John Gund Brewing Co. v. United States

• Decision Date: 03 March 1913
• Docket Number: 3,854,3,855.
• Citation: 204 F. 17
• Parties: JOHN GUND BREWING CO. v. UNITED STATES (two cases). [1]
• Court: U.S. Court of Appeals — Eighth Circuit

204 F. 17

JOHN GUND BREWING CO. v. UNITED STATES (two cases). ^[1]

Nos. 3,854, 3,855.

United States Court of Appeals, Eighth Circuit.

March 3, 1913

[Copyrighted Material Omitted]

The John Gund Brewing Company was indicted for having engaged in the business of a wholesale dealer in malt liquors in Dickinson, Stark county, N.D., without having paid the license imposed by law on such business; with also engaging in the business of a retail dealer in malt liquors without having paid the government license, and with conspiracy to evade the payment of the internal revenue tax required by persons engaged in the sale of malt liquors, and also to violate Penal Code, Sec. 239, making it an offense for any railroad company, express company, or other common carrier or person in connection with the transportation of liquors from one state to another, to collect the purchase price or any part thereof before or after delivery from the consignee or from any other person, or to in any manner act as agent of the buyer or seller of any such liquor for the purpose of buying or selling or completing the sale thereof save only in the actual transportation or delivery of the same. A verdict of guilty was returned on the count charging the engaging in the business of a wholesale dealer without paying the tax and also on the indictment for conspiracy, and defendant brings error. Reversed on the indictment charging failure to pay the tax as a wholesale dealer, and remanded with instructions to grant a new trial, and reversed and remanded with directions to sustain a demurrer to the indictment charging conspiracy with instructions to dismiss the same.

The grand jury for the district of North Dakota returned two indictments against the plaintiff in error, a corporation existing under the laws of the state of Wisconsin, and having its domicile in that state and no agent in the state of North Dakota. In No. 3,854 the indictment charges the defendant with having engaged in the business of a wholesale dealer in malt liquors at Dickinson, county of Stark, in the state and district of North Dakota, without having paid the tax imposed by law upon such business. There was a second count charging the defendant with a similar offense, except that it was charged with having engaged in the business of a retail dealer in malt liquors; but, as there was a verdict of not guilty on that count, it is unnecessary to consider it further.

In No 3,855 the indictment charged the defendant and one Hartung in one count with conspiracy to avoid the payment of the internal revenue tax required to be paid by the laws of the United States by persons engaged in the business of dealing in malt liquors, and also to violate the provisions of section 239 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1136 (U.S. Comp. St. Supp. 1911, p. 1662)) of the United States.

The defendant being a nonresident of the district of North Dakota, and having no agent in that district upon whom process could be served, the court below made an order directing the clerk to issue a summons directed to the marshal of the United States for the Western District of Wisconsin, where the defendant had its domicile, commanding him to summon the defendant to appear before that court on the 5th day of March next to answer an indictment found against said corporation charging it with violating the statutes set forth in the indictments. This writ conformed to the form prescribed by the statutes of North Dakota for serving process in criminal cases on corporations. These writs were duly served by the marshal for the Western District of Wisconsin upon the chief officer of the corporation. Motions to quash the summons, service thereof, and the return thereon were filed by the defendant, and were by the court overruled and exceptions saved.

Thereupon the defendants filed demurrers to each of the indictments, and, they being overruled, entered pleas of not guilty. By stipulation in writing the parties agreed that the two cases should be consolidated and tried together as if they were different counts in the same indictment. A trial to a jury was had and a verdict of guilty returned on the first count in the indictment in No. 3,854, and a verdict of guilty in the conspiracy indictment.

George A. Bangs, of Grand Forks, N.D. (George R. Robbins, of Grand Forks, N.D., on the brief), for plaintiff in error.

Edward Engerud, U.S. Atty., of Fargo, N.D., and Charles E. Littlefield, Sp. Asst. Atty. Gen. (T. H. McEnroe, Asst. U.S. Atty., of Fargo, N.D., on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and W. H. MUNGER and TRIEBER, District judges.

TRIEBER District Judge (after stating the facts as above).

It is earnestly urged that there was no authority for the process issued in this case directed to the marshal of another district, and that the service and return are unauthorized, and that therefore the court erred in overruling the defendant's motion to quash them.

The only statute of the United States relating to the arrest of a person charged with a criminal offense in a district other than that in which the indictment has been returned is found in section 1014, R.S. (U.S. Comp. St. 1901, p. 716), but that clearly cannot apply to a corporation, for a corporation cannot be arrested, cannot be held to bail for its appearance, and no order for its removal to the other district can be made, as the latter can only be made when the defendant is imprisoned. Unless there is some other law providing for the issuance of some writ which will secure the attendance of such a corporation in the court in which the indictment has been returned, foreign corporations, and for that matter all corporations, would be entirely immune from punishment under the statutes of the United States, for there is no statute of the United States which specifically provides for the kind of process necessary to bring a corporation into court to answer an indictment.

But section 716, R.S. (U.S. Comp. St. 1901, p. 580), grants the courts of the United States power to issue all writs not specifically provided for by the statute which may be necessary for the exercise of their respective jurisdictions and agreeable to the usages and principles of law. This statute was no doubt enacted by Congress in order to meet cases of this nature when there is no specific process provided by statute. In re Chetwood, 165 U.S. 443, 461, 17 Sup.Ct. 385, 41 L.Ed. 782; United States v. John Kelso Co. (D.C.) 86 F. 304; United States v. Standard Oil Co. (D.C.) 154 F. 728; United States v. Virginia-Carolina Chem. Co. (C.C.) 163 F. 67; Thompson on Corporations, Sec. 5651.

As the only punishment which can be inflicted upon a corporation is a fine (United States v. Union Supply Co., 215 U.S. 50, 30 Sup.Ct. 15, 54 L.Ed. 87), a criminal proceeding against a corporation is in effect no more than an action for the recovery of a penalty, with this difference, that under the sixth amendment to the Constitution the trial must be had in the district where the crime has been committed. The court committed no error in overruling the motion to quash the process.

The demurrer to the indictment in No. 3,854 charging the defendant with engaging in the business of a wholesale dealer in malt liquors without having paid the tax required by law is based upon the fact that the indictment left out the word 'special' before the word 'tax,' as section 3242, R.S. (U.S. Comp. St. 1901, p. 2094), makes it an offense for a person to engage in that business 'without having paid the special tax as required by law. ' While no doubt it is the better practice in drawing indictments for statutory offenses for the pleader to follow the language of the statute literally or as closely as possible, still, if the omission of a word can in no manner be prejudicial to the defendant by failing to inform him of the crime he is charged with so as to enable him to prepare a proper defense, or prevent him in case of a later indictment for the same offense to plead former jeopardy and in view of the fact that this is the only tax which under the laws of the United States such a dealer is required to pay, the omission is not prejudicial. The strictness with which indictments or informations were at one time construed by the courts, which frequently operated to defeat the ends of justice, no longer prevails, and technical objections not prejudicial are not regarded with as much favor as they were at one time. Breese v. United States, 226 U.S. 1, 33 Sup.Ct. 1, 57 L.Ed. . . . . Act June 1, 1872, c. 255, 17 Stat. 198, digested as section 1025 of the Revised Statutes (U.S. Comp. St. 1901, p. 720), is clearly applicable to a plea of this kind. The demurrer was properly overruled.

The demurrer to the conspiracy indictment, No. 3,855, should have been sustained, as the indictment is bad for duplicity. It charges the defendant in one count with a conspiracy to commit two distinct offenses, one 'to evade the payment of the internal revenue tax required to be paid by the laws of the United States by persons...