Terry v. United States

• Decision Date: 03 February 1903
• Docket Number: 451.
• Citation: 120 F. 483
• Parties: TERRY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

120 F. 483

TERRY v. UNITED STATES.

No. 451.

United States Court of Appeals, Fourth Circuit.

February 3, 1903

J. O Terry, in pro. per.

Edgar Allan, U.S. Dist. Atty.

This case is here upon a writ of error to the District Court of the United States for the Eastern District of Virginia. The plaintiff in error was tried upon an indictment containing six counts. The first count is under section 3258 of the Revised Statutes (U.S. Comp. St. 1901, p. 2112), and charges the plaintiff in error with setting up and having in his possession and control a still and distilling apparatus without having registered the same. The second count is under section 3281 (page 2127), charging that the plaintiff in error had unlawfully carried on the business of a distiller without having given bond, etc. The third count is under the same section, and charges that the plaintiff in error unlawfully engaged in and carried on the business of a distiller, with intent to defraud the United States of the tax on spirits distilled by him. The fourth count is under section 3279 of the Revised Statutes (U.S. Comp. St. 1901, p 2126), charging plaintiff in error with working in a distillery upon which no sign was placed as the law requires and the fifth count charges that the plaintiff in error unlawfully carried away a quantity of distilled spirits from a distillery on which the required sign was not placed. The sixth count charges that the plaintiff in error unlawfully delivered raw material to a distillery on which the sign required by law was not placed. Throughout the indictment the term 'distillery' is used without further description, and without stating whether it was a distillery for the production of distilled spirits from grain or from fruit or other material. The jury returned the following verdict: 'We, the jury, find the prisoner, J. O. Terry, guilty as charged in the sixth count of the indictment. ' Upon this verdict the court sentenced the plaintiff in error to imprisonment of testimony period of 60 days. Before the trial began and the introduction of testimony was had, the plaintiff in error, who appeared in his own behalf, moved the court to require the district attorney to elect upon which count in the indictment he would go to trial. This motion was overruled by the court, and to this ruling the plaintiff in error excepted. Upon the return of the verdict the plaintiff in error moved the court to set aside the said verdict and grant him a new trial, because the same was contrary to the law and the evidence. The motion was overruled by the court, to which the plaintiff in error excepted. The assignments of error are: First. The court erred in overruling the motion of the plaintiff in error to require the United States to elect upon which count in the indictment he should be tried. Second. The court erred in overruling the motion of the plaintiff in error to set aside the verdict and grant him a new trial, upon the ground that the verdict was contrary to the law and the evidence, and in entering up final judgment upon the said verdict against him. The facts as disclosed by the witnesses for the government are substantially as follows: That an illicit distillery of spirits from grain had been operated, some time in the summer of 1900, on a farm called the 'Derring Farm,' near Clayville, in Powhatan county, Va.; that the farm was the property of the plaintiff in error, and that one Paul, who was in his employment, did the work; that the plaintiff in error was present on one occasion when the distillery was in operation; that he and Paul left together, carrying with them a keg of distilled spirits which had been produced in the distillery. There was found at the place by a deputy collector, who went there after the operations had ceased, the furnace where the still had been located, a worm and cooling tub, about 450 pounds of meal, a barrel of molasses, and three sacks of malt. There was also some other evidence tending to prove that the distillery was being operated on plaintiff in error's farm with his knowledge and consent, and that the meal and molasses found there by the deputy collector belonged to him. The plaintiff in error was himself a witness, and denied any knowledge of the distillery, or that he had any interest in it, or that he furnished the materials, and there was some evidence to corroborate him.

Before GOFF, Circuit Judge, and PURNELL and BOYD, District Judges.

BOYD District Judge (after stating the facts).

It is not necessary to discuss the question raised by the first exception--the refusal of the court to require the district attorney to elect-- as we think that was a matter within the discretion of the district judge. The general rule is that an election will not be compelled when the several counts of the indictment have been inserted in good faith for the purpose of meeting the evidence as it may transpire, the offenses charged, though technically different, being of the same general nature, substantially for the same offense, arising out of the same transaction, and concerning which the same testimony must be relied upon for conviction. Such is the case we are now considering.

In the second exception and assignment we find an important question, one materially affecting the rights of the plaintiff in error, and that is whether or not the allegations in the count upon which he was convicted are sufficient in law to charge a criminal offense. It is true that the plaintiff in error did not make a...