United States v. Smith, 11741.

Citation232 F.2d 570
Decision Date27 April 1956
Docket NumberNo. 11741.,11741.
PartiesUNITED STATES of America v. James H. SMITH, Sr., Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Donald J. Goldberg, Philadelphia, Pa. (Garfield W. Levy, Albert S. Oliensis, Donald J. Goldberg, Philadelphia, Pa., on the brief, for appellant.

Arthur R. Littleton, Asst. U. S. Atty., Philadelphia, Pa. (W. Wilson White, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

Before MARIS, McLAUGHLIN and HASTIE, Circuit Judges.

McLAUGHLIN, Circuit Judge.

In this appeal from a conviction of unlawful possession of untaxed liquor, appellant attacks the indictment on the ground that the facts alleged therein do not make out a crime under the controlling statute.

The indictment charged in its first count:

"That on or about January 25, 1955, at Philadelphia in the Eastern District of Pennsylvania, James H. Smith, Sr., did knowingly and unlawfully have in his possession, to wit: 36-1 gallon jugs of whiskey, upon which said containers or jugs was not affixed thereto the requisite stamps denoting the quantity of distilled spirits contained therein, and evidencing payment of all Internal Revenue taxes imposed by law on such spirits; in violation of Title 26 U.S.C. Section 5008(b) (1)".

The second count alleged "transportation" by appellant of the same whiskey.

The district judge sitting without a jury found appellant guilty on Count I and sentenced him to imprisonment for a year and to pay a fine of $250. Judgment of Not Guilty was entered on Count II.

Section 5008(b) (1) took effect on January 1, 1955; the repeal of its predecessor, 26 U.S.C. § 2803(a), was effective on the same date. 26 U.S.C.A. § 7851(a) (5). Although Count I purports to be founded on § 5008(b) (1), it is actually a verbatim recitation of repealed Section 2803(a). Thus, 26 U.S.C.A. § 2803(a) provided in relevant part:

"No person shall * * * possess * * * any distilled spirits, unless the immediate container thereof has affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all internal-revenue taxes imposed on such spirits."

Section 5008(b) (1) changed the law as it had existed in Section 2803(a), it provided only that:

"No person shall * * * possess * * * any distilled spirits, unless the immediate container thereof has affixed thereto in such manner as to be broken on opening the container, a stamp evidencing the tax or indicating compliance with the provisions of this chapter."

House Report No. 1337 points up the modifications in the law as it had existed in Section 2803(a).

"Subsection (b), `Stamps for other containers of distilled spirits\':
"Paragraph (1), `Requirements,\' is existing law (see sec. 2803(a)) except that, due to the method of payment by return, the stamp cannot in all instances be deemed evidence that tax has been paid. The stamp does, however, evidence that tax has been determined and that all applicable provisions of law relating to the bottling of spirits * * * have been complied with. Accordingly, the phrase `evidencing payment of all internal revenue taxes imposed on such spirits\' has been deleted and the phrase `evidencing the tax or indicating compliance with the provisions of this chapter\' has been substituted therefor.
"Two other changes in the existing law in paragraph (1) are the deletion of the provision that the stamps denote the quantity of distilled spirits and the insertion of the requirement that the stamp be affixed in such manner as to be destroyed when the container is opened." U.S.Code Cong. and Adm. News 1954, pp. 4474, 4475.

Rule 7(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., provides in part as follows:

"(c) Nature and Contents. The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice."

"The true test of the sufficiency of an indictment is * * * whether it contains the elements of the offense intended to be charged, `and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.' Cochran and Sayre v. United States, 157 U.S. 286, 290, 15 S.Ct. 628, 630, 39 L.Ed. 704; Rosen v. United States, 161 U.S. 29, 34, 16 S.Ct. 434, 480, 40 L.Ed. 606." Hagner v. United States, 1932, 285 U.S. 427, 431, 52 S.Ct. 417, 419, 76 L.Ed. 861. An indictment should "leave no doubt in the minds of the accused and the court of the exact offense intended to be charged." Evans v. United States, 1893, 153 U.S. 584, 587, 14 S.Ct. 934, 936, 38 L.Ed. 830....

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    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • 19 Octubre 1960
    ...them to do acts in violation of their lawful duty. Citing Boykin v. United States, 5 Cir., 1926, 11 F.2d 484, and United States v. Smith, 3 Cir., 1956, 232 F.2d 570, defendant asserts4 failure to set forth the duties of the inspectors, what acts defendant intended to induce them to do in vi......
  • United States v. Bonanno
    • United States
    • U.S. District Court — Southern District of New York
    • 30 Septiembre 1959
    ...order to withstand a motion to dismiss is "sufficiently apprise the defendant of what he must be prepared to meet", United States v. Smith, 3 Cir., 1956, 232 F.2d 570, 572 and give him the basis of a plea of former jeopardy. See United States v. Behrman, 1922, 258 U.S. 280, 288, 42 S.Ct. 30......
  • United States v. Amato
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    • 12 Octubre 1973
    ...Upon examination of the indictment, we find that it adequately advises the defendants of the charges they must meet. United States v. Smith, 232 F.2d 570 (3d Cir. 1956); United States v. Bonanno, 177 F.Supp. 106 (S.D.N.Y. 1959), rev'd on other grounds sub nom. United States v. Buffalino, 28......
  • United States v. Jackson
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    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 8 Marzo 1965
    ...need should arise. Casias v. United States, 331 F.2d 570 (10 Cir. 1964); Clay v. United States, 326 F.2d, supra at 199; United States v. Smith, 232 F.2d 570 (3 Cir. 1956). The record in the instant case is more than sufficient in this regard. We need not decide here whether an indictment wo......
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