US SUPREME COURT DECISIONS

It is no offense against § 12 of the Internal Revenue Act of March 1, 1879, to have in one's possession a cancelled stamp, or a stamp which has been used, or which purports to have been used, upon any cask or package of imported liquors unless the same was removed from the cask or package by some person intentionally, without being defaced or destroyed at the time of the removal.

The difference between § 12 of the Act of March 1, 1879, 20 Stat. 342, and Rev.Stat. § 3324, shown.

The defendant was indicted in the Circuit Court of the United States for the Southern District of New York for an alleged offense set out in the first count of the indictment, the other three being substantially similar, as follows:

"The jurors of the United States of America within and for the district and circuit aforesaid, on their oaths, present that Morris Spiegel, late of the City and County of New York, in the district and circuit aforesaid, yeoman, heretofore, to-wit, on the eighteenth day of April, in the year of our Lord one thousand eight hundred and eighty-three at the Southern District of New York, and within the jurisdiction of this court, did feloniously, knowingly, and fraudulently have in his possession a certain United States stamp of the kind and description provided and required by law to be affixed to packages containing distilled spirits imported into the United States in packages, the said stamp being then and there in form as prescribed by the Secretary of the Treasury, and numbered in figures as follows: '350,460,' a more particular description of which said stamp is to the jurors as yet unknown, which said stamp had been theretofore removed from a certain package which had contained imported spirits, to-wit, brandy, and which said stamp had not been defaced and destroyed at the time of such removal, then and there against the peace of the United States and their dignity, and contrary to the form of

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the statute of the United States in such case made and provided."

The indictment was founded upon provisions contained in the Act of March 1, 1879, "to amend the laws relating to internal revenue," 20 Stat. 327, 342, the 11th section of which provides as follows:

"That all distilled spirits, wines, and malt liquors, imported in pipes, hogsheads, tierces, barrels, casks, or other similar packages shall be first placed in public store or bonded warehouse, and shall not be removed therefrom until the same shall have been inspected, marked, and branded by a United States customs gauger, and a stamp affixed to each package indicating the date and particulars of such inspection, and the Secretary of the Treasury is hereby authorized to prescribe the form of, and provide, the requisite stamps, and to make all regulations which he may deem necessary and proper for carrying the foregoing requirements into effect."

And section 12, so far as relevant, provides:

"Every cask or other package from which the stamp for imported liquors required by this act to be placed thereon shall not be effaced, obliterated, or destroyed on emptying such package shall be forfeited, and the same may be seized by any officer of internal revenue wherever found, and all the provisions and penalties of section thirty-three hundred and twenty-four of the Revised Statutes of the United States, relating to empty casks or packages from which the marks, brands, or stamps have not been effaced or obliterated, and relating to the removal of stamps from packages, and to having in possession any stamps so removed, shall apply to the stamps for imported spirits herein provided for, and to the casks or other packages on which such stamps shall have been used."

Section 3324 of the Revised Statutes, referred to in § 12 of the foregoing act, is in these words:

"Every person who empties or draws off, or causes to be emptied or drawn off, any distilled spirits from a cask or package bearing any mark, brand, or stamp, required by law shall at the time of emptying such cask or package, efface and obliterate said mark, stamp, or brand. Every such cask or package from which said

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mark, brand, or stamp is not effaced and obliterated as herein required shall be forfeited to the United States, and may be seized by any officer of internal revenue wherever found. And every railroad company or other transportation company or person who receives or transports or has in possession with intent to transport or with intent to cause or procure to be transported any such empty cask or package or any part thereof having thereon any brand, mark, or stamp, required by law to be placed on any cask or package containing distilled spirits shall forfeit three hundred dollars for each such cask or package or any part thereof so received or transported or had in possession with the intent aforesaid, and every boat, railroad car, cart, dray, wagon, or other vehicle, and all horses and other animals used in carrying or transporting the same shall be forfeited to the United States. Every person who fails to efface and obliterate said mark, stamp, or brand at the time of emptying such cask or package or who receives any such cask or package or any part thereof with the intent aforesaid or who transports the same or knowingly aids or assists therein or who removes any stamp provided by law from any cask or package containing or which had contained distilled spirits without defacing and destroying the same at the time of such removal, or who aids or assists therein, or who has in his possession any such stamp so removed as aforesaid, or has in his possession any cancelled stamp, or any stamp which has been used, or which purports to have been used, upon any cask or package of distilled spirits shall be deemed guilty of a felony and shall be fined not less than five hundred dollars nor more than ten thousand dollars, and imprisoned not less than one year nor more than five years."

The case was brought into this Court by the following certificate:

"At a stated term of the Circuit Court of the United States of America for the Southern District of New York, in the Second Circuit, begun and held at the United States courtrooms

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in the City of New York on the third Monday of October in the year of our Lord 1884."

"Present, the Honorable William J. Wallace, the Honorable Charles L. Benedict, judges."

"The United States"

"v."

"Morris Spiegel"

"This case coming on to be heard at this term before judgment upon the verdict of guilty, upon a motion in arrest of judgment, and also upon a motion for a new trial, before the two judges above mentioned at such hearing the following questions occurred:"

"First. Whether the indictment states an offense created by the laws of the United States."

"Second. Whether, in a prosecution for having possession of stamps removed from imported liquors, instituted under Laws 1879, c. 125, sec. 12, it is necessary for the government, in addition to proving that the stamps in question had been removed from casks containing imported spirits, also to prove that such stamps had been so removed by some person."

"Third. The prosecution on the trial having failed to prove that the stamps named in the indictment were removed by a person, was it or not error for the court to refuse to direct the jury to acquit the defendant on the ground that the prosecution had not proven an offense under the statute?"

"Fourth. Whether or not the offer on the part of the defense to prove that the stamps named in the indictment fell accidentally from the casks and were not removed by any person was properly overruled."

"Fifth. Whether the exception taken to that portion of the charge to the jury where it was said 'It is sufficient to make the possession of the stamps unlawful if they came off such casks without being destroyed, whether they came off by accident or design,' was properly overruled."

"Sixth. Whether or not it was error to refuse to charge as requested by the defendant as follows:"

" If you believe the government has failed to prove that the stamps named in the indictments

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were removed by a person or persons from casks containing, or which had contained, imported distilled spirits, your verdict should be for the defendant as an accidental, or by action of the weather, falling or coming off of these stamps, and possession thereafter by the defendant will not constitute an offense under this statute."

"Seventh. Whether, in a prosecution for having in possession stamps removed from casks of imported spirits in violation of Laws 1879, c. 125, sec. 12, it is necessary for the prosecution to aver that the stamps so removed had been removed by some person."

"Eighth. Whether the indictment is sufficient to warrant judgment upon the verdict."

"In respect to each of which questions, the judges aforesaid were divided in opinion."

"Wherefore at the same term, upon request of the United States attorney, they have caused the points above stated to be certified, under the seal of this court, together with a copy of the indictment and an abstract of the record, to the Supreme Court of the United States, for final decision according to law."

"WM. J. WALLACE"

"CHAS. L. BENEDICT"