79 F.2d 515 | 5th Cir. | 1935
The amended libel sought condemnation of a Ford automobile under both section
R. S. § 3450 (26 USCA § 1441) provides that whenever any goods whereon a tax is imposed or “any materials * * * proper or intended to be made use of for or in the making of such goods” are deposited or concealed in any place with intent to defraud the United States of the tax, the goods and materials shall be forfeited; “and in every such case * * * every vessel, boat, cart, carriage, or other conveyance whatsoever * * * used in the removal or for the deposit or concealment thereof, respectively, shall be forfeited.” The question is whether this bead oil was a material proper or intended to be used in the illicit making of distilled liquor. A negative answer is urged because the oil is added after the distillation is complete and after the tax on the liquor has been incurred. But it is added before the manufacture is complete and before the product is to be offered for sale. The oil changes the appearance of the liquor and makes it more salable. Adding coloring matter to simulate aging, or flavoring matter to improve the taste, would be similar operations. Ingredients thus added by the maker are all materials used in the manufacture. That the purpose of the use is fraudülent and improper in that sense does not make any difference. We think this bead oil could be found to be a material proper, and intended to be used in the making of distilled liquors in fraud of the federal tax.
The testimony that the bead oil was npt Edenfield’s but Warren’s does not require acquittal of the automobile. It does not stand uncontradicted, but is opposed by the claimant’s own admissions. Edenfield at first said the oil was his, and the statement is corroborated by his extensive distilling operations in which he customarily used it. This first statement might be accepted as nearer the truth than the account later given. But even if the bead oil was bought for and belonged to Warren, they both knew what it was used for locally, and there is no 'reason to doubt that it was intended for use in illicit distilling and was “material” subject to forfeiture under the statute. It was removed and c'oncealed in this car by the owner of the car and would authorize its condemnation. It is unnecessary to consider R. S. § 3453 (26 USCA §§ 1620 (a), 1621).
Judgment affirmed.