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recorded the weights of coal desired by defendants, and not the true weight of the coal, and that they caused all coal weighed on scales upon which the coal handled by their company was weighed to be incorrectly measured and weighed, to the end. and for the purpose that they, under the name and guise of such company, should receive the profit and gain from such inaccurate and fraudulent weight."

§ 5060. Indictments for the offense of receiving smuggled opium. An indictment for the offense of concealing and facilitating the transportation and concealment of opium prepared for smoking and imported from a foreign country is sufficient, when it avers: that the defendants at a specified time and place took to a specified place opium prepared for smoking in an automobile, or other conveyance duly described, and then and there secreted and hid such opium with a general statement of the number and size of the receptacles thereof, knowing that such opium prepared for smoking had been so imported into the United States contrary to law. When no conspiracy is charged, there need be no allegation of any overt act.2 An acquittal under an indictment, for a conspiracy to import opium into the United States for smoking, when it was averred as an overt act, that on a specified date the defendant had in his possession, concealed and fraudulently transported into the United States a specified number of tins of opium prepared for smoking of size described, is no bar to a subsequent prosecution for the offense of receiving, concealing, buying, selling and facilitating the same opium on the same date after such opium had been imported into the United States contrary to law and that the accused aided and abetted another in the commission of such offense. In the same case, it was held that an instruction was not unfavorable to the defendant when the court charged that the jury should separate any plan or combination of the two men that was charged in the former indictment from the charge in the latter and that unless the conversation between the defendant and the importer or receiver of the opium amounted to

25.

7 Smith v. U. S., C. C. A., 231 Fed.

5060. 1 Proffitt v. U. S., C. C. A., 264 Fed. 299.

2 Ibid.

3 Louie v. U. S., C. C. A., 218 Fed. 36.

more than a general keeping in touch with him, or a general agreement, and unless accused knowingly gave him knowledge of where he could get opium, then the jury should not consider it, and if they had a reasonable doubt they should not consider it as supporting the charge of aiding, because he having been acquitted, was entitled to that reasonable doubt.* § 506p. Indictments under the Anti-Narcotic Law. The AntiNarcotic Law of December 17, 1914, sometimes known as the Harrison Drug Act,1 after exempting certain persons from having in their possession any of the drugs therein classified continues: "It shall not be necessary to negative any of the aforesaid exemptions in any complaint, information, indictment, or other writ or proceedings laid or brought under this Act; and the burden of proof of any such exemption shall be upon the defendant." This provision is constitutional.3 So is the re

mainder of the act.

It has been held that it is limited to the exemptions contained in this section and does not apply to the exceptions and exemptions in the other sections; 5 and that an indictment for the dispensation of the drugs should negative them.6

The offense of failing to preserve a duplicate of an order for one of the narcotics, in such a way as to be readily accessible, is committed when no such duplicate is so preserved immediately after the acceptance of the order and continues until compliance is made with the statute in this respect."

4 Ibid.

§ 506p. 1 Act of December 17, 1914, Ch. I, 38 St. at L. 789, Comp. St., §§ 6287-6287q.

2 Ibid., § 8, 38. St. at L. 789, Comp. St., § 6287n.

3 U. S. v. Loewenthal, 257 Fed. 444; Fyke v. U. S., C. C. A., 254 Fed. 225.

4 U. S. v. Jin Fuey Moy, 241 U. S. 394, 36 Sup. Ct. 658, 60 L. ed. 1061, Ann. Cas. 1917 D 854; U. S. v. Doremus, 249 U. S. 86, 39 Sup. Ct. 214, 63 L. ed. 493; Webb v. U. S., 249 U. S. 96, 34 Sup. Ct. 217, 63 L. ed. 497; U. S. v. Ah Hung, 243 Fed. 762.

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An indictment for a conspiracy to violate the statute sufficiently avers knowledge of the illegality of the act of a coconspirator when it alleges that the accused unlawfully and knowingly aided the former, who was not registered, in the sale of the prohibited drugs.8

A count charging that defendant was a registered physician and dispensed a forbidden drug not on a written order upon a form issued by the Commissioner of Internal Revenue, is not duplicitous.9

An allegation of the time of the offense as at some unknown date within two years before the indictment was sustained.10

An indictment for a conspiracy to violate the statute sufficiently charges the commission of the overt acts within the district when it avers that the defendants there conspired and after describing the each overt act concludes that they "at the times and places aforesaid conspired" to violate the act "and did do the several acts mentioned in collection with their several names to effect the object of said conspiracy." 11

§ 506q. Indictments for offenses against the prohibition law and other liquor laws. By the Act of October 28, 1919, sometimes known as the Volstead Law: "In any affidavit, information or indictment for the violation of this act, separate offenses may be united in separate counts and the defendant may be tried on all at one trial and the penalty for all offenses may be imposed. It shall not be necessary in any affidavit, information, or indictment to give the name of the purchaser or to include any defensive negative averments, but it shall be sufficient to state that the act complained of was then and there prohibited and unlawful, but this provision shall not be construed to preclude the trial court from directing the furnishing the defendant a bill of particulars when it deems it proper to do so.

"1

An indictment or information charging that defendant sold for beverage purposes a malt product "commonly known as lager beer" and containing as much as one-half of one per centum of

8 Wallace v. U. S., C. C. A., 243 Fed. 300.

9 U. S. v. Hoyt, 255 Fed. 927; infra, § 500.

10 U. S. v. Gaag, 237 Fed. 728. 11 Wallace v. U. S., C. C. A., 243

Fed. 300; U. S. v. D'Arcy, 243 Fed. 739.

§ 506q. 141 St. at L. 305, ch. Title II, § 32. See Ozello v. U. S., C. C. A., 268 Fed. 243.

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alcohol is sufficient, although it does not charge in terms that
the beverage was intoxicating.2

"In case of a sale of liquor where the delivery thereof was
made by a common or other carrier the sale and delivery shall
be deemed to be made in the county or district wherein the
delivery was made by such carrier to the consignee, his agent or
employee, or in the county or district wherein the sale was made,
or from which the shipment was made, and prosecution for
such sale or delivery may be had in any such county or dis-
trict." 3

To what extent the Federal Prohibition Law repeals the previous statutes of the United States regulating and taxing the manufacture, sale and transportation of intoxicating liquors has not yet been decided. Since it recognizes the continuance of a number of sections of the Revised Statutes therein enumerated, which relate to offenses against the Internal Revenue Laws, it seems that no repeal of such statutes was effected unless they applied exclusively to the manufacture and sale of intoxicating liquor for beverage.5

When the Act of October 28, 1919, penalized the same offense which was made a crime by previous Federal legislation and the penalty last imposed is less than the former, the former penalty was repealed.

Indictments for failing to register a still for unlawfully making a mash fit for the production of spirits and for unlawfully carrying on the business of distilling without giving bond, and for removing intoxicating liquor without a permit were sus

2 U. S. v. Schmaunder, 258 Fed. 251.

3 Act of Oct. 28, 1919, 41 St. at
L. 305, ch. -, Title II, § 31, Comp.
St., § 101381⁄2r; infra, § 525e.

4 U. S. v. Sohm, 265 Fed. 910.
5 U. S. v. Sohm, 265 Fed. 910.
According to the N. Y. Times the
case of U. S. v. Yuginovich decided
by the Supreme Court, June 1, 1921,
holds that the National Prohibition
Act repeals the statutes imposing
penalties and punishments for the

failure of complying with the pro-
visions of the Internal Revenue
Laws regulating the manufacture
of intoxicating liquors.

6 U. S. v. Sohm, 265 Fed. 910; U.
S. v. Windham, 264 Fed. 376.

7 U. S. v. Sohm, 265 Fed. 910; that U. S. R. S., §§ 3258, 3260, 3282, Comp. St., §§ 5594, 5997, 6022, have not been repealed. But see U. S. v. Windham, 264 Fed. 376, 379.

8 U. S. v. Turner, 266 Fed. 248; U. S. R. S., § 3296, Comp. St., § 6038.

H

tained. So was a libel under the section of the Revised Statutes 9 - providing for the confiscation of any vehicle used for the transportation of intoxicating liquors.10 Another decision holds that the sections of the Revised Statutes imposing penalties for transporting or concealing liquor upon which no revenue tax has been paid 11 have been repealed.12

9 U. S. R. S., § 3450, Comp. St., § 6352.

10 U. S. v. One Essex Touring Automobile, 266 Fed. 138.

11 U. S. R. S., §§ 3258, 3279, 3281, 3296.

12 U. S. v. Windham, 264 Fed. 376, 378, 380, per Smith, J.:

"The question, however, arises whether the statute of October 28, 1919, expressly continues in force and refuses to repeal those sections of the Revised Statutes. By section 35 of title 2 of the statute of October 28, 1919, it is provided that all provisions of law inconsistent with that statute are repealed only to the extent of such inconsistency, and the regulations therein contained for the manufacture or traffic in intoxicating liquors are to be construed as an addition to existing laws, and further that that statute should not relieve any person from any liability, civil or criminal, theretofore or thereafter incurred under existing law.

"In construing this section, it must be assumed that Congress had in mind the existing rules of law, as well as the rules of statutory construction. Under the provisions of the Fifth Amendment to the Constitution of the United States, prohibiting the placing of a party twice in jeopardy, and similar constitutional provisions, it has been held that the constitutional inhibition applies to any attempt to try a man

twice and to punish him twice for the same offense. To such extent, therefore, as the last statute of October 28, 1919, would appear to cover and include the same offenses mentioned and described in the previous sections of the Revised Statutes of the United States, and to provide a punishment for them, it would be the imposing of different penalties and different punishments for the same offenses, against the constitutional inhibition.

"The effect of the constitutional inhibition as contained in the Eighteenth Amendment is to prohibit the transportation or manufacture or sale or disposition for beverage purposes of liquors containing alcohol over the prohibited amount, and logically that would appear impliedly to repeal all provisions of law which contemplated such manufacture, sale, disposition, or use for those purposes; and, if so, any requirements to secure the payment of the tax, so as to authorize the party to manufacture, sell, or transport for the prohibited purpose, would appear to be repealed also.

"The question, then, further arises whether the sections of the Revised Statutes and the prohibitions contained in the last statute of October 28, 1919, cover the same of fenses, inasmuch as the prohibition of the sections of the Revised Statutes is against doing the things required with an intent to defraud

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