United States v. Turner

• Decision Date: 15 July 1920
• Parties: UNITED STATES v. TURNER.
• Court: U.S. Court of Appeals — Fourth Circuit

266 F. 248

UNITED STATES v. TURNER.

United States District Court, W.D. Virginia.

July 15, 1920

Joseph H. Chitwood, U.S. Atty., of Roanoke, Va.

John L Lee, of Lynchburg, Va., for defendant.

McDOWELL District Judge (after stating the facts as above).

The chief purpose of the framers of the Volstead or National Prohibition Act (Act Oct. 28, 1919, 41 Stats. 305) was to reduce and as far as possible to prevent the use of intoxicating liquor as a beverage. Title 1 increases the powers of the government to enforce sundry temporary prohibition statutes-- for instance, section 12 of the Selective Service Act (Act May 18, 1917, 40 Stat. 76, 82 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 2019a); Act Oct. 6, 1917, 40 Stat. 393 (Comp. St. 1918, Comp. St. Ann Supp. 1919, Sec. 2813e)); section 15 of Act Aug. 10, 1917, 40 Stat. 276, 282 (Comp. St. 1918, Comp. St. Ann. Supp. 1919 Sec. 3115 1/8l); and the fourth clause of Act Nov. 21, 1918 40 Stat. 1045, 1046 (Comp. St. Ann. Supp. 1919, Secs. 3115 11/12f-3115 11/12ggg, 3115 11/12h). As the war prohibition acts are expressly saved from repeal by section 7, title 1, of the Volstead Act, the 'existing laws' mentioned in section 35, title 2, must be some or all of the older statutes, such as the 'Reed Amendment,' section 5, Act March 3, 1917, 39 Stat. 1069 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 8739a), Act. Oct 3, 1917, 40 Stat. 329 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10387e), Act Feb. 8, 1875, 18 Stat. 310 (Comp. St. Sec. 5966), and sections 3258, 3279, 3296, Revised Statutes (Comp. St. Secs. 5994, 6019, 6038).

Sections 3, 6, and 12 of title 2 of the Volstead Act contemplate and provide for the manufacture under permit of potable liquor for medicinal and scientific uses. Title 3 provides a rather elaborate scheme for the manufacture of high-proof liquor for industrial uses. The word 'liquor,' as used in title 2 (section 1), includes the phrase 'distilled spirits,' used in section 3296; and the definition of 'alcohol,' in section 1 of title 3, is identical with the definition of 'distilled spirits,' in section 3248, Rev. St. (Comp. St. Sec. 5982). Section 9 of title 3, providing for 'industrial alcohol plants,' reads in part:

'Industrial alcohol plants and bonded warehouses established under the provisions of this title shall be exempt from' some 40 sections of the Revised Statutes, including sections 3258 and 3279, but not including section 3296, although the 13 sections immediately preceding section 3296 are included.

The intention that section 3296 shall be preserved, at least in respect to industrial alcohol plants, is obvious; and, in view of this section (9 of title 3), it is equally obvious that the presumption of law that the lawmakers knew of the existence of section 3296 (Sutherland, Statutory Construction, Sec. 333; 36 Cyc. 1135) is reinforced by actual knowledge. Hence it cannot be argued that the draftsmen of the Volstead Act were ignorant of the provisions of section 3296.

A. It will tend to clearness to discuss first the clause prohibiting the removal of untaxed liquor. In this district it is a common practice of the illicit distillers to collect the liquor at the distillery in barrels and then roll the barrels along the ground (usually down grade and for no very great distance) to some place of temporary concealment. Another method, sometimes employed, is to run the liquor from the distillery to a place of concealment by means of a hidden line of pipe. Section 6 of title 2 of the Volstead Act forbids any one to 'transport' liquor without a permit. There is at least room for some doubt if, giving to the word 'transport' its ordinary signification, it could properly be said that rolling a barrel of liquor along the ground, or running liquor through a pipe, was 'transporting' liquor, and, if not, here are at least two methods of removing liquor which are not covered by the transporting clause of the Volstead Act.

It is true that section 3296 and the transporting clause (section 6, title 2) of the Volstead Act may in some cases both apply to the same transaction. For instance, if one were, without a permit, to convey a barrel of untaxed liquor in his wagon, he would violate both statutes. It is therefore argued that Congress could not have intended to keep this clause of section 3296 in force, as it is said that it would be unconstitutional to make one and the same act a violation of two statutes. There is no constitutional objection to making one act or one transaction a violation of two statutes, although both emanate from the same sovereignty, if each offense embraces an element not embraced in the other. See Carter v. McClaughry, 183 U.S. 365, 394, 395, 22 Sup.Ct. 181, 46 L.Ed. 236; Gavieres v. U.S., 220 U.S. 338, 31 Sup.Ct. 421, 55 L.Ed. 489; Ebeling v. Morgan, 237 U.S. 625, 630, 631, 35 Sup.Ct. 710, 59 L.Ed. 1151. In each of the above cases the Supreme Court cites with approval Morey v. Commonwealth, 108 Mass. 433, in which it is said:

'A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.'

I assume that in a prosecution for transporting liquor without a permit the government would not have to prove the want of the permit in order to make out a prima facie case. 16 C.J. 530; 1 Elliott, Ev. Sec. 141; 4 Wigmore, Ev. Sec. 2512. But if the defendant should introduce any substantial evidence tending to show that the transportation had been authorized by a permit, the government would then have to introduce evidence that no permit, was issued, or that it obtained by fraud, or that it did not apply to the act of transportation charged. Consequently it must be held that the want of a permit is an element in the offense of transporting under the Volstead Act, and this element clearly does not exist in cases for removing under section 3296. In a prosecution under section 3296 (when the removal is accomplished by transportation, as well as in all other cases), an element of the offense is the fact that the liquor was untaxed, which must be proved by the government; and this element does not exist in prosecutions for transporting under the Volstead Act. It seems to follow that the argument for repeal, based on the impropriety of imputing to Congress an intent to violate the Constitution, is of no force; and as it is constitutional to make the same transaction a violation of both statutes, the intent of the Volstead Act could have been to leave the removal clause of section 3296 in force.

It is said that the two statutes are inconsistent. When the identical offense denounced by an old statute under a heavy punishment is by a more recent statute made punishable with less severity, there is inconsistency. The intent shown by the recent statute is repugnant to and contradictory of an intent to keep in force the old statute. But such is not the situation here. Since the two statutes denounce different offenses, the fact that different punishments are affixed does not show repugnance. Where each offense embraces an element not existing in the other, the foundation for predicating inconsistency is wanting. There is no inconsistency in an intent to punish differently different offenses. I know of no reason for saying that the intent of the framers of the Volstead Act may not have been to permit prosecutions under both of these statutes. Punishing moderately the movement of taxed liquor, or of liquor not proved to be untaxed, does not seem at all inconsistent with an intent to punish severely the movement of liquor proved to be untaxed. The mere fact that one who is removing untaxed liquor may also be transporting liquor without a permit goes to show that these two criminal statutes may be violated by one transaction; but it affords no reason for denial of an intent to enforce either or both statutes, although with different punishment for the two offenses.

By far the commonest difficulty encountered by the government in...