Anderson v. United States

Citation30 F.2d 485
Decision Date06 February 1929
Docket NumberNo. 5362.,5362.
PartiesANDERSON v. UNITED STATES.
CourtU.S. Court of Appeals — Fifth Circuit

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 on this appeal.

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 testified that he sometimes rented the rooms and the garage to automobile tourists, when the regular parking place was filled, and that he had intended disposing of the premises for the purpose of acquiring a farm. On February 8th, when a search warrant was executed, he was found in the premises in one of the rooms lying down on a bed, and he produced from some place, not on his person, a key to unlock a room in which there was found beer and the paraphernalia for making it. The alcoholic content of the beer was not shown. He denied any knowledge of the sales having been made, or that he was at all concerned in the business of selling.

It must be borne in mind that appellant was not indicted for making a sale of intoxicating liquor for beverage purposes, in violation of the National Prohibition Act (27 USCA). The offense with which he was charged was conducting the business of retail liquor dealer without having paid the license tax, the penalty for which is very much more severe than for a first offense violation of the Prohibition Act. The offense is well defined in Ledbetter v. U. S. supra, page 610 of 170 U. S. (18 S. Ct....

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14 cases
  • State v. Adcock
    • United States
    • North Carolina Supreme Court
    • January 10, 1984
    ...for this type of instruction in the lower court decisions, Garst v. United States (CA4th Va.) 180 F. 339, 343; Anderson v. United States (CA5th Tex.) 30 F.2d 485-487; Stutz v. United States (CA5th Fla.) 47 F.2d 1029, 1030; Hanson v. United States (CA6th Ohio) 208 F.2d 914, 916, but the bett......
  • United States v. Nelson
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    • U.S. Court of Appeals — Ninth Circuit
    • November 20, 1969
    ... ... There is some support for this type of instruction in the lower court decisions, Garst v. United States, 4 Cir., 180 F. 339, 343; Anderson v. United States, 5 Cir., 30 F.2d 485-487; Stutz v. United States, 5 Cir., 47 F.2d 1029, 1030; Hanson v. United States, 6 Cir., 208 F.2d 914, 916, but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on ... ...
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    • April 6, 1977
    ...support for this type of instruction in the lower court decisions, Garst v. United States, 4 Cir., 180 F. 339, 343; Anderson v. United States, 5 Cir., 30 F.2d 485-487; Stutz v. United States, 5 Cir., 47 F.2d 1029, 1030; Hanson v. United States, 6 Cir., 208 F.2d 914, 916, but the better rule......
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    ...support for this type of instruction in the lower court decisions, Garst v. United States, 4 Cir., 180 F. 339, 343; Anderson v. United States, 5 Cir., 30 F.2d 485-487; Stutz v. United States, 5 Cir. 47 F.2d 1029, 1030; Hanson v. United States, 6 Cir., 208 F.2d 914, 916, but the better rule ......
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