Wood v. United States

• Decision Date: 13 February 1913
• Docket Number: 1,129.
• Citation: 204 F. 55
• Parties: WOOD et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

204 F. 55

WOOD et al. v. UNITED STATES.

No. 1,129.

United States Court of Appeals, Fourth Circuit.

February 13, 1913

George A. Hanson and L. O. Wendenburg, both of Richmond, Va. (Oswald L. Cole, of West Point, Va., on the brief), for plaintiffs in error.

Robert H. Talley, Asst. U.S. Atty., of Richmond, Va.

Before GOFF and PRITCHARD, Circuit Judges, and ROSE, District Judge.

ROSE District Judge.

The plaintiffs in error were the defendants below. They will be referred to as such. An indictment of 16 counts was returned against them and others. They demurred to each count. The demurrer was overruled. They here say that it should have been sustained. As they were convicted on the first and sixteenth counts only, it is unnecessary to consider the sufficiency of any of the others.

The first charged that on certain named dates at a specified locality in the district, they unlawfully did engage in and carry on the business of distillers with intent to defraud the United States of the tax on a part of the spirits distilled by them. The sixteenth alleged that they on certain named dates at a specified place were persons who made and distilled spirits and had a particular described still under their superintendence, and--

'unlawfully and with intent to defraud the United States did make certain false entries in the book required to be kept by them as such distillers under the provisions of section 3303 of the Revised Statutes of the United States (U.S. Comp. St. 1901 p. 2155), to wit, form 13-- that is to say, did make entries of the quantity of grain and other material used for the production of spirits, and the number of gallons of spirits distilled, greatly below the true and exact quantity of grain and other materials so used and the number of gallons of spirits so distilled.'

The offense charged in each of these counts may be punished by imprisonment for more than a year. Defendants argue that it is therefore made a felony by section 335 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1152 (U.S. Comp. St Supp. 1911, p. 1687)). Neither count alleges that what is therein charged was feloniously done. The omission is said to be fatal to the validity of the counts.

The government asserts that the above provision of the Penal Code has no application to breaches of the internal revenue laws. We do not find it necessary here to decide whether it has or has not. More than 60 years ago, in United States v Staats, 8 How. 41, 12 L.Ed. 979, it was ruled that where a crime is made a felony by statute, it is not necessary to charge that it was feloniously committed, unless the statute itself makes a felonious intent an element of the offense.

Defendants say the sixteenth count was bad, because it did not set forth the exact entries alleged to be false, nor give a description of such entries sufficient to bar future prosecutions for the same offense, nor did it allege that the book in which the entries were made was one prescribed by the Commissioner of Internal Revenue.

We are of opinion that the description of the entries was sufficient, in the absence of any request by the defendants for a bill of particulars, and that the statement that the book in which the entries were made was a book required to be kept by them as such distillers under the provisions of section 3303 Revised Statutes of the United States, to wit, form 13, was all that was necessary to show that it was a book which such section required to be kept and the making of false entries in which with intent to defraud or conceal is by section 3305 (U.S. Comp. St. 1901, p. 2156) made an offense.

The demurrers to these counts of the indictment were rightly overruled.

Wood, one of the defendants, filed a special plea in his own behalf. By it he alleged that while the distillery in connection with which the frauds charged against him were said to have been committed stood in the name of the Broad Rock Distilling Company, Incorporated, he was the president, the sole owner, and the sole stockholder of such company, and therefore sole owner of such distillery, and that upon a libel of information against such distillery, filed by the government and charging the same offenses as those alleged in the indictment, the distillery had been forfeited to the government. The United States demurred to this plea. The demurrer was sustained.

There was no error in so doing. The plea was bad, and that for two reasons. If a man for his own convenience chooses to conduct any business through a corporation, he is estopped to say that he and the corporation are one person, and not two. He may not obtain for himself the limitation of liability and the other advantages...