DUFF v. UNITED STATES, 185 F. 101

ROSE, District Judge. The plaintiff in error, to be hereafter referred to as the defendant, was convicted for a violation of

section 6 of the Act of March 3, 1897, c. 379, 29 Stat. 626, 627, 3 Fed. Stats. Ann. 704 (U. S. Comp. St. 1901, p. 2152). This

section reads, so far as is material: “That any person who shall * * * re-use a bottle for the purpose of containing distilled spirits which has once been filled and stamped under the provisions of this act without removing and destroying the stamp so previously affixed to such bottle * * * shall be fined,” etc. The government proved that its revenue officers had found in-April, 1909, in a saloon in Pine Grove, W. Va., such a bottle with the stamps intact, the contents of which were 44 proof whisky.

The defendant was one of three persons, each of whom at that time held a retail liquor dealer’s special tax stamp for the saloon in question. At the time, the bottle was found, and for 17 days preceding, the saloon had been in the custody of a constable, who had seized it under an attachment for rent. There was no evidence to show who, in point of fact, had refilled the bottle in question. At the close of the testimony the defendant moved the court to direct a verdict of not guilty. The instruction was refused. This refusal is assigned as error.

In a criminal cause, where the evidence for the government, if assumed to be true in fact, together with all reasonable inferences from it, is not legally sufficient to support a verdict of guilty, it is the duty of the trial court, upon being moved thereto, to direct a verdict of not guilty. Crumpton v. United States, 138 U. S. 361, 363, 11 Sup. Ct. 355, 34 L. Ed. 958; France v. United States, 164 U. S. 676, 681, 17 Sup. Ct. 219, 41 L. Ed. 595. In the record in this case we find no evidence that the bottle in question was refilled by the defendant, or by his procurement, or by any one acting for him.

The learned court below was therefore in error in refusing the instruction asked for. The judgment must therefore be reversed, and the case remanded for a new trial. Reversed.