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KREKEL, J., charged the jury as follows:-Under a statute of the United States regarding internal revenue, Adler & Furst, the defendants, have been indicted for failing to deface and obliterate from casks or packages of distilled spirits, at the time of emptying, marks, brands and stamps required by law to be thereon. The indictment, in fifty-eight counts, charges this offence, varying in manner and the packages regarding which the omission occurred, so as to meet the testimony in the case. The United States Statutes, in sect. 3324, under which the indictment has been found, provide that “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 or obliterate said mark, stamp or brand. * * * Every person who fails to efface and obliterate said mark, stamp or brand at the time of emptying such cask or package, shall be deemed guilty of felony, and shall be fined, etc.”

I have cited such parts of the section only as bear directly upon the issues. You will observe, in the first place, that the section begins with declaring it to be the duty of every person who empties or draws off, or causes to be emptied or drawn off, any spirits, at the time of emptying such cask or package, to efface and obliterate said mark, stamp or brand. The object of the provision obviously was to secure the destruction of the mark, stamp or brand at the time of emptying; and the words “shall efface and obliterate ” are apt words to express that intention. The language, "at the time of emptying such cask or package,” leaves no room for construction as to the time when the act of effacing and obliterating is to be done. It must be done at the time of emptying and at no other time. The object in so providing was no doubt to prevent the opportunity of defrauding the government by an improper use of the package or stamps, or both. The law, however, will not require an impossibility, and if a case was presented in which the person whose duty the law makes it to efface and obliterate, without any fault of his own, was prevented from the discharge of the duty imposed on him, the law might excuse him. Such a case, however, is not before you, for there is no evidence tending to show even that the party upon whom the obligation to “obliterate and efface” rested was in any way interfered with or prevented from doing so. But the important inquiry is, upon whom, under the testimony before you, did the law impose the duty of cancelling and effacing? Was it upon Adler & Furst, the defendants? And if so, are they responsible for the acts of their employees ? In reading the clause of the section pronouncing the penalty as a separate and distinct part of the section, countenance may be found for the construction that the penalty was denounced against the person only who did the act of emptying. A close examination of the language of the part of the section denouncing the penalty shows beyond a doubt that it refers to the duty which the section in its beginning imposes, for it provides that every person who fails to efface and obliterate SAID mark, stamp or brand at the time of emptying, etc.

As we have already seen, the provisions of the section imposing the duty to efface and obliterate is of such mark, brand or stamp only, as are required by law to be upon casks or packages, and hence the language in the penalty clause-SAID mark, stamp or brand. To read the penalty clause without reference to the preceding one would leave us without any designation as to what mark, brand or stamp the law is applicable to. To read the provision providing the penalty, in connection with the clause imposing the duty of effacing and obliterating such mark, brand or stamp required by law to be upon casks and packages, gives us an intelligent reading of the statute.

But it does more. The construing of the duty and penalty clause together enables us to ascertain to whom the statute applies, namely: to “every person who, empties or draws off, or causes to be emptied or drawn off, any distilled spirits.” Such a construction, in entire harmony with the provisions of the statute, accomplishes its evident object to hold those responsible, among others, who cause the drawing off. This leads us to the question under the evidence whether a person or partnership engaged in rectifying and employing persons who empty distilled spirits from casks and packages bearing marks, brands and stamps required thereon by law, can be said to cause the emptying or drawing off of such spirits. The owners, possessors and operators of a rectifying establishment engaging hands, furnishing the materials and receiving its products, may be said to cause the emptying of spirits used in their business by those in their employ. And any failure on their part to efface and obliterate marks, stamps or brands at the time of emptying casks or packages of distilled spirits on which cask or package marks, stamps and brands were required by law, or cause the same to be done, such person or persons so causing the emptying without effacing or obliterating such mark, brand or stamp is amnenable to the law. The jury are instructed that if they find from the evidence that Adler & Furst were rectifiers and carrying on a rectifying establishment in the Western District of Missouri; that they emptied or caused to be emptied by their employees, as explained, any distilled spirits from casks or packages bearing any mark, brand or stamp required by law, and failed to efface and obliterate said mark, stamp or brand, at the time of emptying such cask or package, as charged in the indictment, they should find the defendants guilty, otherwise acquit. It was the duty of Adler & Furst, the defendants, to efface or obliterate the marks, brands and stamps on emptying, or cause it to be done, and the failure of their employees to do what the law imposes as a duty on them does not excuse them.

Verdict, “Guilty on all counts except the first.” The offence charged in this case is a The view maintained by the counsel felony. The important question dis- for the government and sanctioned by cussed by counsel and decided by the the court, is not only in harmony with court was whether the accused could be the plain wording of the statute, but guilty without a criminal intent. The

derives support from many kindred probroad principle was ably maintained by visions of the revenue laws of the United the counsel for defendants that there States and from their general spirit and can be no crime punishable by law, un- policy. It may be profitable to make less there has been a criminal act or brief reference to some of the provisions. omission, and a criminal or unlawful

Section 3169 punishes the fuilure by intent, and this we find laid down as

any revenue officer to report to his next a fundamental principle of crimin al superior officer and to the Commissioner law: United States v. Thomasson, 4 of Internal Revenue his knowledge or Biss. 99; Giltner v. Gorham, 4 McLean information of all violations of the reve402. On the other hand the counsel

nue laws of the United States or of for the government maintained that. frauds committed against the United criminal intent was no element of the States under such revenue laws. Secstatutory offence, and need not exist to tion 3242 punishes rectifiers, wholesale render it complete. There has been no liquor dealers, retail liquor dealers, and adjudication of the precise question aris- manufacturers of stills failing to pay ing upon this statute, but general prin- their special taxes.

Section 3239 Punciples were relied on as asserted in ishes a failure through negligence to connumerous authorities : United States v.

spicuously post special tax stamp. SecTaylor, 5 McLean 242; United States tion 3258 punishes the failure of any v. Distilled Spirits, 3 Ben. 552; Hunter person having any still or distilling ap. y. State, 1 Head 160 ; Cliquot's Cham- paratus set up to register the same with pagne, 3 Wall. 140; United States v. the collector. Section 3259 punishes Whiskey, 11 Int. Rev. Rec. 94; United every distiller and rectifier failing to States v. Ten Barrels, 11 Int. Rev. Rec. give notice to the collector of the com5 ; Story on Partnership, & 166 ; Story mencement of his business. Section on Agency, $ 452 ; Collier on Partner- 3260 punishes the failure of every disship, 459.

tiller to give a bond. Section 3279

punishes the failure of every distiller petuity. These rules should be liberand rectifier to place a sign on his ally construed so as to advance the house. Section 3318 punishes the fail high purpose for which they were enure of every rectifier and wholesale acted: United States v. Twenty-eight liquor dealer to keep books or to make Cases, 2 Ben. 63: Cliquot's Champagne, entries therein. Section 3340 punishes 3 Wall. 144 ; Taylor v. United States, the fuilure of every brewer to keep 3 How. 210. The fact that the ofbooks. Section 3312 punishes the fail- fence is declared by the statute to be a ure of a brewer to affix and cancel the felony, does not change the construction stamps on beer kegs.

which it should otherwise receive : Uni. The provision of the statute which was ted States v. Staats, 8 How. 41; United drawn in question in the above reported States v. Thompson, 6 McLean 56. The case belongs to the same class of provi- distinction between folonies and misdesions as those noted above, and they meanors is, under Federal legislation all form a part of that system of con- and in the Federal courts, more nominal ventional rules adopted by the gove than real or practical. ernment for the collection of the reve

H. B. Johnson. nue necessary to its existence and per

United States District Court, Western District of Missouri.

UNITED STATES v. BITTINGER. A person is a witness within the meaning of the statute (Revised Statutes U. S., 8,5399) who has been designated as such either by the issuance of a subpæna or by the endorsement of his name on a complaint. The subpæna need not have been served.

A case is pending in a court of the United States in contemplation of said statute, when a complaint is lodged with the United States Commissioner charging a violation of the laws of the United States.

Before any one can be said to have endeavored to corruptly influence a witness, he must have known that the witness had been properly designated as such.

This was an indictment drawn under section 5399 of the Revised Statutes :

Every person who corruptly, or by threats or force, endeavors to influence, intimidate or impede any witness or officer in any court of the United States in the discharge of his duty, or corruptly or by threats or force obstructs or impedes, or endeavors to obstruct or impede, the due administration of justice therein, shall be punished," &c.

James S. Botsford and H. B. Johnson, for the United States. Willard P. Hall and Jeff. C. Chandler, for the defendant.

KREKEL, J., charged the jury as follows :The statute aims at defining two classes of offences; first, the endeavor to improperly influence, intimidate or impede a witness or officer in the discharge

VOL. XXIV.-7

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of a duty in any court of the United States by corrupt means, such as bribery, or by threats or force.

It contemplates a case in which an attempt is made to directly interfere with a witness, and to improperly and illegally influence him. A witness, in the meaning of the statute and under the evidence in this case, will be taken by you to be a person for whom a subpoena had issued on part of the United States to appear before a U. S. Coromissioner to testify on a charge for violation of the laws of the United States. A case, under the evidence before you, is pending in a court of the United States, when a complaint is lodged with a U. S. Commissioner charging a violation of the laws of the United States.

Before any one can be said to have endeavored to corruptly influence a witness, he must have known that the witness bad been designated by the U. S. District Attorney, or the Commissioner, as one to be used as a witness.

The designation may be by the issuing of a subpæna, or by the endorsement of his name on a complaint, designating the witness by name, as such.

If the jury shall be satisfied from the evidence, that defendant Bittinger knew that a subpæna had been issued for Ferdinand Rendelman, or that Rendelman's name was endorsed on a complaint charging the defendant named therein with an offence against the laws of the United States, and if they shall further find that he corruptly influenced the said Rendelman to secrete, or so dispose of himself as to prevent process to be served on him, and if the jury shall further find that Rendelman had knowledge that such was the intention and object of the defendant, they should find the defendant guilty under the first count of the indictment.

If the jury shall find that no steps had been taken, either by the U. S. District Attorney or the U. S. Commissioner, to designate said Rendelman as a witness, either by an endorsement of his name on the complaint, or the issuing of a subpoena, or that the defendant had no knowledge that said Rendelman had been so designated as a witness, before the alleged interference, you should find the defendant not guilty under said first count.

The second class of offences which the section of the law cited denounces, is “corruptly, or by threats or force, obstructs or impedes, or endeavors to obstruct or impede, the due administration of justice.”

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