United States v. Katz

• Decision Date: 29 April 1925
• Docket Number: No. 1123,1124.,1123
• Parties: UNITED STATES v. KATZ et al. (two cases).
• Court: U.S. District Court — Western District of Pennsylvania

5 F.2d 527 (1925)

UNITED STATES v. KATZ et al. (two cases).

Nos. 1123, 1124.

District Court, E. D. Pennsylvania.

April 29, 1925.

George W. Coles, U. S. Atty., and Henry B. Friedman, Asst. U. S. Atty., both of Philadelphia, Pa.

John R. K. Scott and Benjamin M. Golder, both of Philadelphia, Pa., for defendants.

THOMPSON, District Judge.

In indictment No. 1123, it is charged that the defendants Katz and Senn conspired to commit an offense against the United States, to wit, the offense on the part of Katz of selling for the Stewart Distilling Company to Senn 250 cases of whisky, without making the permanent record required under section 10, tit. 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½e).

In indictment No. 1124, it is charged that the defendants Katz and Feuerstein conspired to commit an offense against the United States, to wit, the offense on the part of Katz of selling for the Stewart Distilling Company to Feuerstein 25 barrels of whisky, without making the permanent record required under section 10. As the two indictments charge similar offenses in a similar manner, the discussion will be directed only to No. 1123.

Section 10 provides as follows:

"No person shall manufacture, purchase for sale, sell, or transport any liquor without making at the time a permanent record thereof showing in detail the amount and kind of liquor manufactured, purchased, sold, or transported, together with the names and addresses of the persons to whom sold, in case of sale, and the consignor and consignee in case of transportation, and the time and place of such manufacture, sale, or transportation. The commissioner may prescribe the form of such record, which shall at all times be open to inspection as in this act provided."

The objection raised to the indictment is that it does not charge that either Katz or the Stewart Distilling Company held a permit to sell, and that section 10 applies only to those holding permits, and therefore no offense is charged because, while Congress prohibits in section 6, tit. 2 (section 10138½c), the sale of liquor without first obtaining a permit from the commissioner, it was not intended by section 10 that a person making a sale, unlawful under section 6, because without a permit, should be charged with the separate offense of making such unlawful sale without making a permanent record thereof showing the details set forth in the section.

The pleader has apparently endeavored, in drafting this indictment, to involve the purchaser with the seller in a conspiracy to sell, but was confronted with the rule of criminal law that where an offense is such that a concert of action between two persons is logically necessary to the completion of the crime, that is to say, the crime cannot take place without concert, a charge of conspiracy against the two persons to commit that crime does not lie. 2 Wharton, Criminal Law, § 1339; United States v. Dietrich (C. C.) 126 F. 664; Chadwick v. United States, 141 F. 225, 72 C. C. A. 343; Shannon v. Commonwealth, 14 Pa. 226. Section 10, therefore, suggested a method of overcoming the difficulties of such a charge by setting up a conspiracy to sell without making a record of the sale. It is well settled that, if a person may alone be charged with a crime, another, whose concert with him is not necessary for the commission of that crime, may properly be joined with him in an indictment for conspiracy to commit the crime. Chadwick v. United States, supra; United States v. Rhodes (D. C.) 212 F. 513; Tapack v. United States, 220 F. 445, 137 C. C. A. 39.

If, therefore, one who does not hold a permit may be charged under section 10 with the failure to make records, another conspiring with him to fail to make the records may be indicted with him.

The question then is whether Congress intended to make a violation of section 10 a crime as to one selling liquor, whether or not he held a permit. I fail to see any evidence in the act of any such intention on the part of Congress. Section 6 prohibits selling without first obtaining a permit and prescribes details concerning the time when permits to sell shall expire, the length of time permits to purchase shall be in force, provisions as to what the permits shall specify, and prohibits their issue to persons violating the terms of prior permits. It provides for the prescribing by the commissioner of forms of permits and applications, and empowers that official to require bonds, and provides for the review of his decision by a court of equity in the event of a refusal of an application for a permit.

Section 7, tit. 2 (section 10138½cc), provides for permits to physicians.

Section 8 (section 10138½d) directs the commissioner to cause blanks to be printed and furnished to physicians holding permits and directs the manner in which they shall be used.

Section 9 (section 10138½dd) provides for the citation of those holding permits to appear before the commissioner and authorizes revocation for cause shown.

While section 10 does not describe those who are prohibited from selling without making a record as those holding permits, the final paragraph of that section reads, "The commissioner may prescribe the form of such record which shall be at all times open to inspection as in this act provided," and apparently refers to section 34, tit. 2 (section 10138½u), providing that all records and reports kept or filed under the provisions of this act shall be subject to inspection by the commissioner or other officers designated, and that copies of such records and reports duly certified may be introduced in evidence.

Section 11, tit. 2 (section 10138½ee), requires manufacturers and wholesale or retail druggists to keep, as part of the records required of them, a copy of all...