Iilsome states statute provisions have been made conferring on bail the power of arresting the principal, even after forfeitures, and tiull'endering him to the court before final judgment on a scire facias. As the judgment in this case was joint, the execution must follow the judgment, and cannot be issued against a dead man's estate until his personal representative has had a day in court. I therefore direct a scire facias to be issued to the personal representative of the deceased principal, returnable to next term. When such scire facias has been duly served or returned, I will hear evidence and consider the question of remitting or modifying the forfeiture in accordance with the provisions of section 1020 of the Revised Statutes.
STATES V. STEPHENS.
(Circuit Court, lJ. Oregon.
May 15, 1882.)
SPJRITSAND WINE-INTRODUCTION OF INTO ALASKA.
By the act of March 3, 1873, (17St. 530,) the introduction. of spirituousliquol'8 and wine into Alaska is absolutely prohibited, subject to the power of the war department to permit such introdu!Jtion for the use of the army therein; and, semble, that section 2 of the Alaska'act of June 27, 1868, (15 St. 240; seCtion 1954, Rev. St.,) which gave the president" power to restrict and regulate or to prohibit the importation and use of .. .. .. distilled spirits" into Alaska, is still so far in force, notwithstanding the passage of said act of March 3, 1873, as to authorize him to permit the intrOduction of' said spirits, but not wine, as a regulation of the subject.. '
ATTEMPT TO INTRODUCE !:ll'iRITUOUS LIQUORS INTO At:4SKA.
By section 20 of the,act of June 30,1834, (4 St. 729,) extended over Alaska by ,.. the act of March 3, 1873, 8upra, it 'was made a crime to attempt to introduce spirituous liquors 01' wine' into Alaska. Held, that a person resideJit in Alaska who ordered of whisky to be shipped to him at ,Alaska,. by a wholesale dealer in San Fran(lisco who had the whisky on hand and for intent to introduce 'the same into Alaska, was not guilty of such attempt, cause he had done no act to a'Ccomplish his illegal intent of which the lliw wi'll take cognizance; the offer to purchase the liquor, and even the purchaseitself. being acts preparatory a.nd indifferent in their 3.
8emble, that a criminal attempt to introduce liquor into Alaska be committed unless the act done in pursuance of the illegal intent perfornied after the liquor is brought so near some point or place of "the main-land, islands, or waters" of the district as to render jt convenient to introduce ·it from there, or to make it manifest that suc.h was the present of parties concerned. ·. '
UNITED STATES V. STEPHENS.
Rufus Mallory, for plaintiff. Cyrus Dolph, for defendant.
DEADY, D. J. On March 30, 1882, an information .was filed by the district attorney accusing the defendant, by the first count, of the crime of introducing spirituous liquors into the district of Alaska contrary to law; and by the second count, of the crime of "attempting" to so introduce such liquors into said district. The defendant demurs to the information because it does not state facts sufficient of the demurrer it was to constitute a crime. Upon the upon as to the second. adandoned as to the first count, and This count alleges that on July 14,1879, the defendant, being in the district of Alaska, wrote and transmitted a letter to a certain firm in San, Francisco, California, wherein and whereby he reque\>ted said firm to ship and send to him at Fort Wrangle, in said district, 100 galloqs of whisky; the defendant then well knowing that said firm were then wholesale dealers in spirituous liquors, and 01Viled; and possessed said to 100 gallons of whisky; "and he thereby contriving and introduce the said 100 gallons of whisky into the said district of Alaska." In U. S. v. Savaloff, 2 Sawy. 311,.the district court for,this distI;ict having decided that the district of Alaska was not "Indian country," and that the act of June 30, 1834, (4 St. 729,) regulating the trade and intercourse with the Indian tribes, was not in force. therein, con· St. 530,) gress, in the general appropriation act of Ma;rch 3, amended section 1 of the Alaska act of June 27, 1868, (15 St. 240; section 1954, Rev. St.,) so as to extend over thatcouutfY sections 20 and. 21 of said act of June 80, 1834, as well as the acts relating "to customs, commerce, and navigation." provides, among things, that "if The 'first of any person shall introduce or attempt to introduce any spirituous li.quors or wine into the Indian country," s,upplies for the army he "shall forfeit and a under the direction of the war , sum not exceeding $300." By the. act of March 3, 1847, (9 St·.203,) said .section 20 was a,mended, so ;that upon !J, conviction the properAistrict c011-1'tof sucll act or attempt the party should be p\.u;lished by imprisonment by the acts not exceeding oue year. The section was again of February 13, 1862, (12 St.. 33D,) 15,1864, (13 St. 29; section 2i39 Rev. St.) By these latter amendments the maximum punishment for a violation of the,seotion was fixed at two years'
imprisonment and $300 fine; and jurisdiction was given to the circuit court as well as the district. By l:lection 20f the Alaska act, 8upra, (section 1955, Rev. St.,) the president was given "power to restrict and regulate or to prohibit the importation and use of fire-arms, ammunition, and distilled spirits into and within the territory of Alaska." It is a question whether this provision, so far as distilled spirits are concerned, was not superseded and repealed by the extension of said section 20 over Alaska by the act of March 3, 1873, 8upra. This section, as has been stated, absolutely prohibits the introduction of spirituous liquors, which of course includes 'distilled spirits, into Alaska, except for the use of the army, by permission of the war department. Without doubt, as to theeiecutive power to restrict or prohibit, the later act supersedes the earlier one. A s,tatute power in the president to restrict or prohibit is certainly rendered nugatory by a subsequent act which absolutely prohibits. But as to the power "to regulate," implies the power to permit, the case is not so clear. Probably the better conclusion is that the acts should be construed as in pari materia, and both have effect so far as possible. Upon this construction of the statutes the law concerning the introduction of spirituous liquors and wine into Alaska is that such introduction is absolutely prohibited, subject to the power of the war department to'permit the same for the use of thettrmy, and the power of the president to permit the introduction of distilled spirits, but not wine, for any purpose. It is doubtful if any attempt to commit an offence of this character is indictable at common law, and this is probably the reason why it was made so specially by the act defining the crime. 1 Whart. Crim. Law, § 177; 1 Bish. Crim. Law, §§ 684, 687. It is said that the subject of attempt to commit crime is "less understood by the CO\lrts" and "more obscnre in the text-books" than any other branch of the criminal law. Bish. Crim. Law, § 657. And certainly the,re is none in some respects more intricate and difficult of comprehension. It is almost impossible to comprehend all cases of attempt in a definition that does not necessarily run into a mere enumeration of instances. It is easy to say that there must be a. combination of intent and act-an intent to commit a crime and an act done in pursnance,of such intent, which falls short of the thing intended. There area class of acts which may be fairly said to be done in· pursuance of or in combination with an intent to commit a crime, but
tJKITED STt.TEiJ 'II. STEPHENS.
are noi in,a legal sense apart of it, and therefore do not .with such intent constitute an indictable attempt; for instance, the pU,rehase of a gun with a design to commit murder, or the purchase of poison with the same intent. These are considered in the natme of preliminary preparatiolls-conditions, not causes-and, although co-existent with a guilty intent, are 'indifferent in their character, a.nd,.d9 not advance the conduct of the party beyond the sphere of mere. intent. without which the They are, it is true, the necessary shooting or poisoning could not take place, but they are not in the eye of the law the cause of either. 1 Whart. Crim. Law, §§ 178,181; 1 Bish. Crim. Law. § 668 et seq.; People v. Murray, 14 Cal. 16.0. Dr. Wharton says, (supra, § 181:) "To make the act an indictable att,empt it must be a cause, 80S distinguished from a condition; and it must go so far that it would result in the crime unless by extraneous circumstances." Bishop.says, (supra, § 669:)
., It is plain that if a man who has a wicked purpose in his heart does something entirely foreign in its nature from that purpose, he does not commit a criminal attempt to do the thing proposed. On the other hand, if he does what is exactly adapted to accomplish the evil meant, yet proceeds not far enough in the doing for the cognizance of the law, he still esCapes punishment. Again, if he does a thing not completely, as the result discloses, adapted to accomplish the wrong, he may under 80me circumstances be punishable, while under other circumstances he may escape. And the difficulty is not a small one to lay down rules, readily applied, Wl,ich shall guide the practitioner in respect to the circumstances in which' the criminal attempt is sufficient."
In People v. Murray, supra, the defendant' was indicted for an attempt to contract an marriage, and was found guilty. From the evidence it appeared that he intended to contract such marria,ge, that he eloped with his niece for that pUl'ppse, and requested a third person to get a magistrate to perform the ceremony. Upon an appeal the judgment was reversed. Chief Justice Field, delivering the opinion of the court, said:
"It [the evidence] shows very clearly the inhmtlonof the defendant, but something more than mere intention is necessary to constitute the offenc\) charged. Between preparation for the attempt and the attempt itself there is a wide rlifference. The preparation con.sfsts in devising or arranging the means or measures necessary f6r the commission of the offence; the attempt is the direct movement towards the commission after the preparations are made; ... ... ... but until the officer was engaged, and the parties stood before him, ready to take the vows appropriate to the contract of maniage, be said,in strictness, that the,u,ttempt was made. The. attempt
templated by the statute must be manifested by acts which would end in the consuTIl,mation of the particular offence, but for the intervention of circulllstances independent of the will of the party,"
In the case under consideration, to constitute the attempt charged in the information, there must have been.an intent to commit the crime of introducing spirituous liquors into Alaska, combined with an act done in pursuance of such intention, that, apparently, in the usual course of events, would have resulted in such introduction, nnless interrupted by extraneous circumstances, but which actually fell shOtt Of such result. But it does not appear that anything was done by the defendant t'owards the commission of the intended criine of introducing spirituous liquors into Alaska but to offer or attempt to purcbase the same in San Francisco. The written order there by the defendant wa's, in effect, nothing more or less than an offer by him to purchase the 100 gallons of whisky ; and it will simplify the case to regard him as being present at the bouse of the San Francisco firm at the time his order reached them, seeking to purchase with the intent of committing the crime of introducing the same·in,to But. the case made by the information stops here, It does not show that he bought any liquor. Wbether he changed his mind and countermanded tbe order before the delivery of the goods, or whether the firm refused to deal with him, does not appear. Now, an offer to purchase whisky with the inteutto ship it toAlaska is, in any view of the matter, a mere act of preparation, of which the law takes no cognizance. As the matter then stood, it was impossible for the defenaant to attempt to introduce this liquor into Alaska, because he did not own or control it. It was simply an attempt to purchase-an act harmless and indifferent in itself, whatever the purpose with which it was done. But suppose the defendant had gone further, and actually succeeded in purchasing the liquor, wherein would the case differ from that of the person who bought the gun or poison with intent to commit murder, but did no subsequent act in execution of such purpose? In all essentials they are the same. A purchase of spirituous liquor at San Francisco or Portland, either in person or by written order or application, with intent to commit a crime with the same,-as to dispose of it at retail without a license, or to a or to·introduce it into Alaska,-is merely a preparatory act, indifferent in its character, of which the law, lacking the omniscience of Deity, cannot take cognizance. At what period of the transaction the shipper of liquor to Alaska is
SINGER KANUJ)"G 00,
gui1tyof an attempt to introduce the same there is not very easily determined. Certainly, the liquor must first be purchased, olJtained in for its illegal destination. But it is doubtful some way, and whether the attempt, or the act necessary to constitute it, can be committed until the liquor is taken so near to some point or place of "the main-land, islands, or waters" of Alaska as to render it convenient to introduce it from there, or to make it manifest that such was the present purpose of the parties ooncerned. But this is a mere suggestion, and each case must be determined upon its own .circumstances. The demurrer is sustained to the second count, and overruled as to the first. .
WILSON V. SINGER MANUF'a
(Oircuit Oourt, No D. Illinois.
PENALTy-OFFENCES AGAINST PATENT LAW.
In an action for the penalty for affixing the word" patent" unlawfully on an article, an intention on the part of the defendant to affix a stamp or plate indicating that there was at the time a present subsisting patent upon the machine is necessary, and unless that appears the offence is notcommittcd.
Where the patents marked on the machine issued have all expired, there is no subsisting patent upon the machine or any part of it; and the offence under the statute (Rev. St. , 4901) is not complete.
Walter B. Scates, for plaintiff in error. Williitnt H. King, for defendant. DRUMMOND, C. J. The last clause of section 4901 of the Revised Statutes declares that "every person who in any manner marks upon or affixes to any unpatented article the word' patent,' or any word importing that the same is patented, for the purpose of deceiving the public, shall be liable for every such offence to a penalty of not less than $100, with costs; one-half of said penalty to the person who shall sue for the same, and the other to the use of the United States, to be recovered by suit in any district court of the United States within whose jurisdiction such offence may have been committed." The plaintiff in error brought an action in the district court under this statute. T.be declaration contains three counts, all of which have substantially this statement: That on the first day of Novem-