Busic v. United States, 5354.

• Decision Date: 10 May 1945
• Docket Number: No. 5354.,5354.
• Citation: 149 F.2d 794
• Parties: BUSIC v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

149 F.2d 794 (1945)

BUSIC v. UNITED STATES.

No. 5354.

Circuit Court of Appeals, Fourth Circuit.

May 10, 1945.

Eugene Trivette and Kyle Hayes, both of North Wilkesboro, N. C. (J. E. Holshouser, of Boone, N. C., on the brief), for appellant.

Robert S. McNeill, Asst. U. S. Atty., of Greensboro, N. C. (Carlisle W. Higgins, U. S. Atty., of Greensboro, N. C., and Donald B. Anderson, Atty., Department of Justice, of Washington, D. C., on the brief), for appellee.

Before PARKER, DOBIE, and NORTHCOTT, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is an appeal from a judgment entered in an action of libel filed by the United States of America, in the District Court of the United States for the Middle District of North Carolina, brought for the purpose of condemning and forfeiting a certain automobile. The appellant, Ben Busic, as claimant of the automobile filed an answer to the libel and the cause was heard by the judge without a jury. Evidence was taken and in January, 1945, the court below rendered a judgment forfeiting and condemning the said automobile and an order was entered to that effect. From this action of the court below the claimant brought this appeal.

There is no dispute as to the facts. The claimant, Busic, was owner of the Busic Cab Company of North Wilkesboro, North Carolina, and operated several taxicabs one of which was the Ford automobile here in question. One Mayford Johnson was a regular employee of the claimant and operated the said automobile as a taxicab. Johnson was operating the said taxicab on November 4, 1944, when two colored men hired it and while in it they requested the driver to get them some whiskey at a service station located about two miles from the town of North Wilkesboro. Johnson took the two men to the service station and went in and bought for his passengers two one-half pints of whiskey and each of the colored men put one-half pint of whiskey inside his shirt. The Government officers, agents of the Alcoholic Tax Unit, who had been watching the filling station as a place suspected of dealing in nontax-paid liquors stopped the automobile as it left the filling station and took the whiskey off the persons of the two negroes. Later the same day, Johnson, the driver, was arrested and the automobile seized by the federal officers and this proceeding was instituted under section 3450, Rev.St. as modified by section 3321, 26 U.S.C.A. Int. Rev.Code. The claim for remission of the forfeiture is made by the claimant under Title 18, Section 646, U.S.C.A.

Two questions are involved: First, whether there was sufficient evidence to justify the finding of the judge forfeiting the automobile; second, whether the judge should have remitted the forfeiture.

On the first question, under the admitted facts, we are of the opinion that there was sufficient evidence to justify the finding of the judge below. It is well settled that a vehicle used for concealing or removing intoxicating liquor upon which the tax has not been paid is subject to forfeiture. In the case of United States v. One Ford Coupe Automobile, 272 U.S. 321, 47 S.Ct. 154, 157, 71 L.Ed. 279, 47 A.L.R. 1025, the court says:

"Under section 3450, it is not essential that the offender must have been either the manufacturer or importer of the liquor or a person directly associated with him. The government may look for payment also to the liquor itself and to whoever has possession of it. Nor does the language of section 3450, or its history, indicate that Congress intended to limit the...