Smith v. United States
| Decision Date | 14 December 1925 |
| Docket Number | No. 4471.,4471. |
| Parties | SMITH et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Cooper, Collings & Shreve and Fred H. Thompson, all of Los Angeles, Cal., for plaintiffs in error Smith and Oreb.
Samuel W. McNabb, U. S. Atty., and J. Edwin Simpson, Asst. U. S. Atty., both of Los Angeles, Cal.
Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.
A motion for a directed verdict was overruled and an exception was reserved. The bill of exceptions does not purport to include all the testimony; on the contrary, it contains the following statement: "In addition to the testimony set out hereinabove, other testimony relevant to, and tending to prove, the guilt of each of the defendants with respect to each of the counts charged in the indictment, was introduced, received, and considered." With the record in this condition, we cannot pass on the sufficiency of the evidence to sustain the conviction.
It is argued that the motion should have been allowed, for the reason that the indictment fails to state facts sufficient to constitute a crime. This contention is based wholly on the claim that so much of the Tariff Act of September 21, 1922 (Comp. St. Ann. Supp. 1923, § 5841 et seq.), as imposes duties on liquors imported is void, as in conflict with the Eighteenth Amendment to the Constitution. This claim is predicated on the assumption that the imposition of duties implies a permission to import the articles on which the duties are levied.
This assumption is unfounded. "Congress may tax what it also forbids." U. S. v. Stafoff, 260 U. S. 477, 480, 43 S. Ct. 197, 199 (67 L. Ed. 358); U. S. v. Yuginovich, 256 U. S. 450, 462, 41 S. Ct. 551, 65 L. Ed. 1043. Section 801 of the above Tariff Act provides: "Nothing in this schedule shall be construed as in any manner limiting or restricting the provisions of title II or III of the National Prohibition Act as amended." The above section is found in schedule 8 of the Tariff Act, which is the schedule in which the duties on imported liquors are prescribed. The legislative intent manifested in the enactment of the Tariff Act of 1922 is in harmony with the Eighteenth Amendment. The provisions of schedule 8 of the Tariff Act are not unconstitutional, and a conspiracy to import liquor without paying the prescribed duties is a crime against the United States.
The government's evidence tended to show that the defendants were arrested as they were endeavoring to...
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