United States v. Barner, Cr. No. 12930.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: Schaber & Cecchettini and William G. Brigance, Sr., Sacramento, Cal., for defendant
• Citation: 195 F. Supp. 103
• Parties: UNITED STATES of America, Plaintiff, v. Hiram G. BARNER, Defendant.
• Decision Date: 18 May 1961
• Docket Number: Cr. No. 12930.

195 F. Supp. 103

UNITED STATES of America, Plaintiff,
v.
Hiram G. BARNER, Defendant.

Cr. No. 12930.

United States District Court N. D. California, N. D.

May 18, 1961.

195 F. Supp. 104

Robert E. Woodward, Asst. U. S. Atty., Sacramento, Cal., for plaintiff.

Schaber & Cecchettini and William G. Brigance, Sr., Sacramento, Cal., for defendant.

HALBERT, District Judge.

I. Statement of the Case

Defendant is charged by an information with having driven a motor vehicle while under the influence of intoxicating liquor upon a highway within McClellan Air Force Base. It is alleged that McClellan Air Force Base is under the exclusive jurisdiction of the United States. Defendant has moved the Court to dismiss the information upon the ground that it does not state facts sufficient to constitute an offense against the United States (Federal Rules of Criminal Procedure, Rule 12(b) (1), 18 U.S.C.).

If any person drives a vehicle upon a highway within the jurisdiction of the State of California, while under the influence of intoxicating liquor, he is guilty of a violation of California Vehicle Code, § 23102. Whoever does an act on a Federal enclave, which would be punishable under the criminal laws of the State in which the enclave is located, if the act were done within the jurisdiction of that State, is guilty of a violation of Title 18 U.S.C. § 13. At first blush, it appears obvious that the information charges facts sufficient to constitute an offense against the United States.

Defendant has, however, asked the Court to take judicial notice of facts from which defendant argues that as a matter of law there are no "highways" on McClellan Air Force Base. Pleadings, both civil and criminal, must be considered in the light of those facts of which the Court is authorized to take judicial notice (United States v. Lamont, 2 Cir., 236 F.2d 312; and Coppola v. United States, 9 Cir., 217 F.2d 155). If, after such consideration and a fair construction of the accusatory pleading, the necessary facts to establish the elements of the offense can be found within the terms of such pleading, a motion to dismiss should not be granted (Stapleton v. United States, 260 F.2d 415, 17 Alaska 713).

Defendant contends that the roadways on McClellan Air Force Base are not open to the public, and hence are not "highways."

Defendant has asked this Court to take judicial notice of McClellan Air Force Base Regulation No. 125-2, a copy of which is appended to defendant's motion as defendant's Exhibit "A." As the Government makes no objection, the Court will do so. This regulation provides that all personnel, who are authorized to drive their vehicles on the base regularly, must register and get decals for their vehicles. All vehicles which enter the industrial area must have a decal or a temporary pass. Vehicles which enter only the residential area do not require passes or decals. Before a private vehicle may be registered for on-base driving, evidence of vehicle ownership, a State driver's license and adequate liability insurance must be presented. In order for a vehicle to be registered, it must meet the safety requirements of the Vehicle Code of the State of California. Decals are available, apparently, only to military personnel or civilian employees. Decals may be taken away from traffic rule violators. Special

195 F. Supp. 105

speed limits are posted on the base. All operators of vehicles must comply with the applicable portions of the Vehicle Code of the State of California

II. Construction of Statutes

Criminal statutes must be strictly construed in favor of the defense (United States v. Halseth, 342 U.S. 277, 279, 72 S.Ct. 275, 96 L.Ed. 308). However, the purpose of criminal statutes is to proscribe acts which endanger the general safety and welfare. The law abiding citizen also has a right which the Court is required to protect. It would be a gross abuse of judicial power to try to twist a criminal statute out of its natural meaning so as to release a defendant who is being regularly proceeded against for the commission of a clearly prohibited act. Whoever deliberately misconstrues the law to provide a shelter for the guilty shoulders a heavy responsibility (See Mr. Justice Clark's dissent in Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828).

Title 18 U.S.C. § 13 was enacted to incorporate State criminal statutes into the Federal law. Interpretation of this Federal law is for the Federal Courts, and they are not bound by the constructions of the State Courts (Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814; and Kay v. United States, 4 Cir., 255 F.2d 476). Of course State decisions naturally have great potential persuasive power with this Court, but this Court is not bound to follow such decisions if in its considered judgment they are wrong.

The statutes of the State of California declare that a "highway is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel," and "includes street" (California Vehicle Code, § 360).

"Publicly" means, in this context, "through the agency or consent of the public or its representatives" (See Webster's New International Dictionary, Second ed., Unabridged (1955)). In an enclave of exclusive Federal jurisdiction, "publicly maintained" can mean but one thing, and that is maintained by the Federal Government.

"Public" in the context of its use means "the general body of mankind, or of a nation, state or community" (See Webster's New International Dictionary, supra).

The roadways on McClellan Air Force Base are ways or places used for purposes of vehicular travel. They are publicly maintained, being maintained by the sole sovereign which has jurisdiction over the area, namely, the United States. They are open to the public, subject only to reasonable restrictions and regulations. Certain members of the general body of the people of the State of California, who have no business upon the base, may be barred from using the roadways in the industrial portion of the base. However, the general body of the people of McClellan Air Force Base, who work or reside there, have a general right to use those roadways, subject to reasonable restrictions and regulations.¹ These roadways clearly come within the definition of "highway" when a realistic application of the term is made.

Similar constructions of Title 18 U.S. C. § 13 have been made on several occasions. One example may be found in the case of the interpretation of the laws of Virginia by the Federal Courts. The laws of Virginia prohibit reckless driving upon a "highway" (Code of Virginia (1950) § 46.1-189). In Virginia a "highway" includes (Code of Virginia (1950) 46.1-1 (10)):

"* * * every way or place of whatever nature open to the use of

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the public for purposes of vehicular travel in this State * * *".

A conviction of reckless driving upon a highway was upheld where a driver had recklessly driven on a roadway through the Quantico Marine Corps Reservation in Virginia (United States v. Watson, D.C., 80 F.Supp. 649). Another conviction of reckless driving on a roadway under exclusive Federal jurisdiction was upheld in Kay v. United States, supra.

Another instance of such construction can be found in United States v. Dreos, D.C., 156 F.Supp. 200. Maryland law was there involved. It provides that a roadway must be "used by the public" in order for it to be a highway (See Maryland Code...