Evening star., 1934-11-05
COURT OF APPEALS
NULL|F|ES FREEING
OF TRIO ON REPEAL
0'Hearne Faces Return to
Jail for Balance of TO-
Month Term.
JOHNSON AND DODS0N
CASES ALSO INVOLVED
Tribunal Holds Evidence Lacking
Showing Congress Intended
Act Be Retrospective.

Jack E. O'Hearne, who was released
from the District Jail after repeal of
the eighteenth amendment, must now
go back and serve out the balance
OF l0-month sentence imposed upon
him in connection with a violation
Of the national prohibition act. the
District Court of Appeals decided
today.
Similar rulings were handed down
by the appellate court in the cases
of Harry T. johnson and George Dod-
son, prohibition offenders, and we're
likewise released from jail after repeal.
Guilty of Contempt.
OHearne, we'll known figure here
in night club circles during the dry
era, was adiudged guilty of contempt
Of court for ignoring an injunction
forbidding him to violate the prohibi-
tion act. He started serving the SEN
tence, but shortly after repeal applied
for his release on the theory that rati-
flcation Of the twenty-frst amendment
had invalidated his sentence.
He was ordered released in District
Supreme Court, where it was held the
sentence was no longer effective. Dis
satisfied with this ruling. United
States Attorney Leslie c. Garnett and
his assistants, H. L. Underwood and
William A. Gallagher, took an appeal.
In an opinion written by Associate
Justice Hitz, the Court of Appeals
held there was no showing that Con-
gress had intended to make the twen-
ty-first amendment retrospective in its
effect. The opinion of the court said,
in part:
Court Cannot Change Law.
Assuming that it would have been
competent for the Congress to propose
and for the people to adopt the
twenty-flrSt amendment in a form
having retrospective effect on penal
ties imposed but not yet performed
under the eighteenth amendment,
which it repealed, this was not done.
and 1t is not open to the courts to
do so by assuming to read into the re-
pealing amendment provisions which
1t does not contain. 1t 1t should be
considered that undue hardship is
thereby brought upon individuals.
either few or many. the remedy lies
with the legislative and executive de-
partments of the Government, which
can relieve the situation by amnesty
or pardon.
The appellee (OHearne) asserts
that he seeks no retrospective appli-
cation of the twenty-frst amendment
and that the fortune of war leaves
him without remedy in respect of so
much of his sentence as was served
before the repeal of the eighteenth
amendment, but that each day of his
confinement thereafter is a new and
distinct wrong inflicted upon him by
executive power acting under the
supposed authority of the amendment
and the national prohibition act. But
judicial control of this case properly
ended when the prisoner was COM
mitted to the prison and execution
of the sentence was undertaken by
the Executive. That duty of the
amendment rests not upon the
eighteenth amendment or the ma
tional prohibition act, but upon the
constitutional and statutory obliga-
ton of the President to see that ell
laws are faithfully executed. and
along with that constitutional duty
goes the constitutional power to grant
pardons in his grace and the in
terest of justice"
Higher Appeal Likely.
1t was believed O'Hearne will ask
the United States Supreme Court to
review the decision, and in that event
nothing will be done by the Govern
ment until after that tribunal has
taken action. If he does not seek a
review, United States Attorney Gar
nett said he would be sent back to
jail as soon as the mandate comes
down from the Court of Appeals
OHearne had served only about four
and one-haf months of the sentence
when he was released.
Dodson and johnson were serving
time for direct violations of the pro-
hibition act. They could not be
reached for comment.