ROSENFELD v. UNITED STATES, 202 F. 469

KOHRSAAT, Circuit Judge (after stating the facts as above). The motion in arrest of judgment is based upon the contention that counts 4 and 8 of the indictment in question do not state an offense against the United States; that no> offense against the statute is stated with certainty; that count 8 fails tó charge that the act complained of was done with intent to- defraud the United States, and contains no sufficient allegation that the tax had not in fact been paid when the acts charged to constitute the offense took place. Count 4 charges the violation of. that clause of

section 3296 wherein it is made a criminal act for any person to conceal or aid in the concealment of any distilled spirits upon which the tax has not been paid, and which have been removed to a place' other than the distillery warehouse provided by law, in that it is charged that defendant. unlawfully, knowingly, and willfully, and with intent to defraud the United States, did conceal and aid in the concealment of certain distilled spirits on which the tax had not been paid, and which had theretofore unlawfully been removed from the Illinois Fruit Distilling Company to defendant's place of business.

The language follows the statute and accords with the language of the indictment approved by the Supreme Court in Pounds v. United States, 171 U. S. 35, 18 Sup. Ct. 729, 43 L. Ed. 62. The court says: “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’’ — citing United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819, and United States v. Britton, 107 U. S. 655, 2 Sup. Ct. 512, 27 L. Ed. 520.

The point there made was that the indictment failed to allege that there was a warehouse provided by law to which the spirits alleged to have been concealed should have been removed. The point made here is that count 4 does not charge that the spirits in question had theretofore been removed from a certain distillery to a place other than a distillery warehouse, with intent to defraud the United States. In Miller v. United States, 136 Fed. 581, 69 C. C.

A. 355, this court adopted the rule above quoted, but held that it did not apply to the facts of the case before it, since the defendant was there charged with knowingly and willfully procuring the presentation to the Commissioner of Pensions of a certain false and fraudulent affidavit without naming the person who made the presentation, or stating that his name was unknown, etc. The indictment was therefore held insufficient under the rule laid down in United States v. Simmons, supra. Here no such condition exists. Defendant was fully advised by count 4 of the charge which he was required to meet.

The allegations of the indictment under consideration in Bartlett v. United States, 106 Fed. 884, 46 C. C. A. 19, so differentiates that case from count 4 as to make the case inapplicable here. The sufficiency of count 8 is challenged upon the grounds:

(1) That it contains no direct averment that the revenue tax had not been paid.

(2) That it contains no direct averment that defendant bought and received the distilled spirits with intent to defraud the United States.

(3) That it lacks any averment that defendant knew that the said distilled spirits had been removed from .the distillery to a place other than the distillery warehouse provided by law; It is true that count 8 does not charge directly that the revenue tax on the distilled spirits had not been paid at the time of removal. The allegation is that the removal was made of distilled spirits on which the defendant “then and there well knew and had reasonable grounds to believe that the internal revenue tax then imposed by law had not been paid.” In Bartlett v.

United States, supra, defendant therein was charged with the commission of perjury, in that he made a false oath to a schedule, which he as a voluntary bankrupt filed in bankruptcy. The indictment charged that he knew his statement was not true, but that he “then and there well knew that, in addition to the said estate so set forth as aforesaid in the

schedule aforesaid, he was then and there the owner of the sum of $5,000 in money,” etc. This was held not to be an allegation that he owned other property than that scheduled; that it stated only a condition of mind of the accused, and was therefore insufficient — citing Harrison v. State, 41 Tex. Cr. R. 274, 53 S. W. 863, and three Kentucky cases. Sauser v. People, 8 Hun (N. Y.) 302; Prichard v. People, 149 Ill. 50, 36 N. E. 103.

The sufficiency of an indictment must, in large part, be tested by the fact as to whether it accurately advises the defendant, as well as the court, of the acts of which the former is accused, so that he may make full defense thereto. Cochran & Sayre v. United States, 157 U. S. 290, 15 Sup. Ct. 628, 39 L. Ed. 704. In Bartlett v. United States, supra, defendant was not definitely advised as to what property he had omitted from his schedule, or that he had other property. He was charged with being of the mind that he had other property.

It was of the essence of the charge against him that he should actually have other property. There must, in case of indictment for perjury, exist no material fact to be reached by way of inference or argument. In the present case the court follows

section 3317 in its allegation with regard to the nonpayment of the tax. It left defendant in no uncertainty as to what, and just what, he was charged with. It may well be doubted whether the language, “with intent to defraud the United States,” of

section 3317, applies to the clause .of the

section upon which the indictment is laid. To unlawfully, knowingly, and willfully purchase distilled spirits which defendant knew or had reason to believe had been removed from a distillery to his own store .without the payment of the internal tax thereon imports an intent to defraud the United States. The several respects in which defendant assails the two counts upon which he stands convicted, if open to objection, consist only in matters of form, and in no manner prejudice him. Granting that they are such, they come within the provisions of

section 1025 of the Revised Statutes (U. S. Comp.

St. 1901, p. 720), which reads: “No indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.” It is therefore held that the matters charged in said counts 4 and 8 severally constitute an offense against the United .States as therein respectively set forth, and are respectively, sufficient in form to sustain the judgment of the district court thereon, and the several assignments of error in relation to sufficiency are held to he not well taken.

It is defendant’s contention that the only proof of the body of the offense or corpus delicti of count 4 of the indictment consists of uncorroborated confessions of the defendant. There is no denial of the claim that the distillery was illegally operated, nor is it disputed that the distilled spirits in question had been removed from the warehouse contrary to law, without payment of taxes thereon. Were it otherwise contended, the record abundantly establishes these facts.

Neither is it disputed that defendant purchased goods of the distillery, the only controversy being whether defendant knew this, and, knowing it, concealed or aided in the concealment of the spirits here involved. The incriminating statements of defendant ma)^ not properly be called confessions. They were made from time to time to several persons, witnesses in this case, who were aiding in the acts complained of, as part of the res gestae, with no intention of admitting a crime.

True, the witnesses were also involved in the criminal acts, and to that extent, perhaps, not entitled to as full credence as might otherwise prevail. Their accounts, however, of the several transactions, together with their statements that they expected to be punished for their offenses, as though they had not given testimony, the many facts above recited, and the numerous earmarks of truth which attend them — the whole evidence considered — constitute convincing evidence of their veracity.

The extrinsic corroborating circumstances set out in the record in our judgment are sufficient to establish the truth of defendant’s declarations to the several witnesses, even though those declarations be taken as confessions. Thus the corpus delicti is clearly established. “A conviction cannot be had on the extrajudicial confession of the defendant, unless corroborated by proof aliunde of the corpus delicti. Full, direct, and positive evidence, however, of the corpus delicti is not indispensable.

A confession will be sufficient if there be such extrinsic corroborative circumstances as will, when taken in connection with the confession, establish the prisoner’s guilt in the minds of the jury beyond a reasonable doubt.” Flower v. United States, 110 Fed. 241, 53 C. C. A. 271; 6 Am. & Eng. Ency. of Law (2d Ed.) p. 582; Bines v. State, 118 Ga. 320, 45 S. E. 376, 68 L. R. A. 33. We approve of the statement of the law and have given defendant the benefit of it.

The evidence adduced, as shown by the record, to sustain the two counts of the indictment upon which trial was had, is ample to sustain the verdict of the jury. We find no error in the proceedings which might prejudice the defendant — certainly not after verdict rendered. The judgment of the district court is therefore affirmed.