Brenner v. United States

• Citation: 287 F. 636
• Decision Date: 11 December 1922
• Docket Number: 23.
• Parties: BRENNER et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

287 F. 636

BRENNER et al. v. UNITED STATES.

No. 23.

United States Court of Appeals, Second Circuit.

December 11, 1922

Thomas J. Cuff, of New York City (Vine H. Smith and Henry P. Keith both of New York City, of counsel), for plaintiffs in error.

Ralph C. Greene, U.S. Atty., of Brooklyn, N.Y. (Henry J. Walsh Asst. U.S. Atty., of Brooklyn, N.Y., of counsel), for the United States.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

MANTON Circuit Judge.

The indictment against the plaintiffs in error contains three counts. There was an acquittal directed on the second and third counts, and the case was submitted to the jury under the proof and a conviction rendered under the first county only. The first count charges that the plaintiffs in error conspired between the 1st of December, 1919, and the 26th of December, 1919, 'to commit an offense against the United States government, to wit, to use nonbeverage alcohol 'for beverage purposes' in violation of the Food Control Act of August 10, 1917 (Comp. St. 1918, Comp. St Ann. Supp. 1919, Sec. 3115 1/8e et seq.) and the Acts of November 21, 1918 (40 Stat. 1045), and October 3, 1917 (40 Stat. 300), ' and that in furtherance of the conspiracy the following overt act was committed 'That during the continuance of said conspiracy and for the purpose of effecting the object of the same, the said Herman Brenner, Leo Brenner, * * * and each of them, did purchase five barrels of distilled spirits, to wit, nonbeverage alcohol, from divers person to the said grand jurors unknown.'

The alcohol referred to was testified to by government experts as being grain alcohol and containing nothing injurious. It is also referred to as 'cologne spirits,' which is said to mean that it is high-proof alcohol, such as is used for the manufacture of cologne. A motion was made to dismiss the indictment for insufficiency at the opening of the trial, and the motion was renewed at the end of the government's proof. At this stage of the trial, the record discloses the following:

'Mr. Cuff: Now the defendant moves to dismiss the first count in the indictment on the first ground that there is no crime alleged--

'The Court: I have passed on your motion to dismiss on the indictment. I have those, and gave you an exception. Any motion that I shall entertain at the present time is the motion whether there shall be an acquittal directed on the ground no conspiracy has been proven.

'Mr. Cuff: We make the motion separately as to each count. The court denies each motion as to each count. Now we move the three counts together, that a verdict of acquittal be directed for the reason that no crime has been shown, no concert of action to commit these offenses which are charged in the indictment, and further than that on the ground that in no instance has an overt act been proved which is in furtherance of the conspiracy. * * *

'The Court: I will deny your motion.'

The sufficiency of the indictment is challenged by the assignments of error. We think this sufficiently presents the question of whether or not count 1 of the indictment charged a crime. The charge of conspiracy herein is that the plaintiffs in error conspired to commit an offense against the United States, to wit, to use nonbeverage alcohol for beverage purposes in violation of the Food Control Act of August 10, 1917 (40 Stat.c. 53, pp. 276-287), the Tax Act of October 3, 1917 (40 Stat.c. 63, pp. 300-338), and the war prohibition rider on the Agricultural Bill of November 21, 1918 (40 Stat.c. 212, p. 1045 et seq.). An examination of these statutes discloses that there is nothing contained therein which made it unlawful for the plaintiffs in error to receive alcohol and transport it or have it in their possession or in their place of business. There is no charge in the indictment that they conspired to sell such liquor for beverage purposes, or that they conspired to sell it for any purpose. The charge is a conspiracy to use nonbeverage spirits for beverage purposes and nothing more. The case proceeded to trial, and it was submitted to the jury on a charge of conspiring to obtain the alcohol by an illegal sale and also that the plaintiffs in error conspired to obtain nonbeverage alcohol and use it for beverage purposes, thus avoiding the regulations of the Internal Revenue Acts.

It will not be necessary for us to examine more than the question presented in the assignment of error as to the sufficiency of the indictment in charging a crime, for we think the indictment was demurrable. The Food and Fuel Control Act of August 10, 1917, known as the Lever Act, placed in the hands of the government, for war purposes, complete control over the supply and distribution of food and fuel. Section 15 of that act provided that certain food material, such as grains, should not be used in the distillation of spirits, and section 16 authorized the President to commandeer stocks of spirits for the manufacture of munitions, etc. But nothing contained in these statutes that we are able to find, would prohibit the use of nonbeverage alcohol for beverage purposes. The Prohibition Act bears no relation to the conduct of the plaintiffs in error as set forth in the indictment. The Act of October 3, 1917, is entitled 'An act to provide revenue to defray war expenses and for other purposes. ' Its provisions impose new taxes on various articles, including an additional tax on spirits. This taxation is, however, where the spirits are withdrawn from bond for beverage use or otherwise intended for such use. They contained no prohibition of the beverage use of nonbeverage alcohol. The court in its charge to the jury stated that this statute had no bearing upon the case. The Act of November 21, 1918, was entitled 'An act to enable the Secretary of Agriculture' to do certain things by appropriating certain sums (1) to prevent disease of live stock; (2) for procuring distribution, etc., of seeds; (3) to eradicate insects; (4) to increase food production. This last provision provided that after June 30, 1919, and until the conclusion of the war and demobilization, the...