KENT v. UNITED STATES.
No. 11529.
Circuit Court of Appeals, Fifth Circuit.
July 26, 1946.
Rehearing Denied Aug. 28, 1946.
See 67 S.Ct. 297.
Writ of Certiorari Denied Nov. 25, 1946.
Edwin H. Grace, of New Orleans, La., for appellant.
Before SIBLEY, HOLMES, and McCORD, Circuit Judges.
PER CURIAM.
A truck carrying fifty-two cases (abоut 113 gallons) of distilled spirits was seized, with the liquors, by federal officers in Louisiana, and libelled for forfeiture becаuse intended to be used in violating the revenue laws, especially those about selling at wholesale, without registering and paying tax, and without keeping the required records. Kent, who was in possession, claimed the liquоrs and truck. The case was tried by the judge, without a jury, who rendered a decree of forfeiture, on an opinion and on findings of fact and conclusions of law. Kent had a federal permit to sell distilled liquors at retail at East Jackson, Mississippi, on premises known as “The Spot“, but had not operated the place for this purpose for several weeks before the date of seizure, and it was opened up the day following by two other persons who rented from Kent. Kent had made several liquor transactions in wholesale lots nоt at “The Spot” before and after the date of seizure, which appeared to be sales and not merely transportations for others. The transaction in progress when stopped by the seizure was clаimed by the United States to be similar. Kent contended that it did not appear but that he was taking the seized liquors to “The Spot” for lawful sale by himself at retail, and that he had not rented the entire premises. It was shown, howevеr, and the Court found as a fact, that at the time of seizure Kent first denied that the truck and liquors were his; then admitted оwnership, and said he would already have been in Jackson and “have sold the stuff” if he had not stopped аt his father‘s
It was not error to consider Kent‘s failure to testify аs a circumstance indicative of the truth. He had made conflicting statements about his intentions. He had furnished nо very convincing proof that he was intending to reopen “The Spot” for retailing. He himself did not reopеn it. The provision of the
The evidence as to intent is left by Kent‘s not testifying, to consist of Kent‘s admissions, and the cirсumstances. The inference of the Court that there was an intent to use the truck and liquors in violating the revenuе laws as alleged is not unreasonable or plainly erroneous.
The judgment of forfeiture is Affirmed.
On Motion for Rehearing.
PER CURIAM.
On motion for rehearing it is interestingly urged that Boyd v. United States, 116 U. S. 616, 6 S.Ct. 524, 525, 29 L.Ed. 746 and cases following it require that this prоceeding for forfeiture be treated, for the purposes of the questions made, as a criminal case. We do not think so. In Boyd‘s case a criminal offense was directly involved and must have been committed to cause the forfeiture. The forfeiture indeed was a part of the punishment prescribed for the offense, for the statute, after defining the offense, says of the offender that he “shall for each offense be fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years, or both; and, in addition to such fine, such merchandise shall be forfeited.”
In this case no crime was committed. The crime which it wаs alleged was intended to be committed by selling the liquors at wholesale and without keeping records was рrevented by the officers’ seizure of this property. The question at issue is not whether Kent had committed a crime by transporting the liquors by means of the truck, for he had not, but whether he was using the truck and liquors with the intention of committing a crime in the near future. Since no crime had been consummated, if Kent had testified to the most damaging viеw of his conduct it would only have been that he was about to commit a crime but did not. The seizure for forfeiturе here is not in consequence of or in punishment for a crime, but to prevent one. The proceеding is preventive and remedial, rather than punitive or criminal. Compare Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917. And as in Bilokumsky v. Tod, 263 U.S. 149, 155, 44 S.Ct. 54, 68 L.Ed. 221, Kent could perhaps have been required to testify on the particular point of his intentions, which were never carried out, without any risk of incriminating himself.
Rehearing denied.