Collier v. United States

ADAMS, Circuit Judge.

Collier was indicted for carrying and introducing liquor from without the state of Oklahoma into that part of the state formerly known as the Indian Territory, in violation of the provisions of the act of March 1, 1895 (28 Stat. c. 145, pp. 693-697). The only evidence produced against him at the trial was the testimony of two witnesses that Collier’s residence at Quinton, in the county of Pittsburg, Okl., was on February 24, 1913, searched by officers of the law, and whisky and beer were found there. There was no evidence on the part of the government as to how long it had been there, or where it came from; hut Collier testified in his own behalf that he purchased it of a man living in Quinton, and that he had nothing to do with1 the bringing of it into the state, and knew nothing about it. This was not contradicted by the government. On this evidence alone, the jury, without any charge as to the law of the case by the court, found Collier guilty as charged in the indictment, and the trial court sentenced him to imprisonment in the United States penitentiary at Leavenworth, Kan., for the period of one year and six months, to pay a fine of $100, and to stand committed until that fine should be paid.

This judgment cannot be sustained. The gist of the offense denounced by the act of March 1, 1895, is the carrying of liquor into the Indian Territory from without the state of Oklahoma. Ex parte Charley Webb, 225 U. S. 663, 32 Sup. Ct. 769, 56 L. Ed. 1248. The mere possession of whisky by any person within that part of the state known formerly as Indian Territory, without any proof of where it came from, or when it was brought into that territory, constitutes no federal offense, and is wholly insufficient to justify conviction under the act of March 1, 1895. Chambliss v. United States, 132 C. C. A. 112, 218 Fed. 154, and Silva v. United States, 134 C. C. A. 528, 218 Fed. 793, recently decided by this court.

The judgment is reversed, and the cause remanded to the District Court, with directions to grant a new trial.