ahould, be, be}4iUpon,,$nptJ!l,el';
npop., which he: ,Ol'i,lfhould
he :upon, fol' f9r. WhicQ ,hewaa to right
UNITED' STA.TES 1.1. BARDENHEIER.
(Dr.8tr,kltCpu11, 1!J.1). Missouri, B.D. J;anua174,1899.)
" , 'T,'b,e "Obl",ltera,t,Ion. ".ot a, J;lO,rtlon ota
So BUIll":"INPORMA'l'lC)N. ' " t , An,information which avera that the defendant "did unlawfully ohange and lU , ter"tbe marks and stamps, suftlcientlv sh,ows, that tile act was,lione willfully and ,,; ,. 'Intentionally. '' 8. ,. for using oasks or packages prev!,ously for, tbe, of other spirlts,()r spirits of a different quality from ·those 'clontainedln them at tbe:time of inspeotion, must show that the change was brougbtabout vvlth otl:ier spirl&s after theoriglullol ccmtents, or a part hact been witbdraW!l,;and a count alleging tllat ,spirits; Of 102 degrees proof were fraudulently sold in casks marked "lOll degrees proof, "Without stating the cause of 8uch is defect!va.
ernment 'inspect,iO,n mark, or stamp Is a theroof, within the meaning of Rev. St. U., S. 5 8326.
At Law;. la.ws.
, i' ." ' ", .' '. " ': .' " '
John ,Bnrdenheier for violation of the
,0" ' " ,. . ", ...
,BY THAYER,DISTRICT This eight countstqnder$ection 3326. Rev. St·. , series of counts (Nps. 1,.2, 5, apd 6) are for altering. "distiUel'y,,;w.arehoQse)'ltampa" on certain 0,£ by "obliterating anq, making illegible ',' the dates of such stam ps and marks. In the secQndseriesof counts 8, 4, 7, in'su;bstance, 'delendant unlawUnhed States internal :revenue degrees proof tp be l.0rl:!l1epUrp0s.e of to one <J!;lorge spirHs:pf W2degrees proof'".anp, for tpe purpose of to AuteArieth, th/lt, t116 spirits.s,old were, of lOp. de."
r, .. :,
A.tty.!}, (\', .
Btating .t'h;61ocl$,); ;rhe, chief objections
portio1) ,of a ;not a" the
6rst gQyerllID thereol', t11e m',llOW1J; co,untllli\rebad ,becausejt,l"
,qr 801 tecration II !lecondly, the
stamps were " .
lG'either'ottlies&'objections lit>pea:rsto the court to he tenable. stamp or irlspedtion rhilrkis changed tir· altered from its formel' condition when a'portion'of it is obliterated'brrendered when some part '6£ the stamp is erased,and something else is substituted in lieu of the part erased; The same,conclusion follows when the purpose of the: laW is considered.' Inspection marks andstampll are required to be placed on casks and packages of distilled spirits to ena.ble the government'tbreadHy trkce tlie erigm and history: of each cask, 'and thus ,effectually prevent frauds upon'the revenue. The .8ystem is elaborate,! and, as a whole, was so framed that each package might tell its own story,-where it was made, when it was made, and if the tax thereon had been paid. It would be nearly or quite as mischievous to permit dealers to obliterate a portion of a government inspection mark or stamp found on a barrel of as it would, ,be to permit a falsification of such mark. the or alter," as used in the statute, must 1;1e. construed to c(,lVer'l-n, intentio.p.alerasure of any essential part of a mark or stamp which congreSs has required to be placed on packages of distilled spirits. " . (be conceded, that an unintentional or accidental erasure' ot a stamp/ at some not an underlfection 3326., An indi()tment or. information thereunder should. accordingly allege that the act was done knowingly and intentionally, it should em ploy language ofasimilar iUlport. The present ,information averstbat the defendant "did unlawfully change and alter" the marks and 'stamps in question. This sufficiently shows that the act was done willfuUyand intentionally, as otherwise it could not be said done unlawfully. 2. The second series of counts niust be' adjudged insufficient. statute :(sE!ction 3329) a .on (/fraudulenUr any cask or package havmg 'any :mspoohonmark or stamp thereon, for the pqrpose of selling other spirits, or spirits of quantity or quality differen\,ftOm the spirjtspreviously inspected, therein." tI'he fraud', in this clll\:ise'intended is'levidenUy '8. fni.tlcl upon thegdvernment, to be,effectedlby putting bitoa.'CllSk, after it has been inspected or stamped,. other spirits, either of the same or aditrerent quality, that were not therein at the time of such inspection or stamping;: It is apparent that congress was legislating'fol'the protection of the revenue, rather than for the prevention of metely private wrongs. It intended to prevent frauds on the'revenue that ,nlight be'pel.'petrated by filling barrels that had been'inspected or stamped 'With otherspirits,after the original contents had been whOlly o'rpartialty withdrawn. The second series of counts do not chargE! with cenaihty such a fraud tis'tnis clause of the statute was to prevent. Thejrshow, no doubt, that defendant, made useotthe ,inspection marks to misrepresent the proof of the liquor to one' of bis customers, or to' aid iJisuch but it is not alleged that the change in proof was due to! the fact that other spirits had been cask!! after original inspected contents had The reduotion in proof may haveheetl due to natural causes, otto the addition of water after apor.
lion of original contents had leaked out or had evaporated. If the l1eduction in proof was due to the addi,tion of water, the penalty sued forw8&,not incurred, since no wrong was thereby done to theg9vern. manto " The penalty is imposed for the doing of some act whereby the ,government is or may be defrauded. 'IJhree Packages of Distilled Spi?·· its, 14 Fed. Rep. 569. See, also, U. S. v:.Thirty-Two Barrels of DistiUed Spirits, 0 Fed: Rep. 188. ' The second series of counts ,will be quashed. The demurJ::er 'motionto quash the first will, be overruled.
U1n:TED ,STATES ".STONE.
January, 4, 1899.)
"Orlm1nal pl'OCedure may be ml\iutained n,nder septlon2461. It!!V. St. U,
s. Soo;" "
S., for & pf:its provislo1l,s;c !,Ind \t ,8uftlcient to allege in that the o\1ttlllg'aildremoving of 'the tlmbel' was for use other than tllsi of the navy of the Ubtted States; :It is not necessary t<> allege that defendailt was not justified under any, ,qf ttie varlQusland laWIl of United States. "
,,',. , . '
Ohargingthe "outting and removing" of timber does nOli 'constitute the, allegation, pftwo offenses t9 one count" " . ' (SyZl.abJtB 1YJJ the Oourt.) , , ,
Ai Law., I>emurrer toi"diCtmen't. .I+emont Woqd, U. S. , McBr4le& Allen, A,lbert 1Iagan, and L. Vineyard, for'defendant. ,District Judge.' .l3y\he in ,pursuanye of the pro-. visionsofsection St., the defendant ia charged in this. case with the cutting and removing of timber from the pJlblic lands of the UnitedState&,' with the intent ,to export, dispose of, and, use the same iu:8. Itlannel' "other f9r the.1;Ise of the navy of the United States." Intheargunlent and consideration of the demurrerinterposed by defendant to such,Jndictment, the defendant, in supporttpereof, claimedFirst, that, i under said section, a criminal prosecut1.9n cannot be mainpublic lands of the United tained fot,titrlber tresI»Jsses on,the States; aecond, that the indictment does not set out tbe use to which defendant appropriated the tin;lber, and fails to show he does not come section, or, within ',the prolfisions of some of the statutes modifying in otherwords,that it has not negatived the defendallt's defenses; and, third, that the indictment, in 'charging the cutting and removing of such timber, has charged two offenses in onewunt. 1. The first qkjection, I think, may be Clearly determined by an analysis of thesecti0lli involved,witbout aqonsideration ·of the adjudicated cases. Thetirllt claul3e of this section is limited to the cutting or wanton