United States v. Cox

• Decision Date: 05 March 1945
• Docket Number: 8708.,No. 8707,8707
• Citation: 147 F.2d 587
• Parties: UNITED STATES v. COX. SAME v. RAMBO.
• Court: U.S. Court of Appeals — Seventh Circuit

147 F.2d 587 (1945)

UNITED STATES v. COX.

SAME v. RAMBO.

Nos. 8707, 8708.

Circuit Court of Appeals, Seventh Circuit.

March 5, 1945.

C. E. Tate, of Champaign, Ill., and Aaron H. Payne, of Chicago, Ill., for appellants.

Wm. W. Hart, U. S. Atty., and Ray M. Foreman, Asst. U. S. Atty., both of Danville, Ill., and Ernest R. McHale, Asst. U. S. Atty., of East St. Louis, Ill., for appellee.

Before SPARKS and KERNER, Circuit Judges, and BRIGGLE, District Judge.

BRIGGLE, District Judge.

Defendant Cox was convicted under an indictment charging in six counts various violations of Section 1315.801 of Ration Order No: 1A issued November 6, 1942, by the Office of Price Administration (hereinafter called O. P. A.), and Section 2.8 of General Ration Order No. 8, issued March 25, 1943, effective April 15, 1943.

Defendant Rambo was convicted under a similar, but separate, indictment charging in one count a violation of Section 1315.801, Ration Order 1A, and in a second count a violation of Section 2.8, Ration Order 8.

From separate judgments entered upon separate verdicts of a jury each defendant severally appeals. All parties agree, however, that all points raised in the Rambo case are present in the Cox case and that the decision in the Cox case will control the decision in the Rambo case. Joint briefs have been filed, the cases have been heard together in this Court and will be disposed of in one opinion.

The first count of the Cox indictment charged that defendant violated Section 1315.801 of Ration Order 1A, issued pursuant to authority of 50 U.S.C.A.Appendix 633, in that defendant did knowingly and wilfully make a transfer to one Jones of certain new automobile tires, contrary to the provisions of said ration order and without authority of the War Production Board. The second count charged a similar transfer to one Luker and the third count a similar transfer to one Hanselman; the fourth, fifth and sixth counts charged a sale of the same rationed articles to the same individuals, contrary to the provision of Ration Order 8, with knowledge on the part of the defendant that he had not acquired such articles in accordance with the regulations of the O. P. A.

Section 1315.801 of Ration Order 1A, issued November 6, 1942, prohibits the transfer of any tire without authority of the O. P. A. or the W. P. B. A later amendment gave authority to transfer used solid tires, used implement tires, used tractor tires or used tubes without certificate of authorization. Section 2.8 of General Ration Order 8, issued March 25, 1943, provides that no person shall acquire, possess, use, permit the use of, sell or otherwise transfer a rationed commodity except in accordance with the provisions of a ration order.

Appellant Cox asserts that the court erred in denying a motion to quash, in refusing to direct a verdict for defendant, in the admission of certain evidence, and in charging the jury. The amendment extending authority for the transfer of used solid tires, used implement tires, used tractor tires or used tubes without permission of the O. P. A. gives rise to defendant's motion to quash, as the indictment did not specifically negative the provisions of the amendment. It is the theory of this defendant that the burden is on the government negatively to plead and prove the exception. The government, on the other hand, contends that the exception affords a means of affirmative defense, which must be raised and proved by the defendant claiming the benefit of the exception; that the government having charged and proved that the defendant sold new tires in violation of the O. P. A. regulations, and sold a rationed commodity which had been improperly acquired, need not further allege or prove that the...