The New York herald., 1871-01-11
Before Judge Benedict.

OF Judge ting Opinions as
10 the Construction TO be Given TO the Sta
Before Judge Benedict.
TIE United States as, $500 Gallons Of Spirits
This Is proceeding In rem, to forct GER
tain distilled spirits belonging to Matthew Brady,
and seized at his distllery. The case has
bsen tried before the Court Without jury by consent
The disiisry used by the CLAIMANT 1t appears, was
formerly grain dstillery, but was surveyed and ac
cepted to be used by Brady, q moasses distinery.
When used as grain distillery II had mixing tub
placed above the mash tubs, known as the tub I'M"
In these proceedings which was connected with the
mash tubs by pipes. When the place was surveyed
and accepted as molasses dlstillery this tub sM,n
which from Its character and location could be used
as iermentng Tub, was permitted TO remain as il
was, but 1t not described as fermentng tub in
pais or ncn he5e % was also IN the
nected ~ nose with tub IN" There was also 'i IN
which hose could pass out OF the spirit
cisterna. and also a sort OF manhole in
attach the hose. The distlery was therefore so
arranged thar by using the cisern In the yard as
mixing tub and the tub s'M' as q fermenting tub,
yond the capacity shown on the Elan, while any in
creased production could DO removed IRON the cis-
tern by the hose. Moreover. The d,stlery was per-
United to run ior some time without any night
watchman, and the day watchman never in
These facts have been proved as tending to show
tnat the specific acts and omissions charged against
fraud. aud to conceal from the revenue officers facts
required TO- be stated In his books. They mate
rial only for tnat purpose. and dO1ot OF themselves
work forfeiture oI the property In question under
any OF the courts In this Information But there are
o.ner lacts shown, and Others offered to be shown,
these proofs il viii BE- convenient 'iir'5 lrst i5
determine the construction 10 be put by
this court upon section 95 Of the ect OF 1865,
upon which section many OF the present charges
depend The ground taken on the part OF the gov.
ernment, Is that section 90 Is 10 be con.
strGed as II 1t read thus:-.Tf other penalty or
punishment is imposed there shall be penalty OF
spirits owned by him, whether punishable other
wise or not.n But am unable SO to read tile law
cover, by general provision. those instances In the
statute Where acts have been enloiued or for
ind in tne section any words Indicating an
intent to cumulate or TO increase panishment;
and, IN the absence Of such words, Of the
opinion that the section must bo held to
mean what 1t appears to me TO say-that in cases
where The statute mas attached punishment to
such act or omission, when knowingly or wifuiiy
committed shall pc punished 10y The inhlcton Of the
am aware that diiierent constructions have been
given to this section. but to my mind the more
welghiy reasons are In favor Of the construction /
Quantity Of Distilled SPIRITS, Judge sssIs Bla,onord NJ
II Internal Revenue, record 8; United states
Internal Revenue, record A5 United states vs. 133
Casks Of Spirits, Judge Hoffman, IL Internal Reye
Spirits; Judge Lowell, IL Internal Revenue, record
IZ5) This view OF the effect OF section 90 removes
from consideration large portion OF tho present in
formation and limits the Inquiry as regards the
charges made under this section to those unlawful
acts and omissions Tor Which no punishment is pro-
vded by any other section OF the or this class is
The charge that the dlster omitted TO furnish TO
the Assessor an accurate plan description OF the
distuery. showing tie number and Contents of
AZ trad Nv
section Of the act OF July 20 1865 and also the
charge that contrary to the same section there was
disclosed by any supplemental plan. In Sc charges
the government claim to have supported by the evi.
tub an, -, which, it is conceded, was never desig.
mated on any plan as fermen:ing tub. have
think 1t clear that tub "Mn could be used as ter.
nenting tub, do not find 1t proved that 1t was in
fact, ever SO used. There may be ground OF sus.
pci0n that IL was at times SO used, but cannot |
condemn this properly upon suspicion. THIS por- |
ton OF the Information must therefore, fall lor want
OF proof
Again, II ID claimed that this property must be |
forfeited because 1t appears that the iermentng tubs
hours after they were filled, that being the ermet
ing period or this dsullery as required by section
nineteen Of the act Of 1858. What should he the
Is not Clear 1t would not be unreasonable to hold
that the words "every tub shall be eInptled at the
in connection with the words 'omptied OF rIpe |
mash or Beer" used in the first part Of the |
VdldSI"pu, anu tue pTOVlSiOu construct TO mean |
tDat ioasn or beer, when fernented according to
the dislllers notice, shall be cmptied at the |
end OF the 1ermenting period Ii ripe Such con-
sTuctlon would probably dispose Of the charge |
under consideration In tile present position OF the
evidence. But any construction Of this provision uf
the statute Is rendered unnecessary In this case in
asmucu as an examination Of the information dis. |
closes the fact that 1t contains averment which
will support the charge in question. The practice |
enforce forfetures arising under the revenue laws
las been, IN the first instance, to permit |
an information to be flied, containing numer0ns |
counts or violations OF various statutes charnco
Tor the most part, In the words OF tho stafute
but 10 require the District Attorney, before The
trial, 10 flle specification OF the counts on which
he Intends to rely, accompanied, when necessary
with description OF the offences INTENDED to Se
proved sufficient 10 inform the claimant OF the par.
tcnlar charge which he will be called on to meet
This practice, which Is SO analogous the practice
In certain classes OF criminal prosecutions has
proved convenient and conduclve 70 justice and iL |
has been followed In the present case. The specif.
cation in this case designates the fifteenth
count IN The information as one of those
relied on, that under It the charge in question
VIII be sought TO be maintained. Now, the fifteenth
count omits TO charge any violation of that
part OF section nineteen which requires the tubs tn
he emptied at the end OF the ferenting period and
70 remain empty for the space Of twenty1our hours
The omission In that count OF any a.lusion to apy
violation or tnat portion OF the section on which tne
count IL framed Is fatal. therefore, dispense with
TO show an omission to empty the fermentlng TUBS |
OF the end OF The fcrmeniInG period, or to allow |
them to remain empty for period OF twenty-four
hours Again, 1t is cOntended that this proIerv Is
forfeited by virtue OF the portion OF section nineteen
VI The act VI 1868, which declares LSst apy ialse