Opinion
May 7, 1934.
Edward Anderson and Lott Houston were indicted for possession of an unregistered still. On motion to dismiss the indictment.
Motion denied.
Martin Conboy, U.S. Atty., of New York City (Earle N. Bishopp, Asst. U.S. Atty., of Middletown, N. Y., of counsel), for the United States.
Rodney K. Frazee, of New York City, for defendants.
The defendants were indicted by the grand jury. The indictment charges three separate counts; count 1, for possession of an unregistered still of a capacity of 100 gallons, in violation of section 3258 of the United States Revised Statutes ( 26 USCA § 281); count 2, for using a still in a dwelling house at 368 West 127th street, city, state, and Southern district of New York, in violation of section 3266, United States Revised Statutes ( 26 USCA § 291); and, count 3, for working in a distillery wherein distilled spirits were produced upon which no sign bearing the words "Registered Distiller" were placed and kept, in violation of section 3279, United States Revised Statutes ( 26 USCA § 303).
On April 16, 1934, the defendants were brought to trial and a motion was made on their behalf to dismiss the indictment which was denied. The defendants thereupon entered a plea of guilty to count 1 of the indictment. The second and third counts of the indictment were dismissed upon motion of the United States Attorney. The defendants were each sentenced to the minimum punishment prescribed by the statute which is a $100 fine and imprisonment for not less than one month.
The defendants' attorney in his brief states that the question presented to the court for consideration is, "The sole issue of law in this case is as to whether or not by reason of the enactment of the Twenty-First Amendment there is now in effect any statute under which the defendants can be indicted."
The National Prohibition Act of October 28, 1919 (27 USCA), did not supersede or repeal section 3258 of the United States Revised Statutes now section 281 of title 26 USCA. The adoption of the Twenty-First Amendment repealed the Eighteenth Amendment but did not render inoperative the Prohibition Act in its entirety. United States v. Chambers and Gibson, 291 U.S. 217, 54 S. Ct. 434, 78 L. Ed. 763, 89 A. L. R. 1510, decided by the United States Supreme Court, February 5, 1934. The repeal of the Eighteenth Amendment did not render inoperative section 3258 of the United States Revised Statutes.
Motion denied. Settle order on notice.