United States v. Kinsel

Decision Date10 December 1918
Docket Number4378.
PartiesUNITED STATES v. KINSEL.
CourtU.S. Court of Appeals — Ninth Circuit

Robt. C. Saunders, U.S. Atty., of Seattle, Wash.

Ryan &amp Desmond, of Seattle, Wash., for defendant.

NETERER District Judge.

The defendant is charged with violating the regulation promulgated by the President, dated June 27, 1918, under section 12 of the Selective Service Act (Act May 18, 1917, c 15, 40 Stat. 82 (Comp. St. Sec. 2019a)), by which a zone is created in which the sale of alcoholic liquors is prohibited. He is charged with selling to Thomas L. Cassidy, a private in the military forces of the United States, certain 'alcoholic liquor,' to wit, about one pint labeled and denominated 'Newbro's Herpicide.' The defendant has demurred to the information on the ground that it does not allege facts sufficient to constitute a crime.

The defendant contends that Webster's New International Dictionary, 1915, defines 'herpes' as:

'Any of various and acute inflammatory affections of the skin and mucous membrane, characterized by the formation of clusters of the vesicles, which have a tendency to creep or spread from one part to another. Herpes is a generic term applied (with a qualifier indicating the form or part affected) formerly to numerous dissimilar diseases, including eczema, lichen, psoriasis, and ringworm.'
'Cide. * * * Signifying killer or destroyer, as fratricide, microbicide.'

That the label set out in the information, upon the bottle, not being enumerated in the statutory definition, but is, per se, based upon the thought that it could be used as a beverage, and no specific allegations appearing that it is capable of such use, the information is fatally defective.

Section 12 of the Selective Service Act provides that the President may make regulations governing the 'prohibition of alcoholic liquors' in or near military camps, and to the officers and enlisted men; also prohibits the sale of 'intoxicating' or 'spirituous' liquors to any military station, etc., and makes it unlawful to sell intoxicating liquor, including beer, ale, or wine, 'to any officer or member of the military forces while in uniform,' except as provided. The regulations of the President creating certain zones, prohibit the sale within such zones of any 'alcoholic liquor, including beer, ale, or wine, either alone or with any other article.'

The terms 'alcoholic liquor,' 'intoxicating or spirituous liquor,' 'intoxicating liquor, including beer, ale, or wine,' are used in section 12 as synonymous terms. The executive order penalizing the sale of 'alcoholic liquors, including beer, ale, or wine, either alone or with any other article, ' authorized by section 12, can have no broader scope than the authority upon which it is predicated. The phrase, 'either alone or with any other article, ' cannot extend the scope of the order beyond the enumerated articles comprehended within the prohibitive authority. Under the doctrine of ejusdem generis this phrase, if included within the power conferred would have to be held to refer to the preceding enumerated articles...

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1 cases
  • Franz v. State, 33248
    • United States
    • Nebraska Supreme Court
    • 20 Febrero 1953
    ...1082; People v. Haney, 100 Cal.App. 295, 279 P. 1054; Commonwealth v. Louisville & N. R. R. Co., 140 Ky. 21, 130 S.W. 798; United States v. Kinsel, D.C., 263 F. 141. This is what the terms mean to people generally. This is obviously the meaning alcoholic liquor and intoxicating liquor had t......

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