Vandevander v. United States, 12339.
| Citation | 172 F.2d 100 |
| Decision Date | 01 February 1949 |
| Docket Number | No. 12339.,12339. |
| Parties | VANDEVANDER v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Riley Cunningham, of Booneville, Miss., for appellant.
Chester L. Sumners, U. S. Atty., of Oxford, Miss., for appellee.
Before SIBLEY, HOLMES, and McCORD, Circuit Judges.
A libel of information for forfeiture under Internal Revenue Code, § 3321, 26 U.S. C.A. § 3321, was filed against a seized automobile. It alleged that the automobile had on March 7, 1947, and on April 28, 1947, been used in the removal, deposit and concealment of whisky on which a tax was imposed but was unpaid, "with intent and for the purpose of defrauding the United States" of the tax.1 Appellant Vandevander claimed the automobile and denied it was so used with that intent and purpose, and demanded a jury trial. A jury was empanelled and evidence heard, whereupon each party moved for a directed verdict. The judge overruled both motions and submitted to the jury the question of intent, telling the jury that the burden was on the claimant to prove the tax had been paid if he relied on that as a defense. The jury made a mistrial and was discharged. The United States then renewed the motion for a directed verdict and the claimant did the same. The judge expressed the opinion that the finding of tax unpaid liquor in an automobile raises the prima facie presumption that it is being used to defraud the government of the tax, and that the defense that the occupants of the car had it to drink did not rebut that presumption; and held that as a matter of law a verdict and judgment of condemnation were demanded. Without a verdict he entered such a judgment.
1. Although a libel of information is used to prosecute a seizure for condemnation on land, it is a common law case in which a jury trial is a constitutional right. The Sarah, 8 Wheat. 391, 5 L.Ed. 644; United States v. Winchester, 99 U.S. 372, 25 L.Ed. 479; One Plymouth Automobile v. United States, 5 Cir., 165 F.2d 186, and cases cited.
2. Although both sides moved for a directed verdict, this no longer waives the right to a jury trial. Federal Rules of Civil Procedure, rule 50(a), 28 U.S.C.A. The demand for jury trial stood.
3. There were fact issues for the jury. On March 7 the car was stopped and searched and a "Calvert Whisky bottle" about two-thirds full of liquid found somewhere in it. One Henderson was in the car with Vandevander, who was driving. The officer testified he thought the bottle had been refilled and the liquid in it smelled and tasted like corn whisky. Vandevander testified the whisky was not his, and he did not put it in the car or know it was in there. Henderson did not testify.
As to the April 28 transaction, Vandevander and Henderson were driving at excessive speed in the town where they both worked at a cafe, and were arrested by a traffic officer therefor, who testified they tried to outrun him, and that what smelled like whisky was poured out of what looked like a fruit jar and splashed on his windshield, and that as he overtook them another fruit jar was thrown out and broke, and there was the smell of corn whisky, and enough found spilled in the car to burn with a blue flame. Nothing was testified as to the source of the whisky or the presence or absence of revenue stamps on the...
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