The indictment under which the defendant (plaintiff in error) was tried contained 15 counts. He was convicted on the sixth count, which read as follows:
The count was drawn under section 3296 of the Revised Statutes, which provides that:
After the verdict, and before the judgment, the plaintiff in error filed his motion in arrest of judgment, as follows:
Afterwards an amended motion in arrest of judgment was filed, as follows:
The overruling of this motion is assigned as error.
J. A. W. Smith, for plaintiff in error.
Ass't Atty. Gen. Boyd, for defendant in error.
Mr. Justice McKENNA, after stating the facts in the foregoing language, delivered the opinion of the court.
Section 3271 of the Revised Statutes provides that: 'Every distiller shall provide, at his own expense, a warehouse, to be [171 U.S. 35, 37] situated on and to constitute a part of his distillery premises, and to be used only for the storage of distilled spirits of his w n manufacture until the tax thereon shall be paid; ... and such warehouse, when approved by the commissioner of internal revenue on report of the collector, is hereby declared a bonded warehouse of the United States, to be known as a distillery warehouse, and shall be under the direction and control of the collector of the district and in charge of an internal revenue storekeeper assigned thereto by the commissioner.'
Section 3287 provides that all distilled spirits shall be drawn from the receiving cisterns into casks of a designated capacity and the quantity of spirits marked thereon, 'and shall be immediately removed into the distillery warehouse,' and stamps designating the quantity of spirits shall be applied thereto.
Other sections provide that no distilled spirits upon which the tax has been paid shall be stored or allowed to remain on any distillery premises, and such spirits found in a cask containing five gallons or more without having the stamp required by law shall be forfeited.
To secure the enforcement of this provision, section 3296 was enacted.
Plaintiff in error says:
And it hence claimed that the indictment is too uncertain to sustain the judgment, because it does not inform the defendant that a warehouse was provided in which the spirits which he is charged to have concealed should have been stored until the tax was paid. Undoubtedly, the statute was intended to punish a distiller who violated its provisions. It was also intended to punish any one else who did, and the [171 U.S. 35, 38] offense could be committed by a removal of spirits from the premises before storage in the distillery warehouse, or by concealment of the spirits so removed; and it is this concealment which the indictment charges, and it sufficiently alleges the existence of a warehouse. It also alleges that the tax had not been paid. The offense was purely statutory. In such case it is generally sufficient to charge the defendant with acts coming within the statutory description in the substantial words of the statute without any further expansion of the matter. U. S. v. Simmons, 96 U.S. 360 ; Same v. Britton, 107 U.S. 655 , 2 Sup. Ct. 512.
One of the acts which is made an offense by section 3296 is the concealment of distilled spirits on which the tax has not been paid, removed to a place other than the distillery warehouse provided by law. The indictment charges in the language of the statute the performance of that act at a particular time and place. It was, therefore, sufficiently certain.
As to the second ground of motion in arrest of judgment, it is enough to say that there is nothing in the record to show that the jury separated before the verdict was returned into court, but the record does show that a sealed verdict was returned by the jury by agreement of counsel for both parties in open court and in the presence of the defendant. This verdict was rightly received and recorded. Com. v. Carrington, 116 Mass. 37.
The judgment is affirmed.