the logs, tlten the plaintiff becomes bound to pay the- stipulated price, and thus itis clear that both parties are mutually bound mauch sense that the contract cannot be held void for want of consideration. The demurreds overrciled, with leave to defendant to answer in 80 days.
Court, N.D. MisBl.8B1.ppf., W. Do August 6, 1890.l
IJrr9XIOA'I'IN'G LrQUOBII-ILLBGAL BALB-ORIGINAL PAOKAGB-GoNBTlTUTIONAL LAW.
Where bottles of whisky,' each sealed up in a. paper wrappEir and closely packed .together I.nuncoveredwooden boxes furnished by an expresli company, and marked, "To be returned, are Shipped ,froIl'l, One stllte. to the boxes, and not the bOttles, CODstltute the "original within theuieaning of decisions of the supreme court upon the interstate commeroo'ProV'ision of the national constitution.
'La.W.:1 for corpt",. W. MUler,and Sullivan & Whiifield, for relator. Echols & SmilA, for .the State.
HILL, J.The,questions to Qe in the following facts: r The town of Sa,rdis is. situated in Panola. county, Miss. In pursuance. of an act of the of the state of Mississippi, a vote. was taken for,Ule purpose,aud a majority of the voters in the QOuIity voted to prohibit the' sale of spiritut):UJlliquors in the county. The county, so that it became what is called a relator, acting .aa the agent of one;Jordan,s. citizen of Memphis, Tenn., received fromJQrdan, shipped by the Mississjppi & Tennessee Railroad, or rather the, express company ,on said road, a, number of boxe!l eontainingbottle$ or a pint eaGp., and others a. quart. These bottles or flasks had eaGh ,a paper wrapper or box placed around itt and mucila,geor, a,ealing-wax.. These bottles,80wrapPed or inclosed, WElre by Jordan placed in ordinary pine but without a cove,r, clollelypacked tpgether, which boxes, the felator and J()rdan testify, were fur;llished by the e;press. company, with received a ,promise to retnm, them when' emptied.. boxElsandflasks taken. out when sold by the relator in Sardis, and and.. delivered to the purchasers,but were kept iJ1.i"thebox until all were sold and deliver.ed. The boxes had marked on, tlleQl, "To be re.turned." Relator continued to receive and .sell these bottles filled, with whisky until the 25th day of July, 1890, when he was arraigned be(oreJ. D.· Hightower t mayor and «l: ojficio justiGG of the peace for St;trdis and the, county; oi.Panola. acting as a justice ofthe peace for :panola county, Chll;l'gedupon a warrant,ill8ued,1,>ysaid mayor and jnsticEl()f the peace, foundecJ.npon the a.ffidavit of O. W.:J.t'ulmer, town, with' violated the law80f the state in said town i!Ialeaof w4jsbto·three 'J'qthis
IN BE HABKOB.
in that case and relator in this pleaded not guilty. The sales were proven, and the defendant offered no proof and set up no defense. The mayor and justice rendered judgment against him, and imposed upon him a fine of $50 and costs for each sale, and that he be imprisoned in the jail of said county until the said fines and costs should be paid; and that in addition thereto he should be imprisoned in said jail for 60 days as part of the penalty for said violations of the law of the state, and which imprisonment was immediately imposed. The relator, being so imprisoned and deprived of his personal liberty, presented to this court his petition, alleging that he was unlawfully deprived of his personal liberty, reciting the proceedings and admitting that he made the sales, and the proceedings had, but alleging that he had made no other sales of whisky other than that shipped to him as the of said sales were made of original and unagent ,of Jordan, and that broken packages,and alleging that said sales were authorized under the. and laws of the United States, and praying this court to grant him a writ. of, habea8 CcnpU8, and for his relefl.se. The petition set forth sufficient causes for the issuance of the writ, which having· been executed, the sheriff ma!ie his return; with the causes for the ilIl-' prisonment of the relator, which not being controverted, the burden is cast upon the relator,to show that he was under the oonstitution mid laws of the United States, to make the sl\les for· which he was so convicted and imprisoned, and which presents the single point as to whether arnot the whisky so shipped and sold in the bo;x:es described constituted one package as put up and shipped, or bottle or flask a separate package, and the shipping and sale protected by the constitution and laws of the United States from the.pep,altieRimposed by the laws of the state. In other words, was the whisk,y contained in the box, though in different bottles and flasks, one package? . The question has been stron&ly presented by counselon both and .' it is urged on the part of the relator that the paplilr wrappers sealed up around each bottle made a separate package,and that,.as the express company furnished the pine boxes to be returned, they had no other effect. I am satisfied that these were" mere subterfuges, resorted to by Jordan and the relator to avoid the penalties of the state law, and that it made no difference whether paper boxes around each bottle or not; if each was 'a: separate package within the provisions of the by the supreme court of the constitution of the UnitedStat-es, as United States, with the box or wrapper, it was equally 80 without it. Nor does it make any difference to whom the boxes belonged. These bottles i were closely packed together in the hoxesbyJordan, the shipper., that form shipped to Sardis, and in that way they were kept by relator until sold and taken out, one bottle at a time. It was, in other. words. a in t}:16, box, althollghin retail saloon. I am satisfied that the separate bottles,' for the convenience of the trade i» this retail saloon, of ,the was but one package within the meaning of the might been constitutionas construedl;ly the supreme cOllrh sold in one sale. witl1out. breaking the if:t4is .had.
I'EDERAL REPOBTEll, vol. 48.
beeD! l'relator would' ha.vebeen protected iii sale,: aIilll entit1ed his release;: but this was' not done, arid'heis' not -entitled 'Wftl!e and release as asked of this court. ,'The sale WliS made in ,\ti61a:tion of1 the laws ofthe state, and the conviction and judgment of tqe mayor and Justice were under the la'lv' and testimony. deed I , that coutt, as the case was presented to it, could not consistently have rendered any other, the defense here not having been presented to that co'lltt.· It niay be a question of doubt whether, under these circumstances, this court ought to for this reason 81one. In reaching the aboveC6t1Clusion I do Dot de<Jidethll.t a single bottle!>f whisky may not -be shipped and sold 'by itself alone a& a single and unbroken pack... age, within: the protection of the constitution of the United States, der'J/ihe'interstate commerce clause; but it must be shipped alone, and sold as $hipped. lam not aware that any court has held otherwise. All the' cases brought to my attention in which the facts were set out are cases of ,the exportation of whisky from oM state to another. The exportation'was made by the manufacturer; and the packages were put up and stamped as reqUired by the reven'lie'laws of the United States j 80 that -these were original packages. There is no evidenCe in this case that Jot-dan ,manu/nctured the whisky, or that he any stamps upon' the bottles ;so that the :faets in this case tire different from any of the decided"ooses,so far as! have been able to ascertain. ,Judges of respectability have held that to relieve the im porter and' vendor from the penalties ofthe laws of the state the package, as an orighial and broken one, must be that put up by the manqfacturer 6r rectifier. I aminclilled to the opinion that this position is oorrect, and, if so, the relator for this; if no other,reason, cannot be discharged. The result is that the release ,prayed ", f()rlliust be refused; and the relator returned to the costs the custody of the Rheriff of Pi!nola county, and of this betll.xed. "
Um'l'ED 'STA'1'Es 11. CRAFT. .
March 11, ts90.) ,
; Fines, fo,feiwres,andpllnlloltjes incnrred under thll of the United States :may, under r.ection 8218, 'Rev;St. U. S., recovered by1ndietment.
J, · ' .
I. law., Moti()n in'art-est of judgment. ':8aJmuel MdKee, for the :motion." 8'.:'Atty.j cited Rev. 8t. and U. S.,:y,.1Moore,11 Fed,.,;Rep.·249; U:S.'v.!rfann,.1 Gall. 177; U. S. \'. BliIuJher, 6 i :277;' Myel', ;Fed." Dec. 383';>8 Bae. Abr. 550; a.is.v. iBisif; 455; -and U. S. v. Ebner, 4' Biss. 119.
,:'UNIXED STAUSI'. (lRAIl'T·.
BARR, J. The defendant has been indicted under section 3265 of the for the purpose Revised Statutes, for settingl1p a copper still, to be of distilling, without first obtaining from the collector of internal revenue for the district a permit to do so. Rehas.been found guilty, and now moves for an arrest of judgment, because, as he claims, an indict.ment will not lie, but the BUm precriQed by the section shouldhaV'e been sued for in a civil aotion. Section 3265 provides that any person any such still, without first a permit from. the collector of the district; shall pay the sum of $500, and shall forfeit apparatus thus set upin violation of law. Section 3213 providesfhat "all suits. for fines,penalties, and forfeitures, when not otherwise provided for, shall be brought in the name of the United States in any proper form of action, or by any appropriate form of proqui tam. or othllrwise, before any circuit or district court of the ., United states for thedistrichvithin which'said<flne, penalty; or forfeiture have. been incurred."This does not prescribe any speCial form :ofacti'on, but allows any 'appropriate action or proceeding to be bsed, and thifciu'estionis whether,upon p;erieral principles, an indictmetit WiIllie fO! a mere·penalty .. The language used in: section 3265 is,' "shall pay $500," but this isorily another mode of declaring arid imposing:s. ;of 8500 for a violation of the law. In 3 Bac.Abr.550" i'is "said:'" .
"Gener.ally when a statute either prohibits a matter of public grievance/or a matter of publici convenienca, 3s repairing the common stooets of the town, etc., every disobedience of such statute is indictable; boUt the party has once been fined in an action on the statute. fine is, it seems, a par to',: the indictrnent." . " '; J . ',' '.' _ And llgain, on the same, page, it the rnl1kes anew offense, which wasln r no way by the .common law. and .appoints a particular proceeding against the offemler, , as by commitment or action of dllbt or iIi formation. etc·., without mentioning . an. indictment, itseems to be settled atthis'day that it, will not maintain an indlctmeht, beCause the mentioning of the other methOds of proceeding only seems impliedly to exclude that by an indictment. Yet it hath been'ad. judgel:l that, if sllchstatute give a recovery by action: of debt, bill, inf()l;rpation, OJ,' pl"oceedingby:way of indictment." This, Ithink, is a correct statement of the law at the present. day.
See CU. S. v. Moore, 11 Fed. Rep. 249, for an able and elaborate discuSsion ofthe question; also U. S. v. B01lifJher, 6 McLean, 277. Themotion inarreat of judgment should be overtuled. and itiaso ordel1ld.
:"._ ..... J.,
UNITED STATES V. HARNED.
(Dtstrtet Oourt, D. Washington, N. D. June 25,1890.)
Ii S.\I\rB+-DniEOTION OF VERDIOT.' uPlln trial of a criminal case, the prosecution fails to introduce any evidence to sbow one of the elements of the crime charged, a motion to instruot the .jully to:acquit the defendantwlli be granted.:
In 'trial. upon an indiotment founded upon seotion 5481, Rev. St., proof that money in excess of legal fees was received bv an officer of the United States, and that inl;'eceiving the money he acted in an official capacity and corruptly, is not sulDcient·to warrant a conviotion, without evidence tending to' prove that the ex. cess was"exacted by the defendant, and not paid voluntarily.
was indicted for, the (lrime of extortion. under section Q481, Rev.'$t·· which is as "Every ·officer of the States whois guilty, of extortion under color of hi.s office shall be punished by a fine of than $500, or by imprisonment for not more,than one year, except t,hose,officers or agents of the United States ot,Jienyise differently provided subsequent sections of thjschapter." Upon: tpe all the evidence for the prqsecution had ,been introduced, attorney moved the court to the jury 'to render a verdict for h1ll1. 'l, . ,:' . . , PaI:r.i.ckH. Winswn,U, S. Atty., andP. a. SuUivan, Asst. ·U. S. Atty. A. Rl Gllema9i, for defendant.
HANFORD, J., (ornlly.) I will to grant tbis motion. This indictment is founded upon section 5481 of the Revised· Statutes. The to the bar to ansWer the charges in this indictment, else·. He cannot be convicted here ongelleral principles, 9f, fqr.a.qYsort of wrong-doing except the crime of extortion. As has beensQ,id in the argument, the statute does not attempt to "extortion;".and it does not attempt to define the crime by any other word . thlil:i.theword "extortion." It simply states thatany officer of the United States guilty of extortion shall be punished in a certain manner. His in.curnbellt on the prosecution ina criminal case to prove every material fact by competent evidence, sufficient to convince the jury beyond all reasonable doubt·. Every single/element of .the crime must be shown by affirmativ.e prdof. i Now. there is evidence in this case sufficient to go to thejury as to almost everything necessary to constitute this offense. There is evidence here that the defendant was an officer of the United States. There is evidence here that he received money from Capt. Sprague in excess of the legal fees. There is evidence that he knew that those fees were illegal, (but that would not have been necessary to prove, because under no circumstances could he defend his action on the ground of ignorance as to what the fees were,) but there is evidence to go to the jury that he had full and ample knowledp;e of all the facts which would be for him to have in order to commit the offense. There is evi-