E upon him for that year, if he intended during that time to pay the tax when it should be assessed, although when the tax bill was presented him on the twenty-first of May he refused to pay it, having stopped business on the seventh. The defendant was indicted under the seventy-third section of the act of 1864 as amended by that of July 13, 1866,1 for carrying on the trade or business of a peddler of the third class, without paying the special tax imposed on that business by the same statute. The evidence tended to show that the defendant had duly paid his tax for 1867, and that in April, 1868, he duly applied to the assessor of internal revenue of his district to pay the special tax for that fiscal year, beginning with May 1, 1868; that four or five days afterwards he sold out his business, and had not carried it on since. The taxes were usually assessed about the twentieth of May in each year, and the bills were sent in on the next day. The defendant's bill was sent him as usual, but he had neglected and refused to pay the tax, and was indicted in January, 1869. LOWELL, J., ruled that if the defendant had been guilty only of a neglect or refusal to pay his tax after he had ceased to carry on the business, he was not, for that alone, liable to indictment under the section cited. That the offense described in the law was the carrying on a trade or business without payment of a tax, and if the defendant, when he carried on the business before his tax was levied, had no intent to defraud the government, he could not be lawfully convicted. His application to be assessed was all that he could do, or was bound to do, until the bill was rendered. So that, while many defendants had been rightly convicted under this section who had never been assessed for a tax, because the failure to assess them arose out of their own wrong in not making application to the assessor, and, therefore, they could not be heard to object the want of assessment; yet this stringent penalty was not intended for delinquent tax-payers merely as such, if they had been guilty of no act or omission at the time they carried on their business. The government officers, in adopting what appeared to be a reasonable and perhaps necessary practice of giving credit for the tax for twenty days while their lists were preparing, did not thereby expose all tradesmen to indictment who took advantage of that credit. The district-attorney declined to go to the jury on the question of intent, and the defendant was acquitted. 1 14 Stats. 113. REVENUE LAW-FAILURE TO OBLITERATE STAMP. UNITED STATES v. BUCHANAN. [4 Hughes, 487.] In the United States District Court, North Carolina, 1881. An Indictment Under Section 3324 of the United States Revised Statutes for fail. ure to obliterate the stamp upon a cask of spirits, after it had been emptied, can not be sustained, in a case in which it appeared that the cask was removed from the place where it had been while the sale of its contents was going on, as soon as the spirits had ceased to run from the faucet, with the intention, when assistance should be obtained of pouring what was left out of it through the bung-hole, if this latter be done within a reasonable time after such removal. On Indictment. James E. Boyd, District-Attorney, for the United States. J. W. Bowman and J. W. McElroy, for defendant. The indictment was under section 3324,1 for not obliterating a stamp after the cask was empty. There was a conflict of testimony whether when the officer saw the cask it was entirely empty. The business was done by the wife of the accused, without his participation in it to any extent. The defence was, that the cask, though nearly empty was not entirely so, and had been taken from the bar and stood on end in another room until the woman could obtain assistance to empty what spirits remained in it from the bung-hole. DICK, D. J. It is conceded that the stamp on the cask was not effaced and obliterated as required by law. The only controverted question of fact which you have to determine is, was the cask empty when discovered by the deputy collector? The affirmative allegation is made in the indictment, and is material in constituting the offense charged; and, before a conviction can properly be had, you must be satisfied from all evidence, beyond a reasonable doubt, that the allegation is true. As the statute upon which this indictment is founded is highly penal, a general rule of construction requires that it shall be strictly construed, and not extended by implication. The words in a statute, if of common use, are to be taken in their natural, plain, obvious, and ordinary meaning. The offense charged in this case is a failure to efface and obliterate a stamp "at the time of emptying such cask," etc. You will consider what is meant by the words "emptying such cask." dinary signification of the verb "to empty" is to "make void; " "to The or 1 U. S. Rev. Stats. E exhaust;""tɔ deprive of the contents." If this ordinary signification of the word used in the statute is adopted, the defendant can not be convicted unless the evidence shows that the cask was completely deprived of its contents not a pint left. I am not disposed to adopt this strict literal construction, as there is another important rule in the construction of statutes which must be observed. We must consider the object and spirit of the statute, and try to ascertain, from the language of the whole and every part of the statute, what was the intent and purpose of the Legislature in making the statute. The intent of the Legislature may be found in the statute itself, and from other statutes in pari materia; and also by considering the probable effects and consequences that would result from a strict literal construction. When ascertained, this intent should be followed with reason and discretion, though such construction may seem contrary to the letter of the statute; for it is the intent which often gives meaning to words otherwise obscure and doubtful. The evident intent of the Legislature was to guard against frauds on the internal revenue by preventing the re-use of stamped casks which had once been emptied; and there was a great and manifest necessity to provide against frauds which could so easily be perpetrated. I am inclined to the opinion that when a retail dealer of distilled spirits draws off the contents of a cask as far as can be done from the faucet, and then removes it from the place where it had been used in his business, he should completely exhaust the cask if he so desires, and efface and obliterate the stamp. If the law allows a retail dealer to empty a cask as far as can conveniently be done by the ordinary method, and then remove it from the place where used in the course of his business, and not efface and obliterate the stamp, because it still contains a small quantity of distilled spirits of little value, then the penalty of the law can easily be evaded, and the purpose of the Legislature be frustrated. I am also inclined to the opinion that the words "at time of emptying such cask" ought not to receive such a strict construction as to require the effacing and obliterating of the stamp to be done eo instanti that the cask is emptied; but the act ought to be done in a convenient time, considering the surrounding circnmstances affording evidence of reasonable excuse for delay. If you should be satisfied from the evidence that the wife of the defendant, on the morning of the day when the cask was discovered, had emptied the cask as far as could be done by the faucet, and had removed it from the place where it had been used in the course of business, and had failed to efface and obliterate the stamp because she regarded the cask as still containing distilled spirits of value, which she desired to save, when she could procure the necessary assistance to pour it out of the bung-hole, then I charge you that there was a reasonable cause for delay, and the defendant is entitled to a verdict. If, however, you become fully satisfied from the evidence that the cask was entirely empty at the time it was discovered by the deputy collector, or that it contained a small quantity of spirits of little value, and there was no reasonable cause for the delay in effacing and obliterating the stamp, then you ought to return a verdict of guilty. The counsel for the defendant insisted that even if the jury should be fully satisfied that there was a violation of law, the defendant is not guilty, as the offense was committed by his wife in his absence, and without his knowledge and consent. As a general rule, the husband is not criminally liable for offenses committed by the wife in his absence, and without his consent or procurement. If he is present with his wife, and participates in the crime, he may be indicted. In most cases of felony, not in misdemeanors, where the husband is actually or constructively present at the time of the commission of a crime, the wife may be excused, although she participated, on the ground of the actual or presumed command and coercion of the husband compelling her to the commission of the crime. But this is only a presumption of law, and may be rebutted by evidence showing that she was not acting under compulsion, but was a voluntary and principal actor. The rules of law as to the joint and separate liability of a husband and wife in the commission of crime do not govern this case, and they are only referred to as they were strongly insisted on in the argument of counsel. This is not a crime of commission, but the offense consists in a failure to perform a legal duty. The emptying of the cask was not criminal, the failure to efface the stamp is the gist of the offense. The defendant had undertaken a public business under a license from the government, and his wife was his agent in carrying on this business, and she omitted to perform a duty imposed by law upon persons engaged in such licensed employment. As a general rule, a criminal act of a servant or agent does not subject the master or employer to any criminal responsibility, unless he directed or co-operated in such act, or the employment necessarily resulted in such unlawful act. It is, however, well settled that where a master, owing a certain duty to the public, entrusts its performance to a servant, he is responsible criminally for the failure of his servant to discharge that duty, if the non-performance of such duty is a crime. The wife in this case was the agent of her husband, and he is crimin ally responsible, if, without reasonable justification and excuse, she failed to perform the duty imposed upon him by the law. There is some direct conflict between the testimony of the witnesses upon the material points in this case, which can not be easily reconciled. The good characters of all the witnesses have been shown by the testimony of their acquaintances. In judging of the credibility of the witnesses, you should consider the motives by which they are influenced, and the manner in which they conducted themselves on the examination before you. You can not decide the case upon the preponderance of testimony, as juries can do in civil cases. The presumption of innocence which the law throws around a person on trial for crime remains with and protects him, until the government, by the whole evidence, satisfies a jury beyond a reasonable doubt that he is guilty in the manner and form as charged in the indictment. REVENUE LAWS-SALE OF MANUFACTURED TOBACCO. [6 Fed. Rep. 867.] In the United States Circuit Court, Massachusetts, 1881. Section 3363 of the Revised Statutes provides, that "no manufactured tobacco shall be sold or offered for sale unless put up in packages and stamped as prescribed in this chapter, except at retail, by retail dealers, from wooden packages stamped as provided in this chapter." Held, that a retail dealer who, in the course of his business, sells at retail tobacco taken by him from a wooden package duly put up and stamped, whether taken at or before the sale, does not violate this section. NELSON, D. J. This is an indictment under the Revised Statutes,1 charging the defendant with selling manufactured tobacco not put up in packages and duly stamped. The facts not being in dispute, the defendant submitted to a verdict of guilty, subject to the opinion of the court whether the offense charged in the indictment was proved. Section 3363 is as follows: "No manufactured tobacco shall be sold or offered for sale unless put up in packages and stamped as prescribed in this chapter, except at retail, by retail dealers, from wooden packages stamped as provided in this chapter; and any person who sells or offers for sale any snuffs, or any kind of manufactured tobacco, not so put up in packages and stamped, shall be fined not less than $500, and imprisoned not less than six months nor more than two years." It appeared at the trial that the defendant was an apothecary, and also sold cigars and tobacco at retail. He had paid a special tax as a dealer in tobacco, and purchased plug tobacco in wooden packages, put up and stamped as required by the internal revenue laws. It was 1 sec. 3363. |