49 F. 846 | E.D. Mo. | 1892
(after stating the facts.) The chief objections-to the first series of counts are that an “obliteration ” of a portion of a government inspection mark or stamp is not a “change or alteration” thereof, within the meaning of section 3326; and, secondly, that the-counts are bad because it is not alleged that the marks and stamps were ¡ knowingly and intentionally altered in the respects stated.
It will be conceded that an unintentional or accidental erasure of a stamp, or some part of it, is uot an offense under section 3326. An indictment or information thereunder should accordingly allege that the act was done knowingly and intentionally, or it should employ language of a similar import. The present information avers that the defendant “did unlawfully change and alter” the marks and stamps in question. This sufficiently shows that the act was done willfully and intentionally, as otherwise it could not bo said to have been done unlawfully.
2. The second serios of counts must be adjudged insufficient. The statute (section 3326) imposes a penalty on one who “fraudulently uses any cask or package having any inspection mark or stamp thereon, for the purpose of selling other spirits, or spirits of quantity or quality different from the spirits previously inspected therein.” The fraud in this clause intended is evidently a fraud upon the government, to be effected by putting into a cask, after it has been inspected or stamped, other spirits, either of the same or a different quality, that were not therein at the time of such inspection or stamping. It is apparent that congress was legislating for the protection of the revenue, rather than for the prevention of merely private wrongs. It intended to prevent frauds on the revenue that might be perpetrated by filling barrels that had been inspected or stamped with other spirits, after the original contents had been wholly or partially withdrawn. The second series of counts do not charge with certainty such a fraud as this clause of the statute was intended to prevent. They show, no doubt, that defendant made use of the inspection marks to misrepresent the proof of the liquor to one of his customers, or to aid in such misrepresentation, but it is not alleged that the change in proof was due to the fact that other spirits had been placed in the several casks after the original inspected contents had been wholly or partially withdrawn. The reduction in proof may have been due to natural causes, or to the addition of water after a por
The second series of counts will be quashed. The demurrer and motion to quash the first series will be overruled.