(dissenting).
I am unable to agree with the majority opinion. It is alleged in the first count of the indictment that the defendant did purchase and receive the tires, describing them, without surrendering in exchange proper certificates issued by the proper Ration Board, which was a transfer in violation of Ration Order 1A. Section 1315.601 (7 Fed. Reg. 9168) of Ration Order 1A provides for issuing of the certificates by the Ration Board, and which, it was alleged, the defendant had not obtained.
Thus it will be seen that there are two escape routes provided by the regulation, and the two are joined together in that part of the regulation which defines the offense, sometimes called the enacting clause. The indictment negatived one of these escape routes, namely the absence of a permit or certificate from the Ration Board as provided in Ration Order 1A. There was no allegation to negative the other escape route, namely the order, authorization, or regulation of the War Production Board. The indictment should have negatived both of these escape routes. One cannot be made an element of the offense and the other a matter of defense.
Before the offense is made out, it must be alleged in the indictment that the defendant was not permitted by Ration Order No. 1A, or by an order, authorization, or regulation issued by the War Production Board to accept a transfer of tires. It takes the absence of both of these elements to make a violation of the regulation. The indictment alleged only the absence of one. The absence of the order, authorization, or regulation of the War Production Board was as much a part of the offense as the absence of the permit or certificate issued by the Ration Board under Ration Order 1A. Where the absence of two elements is required to make up the offense, and both appear in the enacting clause together, as they do in this case, the indictment must allege the absence of both elements. United States v. Britton, 107 U.S. 655, 670, 2 S.Ct. 512, 27 L.Ed. 520; United States v. Cook, 17 Wall. 168, 84 U.S. 168, 21 L.Ed. 538; United States v. English, 5 Cir., 139 F.2d 885, 886; Hanks v. United States, 4 Cir., 97 F.2d 309, 311; Hale v. United States, 4 Cir., 89 F.2d 578, 579, 580; United States v. Eisenminger, D.C., 16 F.2d 816, 819, 820; Breitmayer v. United States, 6 Cir., 249 F. 929, 934. The order, authorization, or regulation of the War Production Board was no exception to the offense and therefore cases like McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301, and Jelke v. United States, 7 Cir., 255 F. 264, 279, are not applicable.
Count II of the indictment charged the defendant with the violation of Ration Order 1A in that he did:
“ * * *. transfer four Grade I passenger automobile tires from a trailer to his passenger automobile, and did mount the same upon said automobile without authority in writing by the local War Price and Rationing Board designated to issue said authority in writing, such transfer not being in accordance with the provisions of said Ration Order 1A, as amended.”
The pertinent provisions of Ration Order Number 1A, Section 1315.801 (7 Fed.Reg. 9172, 8 Fed.Reg 16246) read as follows:
“ * * * no person, unless permitted by Ration Order No. 1-A or by an order, authorization, or regulation issued by War Production Board shall: * * * (3) Mount any tire or new tube upon a wheel or rim.”
Count III alleged that the defendant, contrary to the provisions of Ration Order 1A as amended, did:
“ * * * have in his possession four Grade I passenger automobile tires which he obtained without certificates issued *60therefor by the local War Price and Rationing Board designated to issue certificates for such tires, such possession not being in accordance with the provisions of said Ration Order 1A, as amended.”
The pertinent provisions of Ration Order Number 1A as amended are Section 1315.801 (7 Fed.Reg. 9172, 8 Fed.Reg. 16246) as follows:
“* * * n0 person, unless permitted by Ration Order No. 1-A, or by an order, authorization, or regulation issued by the War Production Board, shall: (1) * * * accept a transfer of any tire * * * ” . and Section 1315.901(e) of Ration Order Number 1A as amended (7 Fed.Reg. 9176, 8 Fed.Reg. 16247) which forbids the acceptance of the transfer of any tire, as follows:
“No person shall possess, use, or permit the use of any tires or tubes acquired in violation of Ration Order No. 1-A * * * »
It will thus be seen that each section of Ration Order Number 1A alleged to have been violated in Counts II and III contains no provision with reference to the order, authorization, or regulation of the War Production Board just as in the pertinent section of Count I. Both the second and third counts of the indictment fail to allege that the defendant was not permitted by an order, authorization, or regulation from the War Production Board to perform the acts which he performed. For the reasons indicated as to Count I, both Counts II and III are insufficient.
The majority says “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.” An allegation that a thing is unlawfully done does not dispense with the allegation of the facts which constitute the offense. The authorities cited by the majority on this point do not in my opinion support the majority’s position. In two of the cases cited by the majority it was held in indictments for conspiracy that the substantive offense is sufficiently identified by alleging generally that the conspiracy was for the purpose of unlawfully doing the substantive act. It is not necessary to set forth the elements of the substantive offense in the indictment for conspiracy. The substantive offense need only be identified. In the other case the offense was alleged to be the unlawful possession of intoxicating liquor. To possess liquor was the offense. To describe it as unlawful possession was enough. That was vastly different from the case at bar where to make out the offense of unlawfully acquiring tires the tires must have been acquired without a certificate of the Ration Board under Ration Order No. 1-A or without authorization of the War Production Board. The government alleged the first, but not the second, and the majority holds, as I understand it, that the allegation that it was done unlawfully dispenses with the allegation of the second.
Nor is the statement in the majority opinion that the defendant and his lawyer must have known whether he had violated the law, and if he hadn’t he could have proved his innocence, aid an indictment that fails to allege the requisite facts. It has never been my understanding that the sufficiency of an indictment could be aided by speculating on whether the defendant could prove himself innocent.
The majority opinion invades the province of the District Attorney by assuming to state that it had not passed on the sufficiency of the second count, although squarely challenged on the record, as it thinks “the government’s case may be restricted to Counts I and III without vitally impairing it.” It impairs it one third. That would seem to me vital enough if this court had any say so in the premises. It is the District Attorney’s province to determine whether the defendant shall be prosecuted on one or three counts. We have only to determine whether the counts are sufficient. If Counts I and III are good, so is Count II.
It is not easy for the public to find its way through the maze of necessary, but numerous and intricate, regulations. Courts should not add to the confusion by casting aside safeguards in criminal procedure with the casual observation that they are “insubstantial technicalities,” and at the same time deploring the kind of pleadings which the court upholds. I would affirm the judgment of the District Court.