12 Int. Rev. Rec. 145 | U.S. Circuit Court for the District of Eastern Tennessee | 1870
(charging jury). The charge contained in this indictment is very simple. It is, did this defendant carry on the business of a distiller, and, if Ife did, did he pay the special tax? If not, he would be guilty. But, gentlemen of the jury, who can it be said “carries on the business of a distiller”? Can it be one who is only employed to do the work? Suppose Samuel Pike, who is a large distiller, and has some two hundred hands employed to do the work, should canyon the business without having paid the special tax. Can it be said that those two hundred men would be guilty of a violation of this law? Can it be said that these two hundred men are carrying on the business of distillers? No, gentlemen of the jury, such a proposition is absurd, is perfectly monstrous— the very statement of the case is ridiculous. Why, if a party other than the principal in the transaction is liable to a criminal prosecution because he works in the distillery, then he is also liable to be assessed and made to pay the special tax and other assessments. This the government does not require. They only look to the owner or proprietor for the special tax, and they alone are liable to a criminal prosecution if they fail to pay it. This court has so held the law to be time and time again. It sees no reason to change its views, and never will hold otherwise, unless some decision shall be made which is binding on this court, and which will require this court to change its ruling. This court does not believe any judge ever intended to decide otherwise; and this court will punish as a contempt hereof any counsel who will again argue this proposition with the earnestness and zeal with which it has been argued on iha trial of this cause.
The defendant having been found at work iu the distillery, he will be presumed to have been the proprietor, unless he shall rebut that presumption by proof. If from the proof the jury believe defendant was merely employed by Mitchell and was distilling for Mitchell, who was the proprietor, and that defendant had no interest in the distillery, or in the whiskey made, as a partner or proprietor, then they cannot find the defendant guilty, even though defendant may have had knowledge at the time that Mitchell had not paid the special tax.
As to the fact that defendant was to receive a part of the whiskey made, the court leaves it to the jury to say whether, by such a contract, the defendant became interested in the matter as a partner, if so, he would be liable, but if the jury shall believe that the one fourth gallon was paid to defendant by Mitchell merely as a compensation for his labor, then defendant would not be guilty, as the fact of being paid in the whiskey he distilled for Mitchell, would not in law make defendant guilty, any more than if Mitchell had paid him in money. If the jury shall find that the defendant was running the distillery for himself, or had an interest therein as partner or proprietor, and not working there as an employee for wages, then defendant will be guilty, and the jury will so find, as there is no claim set up that any special tax had ever been paid.
The court entirely disregarded the instructions asked for by the district attorney, except as the same may have been embraced in the charge above given.
The jury, after being out two days, being unable to agree, were discharged and a mistrial entered.