§ 1351. Foreign Commerce. There is no attempt in the language of the act to exempt such foreign commerce as is carried on through a bill of lading; on the contrary, the act in terms applies to the transportation of property shipped from any place in the United States to a foreign country and carried from such place to a port of transshipment.1 § 1352. Indictment-Sufficiency. An indictment under the act is sufficient if it specifically states the elements of the offense with sufficient particularity to fully advise the defendant of the crime charged and to enable a conviction, if had, to be pleaded in bar of any subsequent prosecution for the same offense, as provided in Section 1025 of the Revised Statutes.1 No device or contrivance, secret or fraudulent in its nature, is requisite to the commission of the offense outlined in the statute, and any means by which transportation by a concession from the established rate was had is sufficient to work a conviction; 2 therefore the details of the device by which rebates were received need not be set out in the indictment.3 The term "device" as used in the statute includes any plan or contrivance whereby merchandise is transported for less than the published rate, or any other advantage is given to, or discrimination practiced in favor of, the shipper. An indictment for violation of Section 1 need not allege that the carrier's published rate was a reasonable one, nor set out its tariffs in full. An averment that a certain named rate was in force between designated points as shown by the published tariffs is sufficient. An indictment for receiving rebates alleging transportation at a lower rate than the lowest total rate as shown by the published tariffs was held bad § 1351. 1 Armour Packing Co. v. United States, 209 U. S. 56, 78, 52 L. ed. 681, 28 S. C. 428. § 1352. New York Central & Hudson River R. R. Co. v. United States, 212 U. S. 481, 497, 52 L. ed. 613, 29 S. C. 304; Armour Packing Co. v. United States, 209 U. S. 56, 52 L. ed. 681, 28 S. C. 428. 2 Armour Packing Co. v. United States, supra. 5 3 Armour Packing Co. v. United States, supra; Chicago, St. P. M. & O. Ry. Co. v. United States, 162 Fed. 835, 90 C. C. A. 211 (8th Cir.); Grand Rapids & I. Ry. Co. v. United States, 212 Fed. 577, 129 C. C. A. 113 (6th Cir.). 4 Armour Packing Co. v. United States, supra. 5 United States v. Standard Oil Co., 148 Fed. 719. in that it did not negative the existence of a joint through rate lower than the total of the local rates. An indictment is sufficient which charges the payment of a refund which is a rebate on freights, and where it appears that the payment was made to the shipper by a corporation which held a majority of the stock of the two carriers concerned, when coupled with the allegation that the payment was knowingly made by the carriers as a rebate; this being a sufficient allegation of rebating by a device. It is not necessary to allege the name of, or describe, the agent or agents who granted the rebate. An agent or officer of the carrier may be jointly indicted with the principal. There is no misjoinder in including both the agent and the corporation in one indictment. The purpose of the act was to make the act of the agent the act of the corporation, and to include both within the prohibitions and restrictions of the statute." § 1353. Indictments Insufficient for Uncertainty and Want of Particularity. The indictment must be construed fortius contra proferentem. The language must necessarily import the offense charged, and, if susceptible of a different interpretation, it is bad. Every fact necessary to constitute the crime must be directly and positively alleged, and nothing can be charged by implication or intendment.1 § 1354. Duplicity. The substantive offense is the payment and receipt of the rebate, and an indictment is not bad for duplicity because it also avers the offer or agreement pursuant to which the payment was made.1 An indictment alleging that the defendant carrier offered, granted and gave a rebate is not duplicitous, but charges only one offense.2 United States v. Standard Oil Co., 148 Fed. 719. 7 United States v. Cleveland, C. C. & St. L. Ry. Co., 234 Fed. 178, 186. 8 United States v. Erie R. Co., 222 Fed. 444, 447; United States v. New York Central & H. R. R. Co., 146 Fed. 298. New York Central & Hudson River R. R. Co. v. United States, supra. § 1353. 1 United States v. Philadelphia & Reading Ry. Co., 232 Fed. 953 (uncertainty as to facts of delay where demurrage concessions charged); ibid. 946 (filing of tariffs and particulars of special privileges granted not shown). § 1354. 1 United States v. Great Northern R. Co., 157 Fed. 288. 2 United States v. Delaware, L. & W. R. Co., 152 Fed. 269. 1355. When Only One Offense. To warrant the conviction of a shipper for receiving rebates in violation of Section 1, the fact of the payment thereof by or on behalf of the carrier, and its receipt by or on behalf of the shipper, must be proved. Each payment constitutes but one offense although it may cover more than one shipment. The offense is not a continuous offense, although all the payments were made under one agreement, rebates on different shipments being given at short intervals. The offense was complete when each stipulated rebate was paid.2 § 1356. Intent. The intent of the carrier is of the essence of the offense, and a departure from the established and published interstate freight rate, in order to constitute a crime under the Elkins Act, must be willful. Evidence to show absence of intent to grant a concession from the established freight rate is admissible. It is held that the use of the word "willful" does not require the existence of evil intent, as applied to the granting of rebates from the published schedule rates; but it is sufficient if the act was done knowingly and purposely.3 § 1357. Knowledge. A carrier which willfully and intentionally remains in ignorance of the facts necessary to determine whether the rate was lawful, is charged with the knowledge of the facts which reasonable inquiry and investigation would have revealed.1 CHAPTER LXXXVI NATIONAL PROHIBITION § 1358. Act October 28, 1919. § 1359. Short Title of Act. TITLE I TO PROVIDE FOR THE ENFORCEMENT OF WAR PROHIBITION § 1360. Definitions. § 1361. Investigation and Report of Violations of War Prohibition Act; Duty to Prosecute; Warrants. § 1362. Public and Common Nuisances; Punishment for Maintaining; Liability of Owners of Property; Forfeiture of Leases. § 1363. Abatement of Nuisances; Injunction; Procedure; Bond for Abatement; Contempt in Abatement or Injunction Proceedings. § 1364. Powers Conferred to Enforce Act. § 1365. Partial Invalidity of Act. § 1366. Acts, Orders, or Regulations not Repealed, Annulled, or Limited. TITLE II PROHIBITION OF INTOXICATING BEVERAGES § 1367. Definitions. § 1368. Investigation and Report of Violations of Act; Duty to Prosecute; Search Warrants. § 1369. Manufacture, Sale, Transportation, Importation or Exportation, Delivery, Furnishing, or Possessing Intoxicating Liquors Prohibited; Exceptions. § 1370. Same; Exceptions; Permits to Manufacture Certain Articles; Bond of Manufacturer; Quantity of Alcohol; Sale of Enumerated Articles for Beverage Purposes; Punishment. § 1371. Analysis of Manufactured Articles; Notice to Manufacturer; Revocation of Permit. § 1372. Permits to Manufacture, Sell, Purchase, Transport or Prescribe Liquors; Exceptions; Expiration of Permits; Wine for Sacramental Purposes. § 1373. Physicians' Prescriptions. § 1374. Blanks For. § 1375. Violations of Law by Permittee; Citation; Hearing; Revocation of Permit. § 1376. Record of Manufacture, Purchase, Sale, or Transportation of Liquor. § 1377. Copies of Permits to Be Kept by Manufacturers and Wholesalers; Sales Only at Wholesale. § 1378. Labels on Containers. § 1379. Records of Carriers; Verification of Copies of Permits. § 1380. Notice to Carrier of Nature of Shipments; Information on Packages. § 1381. Consigning, Shipping, Transporting, Delivering, or Receiving Packages with False Statements Thereon. § 1382. Orders to Carrier for Delivery to Persons not Actual Bona Fide Consignees. § 1383. Advertising Liquor or Manufacture, Sale, or Keeping for Sale Thereof; Exceptions. § 1384. Advertising, Manufacture, or Sale of Utensils, Apparatus, Ingredients or Formulæ for Manufacture of Liquor. § 1385. Soliciting or Receiving Orders for Liquor. § 1386. Right of Action for Injuries Caused by Intoxicated Person. § 1387. Common Nuisance; What Are; Punishment for Maintenance; Liability of Owners of Buildings. § 1388. Same; Injunction; Procedure; Abatement; Bond by Owner or Lessee of Building. § 1389. Nuisances; Keeping or Carrying Liquor with Intent to Sell or Soliciting Orders for Liquor; Injunction; Liability of Lessees. § 1390. Violations of Injunctions; Contempt; Procedure. § 1391. Unlawful Possession of Liquor; Search Warrants. § 1392. Unlawful Transportation of Liquor or Apparatus; Seizure and Destruction of Liquor and Sale of Apparatus. § 1393. Delivery of Seized Liquors to United States for Certain Purposes. § 1394. Powers of and Protection to Internal Revenue Officers. § 1395. Unlawful Manufacture or Sale of Liquor; Punishment; Violations of Permits; Punishment. § 1396. Privilege of Witnesses; Immunity from Prosecution. § 1397. Place of Delivery of Liquor Sold. § 1398. Affidavits, Information or Indictments; Joinder of Separate Offenses. § 1399. Possession of Liquor Prima Facie Evidence of Unlawful Purpose; Reports of Possession; Exception. § 1400. Records and Reports; Inspection; Use as Evidence. § 1401. Repeal; Tax on Liquors; Compromise of Civil Actions. § 1402. Partial Invalidity of Act. § 1403. Storage or Transportation of Liquor in or to Bonded Warehouses; Development of Liquids to Contain More than of One Per Centum of Alcohol; Reduction of Same; Tax on Fortified Wines |