Wilson v. United States

• Decision Date: 11 June 1945
• Docket Number: No. 9815.,9815.
• Parties: WILSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

149 F.2d 780 (1945)

WILSON v. UNITED STATES.

No. 9815.

Circuit Court of Appeals, Sixth Circuit.

June 11, 1945.

John Young Brown, of Lexington, Ky., and Hobart F. Atkins, of Knoxville, Tenn. (Cleon K. Calvert, of Pineville, Ky., Hobart F. Atkins, of Knoxville, Tenn., W.L. Hammond, of Pineville, Ky., Arthur W. Rhorer, of Middlesboro, Ky., and Ray C. Lewis, of London, Ky., on the brief), for appellant.

Claude P. Stephens, of Lexington, Ky. (Claude P. Stephens and Ben L. Kessinger, both of Lexington, Ky., on the brief), for appellee.

Before ALLEN, HAMILTON, and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

Paul Wilson was convicted on a trial before the district court, without a jury, of selling whiskey as a wholesale dealer without paying the statutory tax required, and of selling at prices in excess of the maximum prices established by the Office of Price Administration pursuant to the provisions of the Emergency Price Control Act.^*

Appellant claims that there was no evidence that he was carrying on the business of wholesale liquor dealer without a license, or selling above maximum prices.

A wholesale dealer in liquors is defined in Title 26 U.S.C.A. Int.Rev.Code, § 3254 (b), as follows:

"Except as otherwise provided, every person who sells, or offers for sale, foreign or domestic distilled spirits, wines, or malt liquors in quantities of five wine-gallons or more to the same person at the same time, shall be regarded as a wholesale dealer in liquors."

Title 26 U.S.C.A. Int.Rev.Code, § 3250 (a) (1), provides that wholesale dealers in liquors shall pay a special tax of $110.

It is admitted appellant did not pay this special tax.

To sustain its charge that he was a wholesale dealer in liquor, the Government introduced evidence of sales of liquor by Wilson in excess of five wine-gallons to Barrett and Dolen, two bootleggers, who purchased the liquor in a joint enterprise and who were engaged in hauling it together in the same automobile. Counsel for Wilson contend that the critical sale of liquor in this case was in excess of five wine-gallons, only if the total amount sold to both Barrett and Dolen were considered; and that if the sales were divided between them, the amounts would be less than five gallons to one person. In support of this contention, it is pointed out that Barrett, a witness on behalf of the Government, testified that he and Dolen would buy the whiskey and whatever they got, would be divided up and the cost split between them. It is further claimed on behalf of appellant that the proof in this case of a single isolated sale of more than five wine-gallons of liquor does not make the seller a wholesaler, and that it must be established beyond reasonable doubt that wholesaling is his occupation and that he is carrying on that business.

With regard to the first contention of appellant that there was no proof of a sale of liquor in excess of five wine-gallons to the same person at the same time, it clearly appears that the sale of liquor in excess of that amount was made to Barrett and Dolen as partners or (what is the same thing as far as this case is concerned), as joint venturers. In Title 26 U.S.C.A. Int.Rev.Code, § 3797(a) (1), it is provided: "The term `person' shall be construed to mean and include an individual, a trust, estate, partnership, company, or corporation." In Section 3797(a) (2), it is provided that the term "partnership" includes a joint venture, and the term "partner," a member in such a joint venture. Barrett and Dolen were partners in the business of purchasing liquor. Whether they both negotiated for the purchase of the liquor in question is immaterial. It was sold to the same joint interest or partnership, and the amount sold was sufficient to bring the sale within the provision of the statute which constituted a seller of five wine-gallons of liquor to the same person at the same time, a wholesale dealer.

But counsel for appellant argue that while Section 3250 imposes the tax in question, and Section 3254 defines a wholesaler, the section of the statute which explains who are the wholesalers liable to the tax, the elements of the transaction that will result in guilt, and the penalties therefor, is Section 3253 which provides among other matters that the only person that can be a wholesaler liable for the special tax is: "Any person who shall carry on the business of a * * * wholesale liquor dealer * * *." It it contended that one isolated sale does not constitute carrying on the business of a wholesale liquor dealer and that, therefore, the evidence in this case did not prove Wilson to be such a dealer subject to the special tax, citing Bailey v. United States, 6 Cir., 259 F. 88. See also Ledbetter v. United States, 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162.

The proper rule of construction of the statute, however, is that "a single sale is to be interpreted in the light of all the circumstances, and it may vary from being little or no evidence up to the point of being convincing evidence that the seller is carrying on the business; and that, in order to convict, the jury should be satisfied that the defendant either had liquor on hand, or was ready and able to procure it, in either case with the purpose of selling some or all of it to such persons as he might from time to time find or conclude to accept as customers." Bailey v. United States, 6 Cir., 259 F. 88, 92. When the evidence shows that a defendant owned a considerable quantity of intoxicating liquor which he had on hand at the place of the alleged sale, with the purpose of selling it to such persons as he might conclude to accept as customers and that he participated in a single sale, the law does not require proof of more than such sale to convict of the charge of carrying on the business of a wholesale liquor dealer without payment of the special tax. Sodini v. United States, 6 Cir., 261 F. 913. To sustain a conviction for carrying on the business of a wholesale liquor dealer without payment of the tax, it is not necessary that the evidence show more than a single sale, where there are corroborating circumstances tending to show that the defendant was engaged as a dealer in the wholesale liquor business. Johnson v. United States, 5 Cir., 84 F.2d 114. See: Rooks v. United States, 6 Cir., 263 F. 894; United States v. Maggio, 3 Cir., 126 F.2d 155.

There were such corroborating circumstances in this case.

Wilson conducted a wholesale and retail liquor business at Wallsend in Bell County, Kentucky. He had the necessary licenses and had paid the required taxes for the wholesale and retail business at this location. But he is charged with conducting a wholesale business in violation of the law not at Wallsend but at a place called Sharpe's Cour...