United States v. ONE 1935 MODEL PONTIAC SEDAN AUTOMOBILE

• Decision Date: 22 July 1936
• Docket Number: No. 280.,280.
• Citation: 15 F. Supp. 604
• Parties: UNITED STATES v. ONE 1935 MODEL PONTIAC SEDAN AUTOMOBILE, MOTOR No. 6-11834.
• Court: U.S. District Court — Western District of Kentucky

15 F. Supp. 604

UNITED STATES v. ONE 1935 MODEL PONTIAC SEDAN AUTOMOBILE, MOTOR No. 6-11834.

No. 280.

District Court, W. D. Kentucky, at Owensboro.

July 22, 1936.

Bunk Gardner, Dist. Atty., and G. Oldham Clarke and Eli H. Brown, III, Asst. Dist. Attys., all of Louisville, Ky., for the United States.

Louis Igleheart, of Ownesboro, Ky., for claimant.

HAMILTON, District Judge.

Under the stipulated facts in this case, on September 25, 1935, investigators for the Alcohol Tax Unit, Bureau of Internal Revenue, near Wheatcroft, Webster county, Ky., seized a 1935 model Pontiac sedan automobile, motor No. 6-11834, Kentucky license No. 336-445, and found in the car 51 gallons of untaxpaid whisky, and on the same date and at the same time the investigators arrested Irvin Hobgood for removing, depositing, and concealing the whisky in the car. Subsequently, Hobgood was indicted for this offense, and on November 26, 1935, on trial before a jury, was acquitted. The car was retained in custody by the government agents, and on October 16, 1935, these proceedings were instituted for its forfeiture under the provisions of 26 U.S.C.A. c. 20, § 1441, R. S. § 3450.

On November 27, 1935, Ammanell Martin filed a claimant's petition alleging she was the owner of the automobile sought to be forfeited and that about September 25, 1935, some one unknown to her, wrongfully and without her consent, took the car from her possession and used it, and while it was being so used, the nontaxpaid liquor was found therein and the car seized. On May 6, 1936, she filed an amended petition denying that Irvin Hobgood was the person who had taken the car, and further alleging that Hobgood had been indicted for so using the car in the transportation and concealment of liquor and had subsequently been acquitted of the offense. She plead the acquittal as a bar to the forfeiture proceedings.

The parties agree that the court may decide the case on the following stipulated facts:

"2. On September 25, 1935, and before instituting this libel proceeding, said autobile was used in the removal of and for the deposit and concealment of fifty-one (51) gallons of untaxpaid distilled spirits consisting of whiskey, for and in respect whereof a tax is imposed and had become due and payable under section 600 of Revenue Act of 1918 as amended by title 1 of the Liquor Taxing Act of 1934 48 Stat. 313, § 2, 26 U.S.C.A. § 1150(a), subd. (1) and note and in respect whereof the tax had not been paid and contrary to the form of the statute in such cases made and provided and particularly contrary to section 3450 of the Revised Statutes of the United States.

"3. On November 25, 1935 Irvin Hobgood was indicted by the Grand Jury in this District for removing, depositing and concealing said quantity of untaxpaid whiskey in the aforementioned automobile in violation of the Internal Revenue Laws of the United States; and that on November 26, 1935, he was tried for said offense and a jury returned a verdict of `Not Guilty.'

"4. That if the Court hold as a matter of law that it is not necessary for the libellant to allege and prove that the person in charge of the car at the time it was being used, to remove, deposit and conceal untaxpaid whiskey has been convicted of an offense in connection therewith, it is stipulated and agreed that the Court may give judgment in favor of the United States of America against the aforesaid automobile, its equipment and its accessories and that the same shall be forfeited to the United States of America for the violation of the law.

"It is further agreed that if the Court hold as a matter of law that in order for the libellant to prevail, it must allege and prove that the person in charge of the car at the time of the seizure was convicted of an offense in connection therewith, then the Court, in that event, shall enter judgment returning said car to the intervening petitioner upon payment by her of all expenses incurred by the United States incident to the seizure and forfeiture of said car and pay all costs in this action."

No facts are stipulated as to the car being taken from the possession of the claimant without her knowledge and consent and thereafter used for the concealment of nontaxpaid spirits.

It will be noted from the stipulation that the parties undertake to submit to the court for its decision, a question of law which does not arise out of the stipulated facts, and while the stipulation is inaptly drawn, I will, though not compelled to do so, answer the legal question propounded, that "as a matter of law, it is not necessary for the libellant to allege and prove that the person in charge of the car at the time it was being used to remove, deposit and conceal untaxpaid whiskey, has been convicted of an offense in connection therewith."

It has long been settled that under section 3450 of the Revised Statutes, the vehicle is the offender and forfeiture may be had if a guilty intent on the part of him who operates it is shown, although no person is convicted of the offense involved or even prosecuted. United States v. One Ford Coupé Automobile, 272 U.S. 321, 351, 47 S.Ct. 154, 71 L.Ed. 279, 47 A.L.R. 1025; General Motors Acceptance Corporation v. United States (C.C.A.) 40 F.(2d) 599, 600; National Surety Company v. United States (C.C.A.) 17 F.(2d) 372; United States v. One Fageol Truck (C.C.A.) 17 F.(2d) 373; Collateral Investment Company v. United States (C.C.A.) 17 F.(2d) 374.

Paragraph 4 of the stipulation would seem to be an attempt to limit the power of the court to determine one of the issues raised in the pleadings and concerning which the facts are stipulated in paragraphs 2 and 3, that is, that the acquittal of Hobgood under the indictment is a bar to a forfeiture for the same offense. However, I am of the opinion it was the intention of the parties that there should be a decision upon the defense raised in the pleadings. Arkansas Valley Sugar Beet & Irrigated Land Company v. Fort Lyon Canal Co. (C.C.A.8) 173 F. 601, 605.

In any event, paragraph 4 of the stipulation is an agreement concerning the legal effect of admitted facts. The court cannot be controlled by agreement of counsel on a...