769, 56 L. Ed. 1248;Joplin Mer. Co. v. United States, 236 U. S. 531, 35 S. Ct. 291, 59 L. Ed. 705.

One of the propositions relied on by Sharp's counsel is this: The Act of June 30, 1919, is unconstitutional and void because it is an unauthorized interference with the internal police powers of the State.This contention has been presented here several times, and in each case we have held it to be untenable.Edwards v. United States (C. C. A.)5 F.(2d) 17;Lucas v. United States (C. C. A.)15 F.(2d) 32(opinion filed October 4, 1926);Renfro v. United States, 15 F.(2d) 991(opinion filed October 27, 1926);andBuchanan v. United States (C. C. A.)15 F. (2d) 496(opinion filed November 1, 1926).In the Edwards Case, supra, the charge was possession of 34 gallons of whisky in Coal County, Oklahoma, which was within the limits of the Indian Territory prior to the admission of the State of Oklahoma into the Union — a place where the introduction of spiritous and intoxicating liquor is and was prohibited by Federal statutes; in the Lucas Case, supra, the charge was possession of whisky in Okfuskee County, Oklahoma, which was within the limits of the Indian Territory and a part thereof prior to the admission of the State of Oklahoma into the Union, being then and there a place where the introduction of spiritous and intoxicating liquor is and was prohibited by Federal statutes; in the Renfro Case, supra, the charge was possession of whisky in Tulsa County, Oklahoma, within the limits of the Indian Territory and a part thereof prior to the admission of the State of Oklahoma into the Union, being then and there a place where the introduction of intoxicating liquor is and was prohibited by Federal statutes; and in the Buchanan Case, supra, the charge was possession of intoxicating liquor (grain alcohol) in Tulsa County, Oklahoma, and within the limits of the Indian Territory and a part thereof prior to the admission of the State of Oklahoma into the Union, being then and there a place where the introduction of spiritous and intoxicating liquors is and was prohibited by Federal statutes.In each of these caseswe held the charge was good, not subject to the attack here made and sustained the conviction.This question is no longer open to debate.See alsoBrowning v. United States (C. C. A.)6 F.(2d) 801, andAmmerman v. United States (C. C. A.)267 F. 136.

It is further contended that the Act of June 30, 1919, prohibits the possession of intoxicating liquors only, and that the omission of any reference therein to intoxicating medicated compounds and preparations should be taken as not including the latter, thus leaving intoxicating liquors to the common understanding of that term.Cases are cited which hold that intoxicating liquors do not include medicinal or culinary compounds, although they may contain sufficient amount of alcohol to produce intoxication.Intoxicating-Liquor Cases, 25 Kan. 751, 37 Am. Rep. 284;Holcomb v. Payne, 49 Ill. App. 73;Bertrand v. State, 73 Miss. 51, 18 So. 545.Sarlls v. United States, 152 U. S. 750, 14 S. Ct. 720, 38 L. Ed. 556, is also relied on.In that casethe statute prohibited the introduction of spiritous liquors or wines into the Indian Country, and it was held that lager beer did not come within the terms of the statute.In the 25th Report of Kansas eight cases were brought up for consideration, charging violations of the Kansas Prohibition...