Appeal from the District Court of the United States for the District of Delaware; Hugh M. Morris, Judge.
Before DAVIS, Circuit Judge, and CLARK and AVIS, District Judges.
Appellant, defendant in the court below, appeals from his conviction and sentence, under an indictment charging him with importation of intoxicating liquor contrary to the provisions of section 593(b) of the Tariff Act of 1922 (19 USCA § 497). The relevant part of this statute reads as follows: "If any person fraudulently or knowingly imports or brings into the United States, or assists in so doing, any merchandise, contrary to law, * * * such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years, or both. * * *"
The indictment returned by the grand jury in the district of Delaware charged Charles Newton, alias Charles R. Brown, and Albert Knickle, with a violation of this statute in two counts. The first count charged that these two defendants on November 10, 1927, "did unlawfully, wilfully, feloniously, knowingly and fraudulently import and bring into the United States and assist in importing and bringing into the United States, to wit, from St. Pierre-Miquelon, into the territorial waters of the District of Delaware * * * certain merchandise, contrary to law, to wit, a large quantity of intoxicating liquor, to wit, * * * all of said liquors containing more than one-half of one per centum of alcohol by volume and being fit for use for beverage purposes. * * *"
This court charged that such importation was in violation of the statute aforesaid, because (1) imported without permit; (2) without payment of customs duties, and (3) in violation of section 3, title 2, of the National Prohibition Act (27 USCA § 12).
As a separate paragraph of this count, the grand jury indicted the defendant-appellant on the charge that he did aid, abet, incite, counsel, and procure the aforesaid defendants to commit, and in committing, the aforesaid unlawful act.
The second count charged all three of the defendants with the commission of the offense based upon the unlawful importation of the liquors, contrary to the provisions of the section of the Tariff Act hereinbefore referred to, and for the same three alleged violations.
Before trial, the second count was nolle prossed on the motion of the United States attorney, and we are therefore concerned only with the action of the court on the first count.
Counsel for the defendant-appellant moved, in the court below, to dismiss or quash the indictment on the ground of autrefois acquit; that the defendant-appellant at the December term, 1927, of said court, upon a previous trial, and upon another indictment, was acquitted of the charges stated in the indictment in question. This motion was dismissed and overruled by the trial court, and as it has not be raised, orally or in briefs, we presume this point has been abandoned.
Subsequently, on May 13, 1929, defendant-appellant filed a demurrer to the indictment, alleging sundry defects therein, and upon such demurrer the trial court held that that portion of the indictment alleging (1) importation without permit and (2) without payment of customs duties, did not charge an offense under the law, but sustained count one of the indictment in so far as it charged against the defendant-appellant the offense, under the Tariff Act, of aiding and abetting the importation of intoxicating liquor "contrary to law," in violation of the provisions of section 3, title 2, of the National Prohibition Act. Subject to our conclusion as to the repeal of the provisions of the Tariff Act, hereinafter referred to, we approve of this action of the trial court, holding that the words "contrary to law" in the Tariff Act means contrary to any existing law, and so if the liquor in question was imported contrary to the provisions of section 3, title 2, of the National Prohibition Act, it violated the Tariff Act under which the defendant was indicted.
It is claimed that the defendant-appellant was not in the district of Delaware at the time the offense was committed, and that, by reason of his being out of the district, he could not be found guilty of the offense charged. The law is quite clear that a person may be convicted of aiding, abetting, and inciting the commission of an offense, even though he may not be in the district when the offense is actually committed, if the court has jurisdiction of the defendant at the time of trial.
This principle is recognized by Congress in section 42 of the Judicial Code (28 USCA $103), as it refers to jurisdiction between the various district courts, and is upheld and applied in the Supreme Court case of Ford v. United States, 273 U.S. 593, 620, 47 S. Ct. 531, 71 L. Ed. 793.
Intoxicating liquor has been held to be merchandise within the designation of the tariff laws. Bookbinder v. United ...