United States v. Holt

• Decision Date: 08 January 1921
• Docket Number: 3676.
• Citation: 270 F. 639
• Parties: UNITED STATES v. HOLT et al.
• Court: U.S. District Court — District of North Dakota

270 F. 639

UNITED STATES v. HOLT et al.

No. 3676.

United States District Court, D. North Dakota, Western Division.

January 8, 1921

Melvin A. Hildreth, U.S. Atty., and S. L. Nuchols, Asst. U.S. Atty both of Fargo, N.D.

Bosard & Twiford, of Minot, N.D., for defendants.

WOODROUGH District Judge.

This cause squarely raises the question whether the previous conviction of defendant in the state court for importing transporting, and having intoxicating liquor in his possession can be availed of to prevent his prosecution in this court for violating the Volstead Act (41 Stat. 305) by importing, transporting, and having intoxicating liquor in his possession. The defendant had leave of court to plead specially, and on the trial of the special issue by the court it was proven that the acts for which he was arrested informed against, to which he pleaded guilty, and for which he was convicted and sentenced to fine and imprisonment by the state court of general jurisdiction are identically the same acts for which he is now informed against by Col. M. A. Hildreth, United States District Attorney for North Dakota.

The defendant claims to be within the protection of the Fifth Amendment to the Federal Constitution:

'Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.'

The prohibition law of North Dakota, under which defendant was convicted and sentenced, has been in force and effect for many years prior to the Eighteenth Amendment and the Volstead Act, but it is contended that by reason of the second section of the Eighteenth Amendment the state law becomes now in substance an exercise by the state of the concurrent power conferred upon the Congress and the several states to enforce prohibition by appropriate legislation.

It is said that, the power of the Congress and of the state Legislature ture to punish defendant's acts in question being thus made concurrent, the present offense charged is the same offense as the one for which he has been convicted within the meaning of the Fifth Amendment.

The question is important and has been given careful consideration. Repeated jeopardy for the same offense is persecution, repugnant to the Constitution, the principles of the common law, and the 'genius of our free government'; and as to the enforcement of prohibition every sound reason against that kind of intolerable persecution has intensified force. The hot vindictiveness of private victims, who suffer from ordinary crimes of violence and covin, is almost entirely replaced in these cases by the cool, persistent determination of officers, who must themselves search out offenses as well as the offenders, and to the obligation of their duty as officers there is no limit, save the extent of the law.

I have proceeded, therefore, to the inquiry with the actual operation of the Volstead Act, as it has been developed before the trial court, very clearly in mind. The decision of the seven liquor cases by the Supreme Court on June 7, 1920 (253 U.S. 350, 40 Sup.Ct. 486, 588, 64 L.Ed. 946), settled many disturbing questions concerning the Eighteenth Amendment, the Volstead Act, and related state legislation. But a decision of the particular question now before this court was not necessary to a determination of the cases, and the specific question was not answered.

No opinion was published by the majority of the court, but it was clearly established by the conclusions announced that the concurrent power which is conferred on the Congress and the several states to enforce prohibition is not concurrent in the sense elaborated and contended for by Justices McKenna and Clarke in their dissenting opinions. They insisted upon an interpretation of 'concurrent power' which would have denied the supremacy of the Volstead Act over conflicting state laws, and which would have prevented the enforcement of the act by federal authority in any state whose Legislature had not approved of or adopted it. All such interpretations are incompatible with, and are clearly excluded by, the court's conclusions and disposition of the cases before it.

An interpretation according with the court's conclusions is that the word 'concurrent' was used in the second section of the Eighteenth Amendment in the same or similar sense in which it has been used by the Supreme Court as illustrated in Sexton v. California, 189 U.S. 324, 23 Sup.Ct. 543, 47 L.Ed. 833. In that case there was a conviction in the state court for the crime of extorting money by threatening to falsely accuse a person of an act that was made criminal only by federal law. It was urged in the federal Supreme Court that the particular acts of the offender were denounced by a federal law against extortion and therefore cognizable only in the federal courts, to the exclusion of the state courts. Sec. 711, U.S. Rev. Stat. (Comp. St. Sec. 1233). In the federal statute against extortion, referred to, there was a provision that nothing in the title contained shall be held to take away or impair the jurisdiction of the several states under the laws thereof. The Supreme Court denied the claim of a federal jurisdiction such as to exclude the jurisdiction of the state court over the acts in question, and expressed itself in this language:

'The jurisdiction of the state court over the crime of extortion, when perpetrated under the circumstances stated in the indictment, is at least concurrent with that of the courts of the United States.'

The conviction by the state court was sustained as a proper exercise of the sovereign powers of the state; but the power of the federal government to proceed to punishment for the offence against its sovereignty was entirely...