Price v. United States

Decision Date07 August 1945
Docket NumberNo. 11229.,11229.
PartiesPRICE v. UNITED STATES.
CourtU.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.

LEE, Circuit Judge.

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:

"Two offenses cannot, in the absence of statutory permission, be alleged alternatively in the same count. As a general rule, where a statute specifies several means or ways in which an offense may be committed in the alternative, it is bad pleading to allege such means or ways in the alternative; the proper way is to connect the various allegations in the accusing pleading with the conjunctive term `and' and not with the word `or.'"

In United States v. Clarke, 20 Wall. 92, 87 U.S. 92, 104, 22 L.Ed. 320, the Supreme Court said:

"It may be conceded that an indictment or a criminal information which charges the person accused, in the disjunctive, with being guilty of one or of another of several offenses, would be destitute of the necessary certainty, and would be wholly insufficient. It would be so for two reasons. It would not give the accused definite notice of the offense charged, and thus enable him to defend himself, and neither a conviction nor an acquittal could be pleaded in bar to a subsequent prosecution for one of the several offenses."

In Ackley v. United States, 8 Cir., 200 F. 217, 221, the Eighth Circuit Court stated the law thus:

"* * * if the statute denounces several things as a crime, the different things thus enumerated in the statute being connected by the disjunctive `or,' the pleader must connect them by the conjunctive `and' before evidence can be admitted as to more than the one act. To recite that the defendant did the one thing or another makes the indictment bad for uncertainty."

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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