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(274 F.) does not allege facts sufficient to sustain it against demurrer or exception as not stating a case for forfeiture under the Volstead Act (41 Stat. 305). The acts charged to constitute the violation of law are alleged to have occurred since the Volstead Act took effect.

Section 3450 of the Revised Statutes provides for the forfeiture of any vehicle used to remove or conceal any goods or commodities whereon a tax has been imposed, when such removal or concealment is with intent to defraud the United States of such tax or any part thereof. It was designed to aid in the collection of the revenue, when the raising of a large revenue from the authorized manufacture and sale of intoxicants was a part of the financial policy of the government. Now there can be no lawful manufacture, sale, or transportation of such liquor for beverage purposes. No liquor revenue stamps or tax receipts can be issued in advance, but upon evidence of such illegal manufacture or sale a tax shall be assessed against the person responsible for such illegal manufacture or sale in double the amount now provided by law, with an additional penalty of $500 on retail dealers and $1,000 on manufacturers.

Section 26 of the Volstead Act provides that, whenever intoxicating liquors, transported or possessed illegally, are seized by an officer, he shall take possession of the vehicle, etc., and arrest the person in charge and proceed as provided in said section 26 against said person and vehicle. Section 35 repeals all prior provisions of law to the extent of their inconsistency and no more. The Supreme Court of the United States has in the case of United States v. Yuginovich (June 1, 1921) 255 U. S. — 41 Sup. Ct. 551, 65 L. Ed. decided that this provision of the Volstead Act must be construed in the light of the rule for construing penal statutes:

"That later enactments repeal former ones practically covering the same acts, but fixing a lesser penalty."

It is evident that the tax, which it is claimed has not been paid, is the double tax and penalty directed by section 35 of the Volstead Act. Any manufacture, sale, or transportation of liquor for nonbeverage purposes, to be legal, must be under a permit as provided by the Volstead Act. The transportation of the liquor is clearly one which, if illegal, would violate the Volstead Act, and would subject the vehicle to forfeiture according to the provision of that act. It is not, therefore, to be assumed that Congress intended to provide for the forfeiture of vehicles under section 26 of the Volstead Act, with its provisions for preserving the rights of third persons, and still leave them subject to be forfeited under the more drastic provisions of Revised Statutes, $ 3450.

The judgment of the District Court is therefore affirmed.

DAVIS et al. v. UNITED STATES.
(Circuit Court of Appeals, Ninth Circuit. August 1, 1921.)

No. 3640.

Indictment and information om 111(1)-Indictment need not negative excep

tions in statute.

An indictment charging defendants with conspiracy to unlawfully transport, sell, etc., whisky in violation of National Prohibition Act, tit. 2, § 3, held not required to aver that the whisky was not to be used for nonbeverage purposes, especially in view of the express provision of seltion 32 that "it shall not be necessary in any

indictment to include any defensive negative averments." In Error to the District Court of the United States for the Southern Division of the Southern District of California; Oscar A. Trippet, Judge.

Criminal prosecution by the United States against Robert Davis and O. A. Dodson. Judgment of conviction, and defendants bring error. Affirmed.

Albert Schoonover, of San Diego, Cal., for plaintiffs in error.

Robert O'Connor, U. S. Atty., and Herbert N. Ellis, Asst. U. S. Atty., both of Los Angeles, Cal., for the United States.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

GILBERT, Circuit Judge. The plaintiffs in error were convicted under an indictment which charged them with conspiring to commit the offense of knowingly, willfully, and unlawfully transporting, selling, bartering, furnishing, and possessing intoxicating liquor, namely, whisky, in violation of the National Prohibition Act of October 28, 1918 (41 Stat. 305). The indictment set forth overt acts, among which it was charged that on a date named, the plaintiffs in error did knowingly, willfully, and unlawfully advise, counsel, and abet Adolpho C. Olivas to knowingly, willfully, and unlawfully transport and attempt to transport 13 five-gallon demijohns of whisky containing alcohol in excess of one-half of 1 per cent. by volume, from Calexico, Cal., to the ranch of said plaintiff in error Davis, within the state of California.

The only error assigned is that the trial court, after the conviction of the plaintiffs in error, denied their motion in arrest of judgment, and the sole question presented to this court is whether the indictment charges an offense against the United States. It is contended that it is fatally defective, in that it fails to allege that the liquor, the transportation of which was the object of the conspiracy, was not to be used for nonbeverage purposes, under the provisions of section 3 of title 2 of the act. The plaintiffs in error cite authorities to the proposition that where a statute in defining an offense "contains an exception or proviso in its enacting clause which is so incorporated with the language describing and defining the offense, that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted,

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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(274 F.) it must be shown that the accused is not within the exception," citing 14 R. C. L. 188. But the text-writer so quoted goes on to say:

“On the other hand, if the language of the section defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the pleader may safely omit any such reference, as the matter contained in the exception is matter of defense and must be shown by the accused."

We think the present case comes clearly within the rule last quoted. That portion of the language of section 3, which defines the offense which it was alleged in the indictment it was the purpose of the conspiracy to commit, is entirely separable from that portion thereof permitting the use of intoxicating liquor for nonbeverage purposes. In addition to that fact, section 3 declares that all the provisions of the act shall be liberally construed, to the end that the use of intoxicating liquor as a beverage may be prevented, and section 32 provides that it shall not be necessary in any 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.” The case clearly comes within the rule of this court's decisions in Shelp v. United States, 81 Fed. 694, 26 C. C. A. 570, and Hockett v. United States (C. C. A.) 265 Fed. 588.

The judgment is affirmed.

PETERSON v. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. August 1, 1921.)

No. 3658.

Conspiracy Om 47—Evidence held insufficient to sustain conviction of con

spiracy.

In a prosecution for conspiracy falsely to make and alter United States War Savings Certificates and United States War Savings Certificate Stamps and to publish, utter, and sell the altered obligations, evidence that defendant had in his possession altered stamps, and that he had pleaded guilty to an indictment charging him with possessing altered stamps with the intention to pass and sell them, is not sufficient to sustain conviction of conspiracy to sell or alter such stamps.

In Error to the District Court of the United States for the District of Oregon; Chares E. Wolverton, District Judge.

Fred Peterson was convicted of conspiracy to make and alter certain obligations of the United States and to publish, utter, and sell the altered obligations, and brings error. Reversed and remanded.

Paul M. Long, of Portland, Or., for plaintiff in error.

Lester W. Humphreys, U. S. Atty., and John C. Veatch, Asst. U. S. Atty., both of Portland, Or. Before GILBERT, ROSS, and HUNT, Circuit Judges. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

274 F-59

GILBERT, Circuit Judge. The plaintiff in error brings under review the judgment rendered against him upon his conviction under an indictment which charged him, together with five others, with a conspiracy falsely to make and alter certain obligations and securities of the United States, namely, United States War Savings Certificates and United States War Savings Certificate Stamps, and to publish, utter, and sell such altered obligations. The plaintiff in error and one Rossi were found guilty. At the close of the testimony motion was made for an instructed verdict in favor of the plaintiff in error, and the denial of that motion is assigned as error.

The contention of the plaintiff in error that there was no evidence to prove a conspiracy must be sustained. In the bill of exceptions which is certified to contain all the evidence offered or admitted on the trial which in any manner concerns the plaintiff in error or relates to any of the exceptions or rulings of the court therein, there is testimony that altered stamps were found in the possession of the plaintiff in error, and that he had pleaded guilty to an indictment which charged him with having in his possession such altered stamps with the intention to pass and sell them; but there was no testimony or evidence of any kind to show that he conspired with his codefendant, Rossi, or with any one, to steal or alter such stamps, or that there was any concert of action between the plaintiff in error and any of the defendants, or that there was a conspiracy.

The judgment must be reversed, and the cause remanded for a new trial. It is so ordered.

THE MARGARET SPENCER.

(District Court, S. D. Florida. August 12, 1921.)

No. 1305.

Seamen Cow 21-Acts constituting "desertion.".

Libelant shipped as cook for a voyage from Jacksonville, Fla., to Havana and return. At Havana he had a controversy with the master because of claimed delay in delivery of his mail, abused the master, and refused to obey orders, whereupon the master caused his arrest by the harbor police. On his release the vice consul refused his discharge and ordered him to return to the vessel, which he refused to do. Held, that such refusal constituted "desertion" under Rev. St. $ 4596, as amended (Comp. St. $ 8380) and a consequent forfeiture of wages.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Desertion (In Maritime Law).] In Admiralty. Suit by John H. Barefield against the schooner Margaret Spercer. Decree for respondent.

Frank D. Brennan, of Jacksonville, Fla., for libelant.
W. F. Rogers, of Jacksonville, Fla., for claimant.

CALL, District Judge. John Barefield filed his libel against the schooner Margaret Spencer, claiming wages as cook, expenses, and w For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(274 F.) double pay for certain days because of delay in paying off and value of effects.

Claimant filed an answer denying liability and setting out affirmatively that Barefield deserted the ship in Havana before the termination of the voyage, the return of the ship, deposit of amount of wages in the custom house claimed to be due by claimant, and the conduct of libelant while at anchor in the harbor of Havana.

I find from the testimony the facts as follows: Barefield shipped as cook at Jacksonville, Fla., on the 23d day of December, 1920, upon the schooner Margaret Spencer, at a monthly wage of $150, for a voyage from Jacksonville, Fla., to Havana, Cuba, and return. That on January 28, 1921, while at anchor in the harbor of Havana, a controversy arose between the master and the cook in regard to the delay in receipt of mail by the cook. During the progress of this controversy, the cook cursed and abused the master, and refused to obey the orders of the master to go to his quarters. That the master had the cook arrested by the harbor police and confined in police jail of Havana Friday (28th) night. That Saturday morning the cook was released, and finally discharged from custody on Monday morning. That thereupon both master and cook went to the consul's office and made their statement of the matter; the cook demanding to be discharged and paid off. This demand was refused by the vice consul and he was ordered back to the vessel, and upon expressing a fear to do so, a letter was given him to the master to the effect that he was still a member of the crew. That from the time of the arrest by the harbor police the cook did not go aboard of said vessel, nor did he deliver the letter to the captain, but remained in Havana until after the vessel had sailed, and returned as a passenger, arriving after the arrival of the vessel. That on the official logbook of the vessel Barefield was marked as a deserter from January 31, 1921.

The decision of this case hinges on the question whether the libelant deserted the ship in Havana.

To constitute “desertion" in the sense of the word used in section 4596, R. S., as amended (Comp. St. $ 8380), the seaman must quit the ship and her service, not only without leave, but without justifiable cause, and with intent not again to return to duty on the vessel. The Mary C. Conery (D. C.) 9 Fed. 222. Apply this rule to the facts of the instant case. The excuse given by the libelant for not going aboard when released from the police jail in Havana appears to me puerile. It is in effect that he could not get there; no money; no boat. Had he desired to go aboard, there were many ways for him to have done so, and this is the only reason for his not doing so, given in his pleadings and testimony. I can reach but one conclusion from the consideration of the evidence, and that is that libelant had fully made up his mind, whether from the fact of the unsatisfactory delivery of his mail, his arrest at the behest of the master, or some other reason not apparent, to be discharged in Havana and paid off there, which would have probably carried with it passage money to the point of the beginning of the voyage. Did he have justifiable cause for such action? I can find

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