United States v. Dwyer

• Decision Date: 11 May 1926
• Citation: 13 F.2d 427
• Parties: UNITED STATES v. DWYER et al.
• Court: U.S. District Court — Southern District of New York

13 F.2d 427 (1926)

UNITED STATES v. DWYER et al.

District Court, S. D. New York.

May 11, 1926.

Emory R. Buckner, U. S. Atty., of New York City (Herman T. Stichman, John M. Harlan, and William E. Stevenson, Asst. U. S. Attys., all of New York City, of counsel), for the United States.

Wellman, Smyth & Scofield, of New York City (Herbert C. Smyth and Roderic Wellman, both of New York City, of counsel), for defendants.

KNOX, District Judge.

Under the provisions of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.), a person may not lawfully purchase, import, transport, sell, barter, and deliver intoxicating liquor containing more than one-half of 1 per centum, by volume, and fit for beverage purposes, except under circumstances and conditions expressly specified by statute. To engage in the traffic of intoxicating liquor fit for beverage purposes in any of the foregoing particulars, or to possess the same, in the absence of the expressly permitted circumstances and conditions, constitutes a violation of law, and subjects the offender to prescribed pains and penalties.

By the terms of section 32 of title 2 of the prohibition statute (Comp. St. Ann. Supp. 1923, § 10138½s), it is not necessary in an indictment for a violation thereof to "include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful." If this method of pleading be insufficient for the definition of an act denounced by the statute as a crime, and which is the subject of prosecution, I see no objection to the employment of a like method of pleading for the definition of the same offense when its commission constitutes the object of an unlawful conspiracy. In other words, the crime, which is the object of an unlawful conspiracy, requires no more elaborate statement than is necessary for the allegation of the crime when charged as a substantive offense. An identification of the offenses which are the objects of the conspiracy is all that is requisite. Williamson v. United States, 207 U. S. 425, 28 S. Ct. 163, 52 L. Ed. 278.

In the indictment now before the court upon demurrer, it is charged that a number of named persons "did unlawfully, willfully, and knowingly combine, conspire, confederate, and agree together * * * to commit an offense against the United States, to wit, to purchase, import, transport, possess, sell, barter and deliver intoxicating liquor containing more than one half of one per centum of alcohol by volume and fit for use for beverage purposes in violation of the Act of Congress approved October 28, 1919, commonly known as the National Prohibition Act." The pleading then goes on to aver, as parts of the conspiracy, the plan and purpose of the defendant to purchase large quantities of such liquor in foreign countries to bring the same to various points on the high seas off the northeastern coast of the United States, to import the liquor from off the ships by means of boats, operating between the vessels at sea and the coast of the United States, and to sell the same in various parts of the country and by corrupt means to induce government and municipal agents and employees to...