Williams v. United States

• Decision Date: 25 November 1907
• Docket Number: 2,497.
• Citation: 158 F. 30
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: WILLIAMS v. UNITED STATES.

158 F. 30

WILLIAMS v. UNITED STATES.

No. 2,497.

United States Court of Appeals, Eighth Circuit.

November 25, 1907

Buckner & Buckner, for plaintiff in error.

John Embry, U.S. Atty., and Louie E. McKnight, Asst. U.S. Atty.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS District judge.

PHILIPS District Judge.

The plaintiff in error (hereinafter designated the defendant) was indicted in the District Court for Pawnee county, Okl. Ter under section 3318, Rev. St. U.S. (U.S. Comp. St. 1901, p 2164), as a wholesale liquor dealer for failure to make the required entries in a book of two casks of spirituous liquors sold and sent out of his possession on the 6th day of November, 1903. On trial to a jury he was convicted, and sentenced to imprisonment for 1 1/2 years in the federal penitentiary at Leavenworth, Kan., and to pay a fine of $100 and the costs. On appeal to the Supreme Court of the territory the judgment was affirmed.

The sufficiency of the indictment was challenged both by demurrer and motion in arrest of judgment. We do not deem it necessary or important to consider many of the objections raised. The principal objection is that the indictment is wanting in specification, descriptive of the quality and kind of liquors sold and sent out, and to whom sent. The charge in this respect is that:

'On the 6th day of November, 1903, the said Matt Williams, as said wholesale liquor dealer as aforesaid, did then and there send out of his stock and possession certain distilled spirits, to wit, two casks of distilled spirits, and did willfully and unlawfully refuse and neglect to make in the said book any entry or entries whatsoever (said book having been described in the preceding part of the indictment) concerning said casks of spirits respectively at the respective time of so sending the same out of his stock and possession, and before the same were removed respectively from his premises.'

Said section of the statute requires every wholesale liquor dealer to provide a book, to be prepared and kept in such form as may be prescribed by the Commissioner of Internal Revenue, and shall, on the same day on which he receives any foreign or domestic spirits, and before he draws off any part thereof, enter in such book, etc. It further declares that:

'Every such * * * wholesale dealer shall, at the time of sending out of his stock or possession any spirits, and before the same are removed from his premises, enter in like manner in the said book the day when and the name and place of business of the person or firm to whom such spirits are to be sent, the quantity and kind or quality of such spirits, the number of gallons, * * * the name of the distiller and the serial number of the package. Every such book shall be at all times kept in some public place on the premises of such * * * wholesale dealer for inspection, and any revenue officer may examine it and take an abstract therefrom.'

The penalty provided for neglect in the above requirements is a fine of not less than $100 nor more than $5,000, and imprisonment not less than three months nor more than three years.

It will be observed from the foregoing statute that, whenever such wholesale dealer sends out 'any spirits,' he is required to make the specified entry in the designated book. The charge in the indictment is that the defendant sent out, etc., certain casks of spirits, to wit, two casks of distilled spirits. The term 'cask' is generally understood to be a receptacle for liquids. It may be less or larger than the usual barrel. As employed in the statute respecting the manufacture and sale of spirituous liquors, pertaining to wholesale dealers, a cask has a well-recognized import. In section 3287 (page 2130), touching the duty of distillers, it is said:

'All distilled spirits shall be drawn from the receiving-cisterns into casks, each of not less capacity than twenty gallons wine measure.'

Section 3295 (page 2135), respecting the gauging, stamping, and branding of spirits removed from warehouses, the language is, 'Whenever an order is received from the collector for the removal from any distillery warehouse of any cask of distilled spirits,' evidently having reference to casks containing not less than 20 gallons wine measure. Section 3319 (page 2165), declares that it shall be unlawful for any rectifier, etc., or wholesale or retail liquor dealer, to purchase or receive any distilled spirits in quantities greater than twenty gallons from any person other than an authorized rectifier of distilled spirits, distiller, or wholesale liquor dealer. Section 3323 (page 2167) provides that all distilled spirits drawn from any cask or package and placed in any other cask or package containing not less than ten gallons, and intended for sale, shall be again inspected and gauged. Section 3324 (page 2168) provides for the effacement of stamps and brands from empty casks. Section 3325 (page 2169) provides that whenever any person knowingly purchases or sells, with inspection marks thereon, any cask or package, after the same has been used for distilled spirits, he shall forfeit and pay, etc. Section 3244 (page 2096) defines a wholesale liquor dealer to be a 'person who sells or offers for sale foreign or domestic distilled spirits or wines, in quantities of not less than five wine gallons at the same time. ' The indictment having alleged that at the time in question the defendant was a wholesale liquor dealer, it was tantamount to a direct averment that the casks contained each not less than 5 wine gallons of spirituous liquors. The statute in question makes it an offense for such wholesale dealer to send out of his stock or possession any spirits without making the required notation in the manner prescribed. As he is only authorized to deal as a wholesaler, the law assumes he did not sell or send out in casks containing less than five wine gallons. The statute interdicts and penalizes the sending out of any spirits without complying with said requirements. The quantity, whether 5 or 50 gallons, neither qualifies nor designates the offense; the implication, however, being that he does not send out in casks containing less than 5 wine gallons. It is not essential to specify in the indictment the name of the person to whom, or the place where, the casks were sent. That was mere matter of evidence, and not of the substance of the offense. Of all men the defendant knew to whom and where he had sent the casks; and, if he desired information from the prosecution, he could have protected himself against surprise at the trial by demanding in advance a bill of particulars. The indictment was sufficient. Ledbetter v. United States, 170 U.S. 606, 18 Sup.Ct. 774, 42 L.Ed. 1162; Pounds v. united States, 171 U.S. 35, 18 Sup.Ct. 729, 43 L.Ed. 62.

The contention is made on behalf of the defendant that the court erred in admitting parol testimony to prove that the defendant was a wholesale liquor dealer; that the best, if not the only, evidence of the fact, is the certificate from the proper district revenue collector's office, commonly called a 'license.' It is sufficient to say of this that parol evidence was admitted without objection on the part of the defendant. Indeed, he admitted on the trial that he was a wholesale liquor dealer. As he was exercising the office of such dealer, the presumption is that he was acting rightfully. His license was in his own possession, if one had been issued. If he had no license, he was wrongfully engaged in the wholesale liquor business, and he knew it. He could only show this by developing the fact that he was amenable to indictment and punishment for a graver offense. Why should the government be required to produce the record showing that the defendant was licensed as a wholesale liquor dealer when oral proof of the fact was admitted nem con? The offense with which the defendant was charged is that he 'did willfully and...