United States v. Brunett
| Decision Date | 16 October 1931 |
| Docket Number | No. 10978.,10978. |
| Citation | 53 F.2d 219 |
| Parties | UNITED STATES v. BRUNETT et al. |
| Court | U.S. District Court — Western District of Missouri |
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Thomas J. Layson, Asst. U. S. Atty., and William L. Vandeventer, U. S. Atty., both of Kansas City, Mo.
Benedict A. Leerburger, of New York City, and Leslie J. Lyons and Donald E. Lyons, both of Kansas City, Mo., for defendants.
A grand jury in the St. Joseph division on September 23, 1931, returned an indictment in thirty counts charging defendants with various offenses against the National Prohibition Act (27 USCA). Prior to trial, the government dismissed counts IV, VIII, XII, XVI, XX, XXIV, XXV, XXIX, and XXX. The twenty-one remaining counts are in seven groups, the first consisting of counts I, II, and III, the second of counts V, VI, and VII, the third of counts IX, X, and XI, the fourth of counts XIII, XIV, and XV, the fifth of counts XVII, XVIII, and XIX, the sixth of counts XXI, XXII, and XXIII, and the seventh of counts XXVI, XXVII, and XXVIII.
Each count charges a violation of section 30, title 27, U. S. C. (27 USCA § 30) which is: "It shall be unlawful to advertise, manufacture, sell, or possess for sale any utensil, contrivance, machine, preparation, compound, tablet, substance, formula, direction, or recipe advertised, designed, or intended for use in the unlawful manufacture of intoxicating liquor."
All counts in the first five groups charge that defendants sold a preparation, compound, and substance designed and intended for use in the unlawful manufacture of intoxicating liquor. The counts in groups 6 and 7 charge that the defendants possessed for sale a preparation, compound, and substance designed and intended for use in the unlawful manufacture of intoxicating liquor.
Count I is: "The grand jurors of the United States of America, duly and legally chosen, selected, summoned and drawn from the body of the Western District of Missouri, and duly and legally empaneled, sworn and charged to inquire of and concerning crimes and offenses against the United States in the Western District of Missouri, upon their oaths present and charge that on or about the 20th day of October, 1930, at and near 3001 Forest Avenue, in Kansas City, Jackson County, Missouri, in the Western Division of the Western District of Missouri, one Albert E. Brunett, and one Ukiah Grape Products Company, a corporation duly incorporated and existing under and by virtue of the laws of the State of New Jersey, then and there being, did then and there unlawfully, wilfully, and knowingly, and in violation of the National Prohibition Act, sell to one Roy C. Shively, a certain preparation, compound and substance, to-wit, about 10 gallons of specially prepared concentrate, previously manufactured from grape juices and capable of producing wine, which said specially prepared concentrate was then and there designed and intended by the said Albert E. Brunett and the said Ukiah Grape Products Company for use by the said Roy O. Shively, in the unlawful manufacture of wine without a permit as required by the National Prohibition Act, as amended and supplemented: Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America."
Count II differs from count I only in that, whereas count I charges that the preparation, compound, and substance sold was intended to be used in the manufacture of wine, count II charges that it was intended to be used in the manufacture of a vinous liquor, intoxicating in fact. Count III differs from count I only in that, whereas count I charges that the preparation, compound, and substance sold was designed and intended for use in the unlawful manufacture of wine, count III charges that it was designed and intended for use in the manufacture of a vinous liquor containing more than one-half of 1 per cent. of alcohol by volume.
The counts in groups 2, 3, 4, and 5 are identical with the counts in group 1, except that in each group a sale to a different person on a different date is charged.
Count XXI, the first in group 6, is: "And the grand jurors aforesaid, upon their oaths aforesaid, do further present and charge that on or about the 19th day of January, 1931, the exact date being to these grand jurors unknown, at the railway express agency located at the union station, in Kansas City, Jackson County, Missouri, in the Western Division of the Western District of Missouri, one Albert E. Brunett and one Ukiah Grape Products Company, a corporation duly incorporated and existing under and by virtue of the laws of the state of New Jersey, then and there being, did then and there unlawfully, wilfully and knowingly, and in violation of the National Prohibition Act, possess for sale on the open market, a certain preparation, compound and substance, to-wit, about 150 gallons of specially prepared concentrate, previously manufactured from grape juices, and capable of producing wine, which said specially prepared concentrate was then and there designed and intended by the said Albert E. Brunett and the said Ukiah Grape Products Company for use, by purchasers thereof, in the unlawful manufacture of wine, without a permit as required by the National Prohibition Act, as amended and supplemented: Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America."
Count XXII differs from count XXI only in that, whereas count XXI charges that the defendants possessed for sale a preparation, compound, and substance designed and intended by the defendants for use by purchasers in the unlawful manufacture of wine, count XXII charges that the preparation, compound, and substance was designed for use by purchasers in the unlawful manufacture of a vinous liquor, intoxicating in fact. Count XXIII differs from count XXI only in that, whereas count XXI charges that the defendants possessed for sale a preparation, compound, and substance designed and intended by the defendants for use by purchasers in the unlawful manufacture of wine, count XXIII charges that the preparation, compound, and substance was designed for use by purchasers in the unlawful manufacture of a vinous liquor containing more than one-half of 1 per cent. of alcohol by volume.
The counts in the seventh group are identical with the counts in the sixth group, excepting that they refer to a possession for sale by the defendants at a different time and of a different quantity of the alleged preparation, compound, and substance.
Each of the defendants filed a demurrer to each of the counts of the indictment, setting up that none of them states facts constituting a crime. The demurrers were overruled. I set out here the points which defendants made in support of their demurrers and my reasons for concluding they were meritless. It is necessary to refer only to counts I and XXI. If they state facts constituting crimes, undoubtedly the other counts are not vulnerable.
Defendants assert that count I is bad, first, in that it does not charge that the product sold was intoxicating in fact; second, in that it does not charge how the unlawful manufacture was to be effected; and, third, in that it does not charge that the product sold was not to be used in the home of the purchaser.
The theory of the defendants is that although, speaking generally, count I may charge a crime under section 30, nevertheless in this instance it does not, for that it does not negative a defense which might be made under section 46, which last section relieves from the penalties of the National Prohibition Act one who manufactures nonintoxicating cider and fruit juices for exclusive use in his home. There is no merit in this theory as a ground for a demurrer. The rule is that an indictment which sets out the facts stated by one section of a statute to constitute a crime need not negative the facts which might, under another section or some other statute, constitute a defense. 31 Corpus Juris, 720. If the defendants' theory is applicable to an indictment based on section 30, it is applicable also to an indictment based on other sections of the National Prohibition Act prohibiting the manufacture of intoxicating liquors. It would be necessary in every such indictment to allege that the intoxicating liquor charged to have been manufactured was not a nonintoxicating cider or fruit juice manufactured by one for exclusive use in his home.
It is true that count I does not charge that the product therein alleged to have been sold by the defendants was designed and intended to be used in the manufacture of a liquor intoxicating in fact. But section 30 prohibits the sale of a product to be used in the unlawful manufacture of intoxicating liquor. The term "intoxicating liquor" in section 30 means liquor containing more than one-half of 1 per cent. of alcohol by volume, irrespective of whether it is intoxicating in fact.
It is true that count I does not charge how the unlawful manufacture was to be effected. Certainly it need not charge the manner of manufacture. It matters not what is the manner if there is manufacture. Defendants contend that what is done by the purchaser of their product is not manufacture. Whether it is is to be determined from the facts in evidence and not by requiring the plaintiff to plead evidence in its indictment from which it may be determined before trial.
It is true that count I does not charge that the product sold was to be used in the home of the purchaser. But there is nothing in section 30 which makes any reference to the place, whether in the home of a purchaser or elsewhere, where the manufacture is to occur. Certainly the government was not required to charge as an element of the offense what is not made one by the statute.
The theory of the defendants is that count XXI charges no...
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