Seiden v. United States, 248.
| Decision Date | 20 December 1926 |
| Docket Number | No. 248.,248. |
| Citation | 16 F.2d 197 |
| Parties | SEIDEN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Morris D. Reiss, of New York City, for plaintiff in error.
Emory R. Buckner, U. S. Atty., of New York City (C. D. Williams, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before HOUGH, HAND, and MACK, Circuit Judges.
HAND, Circuit Judge (after stating the facts as above).
We have held that, when a jury convicts upon one count and acquits upon another the conviction will stand, though there is no rational way to reconcile the two conflicting conclusions. Marshallo v. U. S. (C. C. A.) 298 F. 74; Steckler v. U. S. (C. C. A.) 7 F.(2d) 59. If they will, jurors may set at defiance law and reason and refuse to find the accused guilty; when they do, he escapes, however plain his guilt. But, though that is within their power, it is not within their right; they are as much bound by the law as a court. No judge is bound to recognize, or even to mention, that power in his dealings with them; on the contrary, he may and ordinarily should direct them to convict, if they find the necessary facts. Indeed, if these be admitted, he may even in substance, if not in form, direct them outright to convict. Horning v. District of Columbia, 254 U. S. 135, 41 S. Ct. 53, 65 L. Ed. 185.
We can see no reason in the case at bar why the judge should not have done in one sentence what he might have done in four, and the only question which can arise is whether the single issue which he left them established the defendant's guilt under all four counts. If that issue be interpreted as meaning that the defendant was the proprietor of the still, all counts but the first were proved. Probably that is what the judge meant, but we think it not altogether clear. The jury might have found him only "engaged in the work," and that is scarcely the equivalent of being the proprietor of the still. The distinction was pointed out, but the charge was not mended. Hence we think we must treat the case as though the jury had found the defendant only to have been engaged in the work, and by that we understand that he might have been no more than a workman for the owner of the still.
The first count was for attempting to defraud the United States of taxes while engaged as a distiller, R. S. § 3257 (Comp. St. § 5993). Under R. S. § 3251 (Comp. St. § 5985), and the Act of August 27, 1894, § 48 (Comp. St. § 5986), the tax is made payable on or before removal from the distillery or warehouse where the spirits are made or kept, and the United States cannot be said to be defrauded until they are removed. The manufacture of spirits is in our judgment rather a step preparatory to the fraud than an attempt to commit it, United States v. Stephens (C. C.) 12 F. 52. It is only when the spirit is...
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...But, though that is within their power, it is not within their right; they are as much bound by the law as a court.' (Seiden v. United States, 2 Cir., 16 F.2d 197, 198.) 'We interpret the acquittal as no more than (the jury's) assumption of a power which they had no right to exercise, but t......
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