Kurczak v. United States
| Decision Date | 10 July 1926 |
| Docket Number | No. 4594.,4594. |
| Citation | 14 F.2d 109 |
| Parties | KURCZAK v. UNITED STATES. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Henry A. Behrendt, of Detroit, Mich. (Behrendt & Behrendt, of Detroit, Mich, on the brief), for plaintiff in error.
John A. Baxter, Asst. U. S. Atty., of Detroit, Mich. (Delos G. Smith, U. S. Atty., of Detroit, Mich., on the brief), for the United States.
Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges.
Kurczak, residing in Detroit, took his automobile across the Detroit river on the Detroit-Windsor ferry. Upon landing at Detroit on the return trip, a customs officer found in the car 48 bottles of whisky, and Kurczak was indicted on two counts — the first for importing whisky without a permit, without paying duty and in violation of the National Prohibition Act; the second for concealing and transporting whisky which had been thus unlawfully imported. He was convicted on both counts; his sentence was within the limit proper on count 1; the questions presented as to the second count become immaterial for the reason to be stated.
This review presents three claimed errors. The first is that each count is duplicitous. We think the first count is not. It charges a single act — importation — and that this act was unlawful for three reasons. The statute (section 593 b of the Tariff Act of 1922; section 5841h13, Comp. St. Ann. Supp. 1923) is a re-enactment almost verbatim of R. S. § 3082 (section 5785, Comp. St.). It penalizes importation "contrary to law." There is only one offense, no matter how many reasons there may be why the importation was "contrary to law." See Bookbinder v. U. S. (C. C. A. 3) 287 F. 790-795.
A lack of evidence justifying submission is next urged. The evidence under the first count was ample, even without the aid of the inference raised by the concluding sentence of section 593(b). The whisky had just been brought across the international line. It is of no importance where it had been manufactured. We agree with the Circuit Court of Appeals of the Third Circuit (287 F. 795) that under the conditions here existing, whisky is "merchandise" within the meaning of this section. However, there should have been no conviction under the second count. The importation was complete by bringing in the car and submitting it, practically at the line, to the customs officers for inspection. After that Kurczak never had possession, and could not have been guilty of concealing or transporting the property which he had imported.
The final contention is that there was error in the matter of selecting a jury. The trial judge interrogated the...
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