Opinion
No. ___.
June 22, 1926.
Hellenthal Hellenthal, of Juneau, for petitioner.
A.G. Shoup, Dist. Atty., of Juneau.
Counsel for petitioner urges that the crime of possession of intoxicating liquor, as denounced by section 1 of the Alaska Bone Dry Act, is included in that denounced by section 19 of the act, and that, by reason of the imposition of sentence for maintaining a nuisance, the crime of possession being included as an incident of the maintenance of a nuisance, the court exceeded its jurisdiction in imposing the sentence of imprisonment for possession; that, because the court so exceeded its jurisdiction, the sentence imposing imprisonment for possession of liquor was a nullity, and that a writ of habeas corpus would lie.
The question was very learnedly and ably argued by counsel for petitioner, and the government, through Assistant United States Attorney Stabler, also presented a large number of authorities on the question, based upon the provisions of the National Prohibition Act (27 USCA). A great number of authorities were cited on behalf of petitioner, to the effect that, under the National Prohibition Act, the crime of manufacturing intoxicating liquor, and the sale of intoxicating liquor, and the transportation of intoxicating liquor in violation of the provisions of that act, are included in the crime of possession thereof under the same act, and that a cumulative sentence imposed simply for possession and manufacturing, for the same act, was a double penalty for the same crime and void. Among the citations made by petitioner are Rouda v. U.S. (C.C.A.) 10 F.2d 917, where possession and manufacture of intoxicating liquor were considered; Schechter v. U.S. (C.C.A.) 7 F.2d 881, where possession and transportation were considered; Miller v. U.S. (C.C.A.) 300 F. 531, where possession and sale were considered.
Counsel also cited the case of Schechter v. U.S. (C.C.A.) 7 F.2d 881, where defendant was convicted of the crime of unlawful possession and maintenance of a nuisance under the Volstead Act. The court in this case, through Judge Hand, discussing the sufficiency of the evidence of maintaining a nuisance, found that the evidence consisted of a single sale, but that the evidence was sufficient to support the conviction for the maintenance of a nuisance under the act as it might be considered by the jury to be the beginning of a practice intended to be continuous, and that while the crime of maintaining a nuisance involved continuity, the jury might infer, under the circumstances, that it was a nuisance from the beginning.
All these cases were decided by the federal courts, and arose on direct appeal from the judgment rendered of concurrent sentences imposed for possession, manufacture, sale, and transportation, and, in the case of Schechter v. U.S., supra, for the maintenance of a nuisance. They all arose on direct appeal from the judgment, and no case has been brought to my attention where the exact question involved was raised on habeas corpus.
The petitioner, however, contends that, the possession of intoxicating liquor being an incident of the crime of maintaining a nuisance under the Alaska Bone Dry Law, the court exceeded its jurisdiction in imposing sentence, and that therefore the court was without jurisdiction to impose the sentence set forth in his petition, and that, this being the case, habeas corpus was the proper remedy for the petitioner to resort to to regain his liberty, citing In re Nielsen, 134 U.S. 176-185, 9 S.Ct. 672, 33 L.Ed. 118.
The government, on the other hand, contends that habeas corpus does not lie, but that, if error was committed in imposing the sentence, it was simply an error of law, and that the only remedy available to the defendant was by appeal from the sentence or a writ of error to a higher court; that, as no motion for the stay of judgment or election between counts 2 and 3 of the information was made by the petitioner, he is barred from maintaining this proceeding.
Passing over the question as to whether habeas corpus was the proper remedy or not, I will consider the main question. The government relies on several cases decided by the federal courts under the Volstead Act, where the question whether the possession of intoxicating liquors under that act is a crime, included in that of maintaining a nuisance under the act, was considered. Special stress was laid by the government on Page v. U.S., 278 F. 41, decided by our own appellate court. This case arose under the Volstead Act, wherein the defendants were convicted of possession of intoxicating liquors and of maintaining a nuisance. One count charged the defendants with having in possession a certain amount of jackass brandy in a certain place; the other count charged defendant with having, at said place, on or about the time alleged in the first count, maintained a nuisance. Judge Morrow, rendering the opinion of the court, says:
"It is objected that both of the counts of the information are supported by the same evidence, and that therefore conviction on the first count is a bar to conviction on the second count. The objection cannot be sustained. The second count charges that the defendants maintained a common nuisance, * * * in violation of section 21 of the act. There is abundant evidence in the record to support this charge, in addition to the evidence relating to the possession by the defendants of one pint bottle of jackass brandy charged in the first count."
He then points out the nature of the evidence supporting the charge of maintaining a nuisance and sustains the conviction on that count.
Singer v. U.S., 288 F. 697, decided by the Circuit Court of Appeals, Third Circuit, and Stafford v. U.S., 300 F. 537, decided by the Circuit Court of Appeals for the Sixth Circuit, both cases arising under the Volstead Act, are also cited by the government as bearing out its contention that possession is not necessarily included in the crime of maintaining a nuisance under that act.
From these authorities, I conclude that the crime of possessing intoxicating liquors is not necessarily included in the crime of maintaining a nuisance under the Volstead Act. In other words, there may be two distinct offenses against the Volstead Act, one for possession, and one for the maintenance of a nuisance, the former not included in the latter; nor is the first-mentioned crime in all cases an incident of the latter. The testimony for maintaining a nuisance may be such as would warrant a conviction of that crime, and the possession of liquor not an incident thereof. In other words, whether the possession of intoxicating liquor is an incident of the crime of maintaining a nuisance under the Volstead Act depends upon the nature of the testimony. This seems also to be a legitimate conclusion from a decision of the Supreme Court in Street v. Lincoln Safe Deposit Co., 254 U.S. 92, 41 S.Ct. 32 ( 65 L.Ed. 151, 10 A.L.R. 1548). The court says of section 21 of title 2 of the Volstead Act (27 USCA § 33):
"Section 21 declares that `any room, house, building * * * or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this title, and all intoxicating liquor and property kept and used in maintaining the same, is hereby declared to be a common nuisance,'" and for maintaining such place penalties are imposed.
The word "kept," in this section, is the only one of possible application to the case at bar, and the words with which it is associated are such that, as here used, it plainly means kept for sale or barter or other commercial purpose. So, under the Volstead Act, in my opinion, the nuisance denounced by the statute is a place where liquor is kept for barter, sale, or other commercial purpose.
Counsel for petitioner, however, urges with great earnestness and plausibility that while, under the Volstead Act, possession of intoxicating liquor is not necessarily a crime, yet, under section 1 of the Alaska Bone Dry Act, any possession of liquor is a crime, and that under the latter act possession is a necessarily included crime of maintaining a nuisance.
The argument is not without force and has greatly impressed me. However, after careful consideration, my opinion is that the argument is faulty. The Alaska Bone Dry Law (section 1) makes the possession of intoxicating liquor a misdemeanor. It also in section 19 declares that:
Any and "all houses, boats, * * * buildings, * * * and places of every description, * * * where alcoholic liquors are manufactured, stored, * * * vended, given away, or furnished contrary to law, including those in which clubs, orders, or associations sell, barter, give away, distribute, or dispense intoxicating liquors to their members by any means or device whatever, as provided in this act, shall be held, taken, and deemed common and public nuisances, and any person who shall maintain, or shall aid or abet, or knowingly be associated with others, in maintaining such common and public nuisance, shall be guilty of a misdemeanor."
It will thus be seen that, in both the Volstead Act and the Alaska Bone Dry Law, the crime of maintaining a nuisance is defined as doing the act denounced, contrary to the provisions of the statute. The word "possession" means to have power and dominion over a thing. The word "stored," which is applicable to the case at bar, has an entirely different meaning. "Stored" means the laying away for future use. It involves more than mere possession. One may have a thing in his possession, without having it stored, or one may maintain a place where contraband is stored, without having possession, dominion, or control over the thing stored. The word "stored" necessarily implies more than mere possession; that is to say, a person may possess liquors without storing such liquors, in a manner sufficiently to constitute a nuisance. Possession of liquor may be had for a short period of time, and that would not create any inference that the liquors were stored, or that the place where the liquor was possessed was a place where liquors were continuously, or for any length of time, stored.
For this reason, I do not think that the charge of possession of liquors in the Rudy Case is necessarily included in the crime of maintenance of a nuisance, because the crime of maintenance of a nuisance necessarily refers to a continuity of offenses. This is well illustrated in the case at bar, in the original case of United States v. Rudy. In that case the defendant was charged with the sale of intoxicating liquor on September 15. Under an instruction of the court the jury found the defendant not guilty of sale, although there was evidence tending to show that liquor was furnished at that place, but nothing directly connecting the defendant therewith. There was other evidence tending to show that liquor was found at various places near defendant's house, of which the defendant denied any knowledge, or that he had possession thereof.
I cite this simply as an example, because there is nothing in the record before the court in this proceeding showing what the testimony was. The petitioner in his petition alleges that he was convicted of the crime of maintaining a nuisance, because he had possession of the same liquor for which he was convicted under the charge of possession. This is denied on the part of the United States specifically. It seems to me that it was the duty of the petitioner to make the testimony in the case a part of the record, and the burden upon the petitioner was to show that his allegation in that respect was proved by a preponderance of the evidence. If the crime of possessing liquor was not necessarily included in that of maintaining a nuisance, then the court was justified in imposing sentences both for the possession of intoxicating liquor and for the maintenance of a nuisance.
This being my view of the case, my opinion is that the writ should be discharged, and the defendant remanded to the custody of the United States marshal.