CHARGE OF COURT. The court charged the jury that the simple question for them to determine was “whether the defendant carried on the business of a distiller or retail liquor dealer.” That, as to the first count, if the defendant was found engaged in the act of distilling, the jury would, without further proof, presume that he was the person engaged in carrying on the business of a distiller; but if the proof shall also show that the defendant was not the proprietor and had no interest in the distillery, and was only employed by some other person as a laborer in carrying on the work of distilling, then in law he' cannot be said to be carrying on the business of a distiller. It is the party or parties having an interest in as proprietors of the distillery that can in law be said to be carrying on the business. Any different construction which would hold a clerk or employee liable to a criminal prosecution because of a failure of a principal or proprietor to comply with the law, would have no sense, no justice or law, on which to base it, no matter what court or judge has or shall so decide. If this is so, then not only the employer, but the clerk and the hired laborer, will be required to pay the special tax, and in this way more than one special tax will be required for the same business. This the government does not require, and therefore only the party or parties in interest as proprietors or owners does the government look to for payment of the special tax; or if that be not paid and the business carried on, against him only does it inflict its punishment. He alone can be said to be “carrying on the business.” If it be proven that defendant was found engaged in distilling, and' from the proof the jury shall be in doubt as to whether he was interested as owner or principal in the business or not, and shall believe that defendant had it in his power to produce evidence which would clear up that doubt and fails to do it, the jury should resolve that doubt against the defendant, and find a verdict of guilty against him on the first count.
As to the second count, all I have said to you relative to the distinction to be drawn between the principal and his employer, and the presumptions arising from proof of the doing [993]*993of the act and the necessity of proof by defendant showing his capacity of clerk or hired servant in the doing of the act, applies also to this count. But .more than this it must be shown by the government, before they can obtain a conviction on this count, that not only defendant was acting for himself and not as employee of another, but the defendant must be proven to have held himself out publicly in some way as following the business as at least one of his means of gaining a livelihood. It must be a business which the party engages in in such a manner and to such extent as shows a readiness to supply whoever may reasonably be expected to call on him. Occasional acts or a few instances of selling spirits do not constitute the offence, if the matter is not done in such manner as shows that it is a business regularly carried on, not secretly and to the few, but publicly and to all who desire to purchase upon the same terms.
NOTE [from 6 Int. Rev. Rec. 20.] The sentence of Judge Benedict in the Case of Mul-raney, referred to in the text, and also in the Case of Freel, is as follows:
In the United States circuit court for the Eastern district of New York, Judge Benedict passed sentence on James Freel. who had been indicted and convicted for distilling whiskey without paying the special tax. and distilling in a dwelling-house, since September 1, 1866. Judge Benedict opened by saying that the law ■under which Freel had been convicted was an important one, and continued:
“It is and must be. a stringent law, and it must be enforced But two ways are open to the government to enforce that law. One is to take the property of the persons that offend, and the other is to imprison. The object of all actions is to punish the offender. Another object is to deter others by the punishment which is so inflicted. Now. in your case, it seems that for some months you carried on the business without any attention to the law. Argument has been made that there is a change in the law, but I cannot ignore the fact that it was notorious that the change went into effect on the 1st of September, and that all persons legally in the business conformed substantially to that change, and they do so nowr. It likewise appears that, first, the milder remedy of the law was resorted to. and the property was taken and forfeited. You bought it back, as you had a perfect right to do. but then did not comply with the law. You kept the still in the place, and it was seized a seeond time. You are therefore now brought to the seeond branch of this law, which endeavors to enforce itself by imprisonment; and, I must believe, under all the evidence, that you deserve that punishment for your own participation in that matter. I also must notice that this law is widely disobeyed. I must also take notice that it seems to be understood that violations of the revenue law' can be perpetrated with impunity. And nothing is more important in this community than that the people should understand that the violation of the revenue law is attended with hazard; that it is not the violation of a mere contract, a failure to keep a promise; that the laws of the United States in this regard must be obeyed. You are the first man that has been convicted and brought to sentence in this county. —I do not know, but the first man in both cities together. 1 am inclined to the opinion that the government has delayed imprisoning citizens in the hopes that they will obey this law; and you were the first person convicted either in New York or in Brooklyn. I therefore must regard, in passing sentence upon you, the effect upon the public. I must make you an example of all person., in this community, that they may know what it is to violate the law of the United States with regard to the revenue. The section under which you have been convicted would impose a fine, and also imprisonment for a term not exceeding two years. I shall, in your case, in view of all the circumstances, impose upon you the extremity of the statute, and sentence you to imprisonment for a space not exceeding two years, the sentence to be executed in the Albany penitentiary.”
Hugh Mulraney, convicted for a similar offence was also arraigned for sentence, and the judge said:
“The remarks which I made to the prisoner before you will be applicable to your case in the same degree. You are a man of intelligence,— a man who was before, and perhaps now, of some property. In your dwelling house, in which you lived, under the floor of your parlor, was erected a still, in full operation. It was known to your family, and was known to you; and the excuse—the only excuse which has been presented here, is that you leased the basement to another party, who was the guilty party; not yourself. There is reason to suppose, in your case,—to surmise, in your case as in the case of the previous prisoner,—that there are persons, perhaps more able, who are the inducing parties to these violations of the law; and that persons in moderate circumstances ait1 put forward, and receive the punishment, while they who furnish the capital can go with impunity. This is one of the misfortunes attending all human affairs, and the only way the government can do is to convict and punish those that are caught. I confess to surmise in your case that there are parties who have not appeared here as prisoners, that may know more about this than has been disclosed. It appears that you were away most of the time. I have read your affidavit. Free access — add to your briefcase to read the full text and ask questions with AI
CHARGE OF COURT. The court charged the jury that the simple question for them to determine was “whether the defendant carried on the business of a distiller or retail liquor dealer.” That, as to the first count, if the defendant was found engaged in the act of distilling, the jury would, without further proof, presume that he was the person engaged in carrying on the business of a distiller; but if the proof shall also show that the defendant was not the proprietor and had no interest in the distillery, and was only employed by some other person as a laborer in carrying on the work of distilling, then in law he' cannot be said to be carrying on the business of a distiller. It is the party or parties having an interest in as proprietors of the distillery that can in law be said to be carrying on the business. Any different construction which would hold a clerk or employee liable to a criminal prosecution because of a failure of a principal or proprietor to comply with the law, would have no sense, no justice or law, on which to base it, no matter what court or judge has or shall so decide. If this is so, then not only the employer, but the clerk and the hired laborer, will be required to pay the special tax, and in this way more than one special tax will be required for the same business. This the government does not require, and therefore only the party or parties in interest as proprietors or owners does the government look to for payment of the special tax; or if that be not paid and the business carried on, against him only does it inflict its punishment. He alone can be said to be “carrying on the business.” If it be proven that defendant was found engaged in distilling, and' from the proof the jury shall be in doubt as to whether he was interested as owner or principal in the business or not, and shall believe that defendant had it in his power to produce evidence which would clear up that doubt and fails to do it, the jury should resolve that doubt against the defendant, and find a verdict of guilty against him on the first count.
As to the second count, all I have said to you relative to the distinction to be drawn between the principal and his employer, and the presumptions arising from proof of the doing [993]*993of the act and the necessity of proof by defendant showing his capacity of clerk or hired servant in the doing of the act, applies also to this count. But .more than this it must be shown by the government, before they can obtain a conviction on this count, that not only defendant was acting for himself and not as employee of another, but the defendant must be proven to have held himself out publicly in some way as following the business as at least one of his means of gaining a livelihood. It must be a business which the party engages in in such a manner and to such extent as shows a readiness to supply whoever may reasonably be expected to call on him. Occasional acts or a few instances of selling spirits do not constitute the offence, if the matter is not done in such manner as shows that it is a business regularly carried on, not secretly and to the few, but publicly and to all who desire to purchase upon the same terms.
NOTE [from 6 Int. Rev. Rec. 20.] The sentence of Judge Benedict in the Case of Mul-raney, referred to in the text, and also in the Case of Freel, is as follows:
In the United States circuit court for the Eastern district of New York, Judge Benedict passed sentence on James Freel. who had been indicted and convicted for distilling whiskey without paying the special tax. and distilling in a dwelling-house, since September 1, 1866. Judge Benedict opened by saying that the law ■under which Freel had been convicted was an important one, and continued:
“It is and must be. a stringent law, and it must be enforced But two ways are open to the government to enforce that law. One is to take the property of the persons that offend, and the other is to imprison. The object of all actions is to punish the offender. Another object is to deter others by the punishment which is so inflicted. Now. in your case, it seems that for some months you carried on the business without any attention to the law. Argument has been made that there is a change in the law, but I cannot ignore the fact that it was notorious that the change went into effect on the 1st of September, and that all persons legally in the business conformed substantially to that change, and they do so nowr. It likewise appears that, first, the milder remedy of the law was resorted to. and the property was taken and forfeited. You bought it back, as you had a perfect right to do. but then did not comply with the law. You kept the still in the place, and it was seized a seeond time. You are therefore now brought to the seeond branch of this law, which endeavors to enforce itself by imprisonment; and, I must believe, under all the evidence, that you deserve that punishment for your own participation in that matter. I also must notice that this law is widely disobeyed. I must also take notice that it seems to be understood that violations of the revenue law' can be perpetrated with impunity. And nothing is more important in this community than that the people should understand that the violation of the revenue law is attended with hazard; that it is not the violation of a mere contract, a failure to keep a promise; that the laws of the United States in this regard must be obeyed. You are the first man that has been convicted and brought to sentence in this county. —I do not know, but the first man in both cities together. 1 am inclined to the opinion that the government has delayed imprisoning citizens in the hopes that they will obey this law; and you were the first person convicted either in New York or in Brooklyn. I therefore must regard, in passing sentence upon you, the effect upon the public. I must make you an example of all person., in this community, that they may know what it is to violate the law of the United States with regard to the revenue. The section under which you have been convicted would impose a fine, and also imprisonment for a term not exceeding two years. I shall, in your case, in view of all the circumstances, impose upon you the extremity of the statute, and sentence you to imprisonment for a space not exceeding two years, the sentence to be executed in the Albany penitentiary.”
Hugh Mulraney, convicted for a similar offence was also arraigned for sentence, and the judge said:
“The remarks which I made to the prisoner before you will be applicable to your case in the same degree. You are a man of intelligence,— a man who was before, and perhaps now, of some property. In your dwelling house, in which you lived, under the floor of your parlor, was erected a still, in full operation. It was known to your family, and was known to you; and the excuse—the only excuse which has been presented here, is that you leased the basement to another party, who was the guilty party; not yourself. There is reason to suppose, in your case,—to surmise, in your case as in the case of the previous prisoner,—that there are persons, perhaps more able, who are the inducing parties to these violations of the law; and that persons in moderate circumstances ait1 put forward, and receive the punishment, while they who furnish the capital can go with impunity. This is one of the misfortunes attending all human affairs, and the only way the government can do is to convict and punish those that are caught. I confess to surmise in your case that there are parties who have not appeared here as prisoners, that may know more about this than has been disclosed. It appears that you were away most of the time. I have read your affidavit. You have a wife and six children, and I take that into consideration; 1 take somewhat into consideration the fact that your case, perhaps, has not been presented so strongly ns it might have been. If I followed up the verdict of the jury. I should impose upon you the same penalty that I imposed upon the former prisoner; but, in view of the circumstances and your family. I shall reduce imprisonment and shall sentence you to be imprisoned for the space of twelve months. I impose no fine.
Notwithstanding this charge, the jury returned a verdict of guilty as charged in the indictment, and no motion for a new trial being made, the defendant was sentenced to six months’ imprisonment, and to pay a fine of $1,000 and costs.