1. In a trial on an indictment for making and fermenting mash
for the production of alcohol in violation of 26 U.S.C. § 2834, the
evidence showed that C
alone handled and mixed the
ingredients of the mash, and there was no evidence to indicate that
ever took any part in, or aided and abetted, this
particular part of the process of operating an illicit distillery,
or that he was ever in the part of the premises where the
ingredients were stored and the mash was made, although he helped
to operate the still in a different part of the premises, and to
transport the product.
the Government's concession that the evidence was
insufficient to sustain a conviction of B
is accepted. P.
330 U. S.
Page 330 U. S. 161
2. In a trial on an indictment for having possession and custody
of an illicit still in violation of 26 U.S.C. § 2810(a), the
evidence showed that the defendant helped to operate the still; but
there was no evidence showing that he ever exercised any control
over the still, aided in the exercise of any such control, or acted
as a caretaker, watchman, lookout, or in any similar capacity
calculated to facilitate its custody or possession.
the Government's concession that the evidence was
insufficient to sustain his conviction is accepted. Pp.
330 U. S.
3. In a trial on an indictment for operating "the business of
distiller . . . with intent willfully to defraud" the Government of
taxes in violation of 26 U.S.C. § 2833(a), the evidence showed that
secretly carried on the business of a distiller in an
apparently abandoned farmhouse, that B
assisted him, and
that the products were transported to a city in a car which
followed another car, sometimes B's
the evidence was sufficient to sustain B's
conviction. Pp. 330 U. S.
(a) Under 18 U.S.C. § 550, one who aids and abets another to
commit a crime is guilty as a principal. P. 330 U. S.
(b) The jury could properly infer that one helping to operate a
secret distillery in the manner here shown knew that it was
operated with intent to defraud the Government of its taxes. Pp.
330 U. S.
4. Having been convicted of a crime carrying a mandatory minimum
sentence of fine and imprisonment, defendant was sentenced to
imprisonment only, and placed in temporary detention awaiting
transportation to a penitentiary. Five hours later, the judge
recalled him, called attention to the mandatory provision for fine
and imprisonment, and sentenced him to both.
this did not constitute double jeopardy contrary
to the Constitution. Pp. 330 U. S.
155 F.2d 592 affirmed in part and reversed in part.
Petitioner was convicted on five counts of an indictment for
violating the Internal Revenue Laws in connection with the
operation of a still. The Circuit Court of Appeals reversed on two
counts and affirmed on three counts. 155 F.2d 592. This Court
granted certiorari. 329 U.S. 698. Reversed
on two counts
on one count, p. 330 U. S.
Page 330 U. S. 162
MR. JUSTICE BLACK delivered the opinion of the Court.
The petitioner and one Chirichillo were convicted in a Federal
District Court on all counts of a five-count indictment against
them which charged violation of the Internal Revenue laws in
connection with the operation of a still. The Court of Appeals
reversed petitioner's conviction on counts four and five because of
insufficient evidence, but affirmed as to counts one, two, and
three. 155 F.2d 592. We granted certiorari. 329 U.S. 698. Count one
charged that the defendants had carried on "the business of a
distiller . . . with intent willfully to defraud the . . . United
States of the tax on . . . spirits so distilled . . . " in
violation of 26 U.S.C. § 2833(a). Count two charged them with
having had possession and custody of the still in violation of 26
U.S.C. § 2810(a). Count three charged that they had made and
fermented mash for the production of alcohol in violation of 26
U.S.C. § 2834. It is argued that the evidence was insufficient to
support any of the three counts here at issue. The Government
concedes its insufficiency as to counts two and three.
There was testimony to show the following: Chirichillo rented a
farmhouse under an assumed name and installed a 300-gallon still
with all equipment necessary to ferment mash and distill alcohol.
The still was operated day and night. Chirichillo himself mixed the
ingredients to make the mash in the attic of the 2 1/2-story frame
building, but the alcohol distillation was carried on in another
part of the building. Petitioner was at the house two or three
times a week. When there, he took instructions from
Page 330 U. S. 163
Chirichillo and helped him in the operation of the still; he
helped manufacture the alcohol. When Chirichillo carried his
products to Newark, the car in which he carried the illicitly
distilled alcohol would follow along behind another car --
sometimes petitioner's, sometimes another helper's. The farmhouse
where the illicit business was carried on appeared from the outside
to be deserted; the windows were without shades, and the house had
been practically stripped of furniture.
We accept the Government's concession that the evidence fails to
show that this petitioner had made, or helped to make, the mash as
charged in count three. All of the evidence showed that Chirichillo
alone handled and mixed the ingredients of the mash, and there is
nothing whatever to indicate that the petitioner ever took any part
in, or aided and abetted, this particular part of the unlawful
process in any manner, or, indeed, that he was ever in or around
the attic where the mash was made from ingredients stored there.
The Internal Revenue statutes have broken down the various steps
and phases of a continuous illicit distilling business and made
each of them a separate offense. Thus, these statutes have clearly
carved out the conduct of making mash as a separate offense,
thereby distinguishing it from the other offenses involving other
steps and phases of the distilling business. Consequently,
testimony to prove this separate offense of making mash must point
directly to conduct within the narrow margins which the statute
alone defines. One who neither engages in the conduct specifically
prohibited nor aids and abets it does not violate the section which
The sufficiency of the evidence as to count two, which charged
that the petitioner had custody or possession of the still, is a
closer question. It might be possible that petitioner's helping to
make the alcohol aided and abetted in its "custody or possession."
But that would be a very strained inference under any
circumstances. Here again,
Page 330 U. S. 164
the statutes treat custody or possession as a wholly distinct
offense. Yet there was no testimony that the petitioner ever
exercised, or aided the exercise of, any control over the
distillery. His participation in carrying the finished product by
car does not fit the category of "custody and possession" so nearly
as it resembles the transportation of illegal liquor, 26 U.S.C. §
2803 -- an offense which the Circuit Court of Appeals has found the
evidence insufficient to prove. Nor was there any testimony that
the petitioner acted in any other capacity calculated to facilitate
the custody or possession, such as, for illustration, service as a
caretaker, watchman, lookout, or in some other similar capacity.
Under these circumstances, we accept the Government's concession
that a judgment of guilty should not have been rendered on the
We think there was adequate evidence to support a finding of
guilt on the first count, which charged operation of the business
of distilling to defraud the Government of taxes. There was
certainly ample evidence to show that Chirichillo carried on the
business of a distiller, and that the petitioner helped him to do
it. 18 U.S.C. § 550 provides that one who aids and abets another to
commit a crime is guilty as a principal. Consequently, the jury had
a right to find, as it did, that the petitioner and Chirichillo
were equally guilty of operating the business of the distillery.
See United States v. Johnson, 319 U.
, 319 U. S. 515
319 U. S.
But, it is argued, there was no evidence that the petitioner
acted with knowledge that the distillery business was carried on
with an intent to defraud the Government of its taxes. The same
evidence as to knowledge of this guilty purpose, however, that
applied to Chirichillo was almost, if not quite, equally persuasive
against both defendants. Petitioner assisted in the manufacture of
alcohol in Chirichillo's still, which was operated under
Page 330 U. S. 165
of secretiveness in an apparently abandoned farmhouse. The
finished alcohol was carried to Newark in a car which followed
another car, sometimes the petitioner's. The members of the jury
could properly draw on their own experience and observations that
lawful stills, unlike the still in which petitioner worked, usually
are not operated clandestinely, and do not deliver their products
in the fashion employed here. The members of the jury were not
precluded from drawing inferences as to fraudulent purposes from
these circumstances, nor were they compelled to believe that this
petitioner was oblivious of the purposes of what went on around
him. Men in the jury box, like men on the street, can conclude that
a person who actively helps to operate a secret distillery knows
that he is helping to violate Government revenue laws. That is a
well known object of an illicit distillery. Doubtless, few who ever
worked in such a place, or even heard about one, would fail to
understand the cry: "The Revenuers are coming." We hold that the
verdict of guilty on the first count must stand.
The only statute for violation of which petitioner's conviction
is sustained by us carries a minimum mandatory sentence of fine of
one hundred dollars and imprisonment, 26 U.S.C. § 2833(a). In
announcing sentence at a morning session, the trial judge mentioned
imprisonment only. Thereafter, the petitioner was taken briefly to
the U.S. Marshal's office, and then to a local federal detention
jail awaiting transportation to the penitentiary where he was
finally to be confined. But, about five hours after the sentence
was announced, the judge recalled the petitioner and, according to
stipulation, stated in the presence of petitioner and his counsel
"in the imposition of sentence this morning . . . , it has been
called to my attention that there are certain mandatory fines and
penalties which I omitted to impose. For the record now, minimum
mandatory fines and penalties will be imposed."
Thus, a one
Page 330 U. S. 166
hundred dollar fine was fixed as required by law, along with the
imprisonment sentence. Petitioner charges that this action
constituted double jeopardy forbidden by the Federal
It is well established that a sentence which does not comply
with the letter of the criminal statute which authorizes it is so
erroneous that it may be set aside on appeal, Reynolds v.
United States, 98 U. S. 145
98 U. S.
-169, 98 U. S.
-169; Murphy v. Massachusetts, 177 U.
, 177 U. S. 157
or in habeas corpus proceedings. In re Bonner,
151 U. S. 242
in those cases it was recognized that an excessive sentence should
be corrected, even though the prisoner had already served part of
his term, not by absolute discharge of the prisoner, but by an
appropriate amendment of the invalid sentence by the court of
original jurisdiction at least during the term of court in which
the invalid sentence was imposed. [Footnote 1
] Cf. De Benque v. United States,
App.D.C. 36, 85 F.2d 202. In the light of these cases, the fact
that petitioner has been twice before the judge for sentencing and
in a federal place of detention during the five-hour interim cannot
be said to constitute double jeopardy as we have heretofore
considered it. Petitioner contends, however, that these cases are
inapplicable here because correction of this sentence so as to make
it lawful increases his punishment. Cf. United States v.
Benz, 282 U. S. 304
282 U. S. 309
If this inadvertent error cannot be corrected in the manner used
here by the trial court, no valid and enforceable sentence can be
imposed at all. Cf. Jordan v. United States,
60 F.2d 4, 6,
with Barrow v. United States,
54 App.D.C. 128, 295 F. 949.
This Court has rejected the
"doctrine that a prisoner, whose guilt is established by a
regular verdict is to escape punishment altogether because the
court committed an error in passing the sentence."
In re Bonner, supra,
at 151 U. S. 260
The Constitution does not require that sentencing should be a
Page 330 U. S. 167
in which a wrong move by the judge means immunity for the
prisoner. See King v. United States,
69 App.D.C. 10, 98
F.2d 291, 296. In this case, the court "only set aside what it had
no authority to do, and substitute[d] directions required by the
law to be done upon the conviction of the offender." In re
at 151 U. S. 260
It did not twice put petitioner in jeopardy for the same offense.
] The sentence as
corrected, imposes a valid punishment for an offense instead of an
invalid punishment for that offense.
Other contentions here do not merit our discussion. The judgment
as to count one is affirmed. The judgment is reversed as to counts
two and three.
It is so ordered.
Rule 45(c), Rules of Criminal Procedure for the
District Courts of the United States.
In Ex parte
18 Wall. 163, relied on by petitioner here,
the defendant had been sentenced to fine and imprisonment for
violation of a statute which authorized a sentence only of fine or
imprisonment. Since he had paid his fine, and therefore suffered
punishment under a valid sentence, it was held that his sentence
had been "executed by full satisfaction of one of the alternative
penalties of the law. . . ." Murphy v. Massachusetts,
at 177 U. S. 160
Therefore, Lange's plea, that the trial court could not correct the
sentence without causing him to suffer double punishment, was
sustained. Cf. In re Bradley, 318 U. S.
. But here, the petitioner had not suffered any lawful
punishment until the court had announced the full mandatory
sentence of imprisonment and fine.
MR. JUSTICE DOUGLAS, MR. JUSTICE MURPHY, and MR. JUSTICE
RUTLEDGE dissenting as to the affirmance of the judgment on count
We are of the view that to convict one as an aider and abetter
in engaging in or carrying on a distillery business with intent "to
defraud" the United States of the tax on the distilled spirits, 53
Stat. 319, 26 U.S.C. § 2833(a), evidence is necessary which shows
that, by some act of concealment he promoted the fraud, or by
counsel and advice furthered the unlawful scheme, or in fact
Page 330 U. S. 168
some interest in the project. [Footnote 2/1
] See United States v. Cooper,
Fed.Cas. 627, 629; United States v. Logan,
900, 992; Seiden v. United States,
16 F.2d 197, 199;
Partson v. United States,
20 F.2d 127, 129; Anderson
v. United States,
30 F.2d 485, 487. Aiding and abetting in the
illicit manufacture of liquor is one thing. [Footnote 2/2
] Aiding and abetting in carrying on the
business with intent to defraud the United States of a tax is quite
a different matter, and requires a different test, if the two
offenses are not to be blended. The evidence in the case and the
instructions given the jury [Footnote
] seem to us inadequate to sustain a conviction
Page 330 U. S. 169
under count one, charging Bozza with aiding and abetting in a
tax fraud scheme.
In view of this conclusion, MR. JUSTICE RUTLEDGE reserves
expression of opinion concerning the legality of the sentence.
Judge Learned Hand, after reviewing the various definitions of
aiding and abetting, said:
"It will be observed that all these definitions have nothing
whatever to do with the probability that the forbidden result would
follow upon the accessory's conduct, and that they all demand that
he in some sort associate himself with the venture, that he
participate in it as in something that he wishes to bring about,
that he seek by his action to make it succeed. All the words used
-- even the most colorless, 'abet' -- carry an implication of
purposive attitude towards it."
United States v. Peoni,
100 F.2d 401, 402.
Thus, § 2833(a) makes it an offense to "carry on the business of
a distiller without having given bond as required by law." Section
2834 makes it unlawful to make or ferment mash, fit for
distillation, in any building or on any premises other than an
". . . if you find that he was merely an underling, serving at
the beck and call of an employer and nothing more than that
] would not justify your finding him to be engaged in
the business of a distiller. But if from the evidence you conclude
logically that he aided and abetted in the carrying on of this
business, then he would be chargeable as a principal. . . . Aiding
and abetting is something more than merely committing an act which
may have the effect of assisting or furthering a criminal
transaction. Before a defendant can be held as an aider and
abetter, the government must prove beyond a reasonable doubt that
he committed an act which furthered or assisted the criminal
transaction, and, at the time he committed the act, he knew that a
crime was in process of commission, and, with that knowledge, he
acted with intent to aid and abet in the criminal transaction."
While the above charges were requested by defendant, we
nevertheless feel that the failure of the instructions to satisfy
the standard we suggest is an error which we should notice.
Sibbach v. Wilson & Co., 312 U. S.
, 312 U. S. 16