United States v. Bayaud

• Decision Date: 30 March 1883
• Citation: 16 F. 376
• Parties: UNITED STATES v. BAYAUD and another.
• Court: U.S. District Court — Southern District of New York

16 F. 376

UNITED STATES v. BAYAUD and another.

United States Circuit Court, S.D. New York.

March 30, 1883

Before WALLACE, BENEDICT, and BROWN, JJ.

BENEDICT J.

This case comes before the court upon a motion in arrest of judgment, upon a plea of guilty. The statute to which attention has been called in connection with the motion is as follows:

'Every person * * * who removes any stamp, provided by law, from any cask or package containing, or which had contained distilled spirits without defacing and destroying the same at the time of such removal, or who aids or assists therein, * * * shall be deemed guilty of felony. ' Rev St. Sec. 3324.

The indictment contains several counts substantially alike. The first count charges that at a time and place stated the accused--

'Did feloniously, knowingly, and fraudulently remove 36 United States internal-revenue stamps, provided and required by law of the United States for distilled spirits, to-wit, 18 United States internal-revenue distillery warehouse stamps for distilled spirits, and 18 United States internal-revenue tax-paid stamps for distilled spirits of the denomination of 40 gallons,-- a more particular and definite description of which said stamps being as yet to the jurors aforesaid unknown,-- from 18 casks then and there containing distilled spirits, to-wit, gin,-- a more particular and definite description of which said casks and distilled spirits being as yet to the jurors aforesaid unknown,-- on which said casks said stamps had theretofore been placed, as provided and required by law of the United States, as they, the said George D. Bayaud and Gustav F. Perrenaud then and there well knew, without defacing and destroying the said stamps at the time of the removal thereof as aforesaid.'

To this count the first objection taken is that it charges no offense, because it omits to state that the spirits contained in the casks were of domestic manufacture. This objection is evidently based upon the supposition that the provision of the statute above quoted is applicable to casks containing domestic spirits only. This is a misapprehension. By the act of March 1, 1879, Sec. 12, (20 St.at Large, 342,) the provision is made applicable to imported spirits as well. The offense is committed by the removal, without destroying, of stamps from a cask containing distilled spirits, whether such spirits be foreign or domestic. It is not necessary, therefore, to describe the spirits as domestic in order to charge an offense.

The next objection is that the count is defective because it does not show that the spirits contained in the casks in question had been produced in a licensed distillery, and that the stamps had been affixed to the casks in pursuance of the requirements of law. Here the argument is that only spirits produced in a licensed distillery are required to be stamped, and the provision above quoted applies only to the removal, without destroying, of stamps lawfully affixed; wherefore it is said that there must be an allegation and proof that the spirits in the casks had been produced in a licensed distillery; that a warehouse entry of them had been made; that the warehouse stamp referred to had been affixed to the casks in conformity with such entry; that the tax on the spirits described had been subsequently paid; and the tax-paid stamp referred to affixed after such payment.

In order to sustain this position the statute must be understood as if it read, 'any person who removes a stamp which has been affixed as required by law from any cask to which it was so affixed,' etc. But the statute reads otherwise. It describes the stamp referred to by the words 'any stamp provided by law,' and it describes the cask as 'any cask containing or which has contained distilled spirits,' and it prohibits the removal without destroying of such a stamp from such a cask, and no words are used indicating an intention to limit the offense to removals without destroying of such stamps only as may have been affixed to the cask in question in the particular mode directed by law. Stamps of various kinds are provided by law for distilled spirits, and the object of the provision in question is to prevent a second use of any such stamp after it has been once affixed to a cask of distilled spirits. The removal of a governmental stamp from a cask of distilled spirits is not prohibited. What is forbidden is the removal of such a stamp from a package of distilled spirits without at the same time destroying it; and the offense is committed whether the spirits in the cask be the product of a licensed or illicit distillery, and without reference to the circumstances under which the stamp was affixed. So the ingredients of the offense created by the statute in question (aside from knowledge and intent, which will be adverted to hereafter) are: (1) A removal, without at the same time destroying, of any stamp provided by law; (2) from any cask containing or which had contained distilled spirits. These ingredients are not wanting in the present indictment. What has already been said disposes of the further point made, that it should appear on the face of the indictment that the casks contained more than five gallons, and were not 'standing casks.'

The next objection to the indictment is that the stamps are not set out verbatim. Here reliance is first placed upon the rule that when words, whether written or spoken, form part of the gist of the offense they must be set out verbatim. This rule has no application to a case like this. Stamps of various kinds are provided by law and their form prescribed. One kind, having a designated form, is termed a 'distillery warehouse stamp,' (21 St.at Large, p. 147;) another is designated by the statute as a 'tax-paid stamp,' and its form is prescribed, (section 3295, Rev. St.) To remove, without destroying, any stamp of either of these kinds from a cask containing distilled spirits is an offense, not because of the words printed on the face of the stamp, but because it is a stamp provided by law. The words upon the stamp form no part of the gist of the offense. That would be the same if the stamp exhibited a mere device without words. For the purposes of this statute the stamp is a mere emblem, and when it is described by its statutory designation such description brings the thing within the scope of the statute, for every 'distillery warehouse stamp' or 'tax-paid stamp' is a stamp provided by law.

In larceny, when a bank-note is the subject of the offense, it is needless to set forth the note. Archb. Crim. Pr. & Pl. 56. When the offense is selling a lottery ticket, the ticket is not required to be set forth. People v. Taylor, 3 Denio, 99; Freleigh v. State, 8 Mo. 613. The present case is analogous in principle.

Again, it is said that the stamp must be set out to enable the court to see that it was an engraved stamp, and filled out according to law. Rev. St. Sec. 3312. But setting out the stamp verbatim in the indictment would not show to the court that it was engraved, nor that it was filled out as the law required. Again, it is said a tax-paid stamp is a receipt for the tax on the spirits in the cask, and whether these stamps purported to be receipts for such tax can only be determined by the contents of the paper. But section 3324 nowhere says that the stamp referred to must be a receipt. The words are, 'any stamp provided by law;' and the removal, without destroying, of such a stamp from a cask containing spirits is forbidden, whether the stamp shows the receipt of the tax lawfully charged on the spirits or not. Reference has been made to the rule in respect to indictments for forgery, where the forged note must be set out to enable the court to see that the thing made or uttered is in the similitude of a thing capable of being forged. Here we have noting to do with the similitude of a stamp, but with the stamp itself,-- a thing having a statutory name and form, which is therefore legally described by using the statutory designation. Again, it is said the stamp should be set out in order to inform the accused of the history of the casks to which they were affixed. But the accused can be informed of the act charged without furnishing a history of the casks. To require that would annul the statute. Still again, it is said the stamp should be set out to enable the accused to be prepared to show that the stamps removed were not genuine, or were removed by persons other than the defendants. But all this may be secured to the accused without setting out the stamps verbatim.

To require the setting out of the stamps verbatim is one thing; to require a description of the act charged sufficient to identify it is quite another; and whether the description of the act charged, furnished by this indictment, is sufficient for that purpose, is the next question to be considered.

The description given of the act intended to be proved against the accused is as follows, viz.: That at a certain time and place they did, from 18 casks containing gin, remove, without destroying, 36 United States internal-revenue stamps, prescribed and required by law for distilled spirits, to-wit, 18 United States internal-revenue distillery warehouse stamps for distilled spirits, and 18 United States internal-revenue tax-paid stamps for distilled spirits of the denomination of 40 gallons, a more particular and definite description of which said stamps is as yet to the jurors unknown.

The act intended to be proved is removing, without destroying certain stamps. If the case were larceny the act would be taking and carrying away certain stamps. An indictment for larceny, containing a description of the property taken, such as this indictment affords, would be good according to many...