Bullard v. United States

• Decision Date: 05 July 1917
• Docket Number: 1513.
• Citation: 245 F. 837
• Parties: BULLARD v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

245 F. 837

BULLARD v. UNITED STATES.

No. 1513.

United States Court of Appeals, Fourth Circuit.

July 5, 1917

W. F Stevenson, of Cheraw, S.C., for plaintiff in error.

Francis H. Weston, U.S. Atty., of Columbia, S.C., and J. Waties Waring, of Charleston, S.C., Asst. U.S. Atty.

Before KNAPP and WOODS, Circuit Judges, and WADDILL, District Judge.

KNAPP Circuit Judge.

Plaintiff in error, defendant below, was convicted of illicit distilling, and brings his case here on writ of error. The indictment contains seven counts, charging him, in substance (a) With having in his possession or under his control a distilling apparatus which was not registered; (b) with being a distiller of spirits, 'to wit, corn whisky,' without having given the bond required by law; (c) with carrying on the business of such distiller with intent to defraud the government of its tax; and (d) with working in a distillery for the production of spirits, 'to wit, corn whisky,' which distillery did not display the required sign. In the remaining counts the same charges as (b), (c) and (d) are repeated with reference to the distillation of rum, but as these counts were withdrawn from the jury they need not be considered. The defendant was found guilty on the first four counts.

Taking up the assignments of error, or such of them as appear to merit discussion, we come to a contention based upon the following instruction to the jury:

'It does not matter whether it was rum or whisky or brandy or any liquor which conforms to the statutory definition of distilled alcohol spirits. If he is proved to have been in possession of such a still and to have been in possession unlawfully and to have operated it unlawfully, then he is guilty, although the indictment might have charged him with producing distilled spirits called brandy and he was proved to have produced corn whisky, because the offense is the intended production or production of distilled alcohol spirits, and not of any particular class or name of such spirits.'

This instruction is claimed to be erroneous for the reason that the indictment, excluding the counts withdrawn, charges the unlawful production of a particular kind of spirits, namely, corn whisky, and it is argued that defendant could only be convicted for producing the specific article named in the indictment. We are unable to sustain the contention. The gravamen of the statutory offense is the unauthorized distillation of alcoholic spirits, and an indictment therefor need not specify the particular kind of spirits which the defendant is accused of producing. United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819; Coffey v. United States, 116 U.S. 427, 434, 6 Sup.Ct. 432, 29 L.Ed. 681. The specification in this case, therefore, might well be regarded as surplusage, the inclusion of which did not modify or restrict the applicable rule of law, since its omission would not affect the sufficiency of the indictment. But whatever might be said if the proofs had disclosed the production of rum or brandy, the objection is demonstrably without force in view of the fact that the only testimony upon the subject was the asserted finding, near the 'furnace' on defendant's premises, of 'several barrels of mash, made of fermented meal, such as is used from which to distill corn whisky. ' Inasmuch, then, as the evidence supported the specific charge in the indictment, it seems clear to us that defendant was in no wise prejudiced by the instruction quoted, even if it be assumed that such an instruction addressed to a different state of facts would be erroneous. The case of Terry v. United States, 120 F. 483, 56 C.C.A. 633, holds nothing to the contrary and has no pertinent application. To this it may be added that the objection here considered would appear unavailing for the further reason that it does not apply to the first count of the indictment, and conviction upon that count alone would be sufficient to sustain the judgment. Claassen v. United States, 142 U.S. 146, 12 Sup.Ct. 169, 35 L.Ed. 966.

Complaint is also made because the jury were told that if defendant 'allowed the use of his land for the still under any agreement whatsoever of sharing in its results, or under any agreement whatsoever that gave him the right to take charge and control of it, he would be equally responsible with the party in control and operation. ' We fail to see wherein this statement is incorrect or upon what ground it can be held erroneous. The defendant was charged with having an unregistered distilling apparatus in his possession and under his control, and with being a distiller of spirits. This was enough to permit proof, if the facts warranted, that he was engaged with others in the illicit business of which he was accused;...