United States v. Gallant

• Decision Date: 01 March 1910
• Citation: 177 F. 281
• Parties: UNITED STATES v. GALLANT.
• Court: U.S. District Court — Western District of Michigan

177 F. 281

UNITED STATES v. GALLANT.

United States District Court, W.D. Michigan, Southern Division.

March 1, 1910

Geo. G Covell, Dist. Atty., for the United States.

Richard G. Newnham, for defendant.

DENISON District Judge.

This is a prosecution under section 3324 of the Revised Statutes (U.S. Comp. St. 1901, p. 2168); and it is alleged that, at the time of emptying a cask containing distilled spirits, the respondent 'then and there unlawfully did fail to efface and obliterate the said stamp, marks, and brands. ' A motion is made to quash the indictment, because it does not otherwise allege a specific wrongful intent; and it is conceded by the district attorney that the evidence will not clearly show any such intent, and will not distinctly, if at all, contradict the respondent's assertion that the failure to efface the stamp was merely careless or inadvertent; and it is further agreed that this motion may be treated as if such situation was fully stated in the indictment, or as if the question arose, and the facts appeared, upon a motion in arrest, after verdict.

In support of the motion, it is urged that an offense, under this section, is a felony, and that a felony necessarily involves an actual felonious intent. Some general statements from text-books and decisions are cited in support of that proposition, but none seems to require comment, excepting U.S. v. Smith (D.C.) 27 F. 854. This was a prosecution under section 3296, which, like section 3324 makes no express reference to the intent or purpose accompanying the act. It has reference, however, to a positive act, and there may be a distinction between an act of commission, which may or may not be done with intent to defraud the revenue, and an act of omission, against which a specific penalty is pronounced, and which may be in violation of the law merely because the omission exists, and without regard to the actual intent. This distinction seems to be recognized by the same judge who wrote the opinion in U.S. v Smith, because in U.S. v. Buchanan (D.C.) 9 Fed. 689, considering section 3324, he holds that the respondent may be guilty, through the act of an agent, in omitting to destroy the stamp, although in such case there would be no specific criminal intent by the respondent.

In so far as U.S. v. Smith may support the conclusion that a purpose to defraud the government is an essential ingredient in the offense defined by section 3324, it does not commend itself to my judgment. Felton v. U.S., 96 U.S. 699, 24 L.Ed. 875, and Potter v. U.S., 155 U.S. 438, 15 Sup.Ct. 144, 39 L.Ed. 214, refer to instances where the willfulness of the act was, by the statute, made an ingredient in the offense.

There is a familiar line of cases, under laws relating to taxation and police regulation, in which it is well settled that the offense consists in the act itself, wholly without regard to the intent-- as, for example, prohibitions in the liquor laws against keeping a saloon open, excepting at permitted times. It does not seem that this rule should be changed because only in a given case the stated penalty makes the offense a felony. That is a consideration for the Legislature.

The conclusion that an express criminal intent is not, under such a statute, vital to the offense, seems to be well supported by decisions in the federal courts. In U.S. v. Buchanan (D.C.) 9 Fed. 689, such rule is applied to this very statute; and to the same effect is U.S. v. Adler and Forst, Fed. Cas. No. 14,424. The same holding is made by Mr.

Justice Miller, in U.S. v. Ulrici, 3 Dill. 532, Fed. Cas. No. 16,594.

In U.S v. Thomson (D.C.) 12 F. 245, the rule is stated that negligence may be equivalent to a criminal intent, and is applied to the provisions requiring a ship's master not to take on more than a certain number of passengers, and to deliver a correct passenger list. In U.S. v. Bayaud, 16 F. 383, which was...