Woitte v. United States

• Decision Date: 13 June 1927
• Docket Number: No. 4895.,4895.
• Parties: WOITTE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

19 F.2d 506 (1927)

WOITTE et al. v. UNITED STATES.

No. 4895.

Circuit Court of Appeals, Ninth Circuit.

May 9, 1927.

Rehearing Denied June 13, 1927.

James B. O'Connor and Harold C. Faulkner, both of San Francisco, Cal., and E. M. Morton and John C. McCue, both of Portland, Or., for plaintiffs in error.

George Neuner, U. S. Atty., and J. O. Stearns, Jr., Asst. U. S. Atty., both of Portland, Or.

Before RUDKIN, Circuit Judge, and DIETRICH and KERRIGAN, District Judges.

RUDKIN, Circuit Judge.

This is a writ of error to review a judgment of conviction under an indictment containing eleven counts.

The first count charged that the plaintiffs in error and others, at a time and place to the grand jurors unknown, conspired to violate the Tariff Act of 1922 (42 Stat. 858), by importing and bringing into the United States and into the state and district of Oregon, large quantities of whisky, gin, and other intoxicating liquors fit for beverage purposes, all of which merchandise was and would be dutiable, without declaring said merchandise to any customs officers of the United States or to any person or officer whatsoever authorized to receive such declarations and to impose, collect, and receive, on behalf of the United States, duties thereon, and without paying any duties thereon, and to receive, conceal, transport, and sell merchandise thus imported, well knowing that the same had been imported and brought into the United States contrary to law. The commission of certain overt acts was then charged to effect the object of the conspiracy. The second, third, and fourth counts charged the importation and bringing into the United States and into the state and district of Oregon of the same merchandise from the Dominion of Canada on different dates, without declaring said merchandise to any customs or other officer of the United States and without paying any duties thereon. The fifth count charged a conspiracy to violate the National Prohibition Act (Comp. St. § 10138¼ et seq.) by selling, bartering, transporting, importing, keeping, and possessing intoxicating liquor for beverage purposes in certain counties in the state and district of Oregon, and the commission of certain overt acts to effect the object of the conspiracy. The sixth count charged the unlawful possession of intoxicating liquor in the state and district of Oregon on November 27, 1924, and the seventh count charged the unlawful transportation of the same intoxicating liquor at the same time and place. The eighth count charged the unlawful possession of intoxicating liquor in the state and district of Oregon on December 5, 1924, and the ninth count charged the unlawful transportation of the same intoxicating liquor at the same time and place. The tenth count charged the unlawful possession of intoxicating liquor in the state and district of Oregon on January 16, 1925, and the eleventh count charged the unlawful transportation of the same intoxicating liquor at the same time and place. A verdict of guilty was returned as to all eleven counts, followed by a single judgment or sentence of fine and imprisonment.

Inasmuch as the last six counts charging possession and transportation will not support the judgment of imprisonment, either singly or combined, we will not further consider them. Indeed, we need only refer to the first count if that is sufficient in law to support the judgment. The first count, in plain and concise language, charged a conspiracy to commit certain offenses against the United States and the commission of certain overt acts to effect the object of the conspiracy, and is amply sufficient in both form and substance, unless open to one or more of the objections urged against it by the plaintiffs in error. It is contended that the charge that the parties conspired, at a time and place to the grand jurors unknown, is insufficient, and that the overt acts charged were committed without the state and district of Oregon and without the jurisdiction of the court. The time of the conspiracy was made definite by reference in the charge of conspiracy to the time set out in the charge of the overt acts (Fisher v. United States C. C. A. 2 F.2d 843); the place of the conspiracy was immaterial, provided the overt acts were committed within the jurisdiction of the court (Hyde v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Brown v. Elliott, 225 U. S. 392, 32 S. Ct. 812, 56 L. Ed. 1136; Ford v. United States, 47 S. Ct. 531, 71 L. Ed. ___, decided by the Supreme Court April 11, 1927); and, while the overt acts charged the transfer of intoxicating liquors from one boat to another on the high seas and without the state and district of Oregon, they likewise charged the transportation of the liquor thus transferred from the place of transfer into the state and district of Oregon, and the venue was therefore properly laid in that district.

It is next contended that citizens or subjects of a foreign nation beyond the territorial jurisdiction of the United States, and never having been within the jurisdiction thereof, cannot commit the offense defined by section 37 of the Criminal Code (Comp. St. § 10201). This same contention was urged in the Ford Case, supra, and, at the request of all parties concerned, a decision in this case was...