aforesaid,' in the charging clause, may be rejected as surplusage, as the indictment expressly charges that the pension money was withheld from the children. "The fact in regard to the terms of the pension certificate may be as stated; and perhaps the guardian may, in that case, be properly considered as the pensioner, in her representative capacity; but if so, it can make no difference upon this motion. The motion in arrest must necessarily be determined upon the allegations of the indictment alone. The indictment, as has been seen, alleges that the minor children were the persons entitled to the pension, and that it was granted to them, and not to their guardian; and they are expressly designated as the pensioners throughout the indictment. If the indictment had been differently drawn, in accordance with the fact suggested, a different question would have been presented; but, as the case now stands, the judgment must be arrested." § 82. Revenue Laws - Smuggling. — As a general rule, unless there is some law forbidding it, it is not a crime to import goods into the United States without payment of duty. The crime of smuggling is not complete until the goods are not only brought into the country, but fraud or concealment has been practiced with intent to defraud the revenue.1 $82a. · Manufacturing Still - Notice. - An indictment under section 25, for manufacturing and removing a still without notifying the collector, must charge that the still was intended to be used within the United States, for distilling spirits, and that it was the defendant who failed to give the notice. And a statement that the collector of the district in which the still was to be used was not notified is not an affirmation that there was any such district. § 826. Retail Liquor Dealer.-A few instances of selling liquor in small quantities by persons having no bar-rooms, and none of the usual appliances of retail liquor dealers, with no intention apparent of defrauding the revenue, do not constitute a carrying on the business of retail liquor dealing, within the meaning and objects of section 3242 of the Revised Statutes.* § 82c. Place where Spirits are Distilled. - Under section 45 of the act of Congress of July 13, 1866, the "place where spirits is distilled" is the distillery premises, and does not mean the worm or the still itself." § 82d. Removing Liquors from Warehouse - Intent.-On an indictment for removing spirits from a bonded warehouse between sunset and sunrise, there can be no conviction without proof of a fraudulent intent." § 82e. Failure to Obliterate Stamp- When not Indictable. In United States v. Buchanan,' defendant was indicted under section 3324 of the Revised Statutes for failure to obliterate the stamp on a cask of spirits after it had been emptied. It appeared that his wife attempted to empty the cask, and after removing what could be obtained through the faucet had removed the cask to an 1 U. S. v. Thomas, 4 Ben. 370. 2 ch. 184, Stats. 1866. 8 U. S. v. Reed, 1 Low. 232. 4 U. S. v. Jackson, 1 Hughes, 532. U. S. v. Blaisdell, 3 Ben. 132. U. S. v. Harries, 2 Bond, 311; U. S. v. Smith, 2 Bond, 323. 74 Hughes, 487; 9 Fed. Rep. 689. other room with a view to drawing off what spirits remained through the bunghole. Held, that the defendant was not criminally liable if the intention was to obliterate the stamp as soon as the cask was emptied, and there was no unreasonable delay. § 825. Having Used Stamps in Possession. An indictment under section 3376 of the Revised Statutes, for having in possession revenue stamps previously used, is not sustained by proof of possession of parts of stamps previously used.1 § 82g. Distiller in Default, When. - Under the twenty-third section of the interval revenue act of July 13, 1866, a distiller is not in default for the mere non-payment of his special tax of $100, until ten days after the receipt by the collector of the assessment list, in which the special tax is to be inserted, and he can not be held guilty of the offense created by this section, unless he carries on the business after he is in default for non-payment of the, tax.2 § 82h. Sale of Tobacco at Retail. —Section 3363, of the Revised Statutes, which declares that "no manufactured tobacco shall be sold or offered for sale unless put up in packages and stamped as provided in this chapter, except at retail, by retail dealers, from wooden packages stamped as provided in this chapter," and punishing those selling such tobacco not so put up and stamped, does not require that a sale at retail must be made directly and literally from the package, and thereby render a sale of a part after it has been separated from whole unlawful. One who has paid a special tax as a dealer in tobacco, and purchased plug tobacco in wooden packages, put up and stamped as required by the internal revenue laws, may keep the packages in the back room and sell the plugs from his show window, without becoming liable to the penalty of this section.3 § 821. License-What is not "Carrying on Business."- A peddler was indicted under section 73 of the act of 1864, for carrying on business without a license. He had applied in April to pay the tax for the year beginning May 1st, but the assessor was not ready to receive the tax, and did not present the bill until May 20th. In the mean time defendant had sold out his business, having carried it on for a few days in May, and refused to pay the tax. Held, that an indictment would not lie.' § 82j. License-Tax. - An indictment charging the defendant with carrying on the business of distiller from September 1, 1866, to December 10, 1866, without paying the tax required by the act which went in to effect on September 2, 1866, should allege that the defendant began business under the new law, or that he was not licensed under the old law, under which licenses ran from May to May, or that, having been so licensed, and having been assessed an additional fee under the new law, he had not paid it. In United States v. Fox, LoWELL, J., said: "The last objection appears to be well taken. The indictment ought to show that the business was carried on without due payment. Now everything here alleged 1 U. S. v. Loup, 1 McCrary, 168. U. S. v. Pressy, 1 Low. 319. 5 1 Low. 199 (1868). may be true, and yet the defendants may have paid a license fee on the 1st of May, 1866, and the business may have been conducted under the license. The new act went into operation on the second day of September, and it does require a larger fee to be paid by distillers than was required by the statute of 1864; but it may well be doubted whether the assessors would be authorized to assess the increased amount before the following May upon those who had licenses under the old act. I find nothing in the new act looking to any such action excepting the proviso of the eigthieth section, cited at the bar, which prohibits a new assessment in certain cases; the implication from that proviso is hardly strong enough to warrant me in adding a positive duty not elsewhere enjoined. I am informed that the practice of assessors has not been uniform in the different districts in this particular; and I can easily understand that this might be so. But of this I am clear, that it can not have been the intention of the law to render a distiller liable to these severe penalties who was carrying on his business under license when the new law took effect, unless he had been duly assessed and called on to pay the additional fee, and had refused or neglected to do so. It is said that the time is immaterial, and that on this motion it may be presumed that evidence was given of acts done since May 1, 1867. It is not material to prove the time precisely as alleged, but it is necessary that the time charged should be consistent with the offense charged, so that the indictment shall be good on its face. Thus to lay an impossible time, or one beyond the statute of limitations; or that a crime which can only be committed on Sunday was done on Monday, etc., would be bad. In motions for arrest of judgment, the time is presumed to be truly alleged,1 and taking this to be so, this indictment shows that the statute had come into full operation only as to those distillers who began business afterwards, or who, being assessed for an extra license fee, had not paid it, and not as to all distillers; and these defendants should have been shown to be within its operation, by alleging either that they began the business under the new law, or that they were not licensed under the old law, or that having been so licensed, and having been assessed an additional fee, they had not paid it. "Judgment årrested.” "Posted." -The United § 83. Postal Laws-Letters Must be in Mail States law covers the letter only while it is in the mail and before it is delivered by the carrier.2 A letter before it is "posted" is not a "post letter" within the English statute.3 Letters Must be in § 83a. Post-office Laws-Withholding LettersTransitu.—The statute as to withholding letters by a post-office employe applies only to letters which have not reached their destination. Postmaster Opening Letters 5 § 836. Evidence Insufficient to Convict. In United States v. Emerson, upon an indictment against a postmaster for embezzling letters containing articles of value, where none of the other postmasters along the intended route of the letters, and through whose hands the letters must have passed in order to reach their destination, were called as 1 Com. v. Hitchings, 5 Gray, 485. 2 U. S. v. Parsons, 2 Blatchf. 104 (1849). 3 R. v. Harley, 1 C. & K. 90 (1843). 4 U. S. v. Pearce, 2 McLean, 14. witnesses, and the defendant was proved to be of a good character, the evidence of a witness of bad repute among his neighbors, who testified that he saw the defendant open the letters and take their contents, under circumstances very improbable, was held to be of very little weight. In United States v. Whitaker,1 a postmaster was indicted for stealing a letter from the mail containing money. The good character of the defendant was proved, and all the persons through whose hands the letter would pass in reaching its destination were not examined as witnesses. The court charged the jury that the defendant's character should have weight in their deliberations, and that unless they were satisfied beyond a reasonable doubt of the defendant's guilt they ought to acquit. §83c. Stealing Letter · -Must be Taken from Mail. — Upon the trial of an indictment for stealing a letter from the mail, which letter contained a draft, where there is no evidence implicating the defendant with the violation of the mail shown to have taken place, except evidence of the possession by the defendant of the draft, it will be for the jury to determine, first, whether the evidence sufficiently proves the fact of the possession of the draft by the defendant; and secondly, whether, if in his possession, he abstracted it from the mail. If he came feloniously into possession of the draft by any other means than by stealing it from the mail, the Circuit Court has no jurisdiction.2 --- § 83d. Stealing Letter Evidence Insufficient to Convict. - In United States v. Poage, the prisoner was indicted for stealing a letter from the mail. MCLEAN, J., charged the jury as follows: This is an indictment against the defendant, charging him with stealing from the mail a certain letter, written by Nesbat, and directed to George H. Calvert, Cincinnati, which contained a bank bill for one hundred dollars and a promissory note for eighty-two dollars. Mr. Nesbat being sworn states, that he lives in Kentucky, at the Dry Ridge postoffice; that on the 6th of January last, the above letter was written by him and directed to George H. Calvert, containing a hundred dollar note, and his own promissory note for eighty-two dollars. On the 11th of the same month the note was presented to witness for payment by a young man at his residence, with whom defendant was in company. The boy appeared to be fifteen or sixteen years of age, who said he was connected with an insurance company, and was sent out to collect. The note he said had been received from Mr. Calvert. Witness paid the note in cash, except each took a pair of gloves from his store. The note appeared to have been indorsed by George H. Calvert. The witness lives thirty-four miles from Cincinnati, and the letter must have reached the city the day it was mailed. Two letters were sent in the same post bill. Witness thinks the words of the boy were, "we are connected with an insurance company." The name of the young man or boy was James C. Adams. On examination the witness found the post bill in the Cincinnati post-office. Henry G. Galt, a clerk in the post-office, opened the packet, at the Cincinnati post-office, which contained the post bill and the two letters. Calvert, to whom it was directed, never received it. Mr. Suffield, who works for Calvert, receives his letters from the post-office, and did not receive this one. Mr. Jackson, kept the Farmer's Hotel in Covington last January. On the 11th of that month 16 McLean, 342. 2 U. S. v. Crow, 1 Bond, 51. 36 McLean, 89 (1854). defendant boarded with witness. On the night of the 10th of January, Coyle staid at his house, and registered his name Adams. He had been once before at the house of witness. Heard him say that he was acquainted with Poage in Virginia. They lodged in the same room the night of the 10th, and the next day they went to the country together in a buggy. On the 12th they returned at about ten o'clock. Mr. Beal states that on the 10th of January, he met Mr. Poage early in the morning, who helped witness make a fire, and remained until about 12 o'clock. After some time Poage and the boy came together to the house, at between one and two o'clock. The boy showed a note, and said he had traded a galvanized watch for it, and that if he did not collect the note he would not lose much. The witness identifies the note. When he saw it, it was not indorsed, and he observed to the boy, without the indorsement of Calvert he could not collect the note. The boy soon went out to get the note indorsed, and when he returned, he said that he had met the man, who indorsed it. Mr. Brown, says he first saw defendant at Cabell County, Virginia, and found him fifteen miles beyond Guyandotte. The defendant said that he had known Coyle at Staunton, but had not seen him for some time before he met him at Cincinnati. He said Coyle was in the printing office. Here the evidence of the prosecution closed. Mr. Moore, a citizen of Virginia, was acquainted with the defendant, near Staunton, Virginia. He was then engaged as engineer on a railroad, and was a man of good character and respectably connected. Mr. Harrill, from the same neighborhood, spoke of the excellent character of the defendant, and that he was employed as an engineer on a railroad. Messrs, Walker, Wilson, and Marcus all testified to the good character of the defendant in Virginia, where he was engaged in most respectable employments. Some of the above witnesses had been members of the Virginia Legislature, and all of them had the appearance of gentlemen, and were intelligent. The court observed to the jury, there can be no doubt, from the evidence, that the letter which contained the bank bill and the promissory note of Nesbat was stolen, and from the fact that Coyle had possession of the note and collected it, under false pretenses, he would be presumed to be the guilty person, if now on his trial. The only evidence against the defendant is, that he was associated with Coyle when he collected the note, and received a pair of gloves in the way of change. The association with Coyle before they rode out to Nesbat's and afterwards, lodging in the same room on the night of the 10th of January, was enough to excite suspicion against him. But his good character, being sustained by most respectable witnesses in Virginia, where the defendant was reared and respectably employed, should exonerate him from mere suspicion, founded on such circumstances. Good character can seldom fail to protect an individual from suspicion. A man of intelligence and reputable standing in society, is not likely to indulge in crime, or to do anything which shall forfeit his good name. If the defendant had participated with Coyle in stealing the letter he would without doubt have suggested to him that the note must be indorsed to enable him to collect it. If he was acquainted with Coyle in Virginia, their intimacy may be accounted for without presuming any participation of the defendant in the crime charged. And you can not find the defendant guilty, unless you shall find he participated in stealing the letter. The case is left with you, gentlemen, not doubting that after deliberately weighing the testimony, you will come to a just conclusion. Verdict, not guilty. |