218 F. 782 | 4th Cir. | 1914
On July 17, 1913, the United States filed a libel of information against grain distillery No. 2, of the Pocahontas Distilling Company, which is located on the outskirts, but within the corporate limits, of the city of Petersburg, Va. It appears that this distillery had been under suspicion for some time, and closely watched by certain revenue officers, who, on the 14th of June, discovered that a so-called “slop, tank,” located outside of and on a line with the second
In section 3259 of the Revised Statutes it is provided that every person engaged in, or intending to be engaged in, the business of a distiller, shall give notice in writing to the collector of the kind of stills to be used and the cubic contents thereof, the number of mash tubs and fermenting tubs, and the cubic contents of each tub. Section 3263 provides, among other things, that every distiller shall cause to be made an accurate plan and description of the distillery and distilling apparatus, distinctly showing the location of every still, boiler, doubler, worm tub, and receiving cistern, the course and construction of all fixed pipes used or to be used in the distillery, together with every place, vessel, tub, or utensil from and to which any such pipe leads, or with which it communicates, and also the number and location and cubic contents of every still, mash tub, and fermenting tub. It seems to be conceded, and certainly is not open to serious question, that on the night of the 14th of June this slop tank was substantially full of beer in a state of active fermentation, that it was unlawful to use this receptacle for such a purpose, and that its use therefor would enable the distillery to produce a larger quantity of spirits than was possible with the appliances legitimately employed for that purpose, and thereby permit a fraud upon the government to the extent of the revenue upon such excess.
“You are further charged that if you believe from the evidence that the slop tank in question was not designed nor used for the purpose oí defrauding the government, and that on the occasion when the beer was found therein, as shown by the testimony, that it was pumped there by the defendant’s employe accidentally, and without intent or purpose then or thereafter to be used to defraud, you should find for the defendant”
If we correctly apprehend the evidence, it is virtually undisputed that the apparatus used in this distillery was so constructed and arranged that the mash, after it was cooled and ready for fermenting, could be
The plaintiff in error’s theory of accident or mistake finds its sole support in the testimony of its employé, a colored man by the name of Whittaker, to the effect that on Thursday, two days before the discovery of the beer in the outside tank, he had started to pump the beer for that day’s run from the cooler into the fermenters; that after the beer had begun to run he discovered that the valves to the fermenters were closed and the valves to the slop tank open; that he thereupon opened the valves to the fermenters and closed the valves to the slop tank, while the rotary pump was still running; that the effect of this was to allow a part of the mash intended for the fermenters to remain in the slop tank; and that afterwards, instead of opening the valves to the slop tank, so that the beer which had been accidentally pumped into that receptacle might run back, again into the fermenters, he kept the valves of the slop tank closed and filled up the fermenters with water. It appears, however, that the mash could not be pumped from the cooling tank into the outside tank unless all the Valves in the pipes leading to the outside tank were open and all the valves in the pipes leading to the fermenters were closed. This, of course, would be the case, because the outside tank was at a higher elevation than the fermenters, and the beer which was pumped up would therefore go into the fermenting tubs rathdr than to the upper outside tank. It is also the case that after the beer had been pumped into the slop tank it would not have remained there, unless the valves in the pipe leading to this tank had been kept closed. The testimony of this witness, consequently, involves the statement that the valves to the fermenters were closed when they should have been open; that the valves to the slop tank were open when they should have been closed; that he opened the valves to the fermenters' and closed the valves to the slop tank when the pump was in full operation, without assistance, without informing any one of what he was doing, and without being observed by any of the various persons, including the revenue officers, who were then in the distillery; that subsequently he supplied the loss of more than one-fourth of the day’s run by adding water to the unfilled fermenters, when by simply opening the valves to the slop tank he could have refilled the fermenters with beer; and that this condition, notwithstanding constant opportunity to correct it, continued unchanged for something like 60 hours.
The record discloses no corroboration whatever of the testimony of
This conclusion disposes of the contention that a verdict should have been directed for the defendant, because there was no evidence of intent to defraud the government, and it remains to consider the other assignments of error, so far as they seem to require discussion.
We have carefully examined the remaining assignments, which relate for the most part to rulings upon questions of evidence, without finding any error which requires a reversal of the judgment or furnishes occasion for special comment.
In our opinion, the case was properly and fairly submitted to the jury, and the judgment upon.their verdict should therefore be affirmed.