MR. JUSTICE HOLMES delivered the opinion of the Court.
In the first of these cases Stafoff was indicted with another for having had in their possession a still intended for the production of distilled spirits for beverage and commercial purposes, without having registered it with the Collector of Internal Revenue, as required by Rev. Stats. § 3258; and in a second count for having unlawfully manufactured on premises other than an authorized distillery a mash fit for the production of distilled spirits, to wit, whiskey, contrary to Rev. Stats. § 3282. A demurrer to these counts was sustained, 268 Fed. 417, and the United States brings the case here under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246.
The case of Brooks comes here on a certificate from the Circuit Court of Appeals for the Ninth Circuit. Brooks was convicted under the above mentioned §§ 3258 and 3282, and also under Rev. Stats. § 3281 for having
In the third case Remus and his associates were charged in six counts with having carried on the business of a wholesale liquor dealer, that of a retail liquor dealer, and that of a rectifier, without having paid the special tax as required by law. Rev. Stats. § 3242. A demurrer to these counts was sustained. 283 Fed. 685. The United States took a writ of error under the Criminal Appeals Act.
In United States v. Yuginovich, 256 U.S. 450, it was decided that §§ 3281 and 3282 were repealed by the later law, at least as to the production of liquor for beverage purposes. Since that decision and with reference to it, as appears from the House Report, No. 224, 67th Cong., 1st sess., and the debates, 61 Cong. Rec., Part 3, pp. 3095, 3096, the Act Supplemental to the National Prohibition Act was passed. Act of November 23, 1921, c. 134, § 5, 42 Stat. 222, 223. By § 5 of this statute "all laws in regard to the manufacture and taxation of and traffic in intoxicating liquor, and all penalties for violations of such laws that were in force when the National Prohibition Act was enacted, shall be and continue in force, as to both beverage and nonbeverage liquor, except such provisions of such laws as are directly in conflict with any provision of the National Prohibition Act or of this Act." (But if an act violates both the former and the latter a conviction under one is a bar to prosecution under the
But the Supplemental Act that we have quoted puts a new face upon later dealings. From the time that it went into effect it had the same operation as if instead of saying that the laws referred to shall continue in force it had enacted them in terms. The form of words is not material when Congress manifests its will that certain rules shall govern henceforth. Swigart v. Baker, 229 U.S. 187, 198. Of course Congress may tax what it also forbids. 256 U.S. 462. For offenses committed after the new law, United States v. Yuginovich can not be relied upon. Three counts in the Remus case charge carrying on the business mentioned up to April 1, 1922, and therefore are governed in part by the Supplemental Act. So far as the decision of the Court below neglected this distinction
There remain the questions certified in Brooks v. United States. They are somewhat broader than we indicated in our summary statement, as they include the Revenue Laws generally as well as the §§ 3258, 3281 and 3282. The general question manifestly is too broad to require an answer. From the summary given of the indictment we infer that what we have said is sufficient with regard to the sections named. The fourth question, whether, in view of what we have decided, the case should be remanded for judgment and sentence under the National Prohibition Act, must be answered, No. The indictment plainly purported to be drawn under the old law and it would be unjust to treat the conviction as covering an offense under a law of fundamentally different policy if facts could be spelled out that might fall within the latter, although alleged with no thought of it or any suggestion to the accused that he must be prepared to defend against the different charge.
No. 26. Judgment affirmed.
No. 403. Judgment on counts 2, 4 and 6 affirmed.
Judgment on counts 3, 5 and 7 reversed.
No. 197. Questions 1, 2 and 3, as limited above answered, Yes. Question 4 answered, No.
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