What Is "A Distance"?

Such U. S. citizens as may habitually order their liquor by telephone discovered last week that they may be prosecuted under that section of the Volstead Act which prohibits the transportation of liquor. A decision with that effect was handed down by Federal Judge William H. Kirkpatrick in a Philadelphia court. The decision was appealed from and was sufficiently ambiguous to be claimed as a dry victory by prohibition officials and as a wet victory, by the New York Times. If accepted as a precedent, however, it undoubtedly involves the purchaser as well as the seller of liquor in cases where transportation of liquor is involved.

The Case. Judge Kirkpatrick's decision was rendered in the case of Alfred E. Norris, Manhattan broker, and Joel D. Kerper, Philadelphia bootlegger (now in Atlanta Penitentiary). It was admitted that, on at least 12 occasions, Mr. Norris had ordered 'Legger Kerper to ship whiskey from Philadelphia to New York, that these shipments were disguised as ink, paint, olive oil and other legitimate commodities, and had been consumed (but not sold) by Broker Norris and his friends. Broker Norris maintained that the Volstead Act forbids the sale, not the purchase, of liquor; that as a buyer, not a seller, he had committed no crime.*

The Decision. Judge Kirkpatrick agreed that the purchase of liquor is not an offense, and that "where there is nothing in the case but a simple sale, the purchaser cannot be convicted of conspiring with the seller to make the sale." But, continued the Judge, "it does not follow that where transportation is required by the agreement, there may not be an indictment of the buyer and the seller for conspiracy to transport, even though what is contemplated is simply the delivery of the thing sold." Broker Norris was found guilty, was fined $200.

Significance. The portion of the decision pleasing to Wets was the section freeing the liquor purchaser from responsibility in the "simple sale" of liquor. The portion pleasing to Drys was the section stating that conspiracy to transport exists "where the delivery of the liquor sold is effected by transportation" and the further statement that "an order by a purchaser to a bootlegger located at a distance to deliver liquor followed by transportation, delivery and payment" is sufficient evidence of such conspiracy to transport.

Ambiguity. Resulted the following questions:

1) How can delivery be effected without transportation of some sort?

2) It is illegal to order liquor from a bootlegger "located at a distance." But what constitutes "a distance?" Philadelphia to New York? What about Philadelphia to West Philadelphia, or Broad Street to Rittenhouse Square?

*The Norris apartment at No. 55 East 72d St., Manhattan, occupied by Broker Norris' daughter and her husband, was raided last February. The daughter at that time accused Federal Agents of "brutal and abusive" treatment.