Before EVANS, KERNER, and MINTON, Circuit Judges.
Defendant was indicted for violating Ration Order 1A issued by the Office of Price Administration pursuant to Section 2(a)(5) of Title III of the Second War Powers Act, 50 U.S.C.A.Appendix, § 633.*fn1 The indictment was in three counts, and defendant's demurrer to each count was sustained. Under 18 U.S.C.A. § 682, the United States has appealed.
Defendant was charged in Count I with unlawfully receiving the transfer of four passenger automobile tires*fn2 and in Count III with the unlawful possession thereof.*fn3
The pertinent provision of Ration Order 1A alleged to have been violated reads as follows:
"* * * no person, unless permitted by Ration Order No. 1A, or by an order, authorization or regulation issued by the War Production Board, shall: (1) * * * accept * * * a transfer of any tire * * *."*fn4
Defendant's first contention is that Count I is defective because it uses the words "purchase and receive the transfer" instead of the regulation's words "accept * * * a transfer." We reject this contention because the words receive and accept are here legal equivalents. Webster's New International Dictionary, Unabridged (2nd ed. 1942) 2076, 14.
Defendant next contends that Count I of the indictment is bad because it contains no allegation that the transfer was not permitted by an order, authorization or regulation issued by the War Production Board. It is defendant's position that this was a necessary element of the offense, so that omitting to negative this possibility rendered the indictment void. We have concluded that this position is not well taken, and we decide it adversely to defendant's contention.
No one challeneges the rule that every element of a statutory offense must be stated in the indictment. The real issue here is, do the words "unless permitted by an order, authorization or regulation issued by the War Production Board" in Ration Order 1A constitute an element of the crime or do they constitute an exception? In other words, was it impossible to define the crime without saying that the transfer was not permitted by an order, authorization or regulation issued by the War Production Board?
Count I states the elements of the crime. The grand jury charged that defendant purchased the tires unlawfully, contrary to the Second War Powers Act and Ration Order 1A. This excluded the idea that he had an order, authorization or regulation of the War Production Board. It carries the meaning that he had no such authorization. No other interpretation is possible because if he had had such an authorization, his receiving the tires could not have been unlawful or in violation of Ration Order 1A. Analogous precedent for giving such force and effect to the word unlawful is not wanting. Rulovitch v. United States, 3 Cir., 286 F. 315, 317-318; Feinberg v. United States, 8 Cir., 2 F.2d 955, 956; Scaffidi v. United States, 1 Cir., 37 F.2d 203, 205. By stating that he purchased the tires unlawfully, the possibility that defendant had War Production Board authority was excluded, and thus the crime was defined without using the identical words of Ration Order 1A. No element was left out in so doing.
What is an "element" of a crime? In virtually all of the authorities we have examined in trying to answer this question as applied to the case at bar, we have found it is a positive factor, an affirmative act, such as "intent," without which there is no crime. Here, Ration Order 1A makes all transfers of tires illegal "unless" permitted by an order of the War Production Board. Since the word "unless" means except (as dictionaries define it), all transfers are illegal except authorized ones. Hence it is an exception, a matter of defense, a matter of proof of a negative factor, which takes the accused without the charge. As such, it is not an element of the crime.
Being an exception, the pleader did not have to negative it, McKelvey v. United States, 260 U.S. 353, 43 S. Ct. 132, 67 L. Ed. 301; United States v. Cook, 17 Wall. 168, 84 U.S. 168, 21 L. Ed. 538; Knight v. Hudspeth, 10 Cir., 112 F.2d 137; Nicoli v. Briggs, 10 Cir., 83 F.2d 375; Jelke v. United States, 7 Cir., 255 F. 264; Edwards v. United States, 312 U.S. 473, 61 S. Ct. 669, 85 L. Ed. 957; Queen v. United States, 64 App.D.C. 301, 77 F.2d 780; United States v. Wagoner, 7 Cir., 143 F.2d 1, and a fortiori where, as here, it is negatived by the use of the word unlawfully, the indictment is not bad.
We hesitate to condone, and thereby encourage, pleadings drafted in such manner as to fall short of perfection. But relatively more important than such a possibility is the delay (and possible avoidance of criminal liability) in effective criminal prosecution through assertion of insubstantial technicalities.
The object of an indictment is first, to furnish the accused with such a description of the charge against him as will enable him to prepare his defense and to plead his acquittal or conviction in bar of further prosecution for the same offense; and second, to inform the court of the charges so that it may decide whether they are sufficient in law ...