Maresca v. United States

277 F. 727, 1921 U.S. App. LEXIS 2519

Opinions

ROGERS, Circuit Judge

(after staling the facts as above). [1] This case is one of considerable, importance not only to the defendants, because of the severe sentences imposed, but to the government, because of the questions raised as to the construction to be. given to certain acts of Congress for the violation of which the defendants have been' convicted. The District Judge who imposed the sentences was, of course, invested with sole discretion, without the limits fixed by the statutes, of determining the extent of the punishments to be inflicted, and in the discharge of that duty he was well aware that sentences should be imposed which are sufficiently severe to cause the laws of the United States to be obeyed. ' The question which this court is to determine is as to the validity of the indictment and of the sentences imposed.

We are presented with a document marked “Bill of Exceptions.” It appears to have been signed and filed on December 20, 1920. As the judgments of the court were entered on July 2, 1920, the term of the District Court expired with September 30, 1920, under rule 5, automatically extending the term 90 days after the entry of final judgment. Defendants rely on an oral statement, which is before us only because incorporated in the so-called bill of exceptions, which was made by the District Judge from the bench on July 2, 1920, and which was as follows:

“I will extend it [the term] until November 1st; and I am quite sure ii it becomes necessary, I will have the power to grant an additional extension.”

[2] No minute or docket entry was made of the remark, and no order was signed by the judge until November 3, 1920, when, over the government’s objection, an order was signed purporting to extend the term to December 8th. This order was filed on November 4th, and on November ,29th a further order again extending the term was signed extending the term to January 5, 1921. There is authority for holding that an oral statement extending the time for filing a bill of exceptions is not of any binding force unless entered in the docket. Barstow v. Marsh, 4 Gray (Mass.) 165; Doherty v. Lincoln, 114 Mass. 362; Klein v. State, 157 Ind. 146, 60 N. E. 1036. But for the purpose of the argument we will assume, without deciding, that the oral order extending the term to November 1st was valid. In that case the second order of November 3d, extending the term to December 8th would be invalid, as was the order of November 29th, as the term had expired when the extension on November 3d was granted. It is said, however, that the District Judge in his original and oral extension of the term said: “I will extend it until November 1st; that is four months.” Where time is defined by a particular date as well as by the number of days, .and the two are inconsistent, it is very doubtful at the best whether the number of days named can overcome the particular date specified. But if they be given controlling effect, and we do not decide that they are entitled to it, the term would be extended to and including November 2, 1920. Then, as November 2d, being election day, was a legal holiday, it is urged that this would give an additional day, and therefore made the order signed on Monday, November 3d, valid; counsel insisting that it is well settled that, if the last day for settling and filing a bill of exceptions falls on a Sunday or on a holiday, the bill may be settled on the following day. And our attention is called to the following cases: Bacon v. State, 22 Fla. 46; Harris v. Atlanta, 62 Ga. 290; Evans & Hollinger v. Chicago, etc., R. R. Co., 76 Mo. App. 468; Cash v. Penix, 11 Mo. App. 597; Enck v. Gerding, 63 Ohio St. 175, 57 N. E. 1083—in which it has been so decided.

In Siegelschiffer v. Penn Mutual Life Ins. Co., 248 Fed. 226, 160 C. C. A. 304, this court held, in computing the time within which an appeal or writ of error can be taken or sued out after entry of judgment, that if the last day of the six months'" period falls on Sunday, the act cannot he lawfully done on Monday. In so holding we followed a like decision of the Circuit Court of Appeals in the Eighth Circuit (Johnson v. Meyers, 54 Fed. 417, 4 C. C. A. 399), and one by the Circuit Court of Appeals in the Ninth Circuit (Meyer v. Hot Springs Imp. Co., 169 Fed. 628, 95 C. C. A. 156).

[8] A, hill of exceptions was unknown to the early common law. 4 Chitty, Gen. Pr. 2. It was introduced by the Statute of Westminster II (13 Edw. I) Stat. 1, c. 31, A. D. 1285. It is plainly common law in the United States, but in both countries has been held not to extend to criminal causes. Reg. v. Alleyne, 4 Ell. & B. 186; Vane’s Case, 6 How. St. Tr. 119, 130, 131; Reg. v. Jelly, 10 Cox, Crim. Cas. 553; People v. Holbrook, 13 Johns. (N. Y.) 90; Ex Parte Barker, 7 Cow. (N. Y.) 143; Ned v. State, 7 Port. (Ala.) 187. And see Bishop’s New Cr. Proced. (2d Ed.) § 1265. The right to such a bill in a criminal case in the federal courts is statutory. And, as we pointed out in Buessel v. United States, 258 Fed. 811, 816, 170 C. C. A. 105, when. Congress authorized the proceedings in a criminal case to be reviewed upon a writ of error, it thereby sanctioned the use of a bill of exceptions in that connection, for a bill of exceptions is the method by which the proceedings at the trial which otherwise would not be in the record are made a part of it and so reviewed. And we also point ed out in the Buessel Case that bills of exceptions in the federal courts are not governed by the conformity statute, directing that the practice, pleadings, and forms and modes of proceeding in a District Court shall conform to those in the courts of the state in which the District Court; sits.

[4] We see no reason why the rule this court applied in determining the time within which an appeal or a writ of error can be sued out should not be also applied in determining the time within which che bill of exceptions can be signed and filed. The right to the bill of exceptions, in "a criminal case in the federal courts, like the right to the writ of error, comes from the statute, and not from any rule of the court, and we know of no reason why it is not governed by the same principles in ascertaining the time within which it is to be signed. If, when the last day falls on Sunday or on a legal holiday, the appeal or writ of error cannot be filed on the next day under the like circumstances, the bill of exceptions cannot be signed or filed on the next day. It must follow that, whether the court below extended the term, as the government contends, to November 1st, or whether it extended it four months and to November 2d, which fell on a legal holiday, in either event the subsequent extension of the term not. made until the following day came too late, and the bill of exceptions thereafter signed must be disregarded. Blisse v. United States (C. C. A.) 263 Fed. 961; Anderson v. United States (C. C. A.) 269 Fed. 65.

[5] We may add, however, to what has already been said, that in 38 Cyc. 332, 333, it is correctly laid down as the general rule that, “Where an act is required to be done in any certain number of days after or before a fixed time, Sunday is to be included in computing the number of days, when it exceeds seven; if it is less than seven, Sunday must be excluded,” and that the same rule applies where holidays intervene. So in Rewis’ Sutherland on Statutory Construction (2d Ed.) vol. 1, § 188, p. 335, it is said that—

“In the absence of a positive written law excluding Sundays from a period of days prescribed for any purpose, they are counted, even though the period ends on Sundays. Where a period less than a week is prescribed by statute, it has sometimes been held that an intervening Sunday should not be counted, nor if it be the last day of the period.” “This,” the writer says, “appears to be the settled rule in Massachusetts. It is not universally adhered to as to periods of more than one or two days, subject to this qualification: Where the last day is Sunday, any act required by statute to be done within the period must be done before that day. Por such acts the period practically ends on the preceding day.”

The subject in connection with a bill of exceptions was carefully considered in American Tobacco Co. v. Strickling, 88 Md. 500, 41 Atl. 1083, 69 L. R. A. 909, it being held that, if the last day for signing a bill of exceptions falls on Sunday, it cannot be signed on Monday, the period for settling the bill in that state being in excess of seven days. The court declared:

“We can see no valid reason for excluding the last Sunday and including the others. The general rule, subject to but few exceptions, is that statutory time of over seven days cannot be extended because the last day falls on Sunday.”

After stating the general rule to which attention has been already called the court added:

“There are but few exceptions to the general rule laid down above. There are cases which may seem to be [the contrary], but a careful examination of the most of them will show that,'when Sundays are excluded from the computation of time of more than a week, it is because of the language of the statute, or because the days referred to are such as the courts find exclude Sundays.”

See, also, Cartwright v. Liberty Telephone Co., 205 Mo. 126, 103 S. W. 982, 12 L. R. A. (N. S.) 1125, 12 Ann. Cas. 249; Geneva Cooperage Co. v. Brown, 124 Ky. 16, 98 S. W. 279, 124 Am. St. Rep. 388; Kelly v. Independent Pub. Co., 45 Mont. 127, 122 Pac. 735, 38 L. R. A. (N. S.) 1160, Ann. Cas. 1913D, 1063; Hanover Ins. Co. v. Shrader, 89 Tex. 35, 32 S. W. 872, 33 S. W. 112, 30 L. R. A. 498, 59 Am. St. Rep. 25; Cunningham v. Mahan, 112 Mass. 58; State v. Harris, 121 Mo. 445, 26 S. W. 558; State v. Seaton, 106 Mo. 198, 17 S. W. 169.

We are not at liberty, therefore, there being no bill of exceptions here, to consider the various assignments of error relating to the admission and rejection of evidence, and to comments which are alleged to have been improperly made by the District Judge during the trial, as well as those relating to alleged erroneous instructions given to the jury in the charge and the refusal to give instructions requested. Neither are we at liberty to inquire concerning an alleged unlawful search and seizure of certain books and papers or the character of the distilled spirits involved about which we can know absolutely nothing.

In passing upon the validity of the indictment and of the sentences, imposed we must consider certain acts of Congress. Those particularly to be considered are the Lever Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3115%e-3115%kk, 3115%/-3115%r), the War Prohibition Act (40 Stat. 1045), and to some extent the National Prohibition Act (41 Stat. 305). It will be necessary also to refer in the course of this opinion to certain sections of the Revised Statutes dealing with revenue matters.

The Lever Act of August 10, 1917 (40 U. S. St. at L. c. 53, p. 276), otherwise knowñ as the National Defense Act, became effective after September 8, 1917. Tt did not in express terms prohibit the sale of distilled spirits or the use of such spirits for beverage purposes. It was concerned with the production of such liquors from certain food materials. Section 15 of the act (section 3115%/) provided that after 30 days from the date of the approval of the act no foods, fruits, food materials, or feeds shall be used in the production of distilled spirits for beverage purposes. But it also provided that under such rules, regulations, and bonds as the President might prescribe such materials might be used in the production of distilled spirits exclusively for other than beverage purposes. And any person who willfully violated the provisions of the section or any rule or regulation made under it was subject to a fine not exceeding S5,000, or to imprisonment for not more than two years, or both. Thereafter, acting under section 15 of the act, the following regulations were promulgated:

“(B) The manufacture of distilled spirits from foods, fruits, food materials, or feeds for beverage purposes is prohibited ai'tpr September 8, 1917.

“All persons are forbidden to use any distilled spirits manufactured after September 8, 1917, from foods, fruits, food materials, or feeds in manufacturing or preparing beverages or to sell any such spirits for beverage purposes. * * *"

[6] The regulation was promulgated by the Commissioner of Internal Revenue with the approval of the Secretary of the Treasury. Importance is attached, by counsel for defendants, to the fact that the President himself did not make or proclaim the regulation, and that it does not appear that he authorized either of the officials named to exercise the power delegated to him. The law is established that the President may exercise through the heads of departments the powers vested in him. He speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties. Wilcox v. Jackson Ex dem. McConnel, 13 Pet. 498, 10 L. Ed. 264; Wolsey v. Chapman, 101 U. S. 755, 25 L. Ed. 915. And it must be presumed as matter of law that the Secretary of the Treasury, acting over his own signature, does so by direction of the President. In United States v. Fletcher, 148 U. S. 84, 13 Sup. Ct. 552, 37 L. Ed. 378, the President was required to act in the matter in controversy in a judicial capacity under the Articles of War in approving a report of a court-martial, and it appeared that the Secretary of War had acted in the matter over his own signature. The court held that it must be presumed that he acted by direction of the President in so doing. And in Porter v. Coble, 246 Fed. 244, 249, 158 C. C. A. 404, a postmaster who had been removed from office by the Postmaster General claimed that the power of removal was in the President, and that there was nothing to show that the man had been removed by the President or that the Postmaster General had ever been authorized by the President to make the removal. It was held that it must be presumed that the Postmaster General in ordering the removal acted by direction of the President. So it may be that .the act of the Secretary of the Treasury in promulgating the regulation was the act of the President in the matter under consideration.

The War Prohibition Act of November 21, 1918 (40 St. at L. c. 212, p. 1046), provided that after June 30, 1919, until the conclusion of the war and thereafter until the termination of demobilization, the date of which was to be determined and proclaimed by the President, it should be unlawful to sell for beverage purposes any distilled spirits, and that during said time no distilled spirits held in bond should be removed therefrom for beverage purposes except for export. And it provided that after May 1, 1919, no specified food products should be used in the manufacture or production of beer, wine, or other intoxicating malt or vinous liquor for beverage purposes. It also prohibited .the importation into the United States of distilled, malt, vinous, or other intoxicating liquors during the continuance of the war and period of demobilization.

[7] The National Prohibition Act of October 28, 1919, otherwise known as the Volstead Act, 41 U. S. St. at L. p. 305, prohibited the manufacture and sale of intoxicating liquors. The violation of this act is not charged in the indictment, and we call attention to section 7 of title 1 of the act which declares that “none of the provisions of this act shall be construed to repeal any of the provisions of the War Prohibition Act.” We may therefore disregard any suggestion that the Volstead Act operated in any way to modify or repeal the provisions of the War Prohibition Act. Titles 1 and 3 of the Volstead.Act and certain sections of title 2 became effective on October 28, 1919, although certain other sections of title 2 did not go' into effect until one year from and after the date when the Eighteenth Amendment of the Com stitution went into effect, which was on January 29, 1920.

[8] Counsel for defendants claim that the Eever Act is unconstitutional. They found that claim upon the fact that the Supreme Court in United States v. L. Cohen Grocery Co., 255 U. S. 81, 41 Sup. Ct. 298, 65 L. Ed. —, 14 A. L. R. 1045, held that section 4 of the act was invalid. That section is known as the price-fixing section. But that section is in no way involved in the case now before us; neither is any other section of the act except section 15. The two sections are absolutely independent of each other. And the law is well settled that, if the parts of a statute are wholly independent of.each other, as they are here, that which is constitutional may stand, while that which is unconstitutional will alone be rejected. Poindexter v. Greenhow, 114 U. S. 270, 5 Sup. Ct. 903, 962, 29 L. Ed. 185; Spraigue v. Thompson, 118 U. S. 90, 95, 6 Sup. Ct. 988, 30 L. Ed. 115; Pollock v. Farmers’ Loan & Trust Co., 158 U. S. 601, 15 Sup. Ct. 912, 39 L. Ed. 1108. We have no doubt that section 15 is constitutional.

[9] But counsel also urged upon us that section 15 was impliedly repealed and superseded by the War Prohibition Act and the National Prohibition Act. The question raised is important, as it is, of course, the law that, where a statute which defines a crime and provides the punishment to be imposed upon the offender is repealed before judgment, and there is no proper saving clause, the repeal constitutes a complete bar to all further proceedings. Wharton’s Crim. Law (11th Ed.) vol. 1, § 413.

[10] Did the War Prohibition Act make a tabula rasa of the preexisting section 15 of the Lever Act? The repeal and the suspension of statutes are distinct matters. The suspension of a statute is limited in time, and is not a repeal which is unlimited in time. The suspension of a statute, like its repeal, may be express, as when declared in direct terms, or implied, when it is inferred from subsequent repugnant legislation. But suspension and repeal alike, when not express, but only implied, must be inferred from necessity. There must be such a conflict between the old and new statutes that the two cannot stand together. The intention to suspend or repeal will not be presumed unless the inconsistency is unavoidable and only to the extent of the repugnance. Lewis’ Sutherland on Statutory Construction, vol. 1 (2d Ed.) § 247, p. 464.

Laws are presumed to be passed with deliberation,- and it is a reasonable presumption that the lawmaking body does not intend to effect so important a measure as the repeal of a law without expressing an intention to do so. It is said in Maxwell on Interpretation of Statutes (6th Ed. London) 296, that—

“Such an interpretation [repeal by implication] is not to be adopted unless It lie inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention.”

The two acts must stand in so far as they involve no inconsistency. And repeals by implication are not favored either in England (West Ham v. Fourth City Building Society, [1892] 1 Q. B. 654) or in the United States (United States v. Greathouse, 166 U. S. 601, 17 Sup. Ct. 701, 44 L. Ed. 1130). But in both countries alike it is well-established law that one statute may repeal or suspend another statute on the same subject, although it contains no words of express repeal. A later statute repeals by implication an earlier enactment when the two are clearly inconsistent with each other. United States v. Tynen, 11 Wall. 88, 20 L. Ed. 153. And in Bishop on Statutory Crimes, § 160, it is correctly laid down that; where a newly enacted statute covers the whole ground occupied by a prior one. or by the common law, it repeals such law by implication, if the two are irreconcilably in conflict.

It appears that the elements of the offense punishable under section 15 of the Lever Act and regulation 3 (assuming for the purposes of the argument that regulation 3 was promulgated in accordance with law)’ are (1) A sale of distilled spirits (2) for beverage purposes, (3) the distilled spirits having been manufactured from food materials subsequent to September 9, 1917. On the other hand, the elements of the offense punishable under the War Prohibition Act are (1) a sale of distilled spirits (2) for beverage purposes, and (3) not for export. Both Acts prohibited the manufacture from certain food products of liquors' for beverage purposes.

The punishment for a violation of the Eever Act was a possible -£5,000 fine and imprisonment for two years; while under the War Prohibition Act it was a possible $1,000 fine and imprisonment for one year.

[11] Every offense committed under the Eever Act was punishable under the War Prohibition Act and with a lesser penalty. To that extent the. two acts were inconsistent, and in our opinion the War Prohibition Act superseded or repealed section 15 of the Eever Act. There cannot be two different penalties for the 'same offense. The rule is well settled that, where a statute prohibits a particular act, and imposes a penalty for doing it, and a subsequent statute.imposes a different penalty for the same offense, the latter statute operates by way of substitution and repeals the former, -and this whether the penalty is increased or diminished. Rex v. Cator, 4 Burr, 2026, 98 Eng. Rep. 56; United States v. One Bay Horse, etc. (D. C.) 128 Fed. 207; State v. Whitworth, 8 Port. (Ala.) 434. Bishop on Statutory Crimes, § 168, and Maxwell on the Interpretation of Statutes (6th Ed. Eondon, 1920) states, where the punishment or penalty imposed in an earlier statute is altered in degree, but not in kind, the provision in the later statute is considered as superseding the earlier one. There can be no difficulty, therefore, in holding that as to acts committed after the War Prohibition Act took effect the penalty imposed for an act which violated both statutes could only be imposed under the provisions of the later act.

That the War Prohibition Act was constitutional when enacted was decided in Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 40 Sup. Ct. 106, 64 L. Ed. 194. That it was not repealed by the National Prohibition Act we have already pointed out! And that it was not repealed by the Eighteenth Amendment was decided likewise in Hamilton v. Kentucky Distilleries Co., supra. By that amendment it was expressly provided that the prohibition thereby imposed.was to become effective after one year from its ratification, and ratification was proclaimed on January 29, 1919. 40 Stat. 1941. The contention was that in postponing the effective date of prohibition the amendment impliedly guaranteed to manufacturers and dealérs in intoxicating liquors a year of grace and impliedly removed the existing restriction imposed by the War-Time Prohibition Act. The Supreme Court, however, held the claim untenable.

The effect of these various acts in working an implied repeal of certain revenue legislation of the government will be considered in a subsequent portion of the opinion.

• We come now to a consideration of the indictment and to the action of the court in imposing sentence thereunder.

[12] The first count charged that the defendants conspired and agreed together to violate section 15 of the act of Congress of August 10, 1917, known as the Eever Act, and the act of November 21, 1918, known as the War Prohibition Act, and the rules and regulations made thereunder, and that they conspired to use and sell for beverage purposes a large quantity oí distilled spirits manufactured from foods, fruits, food materials and feeds after September 9, 1917, and to sell for beverage purposes, and not for export, large quantities of distilled spirits, and that it was a part of the conspiracy that the defendants should purchase such distilled spirits for the ostensible purpose of using it as an ingredient in the manufacture of hair tonic and flavoring extracts, but with the true object and purpose of using and selling such distilled spirits for beverage purposes. Six overt acts are alleged and they can be found in the margin.¹ The dates of the alleged overt acts are laid between July 1, 1919, and November 15, 1919, and it is to be observed that all the days on which the overt acts occurred were after the date when the War Prohibition Act went into effect, and made it unlawful to sell for beverage purposes any distilled spirits or to remove any such spirits from bond for beverage purposes except for export. And the act which the count alleges the defendants conspired to commit, “viz. to sell for beverage purposes, and not for export,” distilled spirits, constituted a plain violation of the War Prohibition Act, and the count must be held good.

[13,14] But it is said that the term “distilled spirits,” used in count 1, may mean either pure alcohol or anything which has been prepared as a beverage or by way of mixture making it palatable for beverage purposes. And we are told that the War Prohibition Act, the National Prohibition Act, and the Eighteenth Amendment all aim only at the sale of such ‘‘distilled spirits” as are fit for human consumption as a beverage. Then we are informed that the evidence shows conclusively that the distilled spirits sold to the defendants were of nonbeverage quality, being pure alcohol which could not be drunk; that therefore the defendants neither bought nor sold'“distilled spirits” within the new meaning of that term, that is to say “as a beverage or for beverage purposes” within the meaning of the War Prohibition Act. To all of this it is enough to say, there being no bill of exceptions in the case, that this court knows nothing and can know nothing as to what the evidence shows was the character of the “distilled spirits” which the defendants bought or sold. The count uses the language of the War Prohibition Act which declares it “shall be unlawful to sell for beverage purposes any distilled spirits.” And it declares that any person who violates any of the provisions of the act shall be punished in the manner specified therein. We may be permitted to add, although the question is not before us for decision, that even if it properly appeared to this court that the defendants bought and sold pure alcohol and delivered it to a saloon to be used by it in the course of its business, the majority, as at present informed, would have no difficulty in holding that the thing sold was “distilled spirits,”, and that it was sold for “beverage purposes” within the meaning of the Prohibition Act. To hold otherwise would seem to us to violate the plain intention of the act and to constitute a total disregard of the language used.

The sentences imposed under this count were imposed under the provisions of section 37 of the Criminal Code (Comp. St. § 10201), which authorizes each of the parties found guilty of conspiracy to be fined not more than $10,000, or imprisoned not more than two years, or both. In this case the sentences must be held good, not being in excess of the statutory limit.

The second count was dismissed by the court before the case was submitted to the jury, and therefore is not now before us.

[15,16] The third and tenth counts may be considered together as each charges an unlawful sale of distilled spirits for beverage purposes. Count 3 charged that on November 15, 1919, the defendants did unlawfully, willfully, and knowingly sell for beverage purposes a quantity of distilled spirits, to wit, 24,106.96 gallons, and the said distilled spirits were manufactured from foods, fruits, food materials, and feeds after September 9, 1917, as the defendants then and there well knew, against the peace of the United States and their dignity and contrary to the form of the statute of the United States in such case made and provided (Act Aug. 10, 1917). It is evident that the pleader in drawing count 3 had the. Lever Act in mind'. Eor reasons already stated, the Lever Act was not in existence on November 15, 1919. having been superseded by the War Prohibition Act. But in the opinion of the court the count is not bad because of the words at the end of the count “(Act of August 10, 1917).” The count itself does not expressly allege that the unlawful sale was made in violation of the Lever Act, or of the “Act of August 10, 1917.”

In Williams v. United States, 168 U. S. 382, 389, 18 Sup. Ct. 92, 94 (42 L. Ed. 509), the court declared that it was wholly immaterial what statute was in the mind of the district attorney when he drew the indictment, if the charges made were embraced by some statute in force; that the indorsement on the margin of the indictment constituted no part of the indictment and did not add to or weaken the legal force of its averments.

“We must.,” said the court, “look to the indictment itself, and, if it prop- . orlj charges an offense tinder the lairs of the United States, that is sufficient to sustain it, although the representative of the United States may have supposed that the offense charged was covered by a different statute.”

As was said in United States v. Nixon, 235 U. S. 231, 235, 35 Sup. Ct. 49, 50 (59 L. Ed. 207), the important, fact is that the indictment alleges that an act was done contrary to the form of the statute in sucii case made and provided, and “what was that statute and on what statute the indictment was founded was to be determined as a matter of law from the facts therein charged.” In the Nixon Case, as in the Williams Case, the court held the reference to the statute was no part of 1he indictment. See, to the same effect, Wechsler v. United States, 158 Fed. 579, 86 C. C. A. 37, decided by this court; United States v. Wood (D. C.) 168 Fed. 438; United States v. Freidericks (D. C.) 273 Fed. 188. In the Nixon Case the entries on the back and in the caption of the indictment described it as being for violation of a certain statute, which was inapplicable, and the court declared that this did not invalidate the indictment, but that it was for the court to say whether there was any statute in existence which made the facts charged a crime; “an indictment must set out facts and not the law,” and the indorsements constituted no part of the indictment. In the absence of an allegation in the count that the unlawful act charged constituted a violation of a specific statute, the mere indorsement in parentheses at the end of the count is in the opinion of the majority of the court of no greater significance than the same words would have if they had been indorsed on the margin of the indictment or on the back of the indictment or in the caption of the indictment. In all these cases the indorsement indicates the intention of the pleader to rest the indictment upon the statute named, but that intention cannot nullify the indictment or in any wise conclude the government if there is some other statute which can sustain it. For many years it has been the practice in the Southern district in drawing indictments to do what was done in drawing this count, but the practice is an unfortunate one, as it is quite unnecessary to allege the particular statute which has been violated.

[17] The essential facts alleged in count 3, viz. that the defendants did unlawfully, willfully and knowingly sell for beverage purposes distilled spirits on November 15, 1919, is the allegation of an act made criminal by the War Prohibition Act, which was in force on that date. Therefore the count is good. The allegation that the distilled spirits were manufactured from certain food materials after September 9, 1917, is to be regarded, in the opinion of the majority, as mere surplusage; it being immaterial under the War Prohibition Act when the spirits were distilled. The language of the War Prohibition Act is:

“That after June 30, 1919, until the conclusion of the present war and thereafter until the termination of demobilization * * * it shall be unlawful to sell for beverage purposes any distilled spirits; * * * ”

[18-20] The law is well established that unnecessary averments in an indictment may be disregarded as surplusage. Wharton's Cr. Procedure, vol. 1 (10th Ed.) § 200. And if it be said that under the War Prohibition Act a sale might be made for export and that the count does not negative the fact that the sale was not for export, we think the allegation that the sale was for beverage purposes is in itself a sufficient allegation, without adding the words that it was not for export. But, if mistaken in this, the objection comes too late after verdict, and we should assume that the jury was properly instructed, and that the evidence showed the sale was not for export. The sale for beverage purposes on the day named .was a crime under the laws of the United States, being prohibited by the War Prohibition Act, and defendants could not have been misled or prejudiced in any way by the language of the count.

One of the members of the court, however, holds that the third count is expressly under the Lever Act, so that thfe allegation that the distilled spirits were made from food products after September 9, 1917, is material and necessary, and that it was to this charge that the defendants pleaded nqt guilty, and he thinks the finding that the Lever Act is impliedly repealed by the War Prohibition Act is no ground for treating the count as filed under the latter act. Pie thinks that there was no mistake or misunderstanding upon the part of any one, and the defendants have prevailed upon the precise issue proposed by the government. Another member of the court, while thinking the count good, thinks the conviction under it bad. The writer, however, thinks both the count and the sentence under it good, but the majority think the sentence under the count bad.

Count 10 charges a similar unlawful sale, alleging, however, that it occurred on November 15, 1919, and that it was not for export, and that the quantity sold was 24,106.96 proof gallons. At the end of the count occur the words “(Act of November 21, 1918).” There can be no doubt as to the validity of count 10, and, as it charged an unlawful sale, and as the sentences imposed under both counts were single and did not exceed the punishment authorized under the War Prohibition Act, the sentence imposed under count 10 is affirmed, while that imposed under count 3 is reversed.

Counts 4 and 5 having been dismissed by the District Judge, are not before us.

[21, 22] The sixth and ninth counts both involved an alleged violation of the same sections of the revenue laws, and they may therefore be considered together. Each of the counts charges that the defendants did unlawfully, willfully, knowingly, and feloniously remove and aid and abet in the removal of distilled spirits oh which the tax had not been paid to a place other than the distillery warehouse provided by law, contrary to section 3296 of the Revised Statutes of the United States (Comp. St. § 6038), which reads as follows:

“Whenever any person removes, or aids or abets in the removal of any distilled spirits on which the tax has not been paid, to a place other than the distillery warehouse provided hy law, or conceals or aids In the concealment of any spirits so removed, or removes, or aids or abets in the removal of any distilled spirits from any distillery warehouse or other warehouse for distilled spirits authorized by law, in any manner other than is provided by law, or conceals or aids in the concealment of any spirits so removed he shall be liable to a penalty of double the tax imposed on such distilled spirits so removed or concealed, and shall be fined not less than two hundred dollars nor more than five thousand dollars, and imprisoned not less than three months nor more than three years.”

That section, if in force on the dates specified in the counts, made it a criminal offense for any one to remove distilled spirits on which the tax had not been paid. Act Feb. 24, 1919, § 600 (40. St. at U c. 10, p. 1105 [Comp. St. Ann. Supp. 1919, § 5986e|), imposed a tax of $2.20 on each proof gallon withdrawn unless withdrawn for beverage purposes, iu which case it wras liable to pay a tax o f $6.40 on each gallon. The only difference in counts 6 and 9 is that the former count charges the removal on November 15, 1919, of 960.47 proof gallons, while the latter charges the removal on November 12, 1919, of 971.08 proof gallons. To constitute the crime charged and to sustain the conviction under these counts it must appea r that on the dates named the law imposed a tax on the liquors withdrawn which had not been paid. On the dates named in the counts the act of February 24, 1919, was in force. Subdivision (a) of section 600 imposed a tax of $6.40 on each proof gallon of distilled spirits “if withdrawn for beverage purposes,” but subdivision (b) of the same section (section 5986Í) provided that the tax imposed by subdivision (a) on distilled spirits intended for beverage purposes should not be due or payable on such spirits while stored in any distillery, bonded warehouse, or special or general bonded warehouse, and which, pursuant to any act of Congress or proclamation of the President of the United States, “cannot be lawfully sold or removed from any such warehouse during the period of prohibition fixed by such act or proclamation.” As on November 12 and November 15, 1919, it was not lawful to sell for beverage purposes, such sales being absolutely prohibited by the War Prohibition Act, which also declared that no distilled spirits held in bond should be removed therefrom for beverage purposes, there was no tax then to he paid on liquors withdrawn “for beverage purposes” without payment of the tax. It does not therefore conclusively establish the invalidity of the counts if it should be conceded, and we do concede it, that no tax was at that time payable on liquors withdrawn “for beverage purposes.” And, as said, that was not the charge contained in the counts. The charge was that liquor had been withdrawn without payment of the tax, without specifying the purpose for which «the withdrawal was made. And, as the liquor was subject to a tax of $2.20 on each proof gallon withdrawn during the period specified (when not withdrawn for beverage purposes), the counts were not necessarily bad, and after verdict and in the absence of a bill of exceptions we think the verdict of guilty on these counts might be sustained under section 3296, if in force. It might be assumed in that situation that the court below correctly charged the jury on the subject, and that there was evidence to support the verdict. See Wilson v. United States, decided by this court (C. C. A.) 275 Fed. 307.

[23, 24] That the act of February 24, 1919, imposes a tax of $2.20 on all distilled spirits not excepted by the language, and that it was not intended that that particular tax should be remitted while the War Prohibition Act was in force, is made about as plain as Congress could make it; for, when it imposed by the act of February 24th two kinds of taxes and declared that one of them, the tax imposed on distilled spirits intended for beverage purposes, should not be due or payable during the period of prohibition, and failed to make a like declaration as to the other, it left no reason for arguing that it intended that both taxes should be suspended during the period of prohibition. “Expressio unius est exclusio alterius.” Moreover, it is to be noted that the act of February 24th was passed, not prior to but the year after the War Prohibition Act was adopted. At the time named in the counts there was a tax due. The real question is whether section 3296 was in force at the time involved and made the acts complained of in the counts a crime, or whether it had been impliedly repealed. Before considering that question attention may be called to the fact that it may be said that, while the act of February 24th provided for a tax of $2.20 per gallon, the tax is a debt and involves nothing more, as the act provides no penalty. But the penalty was already provided in section 3296, which, if not repealed, was existing law, and therefore did not need to be re-enacted. The act of February 24th and section 3296 of the Revised Statutes, if unrepealed, must be read together. If section 3296 remains unrepealed, it declares the penalty to be imposed upon any person violating its provision.

[25] We come then to the question whether section 3296 was in force at the time when the defendants are charged in counts 6 and 9 with having committed the offense named therein. In Reed v. Thurmond (C. C. A.) 269 Fed. 252 (November, 1920), the Circuit Court of Appeals for the Fourth Circuit had a case before it involving section 3296,-and that court held, reversing the court below on a ground not advanced or considered therein, that the Volstead Act had repealed that section.

“To our minds,” said the court, “the Volstead Act, in its entire scope and purpose, is plainly inconsistent with the scheme of revenue protection embodied in the Revised-Statutes and in the section under review.”

The court declared that offenses committed under the Volstead Act and since it went into effect are punishable only under that act. Volstead Act, tit. 2,.§ 3, declared that no person on or after the date when the Eighteenth Amendment goes into effect should manufacture, sell, etc., except as authorized by the act. And as the amendment referred to did not go into effect until January 29, 1920, one year after ratification was announced, the Volstead Act had not repealed section 3296 on the dates named in counts 6 and 9. It is also to be observed that Reed v. Thurmond, supra, was decided a year and a half before the Supreme Court decided United States v. Yuginovich, 256 U. S. -, 41 Sup. Ct. 551, 65 L. Ed.----, in which case that court used the following language:

“That Congress may under the broad authority of the taxing power tax intoxicating liquors notwithstanding their production is prohibited and punished we have no question.”

Then it said:

“We agree with the court below that, while Congress manifested an intention to tax liquors illegally as well as those legally produced, which was within its constitutional power, it did not intend to preserve the old penalties prescribed in section 3257 in addition to the specific provision * * * made in the Volstead Act.”

What the defendants in that case were charged with was that they unlawfully engaged in the business of distillers without paying the tax imposed for engaging in that business. And the Supreme Court said it did not think Congress intended to preserve the penalties provided in section 3257 in addition to those provided in the Volstead Act.

The question presented in the case now before us is a different one. The Volstead Act is not before us so far as counts 6 and 9 are concerned for the reason that the act complained of in those counts was committed in November, 1919. and prohibition under Volstead Act, tit. 2, § 3, did not become effective, as declared expressly therein, until one year after the ratification of the Eighteenth Amendment, or on January 29, 1920. Moreover, section 35 of title 2 of the Volstead Act declared:

“Nor shall this act relieve any person from any liability, civil or criminal, heretofore or hereafter incurred under existing law.”

And this section also did not become effective until January 29, 1920. As the Volstead Act was not in effect on the dates charged in the counts, it is not important as respects these counts that it was in effect and even had repealed section 3296 prior to the trial and sentences of the defendants; the right to impose sentence for offenses previously committed having been saved by the provision in section 35 of title 2 of the act above quoted.

[26] The question before us then is whether we can say that Congress by the War Prohibition. Act intended a repeal of section 3296, It is -to he observed that the War Prohibition Act was a far less comprehensive act than the Volslead Act, and was intended to be a temporary, and not a permanent, statute, and it by no means follows that because the Volstead Act repealed section 3257 the War Prohibition Act repealed section 3296. And this court thinks it did not. If Congress intended by the War Prohibition Act to repeal section 3296, it reversed a policy which had been in effect since 1868 (15 Stat. 140), and remitted a criminal liability of a fine of not more than $5,000 and of imprisonment for not more than 3 years, retaining simply the civil liability in an action of debt for the recovery of the amount of-the unpaid" tax. We find it difficult to believe that a Congress which clearly iñdicated its determination to suppress by the most severe measures what it regarded as the evil and harmful traffic in distilled spirits when used for beverage purposes intended to relieve all persons who sought to evade the payment of the tax from a criminal liability which had been imposed by law on such offenders during a period of 50 years. It may have intended that the act should have that effect, but. if it did have that intention, the court fails to discover wherein and whereby it indicated it.

Our attention has been called to a number of cases in which it has been decided that the Volstead Act has worked an implied repeal of certain revenue legislation. But the court is not aware of a single decision which has gone as far as we are asked to go in this case and hold that the War Prohibition Act repealed' section 3296.² And in United States v. Turner (D. C.) 266 Fed. 248, in an opinion in which the subject was reviewed at some length, which cannot be said of most of the contrary decisions,'the court passed on section 3296 and held that the Volstead Act itself did not repeal it. In the recent case of United States v. Fredericks (D. C.) 273 Fed. 188, a similar conclusion was reached by Judge Rellstab in a very carefully considered and able opinion.

This court holds that section 3296 was not repealed by the.War Prohibition Act, and that counts 6 and 9 are good and the sentences imposed thereunder are valid.

The eleventh count, like the sixth and ninth counts, previously considered, related to a violation of the Revenue Raws, but to a different section of those laws. It charged that on November 15, 1919, the defendants carried on the business of a wholesale liquor dealer without having paid the special tax as required by law. At the end of this count was indorsed “(section 3281, U. S. R. S.).” Section 3281 (Comp. St. § 6021) prohibited the carrying on of the business of a distiller without payment of the special tax required by law. The applicable statute would have been more correctly cited as section 16 of the act of February 8, 1875 (Comp. St. § 5966) which was supplementary to R. S. 3281. So long as the law was in force one could not engage in the business of a wholesale liquor dealer without taking out a license and paying a special tax of $100, and, if he engaged in the business without doing so, he committed an offense for which he could be fined not less than $100 nor more than $5,000, and be imprisoned not less than 30 days nor more than 2 years. .The mistaken reference to the section of the Revised Statutes indorsed at the end of the count cannot affect its validity for reasons heretofore stated in connection with what was said concerning a similar question under the third count, and which the court deems applicable to the eleventh count.

[27] The question presented under count eleven relates to a different section of the revenue legislation from that discussed under counts 6 and 9. Under counts 6 and 9 the tax involved is on all distilled spirits, and the business of manufacturing all spirits is not unlawful. Under count 11 the tax involved relates to the business of a wholesale liquor dealer, and the business of a wholesale liquor dealer is not unlawful under the War Prohibition Act, which only prohibits sales for beverage purposes, but does not prohibit sales for other purposes. This court therefore holds count 11 good, and not impliedly superseded by the War Prohibition Act. At the time laid in the count, November 15, 1919, the War Prohibition Act was in force. Under that act the retail and wholesale business in distilled spirits was not absolutely prohibited, although it was made “unlawful to sell for beverage purposes any distilled spirits,” and the Act made also unlawful “the manufacture or production” of intoxicating liquors for beverage purposes. It might be argued that, if Congress had made the whole business of selling distilled spirits unlawful, it could not at the same time have intended to keep in force a law which declared that one. should not engage in the business thus made unlawful without having paid a special tax. To prohibit absolutely the manufacture and sale and at the same time require one to pay a special tax for engaging in the prohibited business might: be thought to be inconsistent. In United States v. Ketchum (C. C. A.) 270 Fed. 416, the Court of Appeals for the Eighth Circuit said:

“To absolutely prohibit the manufacture and sale of spirituous liquors, and then to send persons engaged in such business to the penitentiary because they had not paid a tax on the spirits distilled, involves such a contradiction of purpose that there would seem to be no escape from the conclusion that the law requiring the payment of a tax is inconsistent beyond all reasonable doubt with the -act.”

In the Ketchum Case the court was referring to the National Prohibition Act. And in United States v. Yuginovich, 256 U. S.-, 41 Sup. Ct. 551, 65 L. Ed. -—, decided on June 1, 1921, the defendants were charged, among other things, with an attempt to defraud the United States of the tax on distilled spirits under section 3257, and with a violation of section 3281 of the Revised Statutes in carrying on the business of a distiller without giving the required bond. The Supreme Court held the provisions cited had been repealed by implication. But, granting that the National Prohibition Act worked a repeal of the provision in section 3281 which made it an offense to carry on the business of distilling without giving a bond, it does not follow that the War Prohibition Act repealed section 16 of the act of February 8, 1875, which required the payment of a tax for carrying on the business of a wholesale liquor dealer, upon which count 11 of the indictment is based.

The National Prohibition Act is entitled:

“An act to prohibit intoxicating beverages, and to regulate the manufacture, production, use, and sale of high-proof spirits for other than beverage purposes, 'and to Insure an ample supply of alcohol and promote its use in scientific research and in the derelpment of fuel, dye, and other lawful industries.”

As its title indicates, it is a comprehensive statute relating to the entire subject of distilled spirits. It embraces three titles and as printed covers some 18 pages of the United States Statutes at Large. The War Prohibition Act, on the other’hand, is entitled:

“An act to enable the Secretary of Agriculture to carry out, during the fiscal year ending June 30, 1919, the purposes of the act entitled ‘An act to provide further for the national security and defense by stimulating agriculture and facilitating the distribution of agricultural products’ and for other purposes.”

The-.part relating to prohibition of the liquor traffic is merely a part of the first section of that act, and covers a single page of the Statutes at Large. As the title of the act indicates, and a comparison with the National Prohibition Act makes clear, it is not a comprehensive statute dealing with the entire subject of distilled spirits. The War Prohibition Act in itself simply prohibited the manufacture and sale of distilled spirits for beverage purposes. It provided, however, that the Commissioner of Internal Revenue might prescribe rules and regulations subject to the approval of the Secretary of the Treasury in regard to the manufacture and sale of distilled spirits and their removal when held in bond after June 3, 1919, for other than beverage purposes ; also in regard to the manufacture, sale, and distribution of wine for sacramental, medicinal, or other than beverage uses. It seems to us that the act itself, prohibiting merely the sale for beverage purposes, cannot be regarded as working an implied repeal of prior legislation requiring a tax to be paid by the wholesalers; it still being lawful to sell for all purposes except for beverage purposes. If the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, prescribed under the act any valid rules and regulations which deprived the manufacturers or wholesalers of the'right to sell for other than beverage purposes, our attention has not been called to the fact.

Whether the National Prohibition Act is to be construed as an implied repeal of the revenue provision involved is not before us in this case. If that act works an-implied repeal, about which we express no opinion, it is because of certain sections of the act in title 2, which provisions did not become operative until after the date when the Eighteenth Amendment went into effect. But the act complained of in count'll, which is alleged to have been committed on November 15, 1919, which was prior to the date when that amendment took effect, is not affected by the National Prohibition Act; it being expressly provided therein, as before stated, that it should not “relieve any one from any liability, civil or- criminal, heretofore or hereafter incurred under existing law.”

[28] The fact that certain of the counts have been held bad because based upon a repealed or superseded statute can constitute no reason for reversing the judgments as to the valid counts. Selvester v. United States, 170 U. S. 262, 267, 18 Sup. Ct. 580, 42 L. Ed. 1029; Williams v. United States, 168 U. S. 382, 389, 18 Sup. Ct. 92, 42 L. Ed. 509; Wechsler v. United States, 158 Fed. 579, 86 C. C. A. 37.

Judgments of conviction and sentences under the first, sixth, ninth, tenth, and eleventh counts are affirmed.

Judgments and sentences under the third count are reversed.

1 “(1) And to effect the objects of the said conspiracy, Giovanni Rubino, between the date of July 1, 1919. and- November 15, 1919, at the Southern disti’ict of Now York and within the jurisdiction of this court, did sign applications for permission to withdraw 254 barrels containing 24,-10(5.96 proof gallons of distilled spirits, for sale and use for other than beverage purposes.

“(2) And further to effect the objects of the said conspiracy, the Gramatan Company, Inc., between the date of July 1, 1919, and November 15, 1919, at the Southern district of New York and within the jurisdiction of this court, did receive 254 barrels containing 24,106.96 proof gallons of distilled spirits.

“(3) And further to effect the objects of the said conspiracy, Giovanni Rubino, on November 14, 1919, at the Southern district of New York and within the jurisdiction of this court, did. sign an application for permission to withdraw from the American Distributing Company, Inc., wholesale dealers in nonbeverage alcohol, 10 barrels of distilled spirits.

“(4) And further to effect the objects of the said conspiracy, the Gramatan Company, Inc., and Louis Lipari, on November 14, 1919, at the Southern district of Now York and within the jurisdiction of this court, received 10 barrels of distilled spirits.

“(5) And further to effect the objects of the said conspiracy, Louis Lipari, on November 14, 1919, at the Southern district of New York, and within the jurisdiction of this court, did deliver 5 barrels of distilled spirits, to a person whose name is to the grand jurors unknown.

“(0) And further to effect the objects of the said conspiracy, Giovanni Rubino, on November 15, 1919, at the Southern district of New York and within the jurisdiction of this court, did sell for cash to a person whose name is to the grand jurors unknown 1,000 gallons of distilled spirits designated as Quo Vadis, .1,000 gallons of distilled spirits designated as essence of peppermint, 500 gallons of distilled spirits designated as essence of wintergreen, and 500 gallons of distilled spirits designated as essence of clove, and did then and there cause an entry to be made In the books of the Promotion Sales Company, Inc., indicating sales for cash of 1,000 gallons of Quo Vadis at $4,000. 1,000 gallons of essence of peppermint at $16,000, 500 gallons of essence of wintergreen at $8,000, and 500 gallons of essence of clove at $8,000-—

“Against tile i>oaee of the United. States and their dignity and contrary to the form of the statute of the United States in such case made and provided (section 37, U. S. O. O.) ”

2 The following are cases in which the Volstead Act has been held to repeal certain revenue legislation: United States v. Windham (D. C.) 264 Fed. 376; United States v. Puhac (D. C.) 268 Fed. 392; United States v. Stafoff (D. C.) 268 Fed. 417; The Goodhope (D. C.) 268 Fed. 694; United States v. Fortman (D. C.) 268 Fed. 873. And in the following cases it was held not to repeal it: United States v. Sohm (D. C.) 265 Fed. 910; United States v. One Essex Touring Automobile (D. C.) 266 Fed. 138; United States v. Turner (D. C.) 266 Fed. 249; United States v. Farhart (D. C.) 269 Fed. 33; Violette v. Walsh (D. C.) 272 Fed. 1014.