Hester v. United States

• Decision Date: 08 November 1922
• Docket Number: 1977.
• Citation: 284 F. 487
• Parties: HESTER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

284 F. 487

HESTER v. UNITED STATES.

No. 1977.

United States Court of Appeals, Fourth Circuit.

November 8, 1922

In Error to the District Court of the United States for the Western District of South Carolina, at Greenville; Henry H Watkins, Judge

Charlie Hester was convicted of an offense, and he brings error. Reversed.

1. Internal revenue 47-- Evidence based on observation as to whether liquor was tax-paid held insufficient.

On a trial for removing distilled spirits on which the tax had not been paid from a distillery, etc., testimony based on the broken particles of a bottle and observation of liquor, after it had been poured on the ground, that it was 'new corn liquor,' or 'untax-paid liquor,' or 'blockade liquor,' held insufficient to show that the spirits were not tax-paid.

2. Internal revenue 47-- That liquor was new corn whisky insufficient to show tax not paid.

That liquor in a jug and bottle, which defendant was seen by revenue officers to break, was new corn whisky, did not show that the tax had not been paid thereon.

3. Internal revenue 47-- When quantity of liquor was less than five gallons, burden was on government to show tax had not been paid.

If the quantity of liquor in receptacles which defendant and another were seen to destroy had been more than five gallons, the absence of stamps showing payment of the tax would have placed on defendant the burden of showing the tax had been paid; but where the quantity was less than five gallons defendant was entitled to the benefit of the presumption that the tax had been paid, and the burden was on the government to show the contrary to the satisfaction of the jury and beyond a reasonable doubt.

H. P Burbage, of Greenville, S.C., for plaintiff in error.

Ernest F. Cochran, U.S. Atty., of Anderson, S.C. (Joseph A. Tolbert, Asst. U.S. Atty., of Greenville, S.C., on the brief), for the United States.

Before KNAPP, WOODS and WADDILL, Circuit Judges.

WADDILL Circuit Judge.

Plaintiff in error, Charlie Hester, was indicted on the 11th of March, 1919, for violation of the provisions of section 3296 of the United States Revised Statutes (Comp. St. Sec. 6038), the revenue law then existing. The indictment contained two counts-- one charging removal of certain distilled spirits, to wit, one quart, upon which the tax had not been paid, from a distillery to the grand jurors unknown to a place other than a distillery warehouse provided by law; and the second count charging that the defendant unlawfully concealed, and did aid and abet in concealing, the said one quart of distilled spirits theretofore removed from a certain distillery to the grand jurors unknown to a place other than a distillery warehouse provided by law.

The defendant appeared in answer to the indictment, and pleaded not guilty. A jury was impaneled, and evidence adduced for the government and the defendant, at...