Ross v. United States

37 F.2d 557, 1930 U.S. App. LEXIS 2597

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 14, 1930
• Docket: 2895
• Status: Published

Opinions

NORTHCOTT, Circuit Judge.

This is an appeal from a judgment of the District Court of the United States for the Northern District of West Virginia, sentencing appellant, Frank Ross, to imprisonment for 2 years in the Atlanta penitentiary. The defendant was charged with having, on the 4th day of April, 1929, sold intoxicating liquor in violation of the National Prohibition Act, as amended and supplemented by the Act of March 2, 1929 (chapter 473, §§ 1 and 2, 45 Stat. 1446 [27 USCA §§ 91, 92]) commonly known as the “Jones Aet.”

The evidence for the government was to the effect that a prohibition agent, accompanied by one McGlone, went to a place at Elm Grove, in the county of Ohio, whieh was known as the “Viaduct Club”; that, when they reached the entrance of the club, a buzzer rang; that they went up a flight of stairs, and came to a door that had a peephole in it; that, after the defendant took a peep at them, they were admitted into a room where there was a bar or counter and some other furniture; including a pool table; that the door was barred; that in this room the prohibition agent bought and paid the defendant for two drinks of whisky; that there was no one else in the plaee at the time, and that they were in the place about ten minutes; that 50 cents was paid for the two drinks of whisky; and that the liquor was obtained by the defendant in, a little room opening into the club room.

The defendant went on the stand and denied the sale; stated that he had bought the plaee only on March 26, preceding the event testified to taking charge on April 1; that he had never been engaged in the whisky business and never sold whisky, and purchased the plaee with the intention of starting a restaurant.

It is contended, first, on behalf of the appellant, that the Aet of Congress approved March 2, 1929 (27 USCA §§ 91, 92), commonly known as the “Jones Aet,” is unconstitutional. This aet reads as follows:

“That wherever a penalty or penalties are prescribed in a criminal prosecution by the National Prohibition Aet, as amended and supplemented, for the illegal manufacture, sale, transportation, importation, or exportation of intoxicating liquor, as defined by section 1, Title II, of the National Prohibition Act, the penalty imposed for each such offense shall be a fine not to exceed $10,000 or imprisonment not to exceed five years, or both: Provided, That it is the intent of Congress that the court, in imposing sentence hereunder, should discriminate between casual or slight violations and habitual sales of intoxicating liquor, or attempts to commercialize violations of the law.

“Sec. 2. This Aet shall not repeal nor eliminate any minimum penalty for the first or any subsequent offense now provided by the said National Prohibition Act.”

The contention as to the unconstitutionality of the act is based upon the argument that Congress, in declaring its intention in passing the aet that the trial court in imposing sentence thereunder should discriminate between casual or slight violations and habitual sales of intoxicating liquor, or attempts to commercialize violations of the law, thereby delegated to the trial court the power of legislation. We do not think so.

Article 1, section 1, of the Constitution of the United States, provides that:

“All legislative powers herein granted shall be vested in a Congress of the United States, whieh shall consist of a Senate and House of Representatives.”

In Wayman v. Southard, 10 Wheat. 1, 42, 6 L. Ed. 253, Chief Justice Marshall said:

“It will not be contended, that congress can delegate to the courts, or to any other tribunals, powers whieh are strictly and exclusively legislative. But congress may certainly delegate to others, powers whieh the legislature may rightfully exercise itself.”

In passing the “Jones Aet,” Congress, in increasing the maximum penalties for offenses already existing under the Volstead Act (27 USCA), merely did what it certainly had a right to do, and in declaring its intention as to the application of the law Congress did not in any way delegate a power exclusively legislative. The admonition or advice of Congress to the trial court merely left the court to decide whether or not the offense of a defendant came within the intention of Congress in the passage of the act. In every aet fixing a minimum and a maximum penalty Congress leaves the trial court to fix the punishment according to the gravity of the offense.

Again it is contended on behalf of the appellant that the circumstances of this particular case did not bring the offense for which the appellant was convicted within the declared intention of Congress in passing the “Jones Aet.” With this contention we cannot agree.

The circumstances surrounding the sale, as testified to by the government witnesses, and this testimony was evidently believed by the jury, show such a condition as to bring the ease clearly within the declared intention of Congress.

Defendant was in charge of, and was operating, a place that was thoroughly equipped for the purpose of selling whisky in violation of the law. A buzzer announced the arrival of any one at the place where the sale was made, a peephole allowed an inspection of any one who might apply for admittance, and this peephole was used by the defendant before the government witnesses were admitted; the room where the sale took place was equipped to be operated as a speak-easy, and the sale was made, as a matter of course, by the defendant, according to the government testimony, to two people, one of whom was a stranger to the defendant; the sale was made over the bar or counter. The defendant admitted that he had paid $1,200 for the place, containing only the bar or counter, some chairs, an ice box, and an old pool table, a price entirely out of proportion to the value of the property. All of these circumstances .certainly bring the crime for which the defendant was convicted under the class of “attempts to commercialize violations of the law,” and clearly point to “habitual sales.”

It is contended on behalf of appellant that the demurrer to the indictment should have been sustained, but upon inspection we are of the opinion that the indictment was amply sufficient.

Other assignments of error, ás to bill of particulars, requested by defendant, and as to the admission of certain evidence, are of no merit.

The evidence for the prosecution brings the offense within the declared intent of Congress in the passage of the “Jones Aet” (27 USCA §§ 91, 92), and the defendant was sentenced to two years in the Atlanta penitentiary, when under the statute he could have' been given five years. We find no error in the record, and the judgment of the court below is accordingly affirmed.