Marhoefer v. United States

EVANS, Circuit Judge (after stating the facts as above). [1] Appellant’s contention that count 3 is insufficient to support a conviction is predicated on the ground that such count fails to charge the defendants with having “removed” the oleomargarine therein described for the purpose named in the statute; that the crime described in section 8 is not committed unless the accused shall have “manufactured” and “sold” oleomargarine without paying the tax thereon, or unless the oleomargarine shall be “removed” “for cosumption or use,” without paying the tax thereon. It is conceded that the count generally charges the defendants with manufacturing and producing oleomargarine and with having removed the oleomargarine from the place of manufacture, for consumption, but it is claimed that this general charge is restricted and narrowed by the specific language immediately following the general charge and beginning with the words “that is to say,” found in said count, and that the general language must be restricted and limited by the specific allegations thus appearing; that such specific language fails to charge the defendant, either with manufacturing and selling butterine or with removing the butterine either for “consumption or use” without paying the specific tax thereon. The declarative words, “did manufacture, produce and furnish” must be viewed in the light of all the language in this count, and especially in connection with the words, “was so manufactured, produced, removed and furnished,” and with the prior words “produced and manufactured and removed from the place of manufacture,” and thus construed together, the so-called specific* language does not narrow or restrict the general charge, but amplifies and in greater particularity describes how the defendant violated the requirements of section 8 by manufacturing oleomargarine and removing it for consumption without paying the tax required by law to he paid. The grammar could be improved, but the meaning of the entire count is not left in doubt. [52] [2] Sufficiency of the fourth count of the indictment is challenged, because it is claimed the pleader, in using the words “attempt to defraud,” failed to.sufficiently describe the crime defined in section 17. In other words, it is claimed that, to charge the defendants with “an attempt to defraud” the government out of the 10 cents tax on colored oleomargarine, it was- necessary to plead all the essential elements — all of the ultimate facts which constituted the offense of attempting to defraud. Counsel for the government maintain that the charge is sufficient because it follows the language of the statute; that, in charging violation of section 17 of the Oleomargarine Eaw, the indictment is sufficient if the pleader merely charges defendant with “a felonious attempt to defraud the United States out of a tax of ten cents per pound” upon a certain number of pounds of oleomargarine. In support of their contention reliance is placed upon May v. United States, 199 Fed. 42, 117 C. C. A. 420; Enders v. United States, 187 Fed. 754, 109 C. C. A. 502; Hardesty v. United States, 168 Fed. 25, 93 C. C. A. 417; United States v. Simmons, 96 U. S. 362, 24 L. Ed. 819. The government further contends that it pleaded, with sufficient particularity, the facts which constituted the crime. An examination of the entire fourth count, as well as the contents of the first count of the indictment, sufficiently incorporated in the fourth count as to become a part of it, convinces us that the pleader was as specific and definite as the circumstances required. The pleader did not in this case restrict himself to the precise language of the statute, but described the defendants,«their place of business, the date and place where they conducted the business of manufacturing oleomargarine in violation of the law, and further defined with considerable particularity the steps taken that led up to and were a part of the “attempt to defraud.” It is not necessary to go as far as the majority opinion in May v. U. S., supra. We conclude the fourth count is sufficient to support the .'conviction. Appellant’s contention that the evidence fails to support the verdict is not well taken. Defendants did not testify nor did they offer any testimony to dispute the case made by the government. Without detailing all the facts, it is sufficient tó say that the testimony, and the inference logically flowing therefrom were hardly capable of any construction consistent with defendants’ innocence as to the offenses set forth in counts 5 to 9, inclusive. [3] As to counts 3 and 4, the chief contention of the plaintiff in error is that the government failed to show any “sale” or “removal for consumption or use.” Whether such evidence was lacking depends upon what constitutes a removal .within the meaning .of this act. It conclusively appeared that defendant Marhoefer constructed a “cave” under the back room in one of his places of business, and that he there conducted his “moonshining” business; that is, colored oleomargarine without paying the government tax. The criminal intent to violate the law was clearly present. The defendants’ contention, that the transfer of this colored oleomargarine from the “cave” to the salesroom was not a “removal” as contemplated by statute, we cannot accept. [53] The mere fact that the “cave” and the salesroom were in the same building is not at all persuasive. “Removal,” sufficient to establish guilt, is not determined by distance, nor is it determined by the building from which or to which the oleomargarine is taken. When the defendant moved the colored product from the “cave” to the salesroom above for the purpose of selling it without paying the stamp tax, he committed the crime as fully as though he shipped it to an adjoining city. [4j The contention that the defendant Walsh should have been dismissed, because he was merely an employé, and not a manufacturer, is answered against the appellant in May v. U. S., supra, and ample reasons for so holding are given. The judgment is affirmed.