The opinion
L. HAND, Circuit Judge
(dissenting).
Although the jury acquitted all the defendants named in the indictment as Merrell’s accomplices, still since the indictment contained the allegation that they had all conspired “with divers other persons to the Grand Jurors unknown,” I am willing to assume that it would support a conspiracy between Merrell and any one else, no matter whom. Also I agree that the jury might not only refuse to accept his testimony, but use it affirmatively against him. However, the story, as he gave it, was not of an unlawful conspiracy, nor was there any part of it which would support such a charge without additions which the jury had no warrant for supplying. Merrell was indeed eng-aged in unlawfully importing liquor, hut count one did not charge him with that, but with conspiring to do so. Nobody can possibly know whether he got the liquor on a straight sale, and *52 was bringing it in as a venture of Ms own; or whether the phantom De Carr, or some one else, was concerned with Mm in the enterprise, which was an essential element in a conspiracy. He was not tried on any such theory, and there was no evidence of such a conspiracy.
As to the third count the evidence was perhaps enough, but the charge did not survive December 5, 1933. When the Eighteenth Amendment was repealed all “implementing” legislation fell with it, whether it was in the National Prohibition Act, or the Tariff Act, or anywhere else. So far as laws imposed taxes on liquors of course they remained, and convictions under them will stand, but so far as the charge was merely of bringing in intoxicating liquors, it did not cure the defect to lay the crime under the Tariff Act. In so far as Cross v. U. S., 68 F.(2d) 366 (C. C. A. 5), and Shelton v. U. S., 69 F.(2d) 223 (C. C. A. 5), hold otherwise, I would not follow them; the whole statutory paraphernalia went by the board with the amendment, so far as the offence was based upon the alcoholic character of the goods. Taxation is another matter. As for the meaning of the count, the general allegation that the liquors were imported “contrary' to law,” even if sufficient standing alone to admit evidence that they had not paid their proper customs, has no such meaning when coupled with a specification that they were unlawful because intoxicating. Indeed the prosecution offered no proof that they had not so paid, though on that I should not rest in the light of Merrell’s admissions. This man was really convicted for violating the Eighteenth Amendment, and the effort now is to support the result by recourse to charges which he was never called to answer, I think it should not succeed.