Taran v. United States, 10691.

• Decision Date: 18 February 1937
• Docket Number: No. 10691.,10691.
• Citation: 88 F.2d 54
• Parties: TARAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

88 F.2d 54 (1937)

TARAN v. UNITED STATES.

No. 10691.

Circuit Court of Appeals, Eighth Circuit.

February 18, 1937.

Robert V. Rensch, of St. Paul, Minn., for appellant.

James J. Giblin, Asst. U. S. Atty., of St. Paul, Minn. (George F. Sullivan, U. S. Atty., and Linus J. Hammond and John L. Wheeler, Asst. U. S. Attys., all of St. Paul, Minn., on the brief), for appellee.

Before GARDNER, THOMAS, and FARIS, Circuit Judges.

GARDNER, Circuit Judge.

Appellant was convicted on four counts of an indictment, charging him with violation of the internal revenue laws of the United States. Count 1 charged, in effect, that "on or about the 23d day of October, 1935, and for about three months prior thereto, at an office on the third floor of the Hamm building, on St. Peter street between Sixth and Seventh streets, in the city of St. Paul, in the county of Ramsey, in the state and district of Minnesota, and within the jurisdiction of this court, one Sam Taran did then and there willfully, unlawfully and feloniously carry on the business of a retail liquor dealer, without having paid the special tax therefor, as required by law. * * *" Count 2 is identical with count 1, except that it charged the defendant with carrying on the business of a wholesale liquor dealer. Count 3 charged that, "on or about the 23d day of October, 1935, in a certain DeSoto automobile in the vicinity of the Hamm building, on the streets of the city of St. Paul, in the county of Ramsey, in the state and district of Minnesota, and within the jurisdiction of this court, one Sam Taran, the identical person named in the first count of this indictment, unlawfully, knowingly and feloniously did conceal and aid in the concealment of distilled spirits (describing it), upon which the tax imposed by the laws of the United States had not been paid, which said distilled spirits had been removed to a place other than the bonded warehouse provided by law. * * *" Count 4 was similar to count 3 in its description of the place and the time of the alleged offense charged, and charged that the defendant "unlawfully, willfully and feloniously did possess a quantity of distilled spirits (described in the indictment), without the immediate containers thereof having affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all internal revenue taxes imposed on such spirits."

Defendant interposed a demurrer to each count upon the ground that it was insufficient, vague, and indefinite to such an extent that he was not advised thereby of the nature of the charge against him, in that it did not, with sufficient particularity, designate the place where the offenses were alleged to have been committed; that the first and second counts failed to allege any facts or circumstances constituting a violation of the laws of the United States, and failed to state ultimate facts which would constitute a violation thereof; that the third and fourth counts were deficient in that they failed to allege with particularity the time and place, the kind or quantity of liquor, or any other identifying facts which would give defendant notice of the occasion upon which the alleged offenses were committed; that counts 1 and 2 were repugnant to each other; that counts 3 and 4 alleged the same offense in different language. The demurrer was overruled and defendant then interposed a motion to require the government to elect whether it would proceed against defendant upon the first count or upon the second count, and whether it would proceed against defendant upon the third count or upon the fourth count. This motion was denied. Defendant moved for a bill of particulars, which motion was not formally or specifically sustained, but at the suggestion of the court a bill of particulars was furnished, and no motion for a further bill of particulars was interposed and no objection was made to the sufficiency of the bill of particulars as furnished.

At the close of all the testimony, defendant moved for a directed verdict on each count, which motion was denied. Upon the return of a verdict of guilty on each count, the court sentenced defendant to one year's imprisonment on the first count, one year's imprisonment on the second count, one year's imprisonment on the third count, and one year's imprisonment on the fourth count, the terms of imprisonment to be served concurrently. Defendant was also to pay a fine of $200 on the first count, $200 on the second count, and $200 on the third count, no fine being imposed on the fourth count.

On this appeal defendant seeks reversal on the ground that the court erred (1) in overruling his demurrer to the several counts of the indictment; (2) in overruling his motion to require the government to elect; (3) in overruling his motion for a bill of particulars; and (4) in overruling his motion for a directed verdict.

Section 1397, title 26 U.S.C.A., the statute under which the first and second counts of the indictment were drawn, provides that: "Any person who shall carry on the business of a * * * wholesale liquor dealer, retail liquor dealer, * * * without having paid the special tax as required by law shall, for every such offense, be fined not less than $100 nor more than $5,000 and imprisoned not less than thirty days nor more than two years."

Section 1398 of the same title defines a wholesale liquor dealer as, "Every person who sells, or offers for sale, foreign or domestic distilled spirits, wines, or malt liquors * * * in quantities of not less than five wine gallons at the same time," and defines a retail liquor dealer as one who sells or offers for sale such liquors in less than five wine gallons at the same time.

Counts 1 and 2 of the indictment were identical in form, except that count 1 charged the carrying on of the business of a wholesale liquor dealer, while count 2 charged the carrying on of the business of a retail liquor dealer. These two counts were challenged by the demurrer as being insufficient because they were indefinite, vague, and uncertain in that they did not set out any acts or facts which were claimed to constitute these offenses. The offenses charged were purely of statutory origin, having no relation to or counterpart in the common law. The function and purpose of the indictment is to advise the accused of the nature of the accusation against him, with such certainty as to enable him to prepare his defense, and so that he may not be taken by surprise by the evidence offered at the trial, also that he may be protected after judgment against another prosecution for the same offense. Wolpa v. United States (C.C.A.8) 86 F. (2d) 35.

It is generally sufficient to charge a statutory offense in the language of the statute, particularly if the statute expressly defines the offense. Galatas v. United States (C.C.A.8) 80 F.(2d) 15; Myers v. United States (C.C.A.8) 15 F.(2d) 977, Ledbetter v. United States, 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162. Counts 1 and 2 of the indictment followed the language of the statute, and the statute specifically defines what constitutes a "retail liquor dealer" and what constitutes a "wholesale liquor dealer." One who sells in quantities of less than five gallons is by the specific wording of the statute made a retail liquor dealer, while one who sells in quantities in excess of five gallons is made a wholesale liquor dealer. The defendant, therefore, knew as a matter of law that he was charged by the first count with selling liquor in quantities of less than five gallons, and that by the second count he was charged with selling liquor in quantities in excess of five gallons. It was not essential to set out the particular acts constituting the business, where, as here, the statute specifically defines what acts constitute such business. Ledbetter v. United States, 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162; Hodge v. United States (C.C.A.8) 191 F. 165; Wolpa v. United States (C.C.A.8) 86 F.(2d) 35. These counts also sufficiently charged the time and place of the alleged offenses. Minnella v. United States (C. C.A.8) 44 F.(2d) 48. We conclude that the demurrers to counts 1 and 2 were properly overruled.

In support of the demurrers to counts 3 and 4, it is urged that these counts failed to charge the offenses so distinctly as to advise defendant of the charge which he had to meet, and to afford him a fair opportunity to prepare his defense, and that a conviction thereon would not constitute a complete defense to a second prosecution for the same offenses. It is said that they failed to charge with sufficient definiteness the time and place, or to otherwise earmark the offenses charged. In Minnella v. United States, supra, in an opinion by Judge Stone, it is said: "It is settled in this circuit now that a statement that they were possessed `in the City of St. Louis, Missouri,' is proof against demurrer, although it may or may not be subject to a bill of particulars. Myers v. United States (C.C. A.) 15 F.(2d) 977."

These counts name not only the state, county, and city, but give the name or make of the automobile in which it is charged the liquor was concealed or possessed, and the name of the building in the vicinity of which it is alleged the offense was committed. It is also to be observed that in the bill of particulars furnished it is disclosed that the automobile referred to in counts 3 and 4 was parked along the east side of the federal court building, just south of Sixth street, on Market street, in St. Paul, Minn. In addition to this, there is no claim that defendant was taken by surprise, or was in any way prejudiced by the alleged failure of these counts of the indictment to set out in greater detail or particularity the facts and circumstances attending or making up the offenses charged. The contention of defendant in this regard is wholly without merit.

Defenda...