Under the act of Congress forbidding the transport of liquor the United States, or with intent to evade the tax, or when the tax has not been paid, while the provisions of the last statute are to prohibit their being done at all. "It appears to the court that where the deed is precisely the same, although under a different wording, the act would not constitute a separate offense. If a man were charged with a murder, although the murder may have been committed both by rifle and knife, he could not, after having been tried for committing the murder with a rifle, be retried for having committed it with a different weapon, on the ground that it was a separate offense. So, if he were tried for transporting liquor upon which the tax had not been paid, and then attempted to be retried for merely transporting it without permission, it would appear to the court to cover the same act and the same offense. "On behalf of the government it is claimed that these sections of the Revised Statutes can all still have an application, inasmuch as by title 3 of the statute of October 28, 1919, alcohol is still allowed to be manufactured and transported; therefore these sections about manufacturing and transporting could still apply to any alcoholic spirits manufactured or transported, not in pursuance and compliance with the provisions of title 3 of the statute. "Title 3 of the statute provides a complete system with regard to the manufacture of what it terms industrial alcohol, and all plants for the manufacturing of industrial alcohol under that title are by section 9 of that title expressly exempted from the provisions of sections 3258 and 3279 of the Revised Statutes, and that title would appear, when carefully read, to institute a system for the manufacture of industrial alcohol independent of and differing from the system formerly existing for the manufacture of alcoholic spirits for beverage purposes. "Section 3258 requires every person having in his possession a still or distilling apparatus set up to register the same with the collector of the district, which provision is apparently superseded by section 2 of title 3 of the statute of October 28, 1919, which directs application to the Commissioner to be made for registration of an industrial alcohol plant. "Under section 3281 every person carrying on the business of a rectifier or wholesale liquor dealer, retail liquor dealer, etc. (which includes the dealing in liquor for beverage purposes), without having paid the special tax as required by law, or who shall carry on the business of a distiller without having given bond as required by law, or who shall engage in or carry on the business of a distiller with intent to defraud the United States of the tax on the spirits distilled by him, etc., is subject to prosecution and punishment for so doing; when, by the new statute, the carrying on of any of this business is absolutely prohibited, no tax is allowed to be paid for permission to carry it on for beverage purposes, and there cannot be any intent to defraud the United States of a tax which is not allowed to be levied as preliminary to a permission to carry it on. into a prohibition State,18 it was not indispensable to state the point from which the shipment was made, unless the indictment was found in such district.14 An incorrect statement of the "Taking the new statute as a whole, its provisions would appear to cover and provide for the punishment of every act which could be punished under the former provisions of the Revised Statutes with regard to the manufacture and sale of liquors for beverage purposes. To hold that the old law is continued would therefore be to hold that two inconsistent sets of statutory provisions, punishing the same substantial act, and with differing penalties, were of force, and that a person could be prosecuted and punished under section 3 and section 6 of the new statute for transporting any liquor at all, without the required permit, and at the same time prosecuted and punished under the provisions of section 3296 for transporting liquor without having previously paid the tax that he is forbidden by law to pay. "Giving to the repealing clause of the last statute that construction which it would be assumed the legis lative department intended-that is, that it should be construed in harmony with existing rules of law and the existing rules of statutory construction-it appears to the court that the sections referred to have been repealed by the last statute, and the indictment will be accordingly quashed. "" 'Inasmuch, however, as under the warrant of arrest the act committed would be one for which the party would be liable to indictment or information under the last statute of October 28, 1919, if not under the section of the Revised Statutes re ferred to, if imprisoned, he will be detained until he can give bond for his release, or, if out on bond, his bond will be continued of full force for his appearance for trial whenever thereto lawfully required." 13 Appropriation Act of March 3, 1917, reading as follows: "Whoever shall order, purchase, or cause intoxicating liquors to be transported in interstate commerce, except for scientific, sacramental, medicinal, and mechanical purposes, into any state or territory the laws of which state or territory prohibit the manufacture or sale therein of intoxicating liquors for beverage purposes shall be punished as aforesaid: Provided, that nothing herein shall authorize the shipment of liquor into any state contrary to the laws of such state." Ch. 162, § 5, 39 St. at L. 1069; Comp. St., § 8739a. 14 Ciafirdini v. U. S., C. C. A., 266 Fed. 471. After evidence that two packages containing whisky came by mail from Cincinnati to a point in West Virginia to fictitious addresses, but each in care of a post office box, one rented by a brother of defendant, a tailor, and the other by an employee of his, that on the same and the preceding day both the brother and employee sent telegrams to defendant in Cincinnati, inferentially relating to the shipments, and that the packages were addressed by direction of defendant; testimony of a government agent that he found a large quantity of whisky in the brother's shop was relevant and competent. Ibid. "Labels on packages and bottles point of shipment was not a fatal defect.15 Such an indictment 16 and an indictment for a conspiracy to violate the statute 17 was sufficient although it did not negative the exceptions, as to liquor intended for scientific, sacramental, medicinal and mechanical purposes. An indictment for such a conspiracy did not need to allege the place from which the conspirators intended to have the liquor transported; since the purpose might have been to transport it from any place where it could be procured.18 A charge that a defendant purchased intoxicating liquor in one State "to be transported into interstate commerce" into another State for beverage purposes was sufficient.19 § 506r. Indictments for perjury and for subornation and for false notarial certificates. By the Revised Statutes: "In every presentment or indictment prosecuted against any person for perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, and by what court, and before whom the oath was taken, averring such court or person to have competent authority to administer the same, together with the proper averment to falsify the matter wherein the perjury is assigned, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding, either in law or equity, or any affidavit, deposition, or certificate, other than as hereinbefore stated, and without setting forth the commission or authority of the court or person before whom the perjury was committed."1 of whisky, which defendant and others were loading into an automobile near a wharf, and the identity in marks and other respects with other whisky found in a scow near the wharf, justified a finding that the whisky was transported from without the State into the State of Virginia." Lindsey v. U. S., C. C. A., 264 Fed. 94. "The possession by defendant and his associates of whisky transported by them from a wharf to a nearby automobile, with nothing to show any intervening possession or con. trol, justified the inference that they had transported it into the state, where other evidence supports a finding that it had been transported into the state by some one." 15 Ciafirdini v. U. S., C. C. A., 266 Fed. 471. 16 Hockett v. U. S., C. C. A., 265 Fed. 588. 17 Hockett v. U. S., C. C. A., 265 Fed. 588. 18 Ibid. 19 U. S. v. Collins, 264 Fed. 380. § 506r. 1 U. S. R. S., § 5396, Comp. St., § 1687. "In every presentment or indictment for subornation of perjury, it shall be sufficient to set forth the substance of the offense charged upon the defendant, without setting forth the bill, answer, information, indictment, declaration, or any part of any record or proceeding either in law or equity, or any affidavit, deposition, or certificate, and without setting forth the commission or authority of the court or person before whom the perjury was committed, or was agreed or promised to be committed." 2 "In prosecutions for perjury committed on examination before a naval general court-martial, or for the subornation thereof, it shall be sufficient to set forth the offense charged on the defendant, without setting forth the authority by which the court was held, or the particular matters brought before, or intended to be brought before, said court." 8 When the indictment averred, that the oath was taken "before" a certain District Judge, it was no variance to prove that it was taken in open court when the judge was presiding and administered by the deputy, nor, when it charged that the hearing was a trial and an issue before a commissioner, and it otherwise appeared therein that the proceeding was a preliminary examination. It must allege that the testimony was false.6 A general averment to that effect must be accompanied by a special averment to falsify the matter wherein the perjury is assigned; 6a but each false statement need not be denied antithetically." It must show that the false testimony was material to mat - 2 U. S. R. S., § 5397, Comp. St., § 1688. 3 U. S. R. S., § 1023, Comp. St., § 1689. 4 West v. U. S., C. C. A., 258 Fed. 413. 5 Cohen v. U. S., C. C. A., 214 Fed. 23. 6 Markham v. U. S., 160 U. S. 319, 323, 16 Sup. Ct. 288, 40 L. ed. 441. 6a Baskin v. U. S., C. C. A., 209 Fed. 740, 744. 7 U. S. R. S., § 5396, Baskin v. U. S., C. C. A., 209 Fed. 740, 744, holding that the following special ters within the jurisdiction of the court where the testimony was given. It need not show how the testimony was material. A general allegation of materiality is sufficient.10 It is sufficient to plead the circumstances from which the court may determine the materiality; 11 but if the matters alleged appear to the court not to be material the indictment is insufficient, although it positively asserts their materiality.12 12 Where the pleadings in the former case showed jurisdiction, the prosecution does not fail because the testimony subsequently proved that jurisdiction did. not exist.13 Repetition of the same false statement in the course of the same examination, although upon different dates cannot be the subject of separate counts.14 Under the Selective Service Act or Selective Draft Act of May 18, 1917,15 it was held that a count was duplicitous which charged a false certificate by a notary to statements by several physicians concerning the same individual.16 It was further held that it was a criminal offense for a notary falsely to certify that physicians whose statements were. filed in support of a claim for exemption from military service had appeared before him although the physicians' statements were true; 17 but that an indictment charging a false certificate as to unfitness for military service was insufficient to charge the offense of making a false statement as to fitness or liability to such service.18 § 506s. Indictments under the Land Laws. Indictments under the Land Laws are usually for conspiracy, or for perjury,2 therewith connected. An indictment is sufficient which charges 8 Markham v. U. S., 160 U. S. 319, 323, 16 Sup. Ct. 288, 40 L. ed. 441; U. S. v. Rose, 212 Fed. 518. 9 Markham v. U. S., 160 U. S. 319, 323, 16 Sup. Ct. 288; U. S. v. Rosenstein, 211 Fed. 738; U. S. v. Salen, 216 Fed. 420. 10 Ibid.; U. S. v. Nelson, 199 Fed. 464. 11 Regina v. Harvey, 8 Cox Cr. cases 99; Ammerman v. U. S., C. C. A., 185 Fed. 1; U. S. v. Nelson, 199 Fed. 464; Salen v. U. S., 216 Fed. 420, 422. 12 U. S. v. Rhodes, 212 Fed. 519f. 13 West v. U. S., C. C. A., 258 Fed. 413. 14 Ulmer v. U. S., C. C. A., 219 Fed. 641. 15 Ch. 15, § 6, 40 St. at L. 80, Comp. St., § 2044f. 16 U. S. v. Blakeman, 51 Fed. 306. 17 Ibid. 18 Ibid. § 506s. 1 See supra, § 506c. |