Griffin v. United States, 7921.

• Decision Date: 02 September 1959
• Docket Number: No. 7921.,7921.
• Citation: 269 F.2d 903
• Parties: Jimmie GRIFFIN and Ray Stearns Moore, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

269 F.2d 903 (1959)

Jimmie GRIFFIN and Ray Stearns Moore, Appellants, v. UNITED STATES of America, Appellee.

No. 7921.

United States Court of Appeals Fourth Circuit.

Argued June 26, 1959.

Decided September 2, 1959.

Frazier Woolard, Washington, N. C. (LeRoy Scott, Washington, N. C., on the brief), for appellants.

Irvin B. Tucker, Jr., Asst. U. S. Atty., Raleigh, N. C. (Julian T. Gaskill, U. S. Atty., Goldsboro, N. C., on the brief), for appellee.

Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and THOMSEN, District Judge.

HAYNSWORTH, Circuit Judge.

Griffin and Moore were convicted of making mash, of carrying on the business of a distiller without having given the bond required by law and of possession of materials intended for use in violation of the Internal Revenue laws. The indictment is phrased generally in the language of 26 U.S.C.A. §§ 5216(a) (1), 5606 and 5686(b), the indictment containing a separate count charging a violation of each of those sections.

The two men were discovered at the site of an old still where there was water available. At the site there were twenty-five 55-gallon fermenter barrels, a copper muffler condenser, a one-cylinder water pump, a gas burner, a copper gas line, 60 feet of one and one-half inch rubber hose, and miscellaneous pipe, hose and fittings. Two of the fermenter barrels contained approximately seventy-five gallons of freshly kerneled, ripe peaches. There were also fifty bushels of uncrated peaches in the area and seventeen empty peach crates.

We are first met with the question of whether or not the two men may be said to have made mash fit for distillation within the meaning of § 5216(a) (1). We think not.

The barrels containing the kerneled peaches also contained some liquid, but the investigators were uncertain whether this liquid was the juice of the peaches or water. They agreed that the peaches were freshly kerneled and had not begun to ferment.

Webster's New International Dictionary defines mash, as used in the brewing and distilling trades, as "crushed malt, or meal of rye, wheat, corn, etc., steeped and stirred in hot water to produce wort." Mash, as the term is defined and generally understood, refers to a mixture in which grain is the basic, or an essential, ingredient. We have been referred to no instance in which the term has been applied to a fresh fruit, or to a fruit pomace, intended for use in the manufacture of brandy. It may be that if the possession of mash intended for distillation is a specific offense, the possession of fresh fruit for the same purpose should be made a specific offense, but the two situations are not wholly comparable as the Congress has recognized in extending certain exemptions to distillers of fruit brandy.¹

The differences which justify the permissive exemptions of distillers of fruit brandy authorized by § 5215 supply, perhaps, the reason Congress restricted § 5216(a) (1) to the production of grain mixtures. At the least, however, we find no basis upon which we can expand the criminal sanctions of § 5216(a) (1) to reach the removal of the kernels of fresh fruit when the words of the statute, itself, given their usual and well understood meaning, are more limited.

The second count of the indictment charged the defendants with engaging in the business of a distiller without having posted the requisite bond. If, as appears, the peaches were the raw material from which the defendants intended to produce brandy, one might reason that they entered upon the business of a distiller as soon as they began the first process of production, though the still was not then set up. Most of the essential parts of the still were there and there was abundant time to assemble and complete it while the peaches were fermenting. See Rewis v. United States, 5 Cir., 242 F.2d 508. Congress, however, has defined a distiller in § 5002(a):

"Distiller. — Every person who produces distilled spirits from any source or substance, or who brews or makes mash, wort, or wash, fit for distillation or for the production of spirits, or who, by any process of evaporization, separates alcoholic spirits from any fermented substance, or who, making or keeping mash, wort, or wash, has also in his possession or use a still, shall be regarded as a distiller."

Here the defendants had done nothing which would make them distillers within the statutory definition. The...