The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-11-10
NEW YORK CITY.
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TIE COURTS.
UNITED STATES CIRCUIT cousr.
Fho CaIlicoss Oaso-Importaut Decision.
Before Judge Nelson.

rhe C.Ilfcose Oase-Importauf Decision.
Before Judge Nelson.
m ne Matter OF 77eophiius G. CuHicotrs petition
mr. Hnbeas Corplss.-The petitioner was convicted
IN the Circuit Court Of the United States for the
Eas,ern district OF New York on the 27th Of May
hst ON the Indictment founded upon the Internal
Revenue acts Of July IL, 1868, and March 2, 1861.
TIE indictment contains nine counts. The first nve
are founded section thirty OF the act OF 1867 and
she remainder on sections forty-two and forty five
~ 1885, The jury found verdict OF guilty on all the
counts The nrst three counts charge the petitioner
the Collector OF Internal Revenue and others with
unawfuIy conspiring together to procure, and that
xey did procure the execution OF certain false and
fraudulent bond, that to say bond for the trans
poraon OF 200 barrels OF distilled Spirits as re-
CURED by law, from bonded warehouse, purporting
70 be valid ana Sufficient bond whereas III truth,
the name OF the principal was not genuine and the
euretes were wholly worthless and insufficient, as
che said petitioner and hs sureties wei knew. and
by means OF which the said 300 barrels OF distilled
spirits frauduleutly removed on the permit OF
the said petitioner, without payment OF the tax, and
IN fraud OF the government.
The fourth count charged conspiracy to defraud
the government by the fraudulent issue OF permit
BY the petitioner, az Collector, for the removal OF
distilled spirit from the bonded warehouse, without
the payment OF the tax, aud by means of which The
distilled spirits were removed and the government
The nfth-A conspiracy to dcfraud the government
by the unlawful removal without the payment
!. The sixth count-That the petitioner and Others
fraudulent by connived at the execution OF certain
aise and fraudulent bond for tie transportation OF
distilled spirits from bonded warehouse, without
the payment of the tax by means Of viii h the said
distilled spirits were afterwards removed without
payment The seventh. eighth and ninth counts
That the petitioner and others did unlawfully and
Eaudulently remove distilled spirits from bonded
warehouse not allowed by law to be removed and
I'VE counts are founded on the thirteth section OF
me act OF 1854 which is as foows:-.That 4 two or
against the laws OF the United States or to defrand
ehe United states IN any manner whatever, and one
OF more OF sara parties 70 said conspiracy shall do any
act to effect the object thereof the parties to SAID
epiracy shall be deemed guilty Of nlisdemeanor,n
&c It's quite cear-indeed we do not UNDERESTIMATE
TO be deniedbut that these counts well sustained
ny the above provision. The question raised, and
upon Which the petition for the habeas corpus is
subseauent act nassei Iannarv IL 1ses which 10 as
folows:-"That from and after the passage of this
act no distilled spirits shall be Withdrawn or re-
moved from any warehouse for the purpose Of trans
portati0n, redistribution rectifcation, change OF
package expectation or for any other purpose what
duly paid to the collector Of the proper district and
al acts and parts Of acts inconsistent with the pro-
visions OF this act be and they are hereby repeaed.n
thorized the removal OF distilled spirits from a
bonded warehouse without the payment Of the tax
on the execution OF transportation bond as there
prescribed This provision is certainly repealed and
without any saving clause And the real question in
ene case is what effect has the repeal Of this clause
upon section thirty OF the act Of 1887 upon which the
rst I'VE counts OF the Indictment rest2 it il admitted
that the petitioner has been tried, convicted and
that act has had the erect to repeal section thirty
We agree that the jurisdiction Of the court fell with
The argument for the petitioner is, that inasmuch
AS the conspiracy IN this section consists In the fraud
ulent procurement OF transportation bond required
by the forleh section OF the act OF 1866. which pro-
IN existence at the Time OF the trial requiring such
bond, and thus an essential element In the
0a ss the Sona alleged s n tos
dictment, and which was proved on the trial was q
nullity, and had no legal existence, and Is TO be
garded as not proved on the trial or In the case.
Assuming this 10 be the correct view, for the pre-
sent, 1t will still be necessary to look into the In.
IN @y Ua Mns Of sd nSs
mcnt after this objection. 1t will be observed that
me fourth count charges the conspiracy to defraud
the government to consist in the fraudulent OF
permit by Cacott. the collector, for the removal
Of distilled spirits from the bonded warehouse with.
spirits were removed without the payment; and the
NTH charges the conspiracy to defraud the govern
warehouse without the payment OF the tax. -
Now the offence, under the thirteenth section, con-
sists, among other things in two or more conspir.
ing to defraud the government In any manner what
the conspiracy shall DO any act to erect the object
oence AZ laid in THESE two counts Fourth and fth)
y complete irrespective OF any removal bond. which
counts the bond does not contain an element OF the
offence and hence the repeating act has no applica
tion The offence In both counts Is the conspiracy
70 defraud the government, and the act done, -
laid In one Of the counts, to effect the object IL
ths issuing Of the permit, and the removal Of
ne spirits without the payment OF the tax;
and in the other the act done IL the
fraudulent removal alone without the payment
which il suciet within section thirty to constitute
practice and rules OF pleading In criminal cases. are
snicient even on an arrest Of Judgment to sustain
counts to be bad; and, II 80, this writ OF habeas
Oh ouid not be granted. Az this view. In my judy
ment dsposes Of this application, we shall not look
Of 1868, It respects the transportation bond has
upon the other counts In the Indictment; nor have
we formed any opinion on the subject.
The objections found upon the entering OF the SEN
tence IN the first instance, on the wrong Indictment
but afterwards corrected. and other formal matters,
Of the proceedings were all in due form. Notion
denied.