88 F. 856 | S.D. Ill. | 1898
A proceeding to forfeit a package of distilled spirits, under section 3289, Rev. St. U. S., as not “having thereon each mark and stamp required therefor by law.” The package in question bore stamps and marks indicating that it was entered into bond December 23, 1891, containing 48 wine gallons of 100 per cent, proof; was withdrawn, and tax paid, April 2, 1896, containing 36-J ■wine gallons of 107-proof; and, being gauged by a revenue officer at Cairo, Ill., in December, 1896, and found to contain 33£ wine gallons of 101 per cent, proof, was seized for forfeiture. The plaintiff proved these facts, and introduced evidence tending further to show that the' change between the condition of the spirits at the time of tax payment and its condition at the time of seizure could not .have occurred from natural causes alone, but witnesses for the plaintiff testified on cross-examination that the change could have been occasioned by the addition of about two gallons of water, after allowing for an evaporation of about three gallons of spirits and a loss of a gallon and a half by leakage or removal. Plaintiff further introduced in evidence a regulation of the commissioner of internal revenue to the effect that distillers or wholesale liquor dealers may reduce to their original proof, by the addition of distilled water, such distilled spirits as have increased in proof in the distillery warehouse, provided they do so in the presence of a United States gauger, and put a mark upon the stamp head of the package, indicating that it had been so reduced. With the further evidence that no such mark appeared, uuon the cask in question, the -’aintiff rested. Thereupon the claim'
In quite a line of decisions the courts of the United States have held that the addition of water or sugar to a package of distilled spirits on which the tax has been properly paid (either of which will have the effect to reduce the proof of the spirits) is no violation of law, and does not work a forfeiture of the spirits. U. S. v. Thirty-Two Barrels Distilled Spirits, 5 Fed. 188; Three Packages of Distilled Spirits, 14 Fed. 569; U. S. v. Bardenheier, 49 Fed. 846; U. S. v. Sixty-Four Packages of Distilled Spirits, 51 Fed. 191; U. S. v. Fourteen Packages Distilled Spirits, 14 C. C. A. 220, 66 Fed. 984. Witnesses have testified that there is a continuing variation in both the volume and proof of spirits, from the marks and stamps upon the package, resulting alone from evaporation and lapse of time. In seeking a forfeiture, therefore, not upon direct evidence of an alleged act, but upon proof of a condition, a condition must be shown which, could not have occurred by natural causes or by legal means; in other words, the government should negative every presumption of legality. The rules of evidence apply as well to the government as to other plaintiffs, with the exception that under certain conditions the burden is upon the claimant to prove that the tax has been paid on distilled spirits. That burden was removed in this case by the allegations of the information on that point, and a condition once proven is presumed to continue until evidence to the contrary. Since it was in evidence that the condition of the spirits at the time of seizure, as to volume and proof, might have been occasioned by means heretofore declared by the courts to he lawful, and all the original stamps and marks are still upon the package, no prima facie case was made, unless there is required by law some additional mark or stamp whenever the proof of spirits is so reduced as aforesaid. The district attorney insists that the mark required by the regulation of the commissioner of internal revenue hereinbefore referred to is such a mark. Section 3287, Rev. St. U. S., prescribes the marks and stamps which shall be placed upon a cask or package of distilled spirits at the time of manufacture and entry into the distillery warehouse, and section 8295 prescribes the stamps and marks which shall he placed upon the package at the time of its withdrawal and tax payment. Section 3249 defines proof spirits, and the latter part of this section is relied upon by the district attorney as authority for the regulation of the commissioner above referred to. It reads as follows:
“And for the prevention and detection of frauds by distillers of spirits, the commissioner of internal revenue may prescribe for use such hydrometers, saecharometers, weighing and gauging instruments, or other means for ascertaining the quantity, gravity and producing capacity of any mash, wort or beer used, or to he used, in the production of distilled spirits, and the strength and quality of spirits subject to tax, and he may deem necessary; and he may prescribe rules and regulations to secure a uniform and correct system of inspection, weighing, marking and gauging of spirits.”
The district attorney, at the time the ruling on the demurrer was announced, made a motion for a certificate of probable cause, which I have felt constrained to deny, since the granting of such a certificate would be utterly inconsistent with my ruling on the demurrer.