189 F. 838 | W.D. Va. | 1911
The first count of this indictment reads:
“United States of America, Western District of Virginia, Danville Division. — ss.:
“In tlie District Court of the United States, in and for the Western District aforesaid, at the November term thereof, A. D. 1909. The grand jurors of the United States, impaneled, sworn and charged at the term aforesaid, of the court aforesaid, on their oaths present', that Ned Thompson on the ---— day of-, in the year 1909, in the said district, and within the jurisdiction of said court, did unlawfully remove and aid and abet in the removal of certain distilled spirits, to wit', ten gallons, upon which the tax imposed by law had not been paid, from a distillery to the grand jurors unknown, to a place other than the designated place of deposit provided by law, to-wit Franklin county, contrary,” etc.
The second, and last, count merely charges “concealing” in the same language.
E It was objected that the indictment does not inform the defendant whether the charges relate to whisky or brandy. Except for the fact that “designated place of deposit provided by law” has been substituted for “the distillery warehouse provided by law,” the indictment follows the form approved in Pounds v. U. S., 171 U. S. 35, 38, 18 Sup. Ct. 729, 730, 43 L. Ed. 62. in which case it is said:
“Tho offense was purely statutory. In such case it is generally sufficient to charge the defendant with acts coming within the statutory description in the substantial words of the statute without any further expansion of the matter. United States v. Simmons. 96 U. 8. 360 [24 L. Ed. 819]; United States v. Britton, 107 U. S. 655 [2 Sup. Ct. 512, 27 L. Ed. 5201.”
“Whenever any person removes * * * any distilled spirits on which the tax has not been paid, to a place other than the distillery warehouse provided by law * * * he shall be fined,” etc.
The argument is that there is no warehouse provided by law at the ordinary illicit distillery, and that consequently Congress had in view only removals from registered and bonded distilleries at which there always is a warehouse provided by law. I question if there is room for sufficient doubt as to the meaning of the statute to render it open to construction. “Where a law is expressed in plain and unambiguous terms, * * * the Legislature should be intended to mean what they have plainly expressed, and consequently no room is left "for construction.” Lake County v. Rollins, 130 U. S. 662, 670, 671, 9 Sup. Ct. 651, 652, 32 L. Ed. 1060. The language used in the statute most plainly makes it illegal to remove any untaxed spirits, and as by way of proviso it necessarily excepted removals from all distilleries to the warehouses provided by law at such distilleries. Therefore, as I read it, the statute forbids all removals of untaxed spirits except from a registered distillery to the warehouse at that distillery; and, in case of brandy, except from a registered distillery to the designated place of deposit, which is the distillery warehouse provided by law. No reason suggests itself why Congress should have intended that this statute should not apply to removals of untaxed spirits produced at an illicit distillery. The statute was enacted to facilitate the collection of revenue from distilled spirits. There was therefore reason for an intent to make such removals as entirely illegal as improper removals from registered distilleries. The statute (3296) was taken verbatim from (15 Stat. 140) section 36 of an “Act Imposing Taxes on Distilled Spirits and Tobacco and for other purposes,” enacted in 1868. An intent that illicitly made and untaxed spirits could be removed freely, while untaxed spirits produced at registered distilleries should not be removed (except to the warehouse), cannot, as it seems to me, be
The very fact that a quite thorough search, including 186 Federal Reporter and 218 U. S., has failed to discover a single case in which, such contention has been made, is almost of itself sufficient for holding the contention unsound.
Counsel for defendant seemingly place reliance upon what was said in debaté in Congress when the act of 1868 was passed. I do not myself find in such parts of the debates as are submitted .in the brief anything that seems to relate to the point. See Cong. Globe, June, 1868, pp. 3379, 3397, 3400, 3401, 3456.
Chief Justice Taney said that in expounding a law “the judgment of the court cannot in any degree be influenced by the construction placed upon it by individual members of Congress in the debate which look place in its passage, nor by the motives or reasons assigned by' them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself.” Aldridge v. Williams, 3 How. 9, 24, 11 L. Ed. 469. See, also, U. S. v. Railroad Co., 91 U. S. 79, 23 L. Ed. 224; Knowlton v. Moore, 178 U. S. 72, 20 Sup. Ct. 747, 44 L. Ed. 969; American Co. v. Worthington, 141 U. S. 473, 12 Sup. Ct. 55, 35 L. Ed. 821; Bate v. Sulzberger, 157 U. S. 42, 15 Sup. Ct. 508, 39 L. Ed. 601; Dunlap v. U. S., 173 U. S. 75, 19 Sup. Ct. 319, 43 L. Ed. 616; Merritt v. Welsh, 104 U. S. 702, 26 L. Ed. 896; Mitchell v. Great Works Co., 2 Story, 653, 17 Fed. Cas. 498, 499. The following are the only cases found which in any sense-bear upon section 3296, Rev. Stats.: Garnhart v. U. S., 16 Wall. 162, 21 L. Ed. 275; U. S. v. Simmons, 96 U. S. 360, 24 L. Ed. 819; U. S. v. Chouteau, 102 U. S. 603, 26 L. Ed. 246; U. S. v. Britton, 107 U. S. 655, 2 Sup. Ct. 512, 27 L. Ed. 520; Stone v. U. S, 167 U. S. 184, 17 Sup. Ct. 778, 42 L. Ed. 127; Pounds v. U. S., 171 U. S. 35, 18 Sup. Ct. 729, 43 L. Ed. 62; U. S. v. Smith (D. C.) 27 Fed. 854; U. S. v. Three Copper Stills (D. C.) 47 Fed. 495; U. S. v. Sykes (D. C.) 58 Fed. 1000; Pilcher v. U. S., 113 Fed. 248, 51 C. C. A. 205; U. S. v. Anthony, Fed. Cas. No. 14,460; U. S. v. Blaisdell, Fed. Cas. No. 14,608; U. S. v. Harries, Fed. Cas. No. 15,309; U. S. v. Hutchins, Fed. Cas. No. 15,430; U. S. v. McKee, Fed. Cas. No. 15,688; U.
The only conclusion I can reach is that the demurrer must be overruled.