7 Fifths Old Grand-Dad Whiskey v. United States
| Decision Date | 03 March 1947 |
| Docket Number | No. 3371.,3371. |
| Citation | 158 F.2d 34 |
| Parties | 7 FIFTHS OLD GRAND-DAD WHISKEY et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Hal M. Black and John B. Bryant, of Wichita, Kan., for appellants.
Lester Luther, Asst. U. S. Atty., of Topeka, Kan. (Randolph Carpenter, U. S. Atty., of Topeka, Kan., on the brief), for appellee.
Before PHILLIPS and HUXMAN, Circuit Judges, and CHANDLER, District Judge.
Writ of Certiorari Denied March 3, 1947. See 67 S.Ct. 870.
The United States instituted this action for the forfeiture of approximately 458 gallons of intoxicating liquor, because of its transportation into the State of Kansas in violation of the provisions of the Liquor Enforcement Act of 1936.1 The trial court ordered that the liquor be forfeited to the United States, and W. R. Herndon,2 the Claimant, appealed.
The case was presented on an agreed statement of facts.
On November 9, 1945, Investigators for the United States Alcohol Tax Unit entered the premises of the Claimant and seized the liquor in question, all of which contained more than four per cent of alcohol by volume. The search and seizure was made under the authority of a search warrant issued by a United States Commissioner. At the time of the seizure, the Claimant had a United States Retail Liquor Dealer Special Tax Stamp, which had been purchased about September 1, 1945, but he did not hold a permit allowing transportation of liquor into Kansas, issued by the State of Kansas.
All of the liquor had been distilled and bottled in states other than Kansas, having been bottled at various dates subsequent to August 1, 1943, and prior to November 9, 1945, and all of it bore United States Government liquor stamps and state liquor stamps of the States of Illinois, Nebraska, and Missouri. The liquor had been brought into Kansas from other states subsequent to January 1, 1944, and prior to November 9, 1945, by persons unknown, from whom Claimant purchased it in Sedgwick County, Kansas.
Kansas is a state in which all sales (except for scientific, sacramental, medicinal, and mechanical purposes) of intoxicating liquor containing more than four per cent of alcohol by volume are prohibited.3
The Claimant was not arrested by the United States Officers, and no prosecution is contemplated by the United States Attorney.
The trial court found that the liquor in question was not brought into the State of Kansas for "scientific, sacramental, medicinal, or mechanical purposes," which statement was not included in the agreed statement of facts.
27 U.S.C.A. § 223 provides in part as follows:
27 U.S.C.A. § 224 provides in part as follows:
"All intoxicating liquor involved in any violation of this chapter * * * the containers of such intoxicating liquor, * * * shall be seized and forfeited. * * *."
As grounds for reversal, the Claimant asserts: First, that the trial court went outside the agreed statement of facts in the findings of fact; second, that the court erred in holding that the liquor was subject to forfeiture under the statute, in absence of a showing that the Claimant intended to defraud the United States of a tax at the time of the seizure, or that there was an arrest or conviction of the person bringing the liquor into the state; and, third, that the liquor was not subject to forfeiture to the United States, because, as far as Federal statutes are concerned, the Claimant was in lawful possession of the liquor in the State of Kansas.
It is stipulated...
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