30 F.2d 485 (5th Cir. 1929), 5362, Anderson v. United States

Docket Nº:5362.
Citation:30 F.2d 485
Opinion Judge:FOSTER, Circuit Judge.
Party Name:ANDERSON v. UNITED STATES.
Attorney:J. Q. Mahaffey, of Texarkana, Tex. (John J. King, J. I. Wheeler, and C. E. Bryson, all of Texarkana, Tex., on the brief), for appellant. Randolph Bryant, U.S. Atty., of Sherman, Tex.
Judge Panel:Before WALKER, BRYAN, and FOSTER, Circuit Judges.
Case Date:February 06, 1929
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 485

30 F.2d 485 (5th Cir. 1929)

ANDERSON

v.

UNITED STATES.

No. 5362.

United States Court of Appeals, Fifth Circuit.

February 6, 1929

Appeal from the District Court of the United States for the Eastern District of Texas; W. Lee Estes, Judge.

Melvin D. Anderson was convicted of carrying on the business of a retail liquor dealer without having paid the special tax, and he appeals. Reversed and remanded.

J. Q. Mahaffey, of Texarkana, Tex. (John J. King, J. I. Wheeler, and C. E. Bryson, all of Texarkana, Tex., on the brief), for appellant.

Randolph Bryant, U.S. Atty., of Sherman, Tex.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Appellant and two others, Son Simpson and J. A. Hocker, the latter a colored woman, were convicted of carrying on the business of retail liquor dealers, without having paid the special tax therefor, as required by law, in violation of section 3242, R.S., as amended by the Act of Feb. 8, 1875 (26 USCA § 193). Appellant was sentenced to pay a fine of $100 and to two years' imprisonment in the penitentiary. He is the only one before the court of this appeal.

Page 486

Error is assigned to the overruling of a demurrer to the indictment. The indictment tracks the statute and is sufficient in form. Ledbetter v. U.S., 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162. The offense is alleged to have been committed since the adoption of the Act of November 23, 1921 (42 Stat. 222), popularly referred to as the Willis-Campbell Act. It is settled that it is still an offense to carry on the business of retail liquor dealer without having paid the license tax for so doing, although no tax may be in fact paid, nor may permission be granted to conduct the business. U.S. v. Remus et al., 260 U.S. 477, 43 S.Ct. 197, 67 L.Ed. 358. The demurrer was properly overruled.

Appellant moved to strike out all the evidence at the conclusion of the case for the government, on the ground of fatal variance between the allegation of the indictment as to the place of business and the proof. The indictment charged that the business was conducted at the premises known as 1706 Texas avenue in the city of Texarkana, Texas. There was no doubt that the premises were numbered 1,706, but beyond that the evidence was conflicting. There was evidence tending to show that signs designated the street as Texas avenue, and that the house numbers ran consecutively from one end of what was admittedly Texas avenue past the premises. On the other hand, there was evidence tending to show that the particular part of the street where the house was located was designated on the city maps as Ghio-Fish Boulevard. The court overruled the motion to strike the evidence, and charged the jury as a matter of law that the premises were sufficiently identified.

It would have been sufficient to charge the offense in more general terms, but, the pleader having elected to name the particular premises, the description became matter of substance to be proved as alleged. Bishop's New Cr. Proc. Par. 488. It would seem that the designation of the street by the city authorities would be conclusive. If it was Ghio-Fish Boulevard, the variance was fatal. But in any event the question, on conflicting evidence, was for the jury, and the charge given constituted error.

There was evidence tending to show that on two occasions, January 25 and January 31, whisky was purchased by government agents from the defendant Simpson, and that on two other occasions, January 30 and February 8, whisky was purchased by government agents from the defendant Hocker. It was not shown that any sale was ever made by Anderson. The premises consisted of a building and a garage. The main floor had been used as a barbecue stand but was not then in operation. Upstairs were some 10 rooms. Anderson was the owner of the premises, and...

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