Philyaw v. United States

• Decision Date: 31 December 1928
• Docket Number: No. 8098.,8098.
• Citation: 29 F.2d 225
• Parties: PHILYAW v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

29 F.2d 225 (1928)

PHILYAW v. UNITED STATES.

No. 8098.

Circuit Court of Appeals, Eighth Circuit.

November 2, 1928.

Rehearing Denied December 31, 1928.

J. M. Carter and B. E. Carter, both of Texarkana, Ark., for plaintiff in error.

S. S. Langley, U. S. Atty., and W. N. Ivie, Asst. U. S. Atty., both of Ft. Smith, Ark.

Before BOOTH, Circuit Judge, and POLLOCK and DEWEY, District Judges.

DEWEY, District Judge.

The defendant was indicted for removing and concealing distilled spirits. There was a verdict of guilty and judgment rendered thereon. Defendant has appealed.

Plaintiff in error, hereinafter referred to as the defendant, was indicted by the grand jury in the District Court of the United States for the Western District of Arkansas, Texarkana Division, at the November, 1927, term thereof, upon four counts.

The defendant challenged the sufficiency of each of the counts of the indictment by demurrer, and the demurrer was sustained as to the first and second of said counts. Error is assigned and argued on the ruling of the court as to the third and fourth counts of the indictment, which read as follows:

"Third Count: And the grand jurors aforesaid, on their oath aforesaid, do further present that Dave Philyaw, on or about April 15, 1927, in Miller county, Arkansas, in the said division of said district and within the jurisdiction of said court, unlawfully, knowingly and feloniously did remove and aid and abet in the removal of distilled spirits on which the tax had not been paid, to wit, 155 gallons, more or less, of whisky, to a place other than a distillery warehouse provided by law, to wit, to a place on his farm in Miller county, Ark., contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.

"Fourth Count: And the grand jurors aforesaid, on their oath aforesaid, do further present that Dave Philyaw, on or about April 15, 1927, in Miller county, Arkansas, in the said division of said district and within the jurisdiction of said court unlawfully, knowingly and feloniously did conceal and aid in the concealment of distilled spirits, to wit, 155 gallons, more or less, of whisky upon which the tax had not been paid, which said whisky had been removed from a distillery to the grand jurors unknown to a place other than a distillery warehouse provided by law, to wit, to a place on his farm in Miller county, Ark., contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

The question presented is whether each count states facts sufficient to constitute an offense against the laws of the United States.

The statute under which this indictment is drawn is section 404, title 26, of the U. S. Code (26 USCA § 404), which provides:

"Whenever any person removes, or aids or abets in the removal of, any distilled spirits on which the tax has not been paid, to a place other than the bonded warehouse provided by law, or conceals or aids in the concealment of any spirits so removed, * * * he shall be" punished, etc.

The above section of the U. S. Code is taken from section 3296 of the Revised Statutes; the only difference in the wording of the U. S. Code and in the Revised Statutes being the words "bonded warehouse" used in the Code, and "distillery warehouse" in the Revised Statutes.

Defendant claims that no offense against the laws of the United States is charged in the indictment, because it charges a removal to a place other than a "distillery warehouse," while the law makes it an offense only to remove to a place other than a "bonded warehouse."

From a careful reading of the Revenue Law, the context of which the above-quoted statute is a part, it is apparent that the term "bonded warehouse," used in the statute, refers to a "distillery warehouse," and hence the indictment, in charging the place of removal to a place other than a "distillery warehouse," instead of to a place other than a "bonded warehouse," charges the offense of the statute. This has been so decided in the case of Pounds v. United States, 171 U. S. 35, 18 S. Ct. 729, 43 L. Ed. 62.

The fourth count of the indictment in this case is identical with the language of the indictment in the Pounds Case, supra, and under the holding therein, that the charging of the offense in the language of this statute is sufficient, defendant's further arguments as against the indictment are answered. Under this authority we are constrained to hold that the court was correct in overruling the demurrer to counts 3 and 4 of the indictment.

The plaintiff in error also makes the claim that the evidence introduced at the trial was insufficient to justify a conviction on either counts 3 or 4 of the indictment; that the court erred in refusing to sustain a motion for a directed verdict of "not guilty" as to each of said counts.

The testimony, in substance, is that two government agents, O'Quinn and Lambert, on April 5, 1927, went to defendant's residence, and on inquiry were told by defendant that he had some good whisky that he would sell and that he got a new five-gallon keg and with the statement, "I will have to go down there and get the whisky," "there is a nigger down there," got in his car and drove about a quarter of a mile; there was a row of houses on the left of the road, and he went into the second house with the keg, remained about 10 minutes, and came back with the whisky, which was paid for by the agents; that on his return with the whisky he said, "the nigger was off fishing," and "it took some time to get it." There was no stamp on the keg.

A few days later, on April 10, the state and government officers went down to defendant's residence without a search warrant. They had the information that the whisky was in the house and they drove there and found two negro girls. This was at the second house from Dave Philyaw's home, going west. The girls said they did not know who lived there, as they lived in town. There were two beds in the house, and a Victrola which the girls were playing. The officers got a ladder and in the loft of this house found 150 gallons of whisky in 10-gallon kegs, which was thrown out and...