KENNEDY et al. v. UNITED STATES, 2 F.2d 597

SANBORN, Circuit Judge. The writ of error in this ease challenges the legality of the conviction and sentences of the plaintiffs in error, the defendants below, for the offense of the possession of intoxicating liquor in the Indian country on July 24, 1920. They were indicted, tried, convicted, and each of them was sentenced to confinement in jail for six months and to pay a line of $1,000 for having 38 quarts of whisky in his possession in the Indian country on the 24th day of July, 1920, in violation of the Act of July 23, 1892,

section 4136a, Compiled Statutes, and its amendments (United States v. Wright, 229 U. S. 226, 33 S. Ct. 630, 57 L. Ed. 1160; Joplin Mercantile Co. v. United States, 236 U. S. 531, 35 S. Ct. 291, 59 L. Ed. 705), the act of January 30, 1897,

section 4137, Compiled Statutes, and the act of May 25, 1918,

section 4137aa, Comp. St. 1918, Comp. St. Ann. Supp. 1919, which have made possession of intoxicating liquor in the Indian country a criminal offense and prescribed a punishment therefor of imprisonment for not exceeding two years and a fine of not exceeding $300 for the first offense. The offense of these defendants was their first offense.

The defendants contended that their conviction and sentences were erroneous because the parts of the acts cited above which created the crime of and fixed the punishment for having possession of intoxicating liquor in the Indian country were superseded and repealed before the 24th day, of July, 1920, by the enactment of the National Prohibition Act of October 28, 1919, 41 Statutes at Large, 305, title 2, §§ 3, 25, 29, 33, and 35 (Comp. St. Ann. Supp. 1923, §§ 10138½aa, 10138½m, 10138½p, 10138½v).

This court certified the question presented by this contention to the Supreme Court, and that court has answered that no such supersession or repeal was effected by the National Prohibition Aet. Counsel for the defendants, however, further contend that each of the sentences is excessive because the extent of the sentence for the offense under the old act, for a violation of which they were indicted and convicted, was imprisonment not exceeding two years and a fine not exceeding $300, and the fine imposed upon each of them in this case is $1,000. This was a plain error.

They could not lawfully be punished for an offense in violation of the old aet by a greater fine than that aet prescribed because the new act prescribed a heavier fine for a violation of that act, for a violation of which they were neither indicted nor tried. Let this ease therefore he remanded to the court below, with directions to set aside that part of each of the sentences which imposes a fine of $1,000 and impose in lieu thereof a fine not exceeding $300.