United States v. Spiegel/Opinion of the Court

'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, § 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 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, § 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.'

Asst. Atty. Gen. Maury, for plaintiff.

William P. Fiero for defendant.

MATTHEWS, J.

The twelfth section of the act of March 1, 1879, does not define the offense of removing stamps from packages of imported liquors, or of having in possession stamps so removed, except by adopting the provisions of Rev. St. § 3324, defining such offenses in relation to stamps upon packages of other distilled spirits, not imported, and applying them in the case of imported liquors. In doing this its language is that of reference merely, and not of definition. For the precise and statutory description of the offense described we must have recourse to the words of Rev. St. § 3324, in the context there found, there being nothing in the act of 1879 showing an intention to qualify their original meaning. Referring for that purpose to the section of the Revised Statutes in question, we find that the felonies therein defined are as follows: (1) The removal by any person of 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 aiding or assisting therein. (2) Having in possession any such stamp so removed as aforesaid. (3) Having in 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.

Of these the offenses described in the last division are not adopted by the act of March 1, 1879, and applied to casks or packages of imported liquors. It is not an offense, therefore, under this act, for one merely to have in his possession any canceled stamp provided by law to be affixed to each package of imported liquors, or any stamp which has been used on such package, or which purports to have been so used. To constitute the offense of unlawfully having in possession any such stamps they must have been removed from the package on which they were once placed without being defaced and destroyed at the time of such removal. But every such stamp, once in use upon such package, to come afterwards into the possession of a person, must in one sense have been removed; that is, must in some way and by some means have ceased to be affixed to the package on which it was used, and have become detached and separated from it. This may have happened without the agency of a human will, by mere accident, or as the effect of unintelligent causes, and without design on the part of any person. But it is not in this sense that possession of removed stamps is made an offense in the previous clause of the section; for so to construe it would be to obliterate the statutory distinction between the two crimes,-that of having in possession removed stamps, and of having in possession used stamps. A stamp once in use may have accidentally fallen off the package, yet afterwards to have it in possession is an offense under section 3324. But it is not an offense under the act of March 1, 1879. To have in possession stamps that have been removed, without at the time of removal having been defaced and destroyed, is an offense under both laws,-one in the case of domestic distilled spirits, the other in that of imported liquors. The removal, therefore, which describes a removed stamp, possession of which is thus made unlawful, must be a designed removal from the package by human agency, without defacing and destroying it at the time; such removal as by the first division of the described offenses constitutes the guilty act of the person removing it. It is the possession of such a stamp, 'so removed as aforesaid,' in the language of the clause defining the offense, that must be shown to constitute guilt; that is, possession of a stamp, not merely once used and afterwards found and taken into possession, but possession of a stamp, which some person, although he may be unknown, has removed intentionally and by design, and failed, by neglect or otherwise, at the time of removal, to deface and destroy. So to remove such a stamp is one offense; to aid and assist in such a removal is another; the third is, to have in possession such a stamp, 'so removed as aforesaid;' and these are all of that class of offenses embraced by the twelfth section of the act of March 1, 1879.

It follows, from this view of the law, that the indictment in the present case is substantially defective, because it does not set out an offense under the statute. It does not describe the crime intended in the language of the act, inasmuch as it does not charge that the defendant had in his possession a stamp of the kind and description mentioned, which stamp had been theretofore removed in the manner prohibited by the law; that is, by some person, without defacing and destroying the same at the time of such removal. It also follows that whatever presumptions may arise as to the manner of removal, when properly charged, from the circumstances in proof accompanying the fact of possession, it is competent for the defendant to introduce evidence in explanation of those circumstances, and tending to show that the stamp in question was not removed by any person, without defacing and destroying the same at the time of removal, but was in fact detached and removed from the cask or package without human agency, and by the accidental intervention of other causes.

Proceeding to dispose of the questions certified specifically, we answer the first, fourth, fifth, and eighth questions in the negative, and the seventh in the affirmative. The second, third, and sixth questions we decline to answer, because the answers given to the other questions necessarily dispose of the whole case, and because we cannot answer them without a more complete statement of the facts on which they are supposed to have arisen than is furnished by the present record.

The cause is remanded with directions to take further proceedings therein not inconsistent with this opinion; and it is so ordered.