Ramos v. United States , 12 F.2d 761 ( 1926 )

BINGHAM, Circuit Judge.

The defendant Ramos (plaintiff in error) was, convicted on the 16th day of September, 1925, in the federal District Court for Porto Rico, upon an information in which he was charged in two counts with the violation of section 2, title 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%a); the first count charging him with the unlawful possession of a half pint of brandy on or about the 3d day of July, 1925, at San Juan, while the second count charged that on or about the 3d day of July, 1925, at San Juan, he unlawfully sold Rafael Colon Alvarez, in the restaurant El Vesuvius, No. 20 Allen street, San Juan, Porto Rico, a half pint of brandy. On September 26, 1925, a fine of $300 and costs having been imposed on the first count and a jail sentence of 90 days on the second count, this writ of error was prosecuted.

The errors assigned are: (1) That he was convicted without due process of law, in violation of the Fifth Amendment to the Constitution; (2) that he was not tried by an impartial jury, in violation of the Sixth Amendment; (3) that the court committed prejudicial error in refusing to allow him to inquire into the origin of the case against one Justino D. Vagras; (4) that it committed prejudicial error by allowing the ease to go to the jury with the perjured testimony of the witness Vagras, called in rebuttal by the government; (5) that the court was without jurisdiction of the case, because the National Prohibition Act is not in force in Porto Rico; and (,6) that the court was without jurisdiction of the case, because the Eighteenth Amendment to the Constitution is not in force in Porto Rico.

We will- proceed to consider the fifth and sixth assignments of error first. Article 18, § 1, of the Amendments to the Constitution provides:

“After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.”

This article of the Constitution by its express language applies to “all territories subject to [the] jurisdiction” of the United States, and is applicable to Porto Rico.

The National Prohibition Act, if it was not extended to Porto Rico by section 14 of the Act of April 12, 1900 (31 Stat. 80; Comp. St. § 3762), and section 9 of the Act of March 2, 1917 (39 Stat. 954 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3803eee]), was by section 3 of the Act of November 23, 1921 (42 Stat. 223 [Comp. St. Ann. Supp. 1923, § 10138%a]), which provides:

“That this act and the National Prohibition Act shall apply not only to the United States but to all territory subject to its jurisdiction, including the territory of Hawaii and the Virgin Islands.”

And the Supreme Court in Cunard S. S. Co. v. Mellon, 262 U. S. 100, 127, 43 S. Ct. 504, 67 L. Ed. 894, 27 A. L. R. 1306, in speaking of said section 3, said that since its enactment the “field” of the National Prohibition Act “coincides with that of the Eighteenth Amendment.”

The National Prohibition Act being a federal law and in force in Porto Rico, the federal District Court of Porto Rico has ■ jurisdiction of offenses arising out of its violation there by virtue of section 41 of the Act of March 2, 1917 (39 Stat. 965 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3803qq]), defining its jurisdiction as follows:

“Such District Court shall have jurisdic-, tion of all eases cognizable in the District Courts of the United States, and shall proceed in the same manner.”

By the Act of September 21, 1922 (42 Stat. c. 365, p. 993 [Comp. St. Ann. Supp. 1923, § 3803q (1)]), concurrent jurisdiction over offenses against the National Prohibition Act was granted to the territorial magistrates and courts in Porto Rico. It provides :

“That there be, and is hereby, conferred upon the territorial magistrates and 'courts of Porto Rico jurisdiction concurrent with the commissioners and courts of the United States for the said territory of all offenses under the Act of October 28,1919, known as the National Prohibition Act, and .all acts amendatory thereof and supplemental thereto, the jurisdiction of said territorial magistrates and courts over said offenses to be the same which they now have over other criminal offenses within their jurisdiction.”

'The latter provision was undoubtedly enacted in view of the decision of the Supreme Court of Porto Rico in People v. Torres, 28 Porto Rico 783, holding that the insular courts were without jurisdiction of offenses arising under section 2 of the Act of Congress of March 2, 1917, known as the Jones Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3803aa), as such jurisdiction was not conferred by necessary implication or specific provisions.

The defendant takes nothing by these assignments.

The first assignment, wherein the defendant complains that he was convicted without due process of law, is based on the idea that the court was without jurisdiction to try the offenses with which he was charged; but, as this idea is erroneous, as herein previously pointed out, this assignment needs no further consideration.

The second assignment presents the question whether the defendant, by the course pursued in the court below, was deprived of a trial by an impartial jury in violation of the Sixth Amendment to the Constitution.

'It appears that, on the day preceding the defendant’s trial, one Vagras, who had been in the defendant’s employ as a waiter at his café in San Juan during July, 1925, had been tried on an information charging him with the violation of section 2, title 2, of the National Prohibition Act in two counts, one being for the unlawful possession of liquor on July 4,1925, and the other for an unlawful sale on that date; that the unlawful possession and sale took place at the defendant’s café and that for'these offenses Vagras was convicted. It 'also appears that one or more of the jurymen participating in the trial of Vagras were allowed to sit at the trial of the defendant. This is the basis of the second assignment.

There was no evidence that the jurors who participated in the trial of Yagras and were allowed to sit at the trial of the defendant had acquired any knowledge of the offenses charged against the defendant prior to his being put on trial. In fact, the only evidence on this point shows that they knew nothing of the offenses charged against the defendant; that they had po bias or prejudice against him, and were able to act impartially upon the evidence submitted. The court found that the jury drawn to hear the defendant’s ease were impartial. The evidence warranted the finding. No error was committed. Murphy v. United States (C. C. A.) 7 F.(2d) 85.

We find nothing in the record justifying the third assignment. The charges preferred "and tried against Yagras were distinct from those preferred against the defendant and we do not see how he could have been in any way prejudiced by the court’s refusal, if it did refuse, to allow him to inquire into the origin of the ease against Yagras. He was allowed to introduce the commissioner’s record in the ease against himself, for the purpose of showing, as he claimed, that the original charge against him was for having made a sale on the 4th as well as the 3d of July, and that subsequently the first of these sales was charged against Yagras. He seems to complain of not having been allowed to do what the record shows he was permitted to do.

As to the fourth assignment, it appears that Yagras was called by the government in rebuttal to contradict eertáin statements made by Eamos, who testified in his own behalf, and that in doing so Yagras repudiated certain statements made by him the day before, when testifying in his own ease. It was for the jury to determine what, if any, weight they would give to his testimony. No question of law is presented by this assignment.

The judgment of the District Court is affirmed.