United States v. Stephens

• Decision Date: 15 May 1882
• Citation: 12 F. 52
• Parties: UNITED STATES v. STEPHENS.
• Court: U.S. District Court — District of Oregon

12 F. 52

UNITED STATES v. STEPHENS.

United States Circuit Court, D. Oregon.

May 15, 1882

Rufus Mallory, for plaintiff.

Cyrus Dolph, for defendant.

DEADY D.J.

On March 30, 1882, an information was filed by the district attorney accusing the defendant, by the first count, of the crime of introducing spirituous liquors into the district of Alaska contrary to law; and by the second count, of the crime of 'attempting' to so introduce such liquors into said district. The defendant demurs to the information because it does not state facts sufficient to constitute a crime. Upon the argument of the demurrer it was abandoned as to the first count, and insisted upon as to the second. This count alleges that on July 14, 1879, the defendant, being in the district of Alaska, wrote and transmitted a letter to a certain firm in San Francisco, California, wherein and whereby he requested said firm to ship and send to him at Fort Wrangle, in said district, 100 gallons of whisky; the defendant then well knowing that said firm were then wholesale dealers in spirituous liquors, and owned and possessed said 100 gallons of whisky; 'and he thereby contriving and intending to introduce the said 100 gallons of whisky into the said district of Alaska.'

In U.S. v. Savaloff, 2 Sawy. 311, the district court for this district having decided that the district of Alaska was not 'Indian country,' and that the act of June 30 1834, (4 St. 729,) regulating the trade and intercourse with the Indian tribes, was not in force therein, congress, in the general appropriation act of March 3, 1873, (17 St. 530,) amended section 1 of the Alaska act of June 27, 1868, (15 St 240; section 1954, Rev. St.,) so as to extend over that country sections 20 and 21 of said act of June 30, 1834, as well as the acts relating 'to customs, commerce, and navigation.'

The first of these sections provides, among other things, that 'if any person shall introduce or attempt to introduce any spirituous liquors or wine into the Indian country,' except supplies for the army under the direction of the war department, he 'shall forfeit and pay a sum not exceeding $300.'

By the act of March 3, 1847, (9 St. 203,) said section 20 was amended so that upon a conviction before the proper district court of such act or attempt the party should be punished by imprisonment not exceeding one year. The section was again amended by the acts of February 13, 1862, (12 St. 339,) and March 15, 1864, (13 St. 29; section 2139 Rev. St.) By these latter amendments the maximum punishment for a violation of the section was fixed at two years' imprisonment and $300 fine; and jurisdiction was given to the circuit court as well as the district.

By section 2 of the Alaska act, supra, (section 1955, Rev. St.,) the president was given 'power to restrict and regulate or to prohibit the importation and use of fire-arms ammunition, and distilled spirits into and within the territory of Alaska. ' It is a question whether this provision, so far as distilled spirits are concerned, was not superseded and repealed by extension of said section 20 over Alaska by the act of March 3, 1873, supra. This section, as has been stated, absolutely prohibits the introduction of spirituous liquors, which of course includes distilled spirits, into Alaska, except for the use of the army, by permission of the war department. Without doubt, as to the executive power to restrict or prohibit, the later act supersedes the earlier one. A statute power in the president to restrict or prohibit is certainly rendered nugatory by a subsequent act which absolutely prohibits. But as to the power 'to regulate,' which naturally implies the power to permit, the case is not so clear. Probably the better conclusion is that the acts should be construed as in pari materia, and both have effect so far as possible. Upon this construction of the statutes the law concerning the introduction of spirituous liquors and wine into Alaska is that such introduction is absolutely prohibited, subject to the power of the war department to permit the same for the use of the army, and the power of the president to permit the introduction of distilled spirits, but not wine, for any purpose.

It is doubtful if any attempt to commit an offence of this character is indictable at common law, and this is probably the reason why it was made so specially by the act defining the crime. 1 Whart.Crim.Law, § 177; 1 Bish.Crim.Law, §§ 684, 687.

It is said that the subject of attempt to commit crime is 'less understood by the courts' and 'more obscure in the text-books' than any other branch of the criminal law. Bish. Crim. Law, Sec. 657. And certainly there is none in some respects more intricate and difficult of comprehension. It is almost impossible to comprehend all cases of attempt in a definition that does not necessarily run into a mere enumeration of instances. It is easy to say that there must be a combination of intent and act-- an intent to commit a crime and an act done in pursuance of such intent, which falls short of the thing intended.

There are a class of acts which may be fairly said to be done in pursuance of or in combination with an intent to commit a crime, but are not in a legal sense a part of it, and therefore do not with such intent constitute an indictable attempt; for...