Day v. United States

• Decision Date: 18 February 1915
• Docket Number: 1264.
• Citation: 220 F. 818
• Parties: DAY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

220 F. 818

DAY v. UNITED STATES.

No. 1264.

United States Court of Appeals, Fourth Circuit.

February 18, 1915

Charles A. Hammer and John Paul, both of Harrisonburg, Va., for plaintiff in error.

Richard E. Byrd, U.S. Atty., of Richmond, Va., for the United States.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

KNAPP Circuit Judge.

The plaintiff in error (defendant below) was convicted of carrying on 'the business of a wholesale liquor dealer without having paid the special tax therefor as required by law. ' The indictment contains two counts: the first charging commission of the offense in the year 1910, and the second charging a like violation of the statute in 1911. The facts which appear to be material and the contentions disclosed by the assignments of error may be summarized as follows The distillery in question, which is located near Timber Ridge, in the county of Rockbridge, Va., was operated for a number of years for the production of apple brandy. During the years named in the indictment, and apparently before that, the land on which the distillery building stands, if not the building itself, was owned by defendant's wife while the distillery apparatus and fixtures belonged to his brother, T. T. Day, who lived some 50 miles away in Amherst county, but who spent more or less of his time at Timber Ridge during the brandy-making season. In the previous years of operation, as well as in 1910 and 1911, the distillery was bonded by T. T. Day. The defendant asserts that the business at all times belonged to his brother and was actually conducted by him, and that he was merely the agent of his brother in looking after the distillery and selling the brandy produced. The government contends that, although the distillery was bonded by T. T. Day, the business in fact was carried on by the defendant, and the sales in question made for his own benefit. This appears from the following clear statement in the charge to the jury:

'If you believe from the evidence beyond all reasonable doubt that the defendant made the sales of brandy as testified by the government witnesses in chief, and if you also believe beyond all reasonable doubt that the defendant was in fact the owner and proprietor of the distillery in question at the time said sales were made, you should find him guilty as charged in the indictment, although you may believe that in making such sales the defendant was ostensibly acting as the agent of T. T. Day. On the other hand, if T. T. Day was in fact the proprietor of the distillery, and if in making the aforesaid sales of brandy the defendant was in fact acting as the agent of said T. T. Day, you should acquit the defendant. You are further instructed that an agent, if such in fact, may lawfully do any act which his principal may lawfully do.'

In making out its case the government was allowed to show against the defendant's objection, that he had made sales of brandy in his own name in November, 1909, and two checks in payment thereof, drawn to his order by one Willis, and dated the 9th and 24th of that month, were received in evidence. Later in the trial, when the defendant was under cross-examination, the government was permitted, against his objection, to introduce in evidence two checks drawn to his order by one Franey, dated, respectively, December 17 and 24, 1909, which he admitted were given to him in payment for brandy. It thus appears that at least four transactions in 1909, similar in character and about equal in number to the transactions proven in 1910, were allowed to be shown by the government in support of the charge of carrying on the business of a wholesale liquor dealer in the years covered by the indictment.

We are of opinion that it was error to admit this evidence, and its prejudicial effect can scarcely be doubted. It is a familiar and long-established rule that similar acts or misdeeds of the accused are inadmissible against him, except where they are material in proof of some necessary element of the offense for which he is on trial. This rule is laid down by all the text-writers and in numberless decisions. An exception is found in cases where the criminality of the act depends upon the intent of the accused, and the wrongful intent must therefore be established. In such cases evidence may...