Goublin v. United States

261 F. 5, 171 C.C.A. 601, 1919 U.S. App. LEXIS 1705

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 27, 1919
• Docket: No. 3284
• Status: Published

Opinions

HUNT, Circuit Judge.

[1] The plaintiff in error, having been adjudged guilty and sentenced under .her plea of guilty to an information charging her with violation of section 13 of Act May 18, 1917, c. 15, 40 Stat. 83 (Comp. St. 1918, § 2019b), seeks by writ of error to review the judgment, and she contends, first, that the judgment is void for the reason that the proceeding was by information, instead of by indictment, and for the further reason that the affidavit to support the information, although purporting to have been sworn to, omits the date of the jurat, and is otherwise defective. This contention is disposed of by the recent decisions of this court in Blanc v. United States, 258 Fed. 921, —— C. C. A.-, and Brown v. United States, 260 Fed. 752, — C. C. A.-.

[2] The next point urged is that the act of May 18, 1917, as to section 13 thereof, under which conviction was had, was repealed by the amendatory Act July 9, 1918, c. 143, subc. 14, 40 Stat. 885, passed since the conviction. But there is nothing expressed to indicate that by the latter act Congress intended that those who had violated the earlier act should escape liability. On the contrary, the later act pertained to the same subject as the earlier, and even went more into detail in extending the provisions of the statute. General saving clauses, therefore, become important, and to them we now turn.

Section 13, Revised Statutes (Comp. St. § 14), in effect December 1, 1873, is as follows:

“The repeal of any statute sliall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.”

Section 5601 of the Revised Statutes (Comp. St. § 10598) provides:

“The enactment of the said revision is not to affect or repeal any act of Congress passed since the 1st day of December, 1873, and all acts passed since that date are to have full effect as if passed after the enactment of this revision, and so far as such acts vary from or conflict with any provision contained in said revision, they are to have effect as subsequent statutes, and as repealing any operation of the revision inconsistent therewith.”

On March 4, 1909 (35 Stat. 1088, c. 321), Congress passed an act to codify, revise and amend the penal laws of the United States. After specifying that certain earlier statutes were repealed, section 341 (Comp. St. § 10515) provides as follows:

“Also all other sections and parts of sections of the Revised Statutes and acts and parts of acts of Congress, in so far as they are embraced within and superseded by this act, are hereby repealed; the remaining portions thereof to be and remain in force with the same effect and to the same extent as if this act had not been passed.”

Then follows section 342 (Comp. St. § 10516), providing that the repeal of existing laws or modification should not affect proceedings had or commenced in any civil case prior to the repeal or modification, and section 343 (Comp. St. § 10517), which provides as follows:

“All offenses committed, and all penalties, forfeitures, or liabilities incurred prior to the taking effect hereof, under any law embraced in, or changed, modified of repealed by this title, may be prosecuted and punished, in the same manner and with the same effect as if this act had not been passed.”

These provisions of the Criminal Code became effective on and after the 1st day of January, 1910, and the argument of the plaintiff in error is that they operated to supersede section 13, supra, of the. Revised Statutes of 1878. But, in our opinion, no such conclusion can be sustained. Without in the least overlooking the general rule that the revision arid codification take the place of all former laws on the subject, nevertheless, as to offenses committed against a statute which has been amended or repealed, there may be applied a general existing statute by which, notwithstanding such repeal, a statute is kept alive for the purpose of sustaining a prosecution for liability under it. This is shown by section 343, which is much like section 5598 of the Revised Statutes (Comp. St. § 10595). The Supreme Court, in United States v. Reisinger, 128 U. S. 398, 9 Sup. Ct. 99, 32 L. Ed. 480 referred to section 5598, and said that it was “the obvious intention of section 13 * * * to extend this provision to the repeal of any statute not embraced in such revision.” The plain object of a general statute, such as section 13, is to meet a situation where, but for such a general provision, there would he a lime of nonliability. Section 343 is applicable to repeals effected by the Criminal Code, but does not repeal section 13 of the Revised Statutes. By regarding section 13 of the Revised Statutes as in force, and as keeping alive the right to prosecute violations of section 13 of the act of May 18, 1917, there was no period of nonliability for doing the acts charged against the plaintiff in error.

In Hertz v. Woodman, 218 U. S. 205, 30 Sup. Ct. 621, 54 L. Ed. 1001, decided on May 31, 1910, after the Criminal Code took effect, the Supreme Court said that the fourth section of the act of Congress of February 25, 1871 (16 Stat. 431, c. 71 [Comp. St. § 14]), “was carried into the revision of 1878 and is now in force as section 13, Rev. Stat.,” and added:

“This provision has been upheld by this court as a rule of construction applicable, when not otherwise provided, as a general saving clause to be read and construed as a part of ail subsequent repealing statutes, in order to give effect to the will and intent of Congress.”

In the earlier case of Great Northern Railway Co. v. United States, 208 U. S. 452, 28 Sup. Ct. 313, 52 L. Ed. 567, the court held that section 13 must be enforced, unless “either by express declaration or necessary implication, arising from the terms of the law as a whole, it results that the legislative .mind will be set at. naught by giving effect to the provisions of section 13.” Again, in the recent case of Hallowell, v. Commons, 239 U. S. 506, 36 Sup. Ct. 202, 60 L. Ed. 409, decided in 1916, the court regarded section 13, Revised Statutes, as in force.

It is certain that there is no inclusion of section 13 in the express repealing provisions of the Criminal Code of March 4, 1909, and our opinion is that there is no repealing clause in any subsequent act which conflicts with the general rule of section 13, and of its applicability to the case before us.

The result, is that the plaintiff in error was liable to prosecution under the act of May 18, 1917, and her liability was not affected by the amending act of 1918, or any clause thereof, but that under the rule of section 13,.Revised Statutes, she was rightly proceeded against.

The judgment is affirmed.