Bailey v. United States

Decision Date06 April 1925
Docket NumberNo. 4319.,4319.
PartiesBAILEY v. UNITED STATES.
CourtU.S. Court of Appeals — Fifth Circuit

A. A. Lawrence and John J. Bouhan, both of Savannah, Ga. (A. L. Herzog and E. H. Abrahams, both of Savannah, Ga., on the brief), for plaintiff in error.

Chas. L. Redding, Asst. U. S. Atty., of Savannah, Ga., and White B. Miller, Sp. Asst. Atty. Gen., for the United States.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge.

All of the assignments relate to the overruling of a demurrer to the indictment. The indictment contains only one count, and charges that Bailey, plaintiff in error here, and several other defendants, entered into a conspiracy under section 37 of the Criminal Code, being Comp. St. § 10201: (1) With intent to defraud the revenue of the United States, to smuggle and clandestinely introduce from the Bahama Islands into the United States at points near Savannah, within the Southern district of Georgia, intoxicating liquors, "the same being merchandise subject to duty, and which should have been invoiced, that is to say, brandy, whisky, gin, and other distilled spirits, and champagne"; (2) to facilitate the transportation of "said merchandise, from the several places where it was so to be introduced into the United States as aforesaid, to divers nearby storage and distributing points, and from those points to Savannah aforesaid, and to other points to said grand jurors unknown, after the importation of said merchandise as aforesaid"; (3) to transport a portion of "said merchandise and intoxicating liquors" to storage and distributing points, and from there to Savannah and to other points unknown, without a permit from the Commissioner of Internal Revenue; (4) to sell at one of the storage points, or at Savannah, or at points unknown, for beverage purposes, "a portion of said intoxicating liquors and merchandise"; and (5) to carry on the business of a wholesale liquor dealer without having first paid the special internal revenue tax. The conspiracy is alleged to have been a continuing one from July, 1921, to the date of the filing of the indictment in August of 1923. All the overt acts under it are alleged to have been committed in 1923.

In support of the demurrer it is contended that the customs duty on intoxicating liquor and the internal revenue tax on wholesale liquor dealers were repealed by the Eighteenth Amendment; that paragraphs 801, 802, and 803 of title 1 of the Revenue Act of 1922 (Comp. St. Ann. Supp. 1923, § 5841a) are void, because they are repugnant to the Eighteenth Amendment; that smuggling and the carrying on of the business of a wholesale liquor dealer without a license are not offenses, but are averments descriptive of the conspiracy, and cannot be rejected as surplusage, which places the government in the position of not being able to prove the conspiracy as alleged; that the indictment is void for duplicity, in that it charges several offenses in a single count; and that it is vague and uncertain, because, although it alleges a conspiracy to transport liquor without a permit and to sell it for beverage purposes, it fails to identify the places from and to which the defendants conspired to transport the liquor and at which they conspired to sell it.

Whether the Eighteenth Amendment repealed the customs duty on liquor is not material in this case. A duty was imposed by the tariff provisions of the Act of 1922. 42 Stat. 858, c. 356 (Comp. St. Ann. Supp. 1923, § 5841a et seq.). Sections 2865 and 3082 of the Revised Statutes (Comp. St. §§ 5548, 5785), which prohibit smuggling of any merchandise with intent to defraud the revenue of the United States, and concealment and facilitating the transportation of such merchandise after importation, respectively, were in substance re-enacted. 42 Stat. 982 (Comp. St. Ann. Supp. 1923, §§ 5841h-12, 5841h-13). It is too late to contend that the United States may not tax intoxicating liquors, notwithstanding their production or importation is prohibited. United States v. Yuginovich, 256 U. S. 450, 41 S. Ct. 551, 65 L. Ed. 1043; ...

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14 cases
  • Weiss v. United States, 9735.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 24, 1941
    ...3 Cir., 97 F.2d 197. 2 Sec. 215, Criminal Code, 18 U.S.C.A. § 338. 3 Muench v. United States, 8 Cir., 96 F.2d 332. 4 Cf. Bailey v. United States, 5 Cir., 5 F.2d 437, which holds that a conspiracy to commit several offenses may properly be included in the same count of an indictment, citing,......
  • State v. Waterhouse
    • United States
    • Supreme Court of Oregon
    • February 13, 1957
    ...reference to the treaty may be rejected as surplusage, and the indictment still states facts sufficient to constitute a crime. Bailey v. U. S. [5 Cir.] 5 F.2d 437; Remus v. U. S. [6 Cir.] 291 F. 501; [United States] v. Weiss [7 Cir.] 293 F. 992, 995; [United States] v. Drawdy [5 Cir.] 288 F......
  • United States v. Perlstein, 7794.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • February 20, 1942
    ...the Criminal Code, has repeatedly received a construction analogous to that which we have placed upon it. In the case of Bailey v. United States, 5 Cir., 5 F.2d 437, appeal dismissed 269 U.S. 551, 589, 46 S.Ct. 12, 70 L.Ed. 427, the indictment alleged a conspiracy continuing from July, 1921......
  • Troutman v. United States, 1671
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • January 9, 1939
    ...39 S.Ct. 249, 63 L.Ed. 561; Anderson v. United States, 8 Cir., 273 F. 20; Taylor v. United States, 7 Cir., 2 F.2d 444; Bailey v. United States, 5 Cir., 5 F.2d 437; Perry v. United States, 5 Cir., 39 F.2d 52; Dowdy v. United States, 4 Cir., 46 F.2d 417; Blum v. United States, 6 Cir., 46 F. 2......
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