Nor was it necessary, as argued by counsel for the accused, to
set forth the special means employed to effect the alleged unlawful
procurement. It is laid down as a general rule that
"In an indictment for soliciting or inciting to the commission
of a crime or for aiding or assisting in the commission of it, it
is not necessary to state the particulars of the incitement or
solicitation or of the aid or assistance."
2 Wharton, sec. 1281;
United States v.
Gooding, 12 Wheat. 460. The nature of the means
whereby the unlawful use of the still and other vessels was
procured is matter of evidence to establish the imputed intent, and
not of allegation in the indictment.
The fourth count is based upon sec. 3281 of the Revised
Statutes, and charges that the defendant
"did knowingly and unlawfully engage in and carry on the
business of a distiller within the intent and meaning of the
internal revenue laws of
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the United States with the intent to defraud the United States
of the tax on the spirits distilled by him, against the peace,"
&c.
This count seems to us sufficient to authorize judgment thereon.
It was not necessary to state in the indictment the particular
means by which the United States was to be defrauded of the tax.
The defendant is entitled to a formal and substantial statement of
the grounds upon which he is questioned, but not to such strictness
in averment as might defeat the ends of justice. The intent to
defraud the United States is of the very essence of the offense,
and its existence in connection with the business of distilling,
being distinctly charged, must be established by satisfactory
evidence. Such intent may, however, be manifested by so many acts
upon the part of the accused, covering such a long period of time,
as to render it difficult, if not wholly impracticable, to aver
with any degree of certainty, all the essential facts from which it
may be fairly inferred.
"The means of effecting the criminal intent," says Mr.
Wharton,
"or the circumstances evincive of the design with which the act
was done, are considered to be matters of evidence to go to the
jury to demonstrate the intent, and not necessary to be
incorporated in an indictment."
1 Wharton, sec. 292;
United States v. Gooding, supra.
To the same effect is the opinion of Mr. Justice Miller in the case
of
United States v. Ulrici, 3 Dill. 535.
But it is contended that the fourth count contains no averment
of an unlawful act, but only of an intent to defraud the United
States of the tax on spirits, and that it is not competent for
Congress to punish a mere intent, however fraudulent, unaccompanied
by an unlawful act. We do not think the indictment justly liable to
this objection.
The internal revenue laws define the business of a distiller.
Congress has the constitutional power to prescribe, as it has done,
rules and regulations in conformity to which that business may be
lawfully carried on. But the citizen may not engage in or carry on
such business with the intent to defraud the government of the tax
on spirits distilled by him. If he does, he thereby commits the
offense charged in the count under consideration, and is liable to
the punishment prescribed by
Page 96 U. S. 365
statute. But such punishment is not inflicted merely or solely
because of the intent to defraud. It is the act of engaging in the
distillation of spirits, combined with that intent, which
constitutes the offense. A question somewhat analogous arose in
The Emily, 9
Wheat. 381. That was an information founded upon the statutes
prohibiting the slave trade. Under those statutes, a vessel fitted
out by any citizen or resident of the United States for the purpose
of carrying on any trade or traffic in slaves, contrary to the
provisions of the statutes, &c., was subject to forfeiture.
This Court said:
"The object in view by the section of the law under
consideration was to prevent the preparation of vessels in our own
ports which were intended for the slave trade. Hence is connected
with this preparation, whether it consists in building, fitting,
equipping, or loading, the purpose for which the act is done. The
law looks at the intention, and furnishes authority to take from
the offender the means designed for the preparation of the
mischief. This is not punishing the intention merely; it is the
preparation of the vessel and the purpose for which she is to be
employed that constitutes the offense and draws after it the
penalty of forfeiture. . . . The intention or purpose for which the
vessel is fitting must be made out so as to leave no reasonable
doubt as to the object. This is a matter of proof, and, generally
speaking, to be collected from the kind of preparation that has
been made."
In the subsequent case of
United States v. Gooding,
supra, which was a prosecution for being engaged in the slave
trade contrary to the prohibitions of the act of 1818, the Court
said that the statute imputed no guilt to any particulars of the
equipment of the vessel, but to the act of fitting out the vessel
with the illegal intent to engage in the prohibited traffic; that
it was "the act, combined with the intent, and not either
separately, which is punishable."
These decisions furnish rules applicable to the case under
consideration. The statute does not prescribe a punishment simply
for the intent to defraud the United States of the tax on spirits
distilled, but for the act of engaging in and carrying on the
business of a distiller with that intent. The act and the
fraudulent intent together constitute the offense. That Congress,
as a means of protecting the revenue and of
Page 96 U. S. 366
securing taxes rightfully due the government, may declare such
an act, when accompanied by such an intent, to be a public offense
and prescribe a punishment therefor we do not doubt.
The views here expressed furnish a sufficient answer to the
questions propounded under the fourth count.
It will therefore be certified as the opinion of this Court on
the points of division 1. that the second count of the indictment
is insufficient to authorize a judgment thereon; 2. that the fourth
count is sufficient to authorize judgment to be pronounced thereon
against the defendant, and it is
So ordered.