The Wheeling daily register. [volume] (Wheeling, W. Va.) 1864-1878, 1876-01-21
DOMESTIC NEWS.
SC. Louis Crooked WhIsky-Argu.
menf for the Defense.

st. Louis Crooked whIsky-ArYu.
ment for the Defense.
ST. LOUIS, January 20.-The argu-
menI on the demurrer filed yesterday in
the Mckee case began to-day, in the
United States Circuit Court. Judge
Charles Crum opened for the defense,
stating that the Indie. ment against
Mckee was found under section 5,440 of
the United States revised statutes, and
charged that on February lst, 1874,
Mckee did conspire with Berris & Fra
zier, U brio, Fencher, Busby and others
to defraud the United States out
Of the internal revenue tax OF 10
cents then and there imposed on
each of one million gallons OF proof
spirits to be thereafter distilled. Also
that on February 18th, 1874, Bevis and
Frazier in pursuance to this conspiracy
removed from their distillery 10000
proof gallons of spirits, on which the
revenue tax had not been paid and that
the other ccnspirators above named IN
like manner iraudulently removed spirits
without the payment of tax. 1t is set
forth in like detail in the reuse
of stamps. To this indictment a general
demurrer, addressed solely to its dement's,
was interposed. The section of the stat
ute under which the indictment was
found provided that II two or more per-
sons consplred to do an unlawful act, and
if subsequently any one of them does an
unlawful act pursuant to such conspiracy,
then all of said conspirators are liable;
that the portion Of the indictment
which may be cal ed the conspiracy
portion, was insufficient, because the
effect of that conspiracy could
not defraud the United States. Unless
the acts done in pursuance OF conspira-
cy can work fraud upon the United
States, the conspiracy is not punishable
under the section on which this indict-
ment is based. Parties may conspire as
much as they please, but unless they con-
spre to deprive the United States OF
some property right possessed by it, they
they cannot bring themselves in this
statute. The indictment charged that
the defendant and others conspred TO
defraud the United States of tax
Of seventy cents per gallon then
and there on February lst, 1874,
imposed by law on spirits to be there
after produced. 1t charged that the
conspiracy was to deprive the United
States not of something that it possessed,
but Of something that 1t was to become
possessed of. There is no sverment that
they conspired to thereafter produce spir-
ITS which were to be disposed of by them.
selves, without paying the government
It's claim on such spirits. 1t simply
charged that they conspired to defraud
the government of an existing tax on
spirits, which were not distilled. This
was gross absurdity and no amount of
argument could correct this fatal defect
of the indictment; nor could subsequent
averments, no matter how strong afford
such correction. Unless the conspiracy
clause itself was perfect
no subsequent averments in
the indictment were o! any avail be-
cause such clause must set forth an OF
fense in itself independent of the indlc.-
men,s 1t was absurd to allege that
tax Of 20 cents per gallon was then and
there imposed on spirits thereafter to be
lr Dduced. No tax can be imposed on
distilled spirits until those dis
titled spirits were actually in existence.
uence no conspiracy can be formed to de-
fraud the Government out of that which
could not be imposed. Judge krum
elaborated this and other points in a
lengthy speech, but the above contains
the gist OF his argument.
Reply 10 the Prosecution.
ST. LOUIS, January 20.-Col. James
o. Broadhead, the special counsel for the
government in the place of General
Henderson. followed Judge Krum and
said the objections 10 the indictment
made by that gentleman were hardly
material. The law imposing tax on dis
titled spirits is we'll understood. The argu-
mont Tor the detensewas simply an apology
on the word imposed. 1t was not intend
ed to mean the tax was in existence
before the article was produced,
it means only that
rule of taxation is provided. 1t is an
ordinary term and used in the indict-
ment simply to declare what is the law.
Ii was unnecessary and need not have
been inserted in the indictment, and Its
being there neither weakened nor
strengthened that instrument. The claim
that the indictment must set forth the
connection between the conspiracy and
the acts committed is not supported by
authority 1t is sufficient to say the inten-
tion of the con,pirators was to commit q
fraud, leaving the government to show
the result of such conspiracy; to show the
connection of the alleged acts and the
conspiracy, would be for US TO reveal our
evidence. Mr.. Broadhead took up several
other objections and argued them briefly,
after which Judge Clore, for the defense,
made short argument. The Court
over-ruled the demurrer, and the trial
will proceed tomorrow.
The interest in these whisky cases has
revived and the court room was not oniy
crowded during the argument today, but