Price v. United States
Decision Date | 07 August 1945 |
Docket Number | No. 11229.,11229. |
Parties | PRICE v. UNITED STATES. |
Court | U.S. Court of Appeals — Fifth Circuit |
John W. Vardaman, of Anniston, Ala., for appellant.
Jim C. Smith, U. S. Atty., of Birmingham, Ala., for appellee.
Before SIBLEY, HUTCHESON, and LEE, Circuit Judges.
Appellant was tried in the court below on an indictment containing three counts. He was convicted only on the second count, which charged him with removing, depositing, and concealing distilled spirits on which a tax was imposed, with an intent to defraud the United States of such tax, in violation of Section 3321 of the Internal Revenue Code, 26 U.S.C.A.Int.Rev. Code, § 3321.
Here he urges (1) that the court erred in charging the jury that they should find him guilty if they found that he did unlawfully remove, deposit, or conceal the whiskey upon which a tax was imposed, with intent to defraud the United States of such tax, where the indictment charged that appellant did unlawfully remove, deposit, and conceal; that since the indictment charged in the conjunctive it was necessary, in order to convict, that all of the allegations of the indictment be proved; (2) that "remove," as used in the statute, means something more than "transport," and has reference to removing the liquor from the place where made prior to the payment of the tax; and (3) that the court erred in refusing to grant an affirmative charge based upon the insufficiency of the evidence to establish guilt.
Section 3321 of the Internal Revenue Code1 mentions several acts disjunctively, and prescribes that each shall constitute an offense subject to the same punishment. It is well settled that an indictment may charge any of such acts or all of such acts conjunctively, as constituting a single offense. 42 C.J.S. Indictments and Informations §§ 101, 139(b). In 42 C.J.S., verbo "Indictments and Informations," Sec. 101, it is said:
In United States v. Clarke, 20 Wall. 92, 87 U.S. 92, 104, 22 L.Ed. 320, the Supreme Court said:
In Ackley v. United States, 8 Cir., 200 F. 217, 221, the Eighth Circuit Court stated the law thus:
See also Troutman v. United States, 10 Cir., 100 F.2d 628, 631; Wolpa v. United States, 8 Cir., 86 F.2d 35, 38; O'Neill v. United States, 8 Cir., 19 F.2d 322; and Simpson v. United States, 9 Cir., 229 F. 940.
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