United States v. Stafoff Brooks v. United States United States v. Remus 403

Decision Date02 January 1923
Docket NumberNos. 26,197,s. 26
Citation67 L.Ed. 358,260 U.S. 477,43 S.Ct. 197
PartiesUNITED STATES v. STAFOFF. BROOKS v. UNITED STATES. UNITED STATES v. REMUS et al. , and 403
CourtU.S. Supreme Court

Chris Elioff Stafoff, alias Chris Elioff, was indicted with another for having in possession a still intended for the production of distilled spirits for beverage and commercial purposes, without having registered it, and for having unlawfully manufactured on premises other than an authorized distillery a mash fit for the production of distilled spirits. A demurrer to both counts was sustained (268 Fed. 417), and the United States brings error. Affirmed.

James L. Brooks was convicted of having in possession a still, and of manufacturing a mash, and of having carried on the business of a distiller without having given th bond required by law, and he brought error to the Circuit Court of Appeals, which certified to the Supreme Court questions as to whether the statutes on which the indictment was based had been repealed by the National Prohibition Act, and as to whether defendant could be sentenced under the National Prohibition Act. Questions as to the repeal answered 'Yes,' and question as to the sentence answered 'No.'

George Remus and others were indicted for having carried on the business of a liquor dealer and rectifier without having paid the special tax required by law. A demurrer to the indictment was sustained as to six of the seven counts of the indictment (283 Fed. 685), and the United States brings error. Judgment on counts 2, 4, and 6 affirmed, and that on counts 3, 5, and 7 reversed.

Mrs. Assistant Attorney General Willebrandt, for the United states.

Samuel Herrick, of Washington, D. C., for Brooks.

E. N. Zoline, of New York City, for Remus and others.

Mr. Justice HOLMES delivered the opinion of the Court.

In the first of these cases Stafoff was indicted with another for having had in their possession a still intended for the production of distilled spirits for beverage and commercial purposes, without having registered it with the Collector of Internal Revenue, as required by Rev. St. § 3258 (Comp. St. § 5994), and in a second count for having unlawfully manufactured on premises other than an authorized distillery a mash fit for the production of distilled spirits, to wit, whisky, contrary to Rev. St. § 3282 (Comp. St. § 6022). A demurrer to these counts was sustained (268 Fed. 417), and the United States brings the case here under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246 (Comp. St. § 1704).

The case of Brooks comes here on a certificate from the Circuit Court of Appeals for the Ninth Circuit. Brooks was convicted under the above mentioned sections 3258 and 3282, and also under Rev. St. § 3281 (Comp. St. § 6021), for having carried on the business of a distiller without having given bond as required by law. The third and fourth counts under section 3282 respectively charged the making of a mash as above and the separating by distillation of alcoholic spirits from a fermented mash. The questions certified are whether the three sections mentioned are repealed by the National Prohibition Act of October 28, 1919, c. 85, 41 Stat. 305, and whether if they are repealed the cause should be remanded with directions to enter judgment and impose sentence under the last-named act.

In the third case Remus and his associates were charged in six counts with having carried on the business of a wholesale liquor dealer, that of a retail liquor dealer, and that of a rectifier, without having paid the special tax as required by law. Rev. St. § 3242 (Comp. St. § 5965). A demurrer to these counts was sustained. 283 Fed. 685. The United States took a writ of error under the Criminal Appeals Act.

In United States v. Yuginovich, 256 U. S. 450, 41 Sup. Ct. 551, 65 L. Ed. 1043, it was decided that sections 3281 and 3282 were repealed by the later law, at least as to the production of liquor for beverage purposes. Since that decision and with reference to it, as appears from the House Report, No. 224, 67th Congress, 1st Session, and the debates, 61 Cong. Record, part 3, pp. 3095, 3096, the Act Supplemental to the National Prohibition Act was passed. Act of November 23, 1921, c. 134, § 5, 42 Stat. 222, 223. By section 5 of this statute:

'All laws in regard to the manufacture * * * of and traffic in intoxicating liquor, and all penalties for violations of such laws that were in force when the National Prohibition Act was enacted, shall be and continue in force, as to both beverage and non-beverage liquor, except such provisions of such laws as are directly in conflict with any provision of the National Prohibition Act or of this act.'

But if an act violates both the former and the latter a conviction under one is a bar to rosecution under the other. This section is not declaratory even in form. It does not purport to construe the National Prohibition Act as leaving in force what this Court has declared to have been repealed. It could not in this way give a retrospective criminality to acts that were done before it was passed and that were not criminal except for the statutes held to have been repealed. Ogden v. Blackledge, 2 Cranch, 272, 277, 2 L. Ed. 276; Koshkonong v. Burton, 104 U. S. 668, 26 L. Ed. 886. Of course a statute purporting to declare the intent of an earlier one might be of great weight in assisting a court when in doubt, although not entitled to control judicial action. But that is not this case. The decision in United States v. Yuginovich must stand for the law before November 23, 1921. In that case, besides what we have mentioned, it was held also that the penalty imposed by Rev. St. § 3257 (Comp. St. § 5993), on a distiller for defrauding the United States of the tax on the spirits distilled by him was...

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