ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF OKLAHOMA.
MR. JUSTICE PITNEY delivered the opinion of the court.
The defendant in error was indicted in the United States District Court for the Eastern District of Oklahoma, the charge being that -- "on the nineteenth day of March, in the year 1912, in the County of Muskogee, in the said
District, and within the jurisdiction of said court, the said county and district then and there being a portion of the Indian country of the said United States, (he) did at the time and place aforesaid, unlawfully, wilfully, knowingly, and feloniously introduce into said Indian country one quart of malt, vinous, spirituous, distilled, ardent, and intoxicating liquor, to-wit, whiskey. Contrary to the form of the statute in such case made and provided," etc.
The District Court sustained his demurrer, and the case is brought here under the Criminal Appeals Act.
The statutes involved are: § 2139, Rev. Stat., as amended by the act of July 23, 1892, c. 234, 27 Stat. 260, and by the act of January 30, 1897, c. 109, 29 State. 506; also § 8 of the act of March 1, 1895, c. 145, 28 Stat. 693; and the Oklahoma Enabling Act of June 16, 1906, c. 3335, 34 Stat. 267. Extracts from the these are set forth in footnotes to the opinion in Ex parte Webb, 225 U.S. 663, 671, 677. Musko gee County is a part of what was the Indian Territory.
The District Court in effect construed the indictment as charging, not an interstate transaction, but an introduction of liquor from a point within the State of Oklahoma, but outside of what is now Indian country, into such Indian country. The decision of this court in the Webb Case, which had to do with § 8 of the act of March 1, 1895, and the effect of the Enabling Act upon it; and also the decision of the Circuit Court of Appeals for the Eighth Circuit in United States Express Co. v. Friedman, 191 Fed. Rep. 673, and Mosier v. United States, 198 Fed. Rep. 54, -- both of which turned upon the effect of the Enabling Act upon the act of January 30, 1897; -- were reviewed by the District Court, and the conclusion reached, principally because of the line of reasoning expressed in the opinion in Ex parte Webb, was "That the provisions of § 2139, Rev. Stat., as amended by the act of 1892 and the act of 1897, so far as they related, if at all, to the introduction
of liquor into the Indian Territory from points outside of that Territory, but within what is now Oklahoma, must be considered as having been repealed by the Enabling Act."
And again: "This confines offenses of this character, of which the Federal court has jurisdiction, to those in which the liquor is introduced from a point without the State. It is a violation of the state law, as established by the constitutional provision above referred to, to introduce liquor into what was formerly Indian Territory from some other portion of Oklahoma, but such violation is an offense exclusively within the jurisdiction of the state court. In order to give the Federal court jurisdiction, it is necessary that the introduction of the liquor should have been from a point without the State. This is an essential element of the offense, so far as the Federal court is concerned, and should therefore be charged in the indictment. It follows that the demurrer must be sustained."
The Criminal Appeals Act, March 2, 1907, c. 2564, 34 Stat. 1246, provides for a writ of error, to be taken by the United States from the District Court direct to this court, from a decision or judgment sustaining a demurrer to an indictment, "Where such decision or judgment is based upon the invalidity, or construction of the statute upon which the indictment is founded." The present case is clearly within this act, as previously interpreted and applied. United States v. Sutton, 215 U.S. 291, 294; United States v. Keitel, 211 U.S. 370, 385; United States v. Biggs, 211 U.S. 507, 518; United States v. Stevenson, 215 U.S. 190, 195; United States v. Miller, 223 U.S. 599, 602; United States v. Patten, 226 U.S. 525, 535; United States v. George, 228 U.S. 14, 17; United States v. Anderson, 228 U.S. 52; United States v. Pacific & Arctic Co., 228 U.S. 87, 100.
Upon the merits, the principal question is whether the acts of 1892 and of 1897 were repealed, as to intra-state
transactions, by the effect of the Enabling Act and the admission of the State, with the constitutional prohibition of the liquor traffic that was prescribed by that act. It is not contended that there was any express repeal. The insistence that there was a necessary ...