An indictment under Rev.Stat. § 3296, for the concealment of
distilled spirits on which the tax has not been paid, removed to a
place other than the distillery warehouse provided by law, which
charges the performance of that act at a particular time and place,
and in the language of the statute, is sufficiently certain.
When there is nothing in the record to show that the jury in a
criminal case separated before the verdict was returned into court,
and the record shows that a sealed verdict was returned by the jury
by agreement of counsel for both parties in open court and in the
presence of the defendant, the verdict was rightly received and
recorded.
The indictment under which the defendant (plaintiff in error)
was tried contained fifteen counts. He was convicted on the sixth
count, which read as follows:
"The grand jurors aforesaid, upon their oaths aforesaid, do
further present that, at the time and place and within the
jurisdiction aforesaid, the said George Pounds unlawfully did
conceal and aid in the concealment of distilled spirits on which
the tax had not been paid, which said spirits had been removed to a
place other than the distillery warehouse provided by law, contrary
to the form of the statute in such case made and provided and
against the peace and dignity of the United States."
The count was drawn under section 3296 of the Revised Statutes,
which provides that:
"Whenever any person removes, or aids or abets in the removal of
any distilled spirits on which the tax has not been paid, to a
place other than the distillery warehouse provided by law, or
conceals, or aids in the concealment of any spirits so removed, or
removes, or aids or abets in the removal of any distilled spirits
from any distillery warehouse or other warehouse for distilled
spirits authorized by law, in any manner other than is provided by
law, or conceals, or aids
Page 171 U. S. 36
in the concealment of any spirits so removed, he shall be liable
to a penalty of double the tax imposed on such distilled spirits so
removed or concealed, and shall be fined not less than two hundred
nor more than five thousand dollars, and imprisoned not less than
three months nor more than three years."
After the verdict, and before the judgment, the plaintiff in
error filed his motion in arrest of judgment, as follows:
"Now comes the defendant, after the rendition of the verdict of
the jury finding him guilty as charged in the sixth count of the
indictment and before judgment and sentence, and moves the court to
arrest the judgment in this case upon the ground that the sixth
count of the indictment is too vague and uncertain to authorize a
judgment and sentence against the defendant."
Afterwards, an amended motion in arrest of judgment was filed,
as follows:
"By leave of the court first had and obtained, the defendant
amends his motion in arrest of judgment by adding the following
grounds:"
"First. The said sixth count of the indictment fails to show
that there was a warehouse provided by law to which the spirits
alleged to have been concealed should have been removed."
"Second. That the jury separated before the verdict of the jury
was returned into court."
The overruling of this motion is assigned as error.
MR. JUSTICE McKENNA, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Section 3271 of the Revised Statutes provides that:
"Every distiller shall provide at his own expense, a warehouse,
to be
Page 171 U. S. 37
situated on and to constitute a part of his distillery premises,
and to be used only for the storage of distilled spirits of his own
manufacture until the tax thereon shall be paid, . . . and such
warehouse, when approved by the Commissioner of Internal Revenue on
report of the collector, is hereby declared a bonded warehouse of
the United States, to be known as a distillery warehouse, and shall
be under the direction and control of the collector of the district
and in charge of an internal revenue storekeeper assigned thereto
by the commissioner."
Section 3287 provides that all distilled spirits shall be drawn
from the receiving cisterns into casks of a designated capacity and
the quantity of spirits marked thereon, "and shall be immediately
removed into the distillery warehouse," and stamps designating the
quantity of spirits shall be applied thereto.
Other sections provide that no distilled spirits upon which the
tax has been paid shall be stored or allowed to remain on any
distillery premises, and such spirits found in a cask containing
five gallons or more without having the stamp required by law shall
be forfeited.
To secure the enforcement of this provision, section 3296 was
enacted.
Plaintiff in error says:
"It seems clear that section 3296 of the Revised Statutes
intended to provide a punishment for a distiller who had complied
with the various provisions of chapter 4 of the Revised Statutes,
and had provided a warehouse as required by section 3271, and then
concealed, or aided in the concealment of, distilled spirits which
had been removed, the tax not having been paid, to a place other
than the distillery warehouse so provided."
And it hence claimed that the indictment is too uncertain to
sustain the judgment, because it does not inform the defendant that
a warehouse was provided in which the spirits which he is charged
to have concealed should have been stored until the tax was paid.
Undoubtedly the statute was intended to punish a distiller who
violated its provisions. It was also intended to punish anyone else
who did, and the
Page 171 U. S. 38
offense could be committed by a removal of spirits from the
premises before storage in the distillery warehouse or by
concealment of the spirits so removed, and it is this concealment
which the indictment charges, and it sufficiently alleges the
existence of a warehouse. It also alleges that the tax had not been
paid. The 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. S. 360;
United States v. Britton, 107 U.
S. 655.
One of the acts which is made an offense by section 3296 is the
concealment of distilled spirits on which the tax has not been
paid, removed to a place other than the distillery warehouse
provided by law. The indictment charges in the language of the
statute the performance of that act at a particular time and place.
It was therefore sufficiently certain.
As to the second ground of motion in arrest of judgment, it is
enough to say that there is nothing in the record to show that the
jury separated before the verdict was returned into court, but the
record does show that a sealed verdict was returned by the jury by
agreement of counsel for both parties in open court and in the
presence of the defendant. This verdict was rightly received and
recorded.
Commonwealth v. Carrington, 116 Mass. 37.
The judgment is
Affirmed.