United States v. Regan

• Decision Date: 03 June 1921
• Docket Number: 1941.
• Parties: UNITED STATES v. REGAN.
• Court: U.S. District Court — District of New Hampshire

273 F. 727

UNITED STATES v. REGAN.

No. 1941.

United States District Court, D. New Hampshire.

June 3, 1921

Fred H Brown, U.S. Atty., of Somersworth, N.H.

Michael O'Brien, of Lawrence, Mass., for defendant.

ALDRICH District Judge.

The respondent in this case pleaded guilty in the state court and was fined, for unlawfully and criminally transporting a large quantity of spirituous liquor within the limits of New Hampshire. The proceeding and the punishment there was under a distinctly prohibition state law, which existed before the Eighteenth Amendment, and before the Volstead Act (41 Stat. 305). The case here is against the same man, and is based upon an indictment for unlawfully transporting spirituous liquor from Colebrook, in the district of New Hampshire, to another point in New Hampshire, without having received a permit from the Commissioner of Internal Revenue so to do. The defendant pleads the New Hampshire proceeding in bar.

The allegation in the federal indictment that the transportation was without permission from the Commissioner of Internal Revenue is a substantive one, and therefore would seem to be one which sets forth a different offense, though admittedly it relates to the act which was the foundation for the state prosecution.

Now without going into the allegations categorically, I assume that the two prosecutions are based upon the same transportation.

Mr. Michael O'Brien, counsel for the defendant, takes the position that the defendant is being punished twice for the same act. He bases his position on the Fifth Amendment to the federal Constitution, in respect to life and limb, which declares against any person being twice put in jeopardy. He gives a very valuable history of cases under this provision, but it must be said that they largely relate to conditions before the Eighteenth Amendment.

The question is an important one, and it is one which will probably have to be ultimately settled by the Supreme Court, because it is a constitutional one, and because there are already two District Court decisions at variance as to the point in question.

Because of this I am not going to attempt an elaborate discussion of the 'twice in jeopardy' question. It may be remarked, however, that the case here is not one of life and limb, but rather one involving a misdemeanor, and one which may be influenced, perhaps, by the 'concurrent power' provision of the Eighteenth Amendment.

For the purposes of a decision in this case, I am inclined to take the view expressed by Judge Woodrough in United States v. Holt (D.C.) 270 F. 639. It may be well enough to supplement Judge Woodrough's reasoning, however, by the idea that a distinctive state prohibitory law and the National Prohibition Act are different laws in substantial respects.

The national law is not only a prohibitory law, but it has revenue features. It is not necessary, however, to analyze and point out the revenue characteristics of the federal law. It is sufficient to say that they are features that enter into it, and its administration is largely under the direction of the Commissioner of Internal Revenue.

Moreover the Cruikshank Case, 92 U.S. 542, 23 L.Ed. 588,...