283 F. 685 | S.D. Ohio | 1922
On motion to quash and demurrer. The first count of the indictment charges a conspiracy by the defendants to violate the National Prohibition Act (41 Stat. 305) in specified ways, with averments of overt acts of transportation, possession, and sale of whisky for beverage purposes. The motion to quash and demurrer to this count have heretofore been overruled.
Section 3242, having thus been repealed as to dealers in liquor for beverage purposes, can only operate upon a restricted class, viz. dealers in nonbeverage liquors. The statute at best can now be read only to enact that every person who carries on the business of a liquor dealer for nonbeverage purposes (or, except for beverage purposes), without having paid the special tax as required by law, shall, for every such offense, be fined and imprisoned. Even if the restriction of the class so punishable be stated by way of exception, as in the alternative form above, nevertheless it is such an exception as goes to the very definition of the offense. 1 Wharton, Crim. Ev. § 288 et seq. Therefore, in order to prosecute under section 3242 for failure to pay the tax, it is necessary to bring the defendant within the now limited scope of the act by averring that he dealt in liquor for nonbeverage purposes.
The sixth and seventh counts, charging carrying on the business of a rectifier without having paid the special tax, should be especially mentioned. Rectification is nothing more than part of the process of manufacture, and is thus within the inhibition of the present law and the terms of section 35 aforesaid. These counts, therefore, are in no different situation than the others.
It is concluded that these counts are bad, because there is no averment that the business carried on was in liquor for nonbeverage purposes, to which business alone the penalties for failure to pay the fax prescribed by the old revenue laws apply. Of course, no such averment could have been made if it was intended to charge as substantive offenses by the last six counts the overt acts of the first, because those acts are laid as dealings in liquor for beverage purposes. Consequently the demurrer to these six counts must be sustained.
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