Mansbach v. United States, 3359.

• Decision Date: 08 February 1926
• Docket Number: No. 3359.,3359.
• Citation: 11 F.2d 221
• Parties: MANSBACH v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

11 F.2d 221 (1926)

MANSBACH v. UNITED STATES.

No. 3359.

Circuit Court of Appeals, Third Circuit.

February 8, 1926.

Henry W. Braude and McAvoy & Braude, all of Philadelphia, Pa., for plaintiff in error.

Walter G. Winne, U. S. Atty., of Hackensack, N. J., and Richard C. Plumer, Asst. U. S. Atty., of Newark, N. J.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

The indictment against Morris Mansbach, Solomon Feuchtbaum and Benjamin Feuchtbaum contains six counts. The first four, drawn under Sections 3242, 3259, 3281, and 3282 of the Revised Statutes (6 U. S. Comp. Stat. §§ 5965, 5995, 6021 and 6022), charge violations of the revenue laws, in that, having in their possession stills and engaging in the business of a distiller, (1) they failed to register with the collector of internal revenue for the district wherein the business was conducted; they carried on the business (2) without paying the tax and (3) without giving bond as required by law; and (4) they made fermented mash fit and intended for distillation in a building other than a distillery authorized by law. The remaining two counts charge the manufacture and possession of intoxicating liquors in violation of the National Prohibition Act, Title 2, Section 3 (Comp. St. Ann. Supp. 1923, § 10138½aa). Mansbach was put on trial alone; the other defendants were witnesses against him. After conviction on all counts the court imposed sentence of imprisonment on the second, third, fourth and fifth counts (terms to run concurrently) and of fines on the first, second, third, fourth and sixth counts. Mansbach then sued out this writ, assigning as error several matters of which we regard only two as substantial. The first is the refusal of the court to grant his motion to direct a verdict of acquittal under the first four counts of the indictment.

At the trial witnesses for the Government testified they found four stills and about one thousand gallons of mash in the possession of the two Feuchtbaums. The controversy mainly concerned Mansbach's relation to the stills and to their operation by the Feuchtbaums. The evidence was sufficient to prove his guilty connection. There the Government rested. The defendant then made his motion for acquittal under the first four counts on the ground that there was no evidence of his failure to register, to pay the tax, to give a bond, or that the mash was made in a building other than a lawfully authorized distillery. This being true, the Government asked that the case be re-opened for further testimony. The court granted the motion and in doing so we think it committed no error. The Government then called Benjamin Feuchtbaum who testified that he had not registered, paid the tax, given a bond, and in effect had made mash in a building which was not a lawful distillery but that he did not know what Mansbach had done in these matters. Again the Government rested and the defendant renewed his motion for a directed verdict on the same ground. The motion was denied and the case submitted.

Of course, testimony by Feuchtbaum that he, an alleged employee of Mansbach, had failed to do the things which the counts charge as violations of the revenue laws was not evidence that Mansbach had failed to do them or that Mansbach had violated the laws in these respects. In consequence there was no evidence that Mansbach, the defendant on trial, had committed the crimes charged. Realizing this, the Government now says that it was not required to prove the allegations of the counts which charge the offenses of failing to register, to pay the tax, etc., for the reason that under authority of United States v. Davis, Fed. Cas. No. 14,928, and other cases to be referred to, "it is incumbent upon the defendant to show that the special tax was paid; * * * it devolves upon the person charged, to show a compliance with the requirement of the law." This expression is correctly quoted from the cited case but when read in connection with the context and the matter to which it was addressed its meaning is very different from what its words, standing alone, import. The charge of the indictment in that case was "keeping an illicit still." To prove the charge, the Government offered evidence that "there was nothing about the distillery meeting the requirements of the law to constitute it a lawful distillery; that no special tax had been paid, or any bond given, nor was it insisted by the defendant that any attempt had been made to comply with the law, or that it was in any way a legally authorized distillery." The court, giving the jury the usual instruction in regard to the presumption of innocence "until the contrary is shown by sufficient proof," said in the charge:

"It is incumbent upon the United States to produce such proof, either by their own evidence, or it should arise out of the evidence of the defendant.

"To authorize a verdict of guilty under the first count, it is necessary that the proof should satisfy you that the defendant did carry on the business of a distillery * * * without having paid the special tax as required by law. * * * If you shall be satisfied that the business was so carried on, then it is incumbent upon the defendant to show that the special tax was paid * * *; it devolves upon the person charged to show compliance with the requirements of the law, and that not having been shown by the evidence the presumption of law is that it has not been done."

In view of the positive evidence for the Government that the tax had not been paid and the bond had not been given, the quoted expressions either refer to the defense which the defendant must make to meet the evidence introduced by the prosecution to sustain the charges of the indictment or they are dicta. In either event they do not rule this case.

Barton v. United States (C. C. A. 4th) 267 F. 174, is no closer to the case at bar. There the defendant was indicted under several provisions of the revenue laws, including section 3281, requiring a distiller to give bond. As reported, the testimony showed that "when the illicit distillery was found by the officers" it was ready for operation. No one was present, but later the defendant and others came to the place and engaged in incriminating conversation. The trial judge charged the jury that, "when one is found at an illicit distillery, it becomes incumbent upon him to give some explanation of his presence there." Approving this instruction, the reviewing court held that, an illicit distillery is a business or operation wholly prohibited by law, and that, like the familiar principle of law by which one possessing stolen goods is presumed to be guilty of larceny until he satisfactorily explains his possession, the presence of one at or about an illicit still raises the criminal inference of his complicity in its unlawful operation until, by explanation, he satisfactorily shows his innocence. But the whole question in that case was predicated upon the fact of an "illicit" distillery. How that fact was proved, the report of the case does not show. Moreover, the quoted ruling had to do with the guilty relation of the defendant to the still, not with the illicit character of the still. In the case at bar the defendant's connection with the stills was proved but the illicit character of the stills was not established by any proof. Until the illicit character of the distillery is established, the criminality of the defendant cannot be determined. Therefore Bartram v. United States, on whose law we express no divergent opinion, does not rule this case.

The next case on which the Government relies, McCurry et al. v. United States (C C. A. 9th) 281 F. 532, is closer to the one at bar. The indictment, evidently, was drawn under the registry, bonding and building distillery provisions of the revenue laws. Sections 3259, 3281 and 3282, R. S. The trial court instructed the jury that the burden of showing registration of the still and filing the bond was on the defendants and that the prosecution need only prove circumstances from which non-performance of the acts required by the law might be inferred, whereupon the burden of proof shifted to the defendants. The report of the case does not disclose what were the proven circumstances from which the inference of guilt was permitted and on which the burden of proof shifted beyond the fact that the defendants "made no claim of ownership, interest in, or knowledge of the still." In reference to this circumstance, to which the court alluded as one of "great significance," it said: "This was in accordance with their plea of not guilty, and was a practical admission that they the defendants had not registered the still, nor given bond therefor. * * * The absence from the case of any claim of ownership, intent, interest in, or knowledge of the still, on the part of the appellants, was a material circumstance, sufficient to shift the burden of proof, and justify the instruction of the court to the jury that the burden was upon the defendants to prove the registration of the still and filing of bond."

Inclined always, in comity, to defer to the decision of courts of equal jurisdiction, we are unable to follow this reasoning because, in our view, a plea of not guilty can not be so interpreted. The plea of not guilty entered in the case at bar is a denial by the defendant that he operated the stills without registering, paying the tax, or giving bond. Failure to register, to pay the tax, and give bond when operating the stills are the acts which, under the law, constitute the offenses and we can not hold that implicit either in the defendants silence or in his denial of the commission of the offense there is an admission of its commission. The question of guilt is to be determined by evidence of the doing or failure to do what the law forbids or requires. Under the plea of not guilty the offenses charged stand out, waiting to be proved by the one that makes the...