UNITED STATES V. BYRNE.
Another ground for the motion in arrest of judgment is that the indictment alleges only that the defendant, on a day named, imported the woman into the city of New York, from Copenhagen, for the purposes' of prostitution; at a place named in said city, and does not set forth 'the acts ing the importation, as that. she paid th El vassage monElY of the woman. We think the indictmel.)J is sufficient. The defendant also moves for a new trial' on the ground that the verdict was against the evidence and the law, and· was without to sustain it. These positions are, we think, not tenable. . On the trial evidence wasadmitted,under an exception by the defendant, of the character of a/house of assignation kept in New York by the defendant, and of acts done at that house after the woman was imported, she lived there with the defendant. This evidence was proper to show the purpose of prostitution laid in the indictment; :and related to I the very place named in the indictment as that where the purpose of prostitution was to be carried out. The motions are denied.
(Circuit Court, S. D. New York. May 19,1881.)
INTERNAL REVENUE-FRAUDULENT RECTIFICATION OF SPIRITS-EvxDENCE-HEV. ST. § AT LAltGE, a39.
In a prosecution, by information, for the violation of section 3317 of the Revised Statutes, as amended by the act of March 1, 1879, (20 St. at Large, 339,) evidence that the defendant had in his possession a rectifying apparatus, and that Illicit spirits had been conveyed to said apparatus in ale barrels, and, in the presence of the defendant, poured Into the receiving tub of such apparatus on two different occasions, under suspicious circumstances, is sufficient to jUjltifya jury in finding that the defendant was then carrying on the business of a rectifier, with Intent to defraud the government .of the tax on the spirits there and then rectified by such defeitdant.
2." SAME-RECEIPT LAHGE,339.
OF DISTILLED SrIHITS-HEV. ST.
The receipt of distilled spirits produced at and removed from an illicit distillery, a,re within the ,scope of section 3317 of the Revised as amended by the act of March 1, 1879.
An averment iil"such information that the spirits were received from some person persons to the district attorney as yet unknown, was not necessary to a prosecution under the statute. and did not require to be proved.
Upon the trial of such information, the defendant cannot object to the empanelling of a jury upon the grourid that a juror whose name was drawn from the jury-box in due order of lot, to try said , defendant,' had departed the court without leave before said JU1'1 ". been empanelled.-[En.
Motion in arrest of judgment and for a new tlial.
B,ENEDlCT, D.J. The defendant was prosecuted under Rev. St. §,,3317, as amended by the act of March 1, 1879, (20 St. at Large, 339,) by an information containing three counts, and was convicted upon and third countE!. In· the first count he was charged with having carried on the business of a rectifier of distilled spirits at a certain time and place, with intent to defraud the United States of the tax on distilled spirits rectified by him. In the third count he was charged with having received at a certain time, at No. 523 West Twenty ,sixth street, in this city, from some person, to the district attorney unknown, certain spirits which had been unlawfully removed from a distillery to a place other than the distillery warehouse provided by law, to-wit, to the place above described, knowing and having reasonable grounds to believe that the tax on said spirits had. not been paid as required by law. A motion in arrest of judgment and for a new trial has been made, and numerous points have been presented in Bupport thereof. These points have all received attention, and we find in none of them a grouud upon which to arrest judgment, or to direct a new tria.l.
One point made in regard to the conviction under the first count is that the intent charged was not proved, because there was no evidence that any spirits had ever been completely rec· tified by the defendant, but only evidence of a partial rectification by him. But there was evidence that the defendant had in his possession a rectifying apparatus, and that illicit spirits had been conveyed to said apparatus in ale barrels, and, in the presence of the defendant, poured into the reon two different occasions, and ceiving tub of such under suspicious ,evidence was suffi· cient to justify the jury in finding that he was then carrying on the business of a rectifier, with intent to detraud the gov· ernment of the tax 'On the spirits there and then rectified by him. Orie point made in regard to the conviction upon the third count is that the provision of the statute is intended to apply to cases where the spirits received have been removed from a registered distillery, and has no application to a case where the spirits received are the product of illicit distillation in an unauthorized distillery. But the language of the statute is bro,ad enough to cover the receipt of distilled spirits produced at and removed from an illicit distillery, and no reason has been suggested for giving to the statute a more restricted application than required by the words employed. Another point made in regard to the conviction on the third count is that there was evidence at the trial that, on the same day on which the information was filed, the district attorney had been told the spirits received by the defendant were delivered by a man named Malone, whereas the information avers that the spirits were received from some person or persons to the district attorney as yet unknown. This point is an afterthought. No such point was taken at the trial. Some 16 and more requests' to charge were presented to the court, and in none of them was there an allusion to any such defect in the evidence; and it is plain to see that the testimony now relied on to show knowledge on the part of the district attorney was elicite'd at the trial for a. totally different purpose. The point not having been mada
a.t the trial, is not available as a ground for granting a new trial. Neither is it gr'oundfor arresting the judgment.
"A motion in arrest of judgment cll.n be grounded only on some objection arising on the face of the record, and no defect in the evidence, or irregularity at the trial, can be urged at this state of the proceedings." Heard on Criminal Pleading, 316.
Moreover, this is not the Clj.se of an omission to name the defendant or the party injured., It was not necessary to set forth the name of the person who delivered the spirits to the defendant, provided the act of receiving was otherwise sufficiently described. The statute punishes the act of receiving without regard to ,the manner of receiving or to. the person making the delivery. Every form of receiving is made punishable, and evidence as to who was the person making the delivery is not necessary to a conviction. The. averment in the information that the person who delivered the spirits to the defendant was unkpown to the district attorney was unnecessary, and did not require to be proved. 1\;(uch stress has also been laid upon the fact disclosed by the record that Samuel E. Walsch, one of the persons summoned to attend, the court as a juror at the January term, and who had been in attendance at coU};t on the day the trial commenced, and whose name was drawn from the jury-box in due order of lot "to try the defendant, had departed the court without leave, whereupon it was insisted by the counsel for the defendant. that the defendant was entitled to said Walsch as a juror, and objection was made to proceeding with the empanelling of the jury without said Walsch. The objection was overruled, and a jury was selected without said Walsch. No authority binding upon thisCQurt has been cited in of this position taken in behalf _of the and we are not inclined to be the deClare a rule which would put it in' the power of a juryman, by departing from tue court room, to prevent the contInuance of a trial until such ,time as he be found and brought back to the court room. Weare unaware olany prin.ciple re,quir1ng us to hold that, upon a trial .like' the present, the fact that a juror's name
IN BE LLOYl>.
is drawn out of a jury-box, in due course ,otthe lot,gives the defendant the legal right to have such person sworn as one of the jury. In Mansell v. The Queen, 8 E. & D. 79, it is said:
"There is no necessity or right that a person shall be tried by particular jurymen till the prisoner has been given in charge to the jury." See, also, HiU v. Yates, 12 East,228. . .
The case cited from the Alabama reports (Parsons v. State, 22 Ala. 53) turned upon the provisions of .the statute of the state, and appears to have been overruled by a subsequent case in the same state; Waller v. The 40 Ala. 325. The other points made in behalf of the defendant do not appear to be of sufficient to call for remark. The motions are denied.
In ,., LLOYD, Bankrupt
(Di3triCt (Jourt, W. D. Penn311lflania.
1. BANKRUPTCy-ATTORNEYS' FQs.
Under the amended general. orders inbankruptey no allowances out of the estate. of the bankrupt can be made to the attorneys of the petionlng creditors for having the debtor adjudged a bankrupt, except the t20 docket fee taxable :to the prevailing party in a suit in equity.
In Bankruptcy. Sur application of Dr. J.T. Christy and J. W. Curry for the allowance of etc. Geo. Shirar, Jr., and Geo. M. Reade, for report. ACHESON, D.J. This case is one in involuntary ba'nkruptcy, where the debtor resisted an adjudication. The active petitioning creditors seek to be allowed for attorneys' fees paid or incurred by. them in prosecuting the case to adjudication. The application for this allowance is made under general order No. 31, which provides as follows':
" In case of involuntary bankruptcy, where the debtor resists an adju. dication,and the court, after hearing, shall adjudge the debtor a rupt, the petitioning creditor recover,. to be paid out of same <Josts' that are allowed' by law to a party recovering in' a suit in