Pocahontas Distilling Co., Inc. v. United States

• Decision Date: 05 November 1914
• Docket Number: 1258.
• Citation: 218 F. 782
• Parties: POCAHONTAS DISTILLING CO., Inc., v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

218 F. 782

POCAHONTAS DISTILLING CO., Inc., v. UNITED STATES.

No. 1258.

United States Court of Appeals, Fourth Circuit.

November 5, 1914

Robert H. Talley and John A. Lamb, both of Richmond, Va., for plaintiff in error.

Richard H. Mann, U.S. Atty., of Petersburg, Va., and Hiram M. Smith Asst. U.S. Atty., of Richmond, Va. (D. Lawrence Groner, of Norfolk, Va., on the brief), for the United States.

Before KNAPP and WOODS, Circuit Judges, and McDOWELL, District Judge.

KNAPP Circuit Judge.

On July 17, 1913, the United States filed a libel of information against grain distillery No. 2, of the Pocahontas Distilling Company, which is located on the outskirts, but within the corporate limits, of the city of Petersburg, Va. It appears that this distillery had been under suspicion for some time and closely watched by certain revenue officers, who, on the 14th of June, discovered that a so-called 'slop tank,' located outside of and on a line with the second floor of the distillery building, was full of beer in a state of active fermentation. After measuring the contents of this tank, taking the gravity of the beer, and securing samples they stationed a guard at the distillery, which was seized a few days later by the deputy collector. A release bond in the sum of $3,500 was thereupon given by the owners, and an answer filed to the information. At the trial in October following a verdict was rendered in favor of the United States, and from the judgment entered thereon this writ of error is prosecuted.

In section 3259 of the Revised Statutes it is provided that every person engaged in, or intending to be engaged in, the business of a distiller, shall give notice in writing to the collector of the kind of stills to be used and the cubic contents thereof, the number of mash tubs and fermenting tubs, and the cubic contents of each tub. Section 3263 provides, among other things, that every distiller shall cause to be made an accurate plan and description of the distillery and distilling apparatus, distinctly showing the location of every still, boiler, doubler, worm tub, and receiving cistern, the course and construction of all fixed pipes used or to be used in the distillery, together with every place, vessel, tub, or utensil from and to which any such pipe leads, or with which it communicates, and also the number and location and cubic contents of every still, mash tub, and fermenting tub. It seems to be conceded, and certainly is not open to serious question, that on the night of the 14th of June this slop tank was substantially full of beer in a state of active fermentation, that it was unlawful to use this receptacle for such a purpose, and that its use therefor would enable the distillery to produce a larger quantity of spirits than was possible with the appliances legitimately employed for that purpose, and thereby permit a fraud upon the government to the extent of the revenue upon such excess.

The controlling matter in dispute, therefore, related to the circumstances under which this fermenting beer happened to get into the slop tank where it was discovered. If this resulted from an accident or innocent mistake, the owners of the distillery were not chargeable with wrongdoing, and a verdict should have been rendered for the defendant. On the other hand, if this beer was purposely placed in the receptacle where it was found, and where it had no business to be, with the unlawful intention of utilizing the opportunity to defraud the United States, the act was clearly unlawful, the seizure of the distillery was justified, and the verdict and judgment on the bond should stand. This was the vital question of fact for the jury to decide, and that it was distinctly and clearly submitted will appear from the following instructions of the trial court:

'You are further charged that if you believe from the evidence that the slop tank in question was not designed nor used for the purpose of defrauding the government, and that on the occasion when the beer was found therein, as shown by the testimony, that it was pumped there by the defendant's employe accidentally, and without intent or purpose then or thereafter to be used to defraud, you should find for the defendant.'

If we correctly apprehend the evidence, it is virtually undisputed that the apparatus used in this distillery was so constructed and arranged that the mash, after it was cooled and ready for fermenting, could be pumped directly from the cooling tank into this...