Before PHILLIPS, BRATTON and HUXMAN, Circuit Judges.
This is an appeal from a judgment of forfeiture of a 1941 Chrysler automobile under 49 U.S.C.A. § 782. Sec. 782 in part reads: "Any vessel, vehicle, or aircraft which has been or is being used in violation of any provision of section 781, or in, upon, or by means of which any violation of section 781 has taken or is taking place, shall be seized and forfeited; * * *".
Section 781(a) in part reads as follows: "It shall be unlawful * * * (3) to use any vessel, vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possesion, purchase, sale, barter, exchange, or giving away of any contraband article."
The facts in the case are these: Blanche Cooper was a dope addict. She was living at home with her mother, the appellant, who was the owner of the automobile in question. Apparently she had been obtaining drugs on questionable doctor's prescriptions. On the evening of the day in question, she asked her mother for the use of her automobile. Her request was granted. There is some evidence that she had been permitted the use of the car on a few other occasions. About 8:30 p.m. on the date in question, accompanied by a neighbor's little girl, she drove up to the Montgomery Drug Store. She parked the car across the street from the store, entered the drugstore, presented a prescription purporting to be signed by Dr. Dolan, and obtained twelve quarter grain morphine tablets. As she came out of the drugstore she was arrested by a United States narcotics agent, and the drug was seized and taken from her. Her mother knew that she was a drug addict, but did not know, if she had it in mind when she asked for the use of the car, that she intended to go to the drugstore to obtain drugs. These facts are not in dispute. The only disputed issue of fact relates to the genuineness of the prescription. Blanche Cooper claimed that the prescription was genuine, while the government, on the other hand, contended that the doctor's name was forged thereto.
The case was tried to a jury sitting in an advisory capacity. The following questions were submitted to the jury for answer. "1. Do you find from the evidence that narcotics were obtained by Blanche Cooper on June 19, 1946, by means of a forged prescription?" and "2. Do you find that the 1941 Chrysler Sedan was used by Blanche Cooper to facilitate the procurement of such narcotics?" Both questions were answered in the affirmative. Question No. 2 was answered in the affirmative by direction of the court. The court adopted the answers of the jury as its findings of fact, and made additional findings of fact on matters not submitted to the jury. These additional findings are not in issue here and are therefore not set out. Based on the findings, the court concluded as a matter of law that the drugs were contraband within the terms of Title 49, Sec. 781 et seq., U.S.C.A. and that the automobile in question was subject to forfeiture.
One of the main points urged for reversal is that the provisions of Section 781(a)(3) are so vague and indefinite as to render the Act unconstitutional. The main attack is directed against the phrase "to facilitate." It is argued that this phrase is of such indefinite meaning that the statute is void for uncertainty. The word "facilitate" is one of common use in business and transactions between ordinary persons. It is a term of everyday use, with a well understood and accepted meaning. Webster defines "facilitate" as meaning: "To make easy or less difficult; to free from difficulty or impediment; as to facilitate the execution of a task. (2) To lessen the labor of; to assist; * * *". Funk & Wagnall's New Standard Dictionary defines "facilitate" a follows: "To make more or less difficult; free more or less completely from obstruction or hindrance; lessen the labor of." The word "facilitate" appears in many federal statutes. In none of them is it defined, but the presumption is that when Congress used this word, it ascribed to it its ordinary and accepted meaning. What is then meant by the use of the word "facilitate" is that if an automobile is used to assist in the commission of the crime,*fn1 it is subject to forfeiture. The crime charged here was the illegal purchase of narcotics. The use of the automobile did not make the accomplishment of the purchase more easy or free it from obstructions or hindrance, or make the sale any less difficult. It was merely the means of locomotion by which Blanche Cooper went to the store to make the purchase. Its use enabled her to get to the store more quickly than if she had walked or had used a slower means of transportation. But the argument that this facilitated the purchase disregards the ordinary and accepted meaning of the word when applied to the sale. Ascribing such a meaning to the use of the word "facilitate" would raise grave doubts as to the constitutionality of the statute on the ground of vagueness and indefiniteness. The means employed by Blanche Cooper in going to the store had nothing to do with the purchase. The ease or difficulty of the purchase would have been the same no matter how she got there. Ascribing to the word "facilitate" its ordinary, everday, accepted meaning and understanding, we have no difficulty in upholding the constitutionality of the Act against a charge that the statute is so vague and indefinite as to fail to apprise one charged with its violation of the exact nature of the crime charged.
The point that the parties stipulated that the automobile was used to facilitate the purchase of the drug and that the court therefore did not decide this issue, and that in any event the cause should be remanded for a determination of that issue by the trial court, lurks in the background. A careful analysis of the record, however, establishes that this is not the case.
At the conclusion of the trial, the court instructed the jury. Its closing instruction related to the consideration the jury should give to the answer to the two questions propounded, as outlined above. At this point the following colloquy occurred between the court and attorney for appellant:
"Mr. Spillers: If the Court please, I think question No. 2 ought to be withdrawn because there is no question about that.
The Court: Well, I will ask you to answer No. 2 in the affirmative because there actually isn't any question.* * *
"Mr. Spillers: No question about that.
Just what appellant's attorney meant by his statement that there was no question about Question No. 2 is not clear. If he meant that the evidence required an affirmative answer, then his suggestion that the question be withdrawn was improper. In that event the jury should have been instructed, as it was, to answer in the affirmative. That the court was of the opinion that the evidence required an affirmative ...