The court, in reversing the conviction, said: "Obviously, neither count of the affidavit in the case at bar states with certainty facts constituting the crime of manslaughter, within the rules above laid down. The only facts stated in the second count are that the defendant drove an automobile in and upon the intersection of two public highways in Ft. Wayne, and, 'while so driving' it, killed the deceased by running against her with the automobile and thereby inflicting a mortal wound. The conclusion is also stated that the driving was done in a negligent and careless manner, and with wanton and reckless disregard of the rights and safety of other persons using said highways. But no facts are stated as to the speed at which he was driving, the circumstances under which he was driving, the number of persons in the highways, or their positions therein, the condition of the highways, or where or how he drove along or upon either of them, or any circumstance which preceded or attended the collision between the car and the deceased from which it might appear that he drove negligently or with a wanton disregard for the safety of others. And it may be suggested that even this general charge of wanton and reckless disregard for the safety of persons in the highway was negatived by the jury after hearing evidence of the facts, for defendant was found not guilty under the count containing that charge. The first count, omitting the allegations found in the second count as to driving 'in a negligent and careless manner and with wanton and reckless disregard of the rights and safety of other persons,' alleges only the facts that defendant drove an automobile in and upon the intersection of said highways, and failed 'to drive and keep to the right of the intersection of the centers of said highways when turning to the right,' and that he involuntarily killed Marie E. Wright by running against her, thereby inflicting a mortal wound 'while so operating and driving the said motor vehicle.' But it wholly fails to allege any facts as to the speed at which the car was driven, the place in the

street at which it struck the woman, the surrounding conditions, whether the accident occurred before or after dark, and, if the latter, whether the place was otherwise lighted, or any attendant facts at all from which to make it appear that the proximate cause of the death of Marie E. Wright was an act of the defendant which was forbidden by positive law, or was one by which he wilfully and recklessly put the life or safety of a human being or human beings in peril, and then negligently failed to avoid inflicting the injury thus made probable. And, as indicating the sense in which the language of this count, which we have set off by quotation marks, was used by the pleader and understood by the jury and the trial court, we note that the undisputed evidence, introduced by the state, was that the deceased at the time she was struck was not on the left side of the 'intersection of the centers of the highways,' but was walking south across State street, in line with the sidewalk west of or at the right-hand side of Crescent street, 10 feet or more west of the west curb of a 28-foot roadway therein, Crescent street being the one in and along which defendant drove south to where he turned west (toward the right) upon State street, across which Miss Wright was going when injured. Where the acts charged to have been done were lawful, such as operating an automobile in and along a highway, the mere use of epithets by way of alleging that they were done with wanton and reckless disregard of the safety of others, as in the second count, cannot supply the lack of facts showing that something which the defendant did was unlawful or was done in an unlawful manner. And where an allegation that the defendant did an unlawful act is relied on, as in the first count, the mere averment that 'while' this unlawful act was being done the defendant killed another by accident or mischance does not supply the place of averments of facts showing that the alleged unlawful act was a proximate cause of the homicide. The motion to quash each affidavit for uncertainty should have been sustained." W. M.

ordered that Webb and his associates be enjoined and restrained from occupying or using the premises for a period of one year, and that the United States marshal securely lock all doors to the building. On October 20th following, the court found that one Buford had become the bona fide purchaser of the premises, and thereupon modified its prior order by ordering that the premises be released to Buford on the giving of a bond in the sum of $1,000, conditioned that intoxicating liquors should not be thereafter manufactured, sold, bartered, kept, or otherwise disposed of in said premises during a period of one year from June 3, 1922. See § 22, title 2. Buford seems to have intended to use the premises in conjunction with his dairy business, but he soon sold to Sinclair, and Webb then went back into possession and managed the business that was carried on there for Sinclair. The whole tract comprised about 7 acres of suburban property, and there were several buildings on it. The stone building that was padlocked and then released to Buford on bond was a well-known place where chicken dinners were served. It had accommodations for 300 people, and that many were at times present and seated for service.

The information for contempt, on which Webb was found guilty, was filed on February 2, 1925, and it charged that Webb on November 4, 1924, sold to one Kissinger about eight ounces of whisky on the premises described in the injunctive order of June 3, 1922, and that the sale was in violation and defiance of that order and was contemptuous. A criminal information was also filed against Webb, charging him with the sale in violation of §§ 3 and 29, but that case had not been tried when the hearing in this case was had. It was not claimed that Webb made the sale himself. Mr. Kissinger, a prohibition agent, testified that he went to the place for dinner on the night of November 4,

1924; that he ordered four drinks of whisky for himself and three companions from a negro waiter, to be brought to them with the dinners; that they got the whisky, and he paid $3 for it. Webb testified that he knew nothing of the transaction; that he had no liquor on the place; that the waiter who served Kissinger was an extra for that night only, that being election day and a large crowd was expected. There was testimony tending to show that Webb knew the waiter was making the sale, consented to its being made, and collected the $3 along with pay for the dinners, and so we accept the court's finding that Webb made it. But there was no evidence that liquors of any kind had been manufactured, sold, bartered, or stored on the premises after the injunctive order of June 3, 1922, aside from this one isolated transaction; and the question presented to us is whether the sale made to Kissinger on November 4, 1924, can be held to have been in violation of the court's injunction of June 3, 1922. At the close of all the evidence, counsel for plaintiff in error moved that he be acquitted of the charge because the evidence was not sufficient to sustain a finding that he was guilty of contempt. The motion was denied, and exception saved.

Applying the facts as they were found by the court to the law, we conceive that two questions were presented for consideration on the motion: First, Had the nuisance been abated and the court's power in the equity suit spent and exhausted when the sale was made? and, second, Did the injunctive order against making sales in the building include an isolated sale such as this, made two years and five months after the court's order, or is it the purpose of § 22 of the act to enjoin only future conduct that would constitute a renewal or continuance of the nuisance? These are questions of law and the answers to them are found in a correct understanding of the act taken

in its entirety. Section 21 defines nuisance thus: "Any room, house, building, boat, vehicle, structure, or place where intoxicating liquor is manufactured, sold, kept, or bartered in violation of this title, and all intoxicating liquor and property kept and used in maintaining the same, is hereby declared to be a common nuisance."

And that section further subjects the person who maintains the nuisance to prosecution as having committed a misdemeanor which on conviction he may be both fined and imprisoned. For the purpose of abating the nuisance, § 22 affords a speedy and effective civil remedy by injunction against those maintaining it and by securely closing the premises against any use for one year. In Schlieder v. United States (C. C. A. 5th) 11 F. (2d) 345, 347, it is said: "The fundamental principle upon which § 22 depends for its validity is that it is intended to authorize the abatement of a nuisance by a suit in equity and to go no further."

The period named during which the building may by order of court be kept under lock by the marshal must, we think, be taken as the expression by Congress of its judgment that the premises if closed would lose during the lapse of one year the bad reputation which they had acquired as a place of resort by those inclined to encourage violations of § 21, and as declaring a rule that the nuisance would thereby become abated. We are unable to see any other reason or purpose for fixing the time. Of course, the provision for closing is in aid of abatement by injunction and may or may not be resorted to, but here the power was exercised; a bond being substituted by order of the court for a part of that time. Without the closing order, the nuisance might become wholly abated, as effectively so by the injunctive order as if the premises had been kept locked by the marshal. The statute makes no provision for a judicial ascertainment of that fact.

Had it done so, and had the fact of abatement been judicially found, the premises thereafter would, we think, be relieved from the taint of unlawful practices and the bad reputation thus cast upon them. In that event it could hardly be said that the decree in the equity suit had not been fully satisfied and the court's power in that suit brought to an end. The premises themselves, standing alone, do not constitute the nuisance. They and the intoxicating liquors kept and used there constitute the unlawful thing, defined as a nuisance. When the building has been cleared of the liquors and the unlawful practices there brought to an end, the nuisance becomes abated. Here there is no word of testimony tending to show that any liquor was manufactured, kept, sold, or bartered in the stone building or elsewhere on these premises from June 3, 1922, to November 4, 1924, a period of two years and five months, and during that time title to the property passed, as found by the court, to a bona fide pur- Contemptchaser. We think sale of liquoron the facts of this expiration of year-effect. case it must be held that the nuisance which the court ordered abated in June, 1922, had been wiped out long before November, 1924, and its decree thus wholly executed. Its judgment had been satisfied, and its power in that suit had terminated.

But, for the sake of argument, let it be conceded that the order of June 3, 1922, enjoining "that no liquor shall be manufactured, sold, bartered, or stored in or upon the premises" was still in force and effect on November 4, 1924, when Webb made the sale to Kissinger. The order followed literally the terms of § 22, and it was that order which was alleged to have been violated, because of the sale to Kissinger. If we adhere to the literal words of the statute repeated in the court's injunctive order, there, of course, can be no doubt of Webb's guilt. The district attorney, in pre

senting the case below, took that position and argued "that for all time there should be no intoxicating liquor sold there." The learned district judge at first thought the proposition debatable, but apparently accepted that view in making his final decision. This seems to ignore the one plain purpose of § 22, and excludes from consideration other parts of the act. Did that order cover an isolated sale? There was no attempt to show that the circumstances under which the sale was made to Kissinger constituted a continuance or renewal of the nuisance which the court had ordered abated, nor was that the charge in the information against Webb for contempt. He was also charged by another information criminally with making the same sale. A single sale may be made under circumstances which establish the maintenance or continuance of a nuisance. Lewinsohn v. United States (C. C. A. 7th) 278 Fed. 421; Schechter v. United States (C. C. A. 8th) 7 F. (2d) 881; Hermansky v. United States (C. C. A. 8th) 7 F. (2d) 458. But the maintenance of the nuisance implies a continuity what constitutes of criminal action maintenance of. extending over substantial period of time. Reynolds v. United States (C. C. A. 6th) 282 Fed. 256; Schechter v. United States (C. C. A. 8th) 7 F. (2d) 881. In Barker v. United States (C. C. A. 4th) 289 Fed. 249, it is held: "We do not mean to be understood as deciding that a single sale of liquor, or the mere unlawful possession of liquor, under all circumstances may be construed to be a violation of § 21, because so to decide would be to render meaningless the other provisions of the law in which the Congress has denounced these specific acts, and provided punishment for their violation."

Nuisances

a

The same court held in Muncy v. United States (C. C. A. 4th) 289 Fed. 780, that sale of a pint of whisky was insufficient to establish the maintenance of a nuisance where no other liquor was found on

the premises or on the defendant's person. That is not the charge or claim in this case. The sale to Kissinger is treated as a single sale, clearly made in violation of §§ 3 and 29, title 2, of the act. Reverting to § 22, under which the injunction suit was maintained and the order made, it seems clear that it deals exclusively with the nuisance and provides a method of suppressing it. It grants, so far as needed, the req- liquors-inuisite power for junction against that purpose, and of act. we think it discloses

Intoxicating

sales-purview

no other purpose. Single sales, as such, lie outside of its purview and could not be brought within it. Acts of the defendant which would not constitute the nuisance charged in the equity suit, or its continuance, do not come within the purpose of the section; but acts which could be said to be in continuance of the nuisance before it was fully abated would appropriately be within the power of the court to be exerted in fully and finally abating it; and such acts would be in resistance to the court's order of abatement. This, we take it, is the sense in which the clause in the decree copied from § 22 should be taken; that is, a prohibition of sales which operated to continue the nuisance before it had been suppressed. That was the situation considered by the court in the Lewinsohn Case and in McGovern v. United States (C. C. A. 7th) 280 Fed. 73. In each sales were continued within a month after the court's order. To accept the view advanced by the district attorney would raise grave doubt as to the constitutionality of that clause, and such doubt should be avoided in applying the statute when it can be given a rational and effective meaning in undoubted accord with the Constitution. States v. Standard Brewery, 251 U. S. 210, 220, 64 L. ed. 229, 235, 40 Sup. Ct. Rep. 139; United States v. Jin Fuey Moy, 241 U. S. 394, 401,

Statutesavoid doubt of ality.

construction to

constitution

United