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Nor shall any vinegar factory, for the manufacture of vinegar Vinegar facas aforesaid, be permitted within six hundred feet of any dis- tory not to be tillery or rectifying house. But it shall be lawful for manufac- within 600 feet of a distillery. turers of vinegar to separate, by a vaporizing process, the alcoholic property from the mash produced by them, and condensed the same by introducing it into the water or other liquid used in making vinegar.

No person, however, shall remove, or cause to be removed, Vinegar with from any vinegar factory or place where vinegar is made, any of alcohol. over 2 per cent vinegar or other fluid or material containing a greater proportion than two per centum of proof spirits. Any violation of this provision shall incur a forfeiture of the vinegar, fluid, or material containing such proof spirits, and shall subject the person or persons guilty of removing the same to the punishment provided for any violation of this section.

Secs. 8276,

And all the provisions of sections thirty-two hundred and seventy-six, thirty-two hundred and seventy-seven, and thirty-two 3277, 3278 aphundred and seventy-eight of the Revised Statutes of the United plicable. States are hereby extended and made applicable to all premises whereon vinegar is manufactured, to all manufacturers of vinegar

and their workmen or other persons employed by them.

265 Fed. 910, U. S. v. Sohm. 268 Fed. 417, U. S. v. Stafoff, affirmed Jan. 2, 1923, unreported, U. S.

T. D. 3424.

270

Fed. 281, U. S. v. Phillips. 276 Fed. 816, Bechtold v. U. S. 278
Fed. 163, Violette v. U. S. 282 Fed. 582, Violette v. Walsh.

Forfeiture

of

SEC. 3289. All distilled spirits found in any cask or package containing five gallons or more, without having thereon each mark unstamped packand stamp required therefor by law, shall be forfeited to the ages. United States.

SEC. 3296. Whenever any person removes, or aids or abets in the Removal, conremoval of any distilled spirits on which the tax has not been cealment, etc., of paid, to a place other than the distillery warehouse provided by to law; penalty. spirits contrary law, or conceals or aids in the concealment of any spirits so removed, or removes, or aids or abets in the removal of any distilled spirits from any distillery warehouse, or other warehouse for distilled spirits authorized by law, in any manner other than is provided by law, or conceals or aids in the concealment of any spirits so removed he shall be liable to a penalty of double the tax imposed on such distilled spirits so removed or concealed, and shall be fined not less than two hundred dollars nor more than five thousand dollars, and imprisoned not less than three months nor more than three years.

A conviction, under section 3296, for removing distilled spirits to a place other than a distillery warehouse, or concealing them there contrary to law, is not a bar to a conviction under section 3281 for illicit distilling, because the same are different offenses; and the question of being twice in jeopardy, within the Constitution, amendment 5, does not arise. (United States v. Three Copper Stills, etc., 47 Fed. 495.)

The fact that the statute makes the aiding and abetting of another in the removal of illicit spirits a distinct offense does not prevent a person so aiding and abetting from being convicted as a principal in the removal, under the rule making all participants in misdemeanors liable as principals. (United States v. Sykes, 58 Fed. 1000.) Sec. 332, Criminal Code.

An indictment under this section for the concealment of dis-
tilled spirits on which the tax has not been paid, removed to
a place other than the distillery warehouse provided by law,
which charges the performance of that act at a particular
time and place, and in the language of the statutes is suffi-
ciently certain. (Pounds v. United States, 171 U. S. 35.)
Rosenfield v. U. S., 202 Fed. 469.

Bond may be sued for these penalties. (United States v.
Chouteau, 102 U. S. 603; 27 Int. Rev. Rec. 49.)

Removal without payment of tax authorizes forfeiture of
distillery. (United States v. One Distillery, etc., 193 Fed. 720.)

Power of officers' to detain packages on suspicion.

Forfeiture of

spirits unlawful

Section applies as well to removals from an illicit as from a registered distillery. (United States v. Thompson, 189 Fed. * 838.) Hester v. U. S., 284 Fed. 487.

SEC. 3298. It shall be lawful for any internal-revenue officer to detain any cask or package containing, or supposed to contain, distilled spirits, when he has reason to believe that the tax imposed by law upon the same has not been paid, or that the same is being removed in violation of law; and every such cask or package may be held by him at a safe place until it shall be determined whether the property so detained is liable by law to be proceeded against for forfeiture; but such summary detention shall not continue in any case longer than forty-eight hours without process of law or intervention of the officer to whom such detention is to be reported.

SEC. 3299. All distilled spirits found elsewhere than in a disly removed from tillery or distillery warehouse, not having been removed therefrom according to law, shall be forfeited to the United States.

distillery.

Act or Feb. 18, 1875.

If agent is cognizant of fraud at time of purchase, the principal is bound. Confusion and mixture of goods by rectification. (Harrington's Distilled Spirits, 11 Wall. 356; 13 Int. Rec. Rev. 193.)

Books to be SEC. 3318. Amended by act of February 27, 1877 (19 Stat. 248) kept by rectifiers and by sec. 5, act of March 1, 1879 (20 Stat. 327). Every rectiand wholesale dealers. fier and wholesale liquor dealer shall provide a book, to be prepared and kept in such form as may be prescribed by the Commissioner of Internal Revenue, and shall, on the same day on which he receives any foreign or domestic spirits, and before he draws off any part thereof, or adds water or anything thereto, or in any respect alters the same, enter in such book, and in the proper columns respectively prepared for the purpose, the date when, the name of the person or firm from whom, and the place whence the spirits were received, by whom distilled, rectified, or compounded, and when and by whom inspected, and, if in the original package, the serial number of each package, the number of wine gallons and proof gallons, the kind of spirits, and the number and kind of adhesive stamps thereon. And every such rectifier and wholesale dealer shall, at the time of sending out of his stock or possession any spirits, and before the same are removed from his premises, enter in like manner in said book the day when and the name and place of business of the person or firm to whom such spirits are to be sent, the quantity and kind or quality of such spirits, the number of gallons and fractions of a gallon at proof, and, if in the original packages in which they were received, the name of the distiller and the serial number of the package. Every such book shall be at all times kept in some public or open place on the premises of such rectifier or wholesale dealer for inspection, and any revenue officer may examine it and take an abstract therefrom; and when it has been filled up as aforesaid, it shall be preserved by such rectifier or wholesale liquor dealer for a period not less than two years; and during such time it shall be produced by him to every revenue officer demanding it.

Penalties.

Transcripts.

And whenever any rectifier or wholesale liquor dealer refuses or neglects to provide such book, or to make entries therein as aforesaid, or cancels, alters, obliterates, or destroys any part of such book, or any entry therein, or makes any false entry therein, or hinders or obstructs any revenue officer from examining such book, or making any entry therein, or taking any abstract therefrom; or whenever such book is not preserved or is not produced by any rectifier or wholesale liquor dealer as hereinbefore directed, he shall pay a penalty of one hundred dollars, and shall on conviction be fined not less than one hundred dollars nor more than five thousand dollars, and imprisoned not less than three months nor more than three years.

That every person required to keep the books prescribed by this section shall, on or before the tenth day of each month, make a full and complete transcript of all entries made in such book

during the month preceding, and, after verifying the same by
oath, shall forward the same to the collector of the district in
which he resides. Any failure by reason of refusal or neglect Penalty.
to make said transcripts shall subject the person so offending to

a fine of one hundred dollars for each neglect or refusal.

270 Fed. 578, U. S. v. Kraus et al.

Law construed and applied. Where parties are both wholesale
and retail dealers in the same place. (United States v. Malone,

8 Ben. 574; 22 Int. Rev. Rec. 403; Fed. Cas. No. 15713.)
Importers must keep the wholesale liquor dealers' book. (United
States v. McCullough, 22 Int. Rev. Rec. 202; Fed. Cas. No. 15665.)
Recovery of penalty of $100 in a civil action no bar to criminal
proceedings. (Case of Leszynsky, 25 Int. Rev. Rec. 71; 16 Blatch.
9; Fed. Cas. No. 8279.)

The duty of making entries in the book may be delegated to a
clerk, but the dealers and rectifiers are responsible if the proper
entries are not made. (United States v. 50 Barrels Whiskey, 11
Int. Rev. Rec. 94; Fed. Cas. No. 15091; United States v. Amann,
Fed. Cas. No. 14438.)

Wholesale liq

or dealers to

mark, brand, and

Returns.

SEC. 3323. Amended by the act of July 16, 1892 (27 Stat. 200). Every package of distilled spirits containing five wine gallons or more, filled on the premises of a wholesale liquor dealer, who stamp packages. has paid the special tax required by law, shall be marked, branded, and stamped by such wholesale liquor dealer in such manner and under such rules and regulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe; and on or before the tenth day of each month every wholesale liquor dealer shall make return, under oath, to the collector of internal revenue for the district of the various kinds and quantities of each kind and of the total quantities of distilled spirits received on his premises and of the various kinds and quantities of each kind and of the total quantity of distilled spirits sent out from his stock or possession during the preceding month, and of the quantity of each kind and the total quantity remaining on hand at the end of the month; and such return shall be made in such form and contain such other particulars as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe. And every rectifier or wholesale liquor dealer who refuses or wilfully neglects to comply with the requirements of this act as to giving the said notice or the said return, and as to marking, branding, and stamping, in accordance with the law and regulations made in pursuance thereof, the packages of spirits filled on his premises as aforesaid, shall, for each such offense, be fined not less than two hundred dollars nor more than one thousand dollars.

Form.

Penalty.

SEC. 3324. Every person who empties or draws off, or causes Stamps and to be emptied or drawn off, any distilled spirits from a cask or brands to be effaced from empty package bearing any mark, brand, or stamp, required by law, casks. 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 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 Penalties for by law to be placed on any cask or package containing distilled omitting to efspirits, shall forfeit three hundred dollars for each such cask or face and for transpackage, or any part thereof, so received or transported, or had in portation in viopossession 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

lation of law.

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 canceled 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.

Removal of SEC. 3327. No person shall remove any distilled spirits at any spirits from dis other time than after sunrising and before sunsetting in any cask tillery or rectifier's premises be- or package containing more than ten gallons from any premises fore sunrise and or building in which the same may have been distilled, redisafter sunset. tilled, rectified, compounded, manufactured, or stored; and every

Penalty.

Forfeiture.

Stills, etc., to

person who violates this provision shall be liable to a penalty of one hundred dollars for each cask, barrel, or package of spirits so removed; and said spirits, together with any vessel containing the same, and any horse, cart, boat, or other conveyance used in the removal thereof, shall be forfeited to the United States.

SEC. 3332 [Amended by sec. 5, act of Mar. 1, 1879 (20 Stat. be destroyed in 327)]. When a judgment of forfeiture, in any case of seizure, is certain cases. recovered against any distillery used or fit for use in the production of distilled spirits, because no bond has been given, or against any distillery used or fit for use in the production of spirits, having a registered producing capacity of less than one hundred and fifty gallons a day, for any violation of law, of whatever nature, every still, doubler, worm, worm-tub, mash-tub, and fermenting-tub therein shall be so destroyed as to prevent the use of the same or of any part thereof for the purpose of distilling; and the materials shall be sold as in case of other forfeited property.

And in case of seizure of a still, doubler, worm, worm-tub, mash-tub, fermenting-tub, or other distilling-apparatus, having a less producing capacity than one hundred and fifty gallons per day, for any offense involving forfeiture of the same, where said apparatus shall be of less than five hundred dollars' value, and where it shall be impracticable to remove the same to a place of safe storage from the place where seized, the seizing officer is authorized to destroy the same only so far as to prevent the use thereof, or any part thereof, for the purpose of distilling: Provided, That such destruction shall be in the presence of at least one credible witness, and that such witness shall unite with the said officer in a duly sworn report of said seizure and destruction, to be made to the Commissioner of Internal Revenue, in which report they shall set forth the grounds of the claim of forfeiture, the reasons for such seizure and destruction, their estimate of the fair cash value of the apparatus destroyed, and also of the materials remaining after such destruction, and a statement that, from facts within their own knowledge, they have no doubt whatever that said distilling apparatus was set up for use and not registered, or had been used in the unlawful distillation of spirits, and that it was impracticable to remove the same to a place of safe storage.

Owner may be Within one year after such destruction the owner of the appareimbursed in certain cases on apratus so destroyed may make application to the Secretary of plication within the Treasury through the Commissioner of Internal Revenue, one year. for reimbursement of the value of the same; and unless it shall be made to appear to the satisfaction of the Secretary and the Commissioner that said apparatus had been used in the unlawful distillation of spirits, the Secretary shall make an allowance to said owner, not exceeding the value of said apparatus, less the value of said materials as estimated in said report; and if the claimant shall thereupon satisfy said Secretary and Commissioner

Wrongful seizures; officer lia

that said unlawful use of the apparatus had been without his
consent or knowledge, he shall still be entitled to such compensa-
tion, but not otherwise. And in case of a wrongful seizure and
destruction of property under the foregoing provisions, the owner ble.
thereof shall have right of action on the official bond of the officer
who occasioned the destruction for all damages caused thereby.
The words " judgment of forfeiture include cases of forfeiture
under section 3460. (33 Int. Rev. Rec. 397.)

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(34 Int. Rev.

Indictment for a wanton and willful injury to personal property.
State of North Carolina v. Thos. H. Vanderford.
Rec. 190.)

SEC. 3333. Whenever seizure is made of any distilled spirits Burden of proof found elsewhere than in a distillery or distillery warehouse, or on claimant. other warehouse for distilled spirits authorized by law, or than in the store or place of business of a rectifier, or of a wholesale liquor dealer, or than in transit from any one of said places; or of any distilled spirits found in any one of the places aforesaid, or in transit therefrom, which have not been received into or sent out therefrom in conformity to law, or in regard to which any of the entries required by law to be made in the books of the owner of such spirits, or of the storekeeper, wholesale dealer, or rectifier, have not been made at the time or in the manner required, or in respect to which the owner or person having possession, control, or charge of said spirits, has omitted to do any act required to be done, or has done or committed any act prohibited in regard to said spirits, the burden of proof shall be upon the claimant of said spirits to show that no fraud has been committed, and that all the requirements of the law in relation to the payment of the tax have been complied with.

tax.

SEC. 3334. Amended by sec. 5, act March 1, 1879 (20 Stat. 327). Spirits sold All distilled spirits forfeited to the United States, sold by order under judicial of court, or under process of distraint, shall be sold subject to process subject to tax; and the purchaser shall immediately, and before he takes possession of said spirits, pay the tax thereon. And any distilled spirits heretofore condemned and now in the possession of the United States shall be sold as herein provided. If any taxpaid stamps are affixed to any cask or package so condemned, such stamps shall be obliterated and destroyed by the collector or marshal after forfeiture and before such sale: Provided, That Provision where in all cases wherein it shall appear that any distilled spirits spirits will not offered for sale on distraint for taxes, where the taxes on such ell for price spirits have not been paid, or offered for sale for the benefit of equal to tax. the United States as forfeited spirits under order of court or under proceeding pursuant to section thirty-four hundred and sixty of the Revised Statutes, will not, by reason of such spirits being below proof, being (bring) a price equal to the taxes due and payable thereon, but will bring a price equal to, or greater than, the tax on said spirits, computed only upon the proof gallons contained in the packages, without regard to the greater number of wine gallons contained therein, then, and in such case, upon sale being so made, tax-paid stamps to the amount required to stamp such spirits as if the tax thereon were only on the proof gallons thereof, may, under such rules and regulations as the Commissioner of Internal Revenue shall prescribe, be used by the collector making such sale, or furnished by a collector to a United States marshal or to any other government officer making such sale for the benefit of the United States, without making payment for said stamps so used or delivered. Any collector using or furnishing stamps in manner aforesaid, on presenting vouchers satisfactory to the Commissioner of Internal Revenue, shall be allowed credit for the same in settling his stamp account with the department. In such cases, the officer selling the distilled spirits shall affix, or cause to be affixed, to the same the tax-paid stamps so provided, and shall write across the face of such stamps the true number of proof and wine gallons contained in the package, the amount of tax actually paid thereon,

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