and sold the spirits to a third party, sending the purchaser an order for their delivery to him. On the next day the purchaser presented the order, and received the spirits into his possession. It was held that the removal of the spirits, under the circumstances stated, was a removal from the stock and possession of the defendant, within the meaning of this section. U. S. v. Miller, (1877) 14 Blatchf. (U. S.) 93. Goods passing from owners' possession as wholesale liquor dealers into their possession as retail liquor dealers, are properly to be regarded as being sent out of their stock and possession as wholesale liquor dealers, and as being required to be so entered, and as being sent to themselves by being sent into their retail department. U. S. v. Malone, (1876) 8 Ben. (U. S.) 574. The fact that a competent bookkeeper was placed in charge of the branch of the business in which entries were to be made in the government book, as required by this section, does not necessarily exonerate the defendants. The omission must have been in consequence of carelessness or design; the defendants are bound to see that the duty is fully performed, and if, through the carelessness or neglect of the employee, it is not performed, they are responsible. If the omission was purely accidental, the defendants should not be held responsible. U. S. v. Amann, (1876) 24 Fed. Cas. No. 14,438. See Quantity Distilled Spirits, (1869) 3 Ben. (U. S.) 552. Sec. 3319. [Purchase of quantities greater than twenty gallons from one person, etc.] It shall not be lawful for any rectifier of distilled spirits, or wholesale or retail liquor-dealer, to purchase or receive any distilled spirits in quantities greater than twenty gallons from any person other than an authorized rectifier of distilled spirits, distiller, or wholesale liquor-dealer. Every person who violates this section shall forfeit and pay one thousand dollars: Provided, That this provision shall not be held to apply to judicial sales, or to sales at public auction made by an auctioneer. [R. S.] Act of July 20, 1868, ch. 186, 15 Stat. L. 144; Act of July 14, 1870, ch. 255, 16 Stat. L. 256. The word "6 receive " means receive for sale and not for storage only. U. S. v. Fridenberg, (1869) 25 Fed. Cas. No. 15,168. --- Not distiller's own production. — A distiller is only authorized by virtue of his occupation to sell spirits of his own production, and when he sells spirits not of his own production, he is a wholesale or retail liquor dealer, according to the quantity he sells, and when a rectifier receives distilled spirits, not of his own production, from a distiller who is not an authorized wholesale dealer, it is a violation of the provisions of this section. New York Rectifying Co. v. U. S., (1878) 14 Blatchf. (U. S.) 549. Sec. 3320. [Inspecting, gauging, and stamping rectified spirits.] Whenever any cask or package, containing five wine gallons or more, is filled for shipment, sale, or delivery on the premises of any rectifier who has paid the special tax required by law, it shall be inspected and gauged by a United States gauger whose duty it shall be to mark and brand the same and place thereon an engraved stamp, which shall state the date when affixed and the number of proof gallons, and shall be in such form as shall be prescribed by the Commissioner of Internal Revenue with the approval of the Secretary of the Treasury: Provided, That when such cask or package is filled on the premises of a rectifier rectifying less than five hundred barrels a year, counting forty gallons of proof spirits to the barrel, it may be gauged, marked, branded, and stamped by a United States gauger, or it may be gauged, marked, branded, and stamped by the rectifier, as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may by regulations prescribe. [R. S.] The above provisions were substituted by Act of Aug. 27, 1894, ch. 349, sec. 66, 28 Stat. L. 567, for the section as originally enacted and as amended by Act of July 16, 1892, ch. 196, 27 Stat. L. 200. The section was originally as follows: "SEC. 3320. Whenever any cask or package of rectified spirits containing five wine-gallons or more is filled for shipment, sale, or delivery, on the premises of any rectifier who has paid the special tax required by law, it shall be the duty of the United States gauger to gauge and inspect the same, and to place Act of July 20, 1868, ch. 186, 15 Stat. L. 136, 149; Act of June 6, 1872, ch. 315, 17 Stat. L. 243. The section was amended by Act of July 16, 1892, ch. 196, sec. 1, 27 Stat. L. 200, by substituting the following: "Whenever any cask or package of rectified spirits containing five wine gallons or more is filled for shipment, sale, or delivery, on the premises of any rectifier who has paid the special tax required by law, it shall be marked, branded, and stamped by the rectifier in such manner and under such rules and regulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe." Failure to comply with the provisions of this section is punishable under section 3289, supra, and not section 3456, R. S. U.S. 200 Barrels Whiskey, (1874) 2 Woods (U. S.) 54, affirmed (1877) 95 U. S. 571; U. S. v. Thirty-Four Barrels Distilled Spirits, (1871) 28 Fed. Cas. No. 16,461; U. S. v. Ninety-Five Barrels Distilled Spirits, (1871) 27 Fed. Cas. No. 15.890. But see U. S. v. 133 Casks Distilled Spirits, (1870) 1 Sawy. (U. S.) 188; U. S. v. Thirty-Seven Barrels Apple Brandy, (1870) 28 Fed. Cas. No. 16,466. Stand casks. - An extension beyond the plain import of its terms cannot be given to this statute, so as to require "stand casks " to be marked, such casks being large orna-` mental casks, holding more than five gallons, forming part of the fixtures of a retail liquor store, and used for holding distilled spirits, which are pumped into them from the original packages and drawn off from them as sold in small quantities. U. S. v. Cask of Gin, (1880) Fed. Rep. 20, affirmed (1881) 5 Fed. Rep. 438. Sec. 3321. [Gauging, inspecting, and stamping spirits on premises of wholesale dealer.] [Repealed.] This section was as follows: "SEC. 3321. Whenever any cask or package of distilled spirits of not less than five winegallons is filled for shipment, sale, or delivery, on the premises of any wholesale liquor-dealer, it shall be the duty of a United States gauger to gauge and inspect the same, and place thereon an engraved stamp signed by the collector of the district and the said gauger, stating the name of the dealer, the date when affixed, and the number of proofgallons; which stamp shall be as follows: Wholesale liquor-dealer's stamp, No. Sec. 3322. [Filling blanks and affixing and protecting stamps.] All blanks in any of the forms prescribed in the preceding section shall be duly filled in accordance with the facts in each case. And the stamps therein designated shall in every case be affixed to a smooth surface of the cask or other package, which surface shall not have been previously painted or covered with any substance, and so as to fasten the same securely to the cask or package, and shall be duly canceled, and shall then be immediately covered with a coating of transparent varnish or other substance, so as to protect them from removal or damage by exposure; and such affixing, cancellation, and covering shall be done in such manner as the Commissioner of Internal Revenue may by regulation prescribe. [R. S.] Act of July 20, 1868, ch. 186, 15 Stat. L. 137. loose newspaper tacked on, see U. S. v. Three Barrels of Whiskey, (1896) 77 Fed. Rep. 963. Sec. 3323. [Marking distilled spirits packed by wholesale dealer - returns penalty.] Every package of distilled spirits containin five wine gallons or more, filled on the premises of a wholesale liquor dealer, who has paid the special tax required by law, shall be marked, branded, and stamped by such wholesale liquor dealer in such manner and under such rules and regulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe; and on or before the tenth day of each month every wholesale liquor dealer shall make return, under oath, to the collector of internal revenue for the district of the various kinds and quantities of each kind and of the total quantities of distilled spirits received on his premises and of the various kinds and quantities of each kind and of the total quantity of distilled spirits sent out from his stock or possession during the preceding month, and of the quantity of each kind and the total quantity remaining on hand at the end of the month; and such return shall be made in such form and contain such other particulars as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe. And every rectifier or wholesale liquor dealer who refuses or wilfully neglects to comply with the requisements of this act as to giving the said notice or the said return, and as to marking, branding, and stamping, in according with the law and the regulations made in pursuance thereof, the packages of spirits filled on his premises as aforesaid, shall, for each such offense, be fined not less than two hundred dollars nor more than one thousand dollars. [R. S.] The above provisions were substituted by the Act of July 16, 1892, ch. 196, 27 Stat. L. 200, for the section as originally enacted and as repealed in part and amended by Act of Aug. 15, 1876, ch. 287, 19 Stat. L. 152. The section as originally enacted read as follows: "SEC. 3323. All distilled spirits drawn from any cask or package and placed in any other cask or package containing not less than ten gallons, and intended for sale, shall be again inspected and gauged; and the cask or package into which it is so transferred shall be marked or branded, and such marking or branding shall distinctly indicate the name of the gauger, the time and place of inspection, the proof of the spirits, the particular name of such spirits as known to the trade, and the name and place of business of the dealer or rectifier, as the case may be; and, except where such spirits have been rectified or compounded, the name also of the distiller and the distillery where such spirits were produced, and the serial number of the origi nal cask or package; and where such spirits have been rectified, the name of the rectifier, and the serial number of the rectifier's stamp; and the absence of such mark or brand shall be held as sufficient cause and evidence for the forfeiture of such unmarked packages of spirits." Act of July 20, 1868, ch. 186, 15 Stat. L. 144; Act of June 6, 1872, ch. 315, 17 Stat. L. 240. This was repealed in part and amended by Act of Aug. 15, 1876, above mentioned, which read as follows: "And sections thirty-three hundred and twenty-one of the Revised Statutes, and thirty-three hundred and twenty-three, so far as the latter relates to wholesale liquordealers' packages filled on the premises of wholesale liquor dealers, shall, from and after ten days from the passage of this act, be repealed; and packages of distilled spirits filled on the premises of any wholesale liquor dealer shall thereafter be stamped under such rules and regulations as the Commissioner of Internal Revenue may prescribe." Sec. 3324. [Stamps and brands to be effaced from empty casks- penalties for omissions- transportation.] Every person who empties or draws off, or causes to be emptied or drawn off, any distilled spirits from a cask or package bearing any mark, brand, or stamp required by law, shall, at the time of emptying such cask or package, efface and obliterate said mark, stamp, or brand. Every such cask or package from which said mark, brand, or stamp is not effaced and obliterated as herein required, shall be forfeited to the United States, and may be seized by any officer of internal revenue wherever found. And every railroad company or other transportation company, or person who receives or transports, or has in possession with intent to transport, or with intent to cause or procure to be transported, any such empty cask or package, or any part thereof, having thereon any brand, mark, or stamp, required by law to be placed on any cask or package containing distilled spirits, shall forfeit three hundred dollars for each such cask or package, or any part thereof, so received or transported, or had in possession with the intent aforesaid; and every boat, railroadcar, cart, dray, wagon, or other vehicle, and all horses and other animals used in carrying or transporting the same, shall be forfeited to the United States. Every person who fails to efface and obliterate said mark, stamp, or brand, at the time of emptying such cask or package, or who receives any such cask or package, or any part thereof, with the intent aforesaid, or who transports the same, or knowingly aids or assists therein, or who removes any stamp provided by law from any cask or package containing, or which had contained, distilled spirits, Volume III. without defacing and destroying the same at the time of such removal, or who aids or assists therein, or who has in his possession any such stamp so removed as aforesaid, or has in his possession any canceled stamp, or any stamp which has been used, or which purports to have been used, upon any cask or package of distilled spirits, shall be deemed guilty of a felony, and shall be fined not less than five hundred dollars nor more than ten thousand dollars, and imprisoned not less than one year nor more than five years. [R. S.] Act of July 20, 1868, ch. 186, 15 Stat. L. 142. Effacing stamps on emptying packages of imported liquors, see Act of March 1, 1879, ch. 125, secs. 12, 13, as amended by Act of May 28, 1880, ch. 108, secs. 12, 13, infra, p. 698. The felonies herein defined are: "1. The removal by any person of any stamp provided by law from any cask or package containing, or which had contained, distilled spirits, without defacing and destroying the same at the time of such removal, or aiding or assisting therein. 2. Having in possession any such stamp so removed as aforesaid. 3. Having in possession any cancelled stamp, or any stamp which has been used, or which purports to have been used, upon any cask or package of distilled spirits." U. S. v. Spiegel, (1886) 116 U. S. 275. “At the time of emptying such cask" does not require the effacing and obliterating of the stamps to be done eo instanti that the cask is emptied, but the act ought to be done in a convenient time, considering the surrounding circumstances affording evidence of reasonable excuse for delay. U. S. v. Buchanan, (1881) 9 Fed. Rep. 689. But see U. S. r. Adler, (1875) 24 Fed. Cas. No. 14,424. "Emptying such cask" does not necessarily mean completely depriving it of its contents, but when a retail dealer of distilled spirits draws off the contents of a cask as far as can be done from a faucet and removes it from the place where used in the course of business, the stamp should be effaced and obliterated. U. S. v. Buchanan, (1881) 9 Fed. Rep. 689. A stamp, once in use, may have accidentally fallen off the package, yet afterwards to have it in possession is an offense under this section, but it is not an offense under section 12 of the Act of March 1, 1879. "To have in possession stamps that have been removed, without at the time of removal having been defaced and destroyed, is an offense under both laws, one in the case of domestic distilled spirits, the other in that of imported liquors. The removal, therefore, which describes a removed stamp, possession of which is thus made unlawful, must be a designed removal from the package by human agency, without defacing and destroying it at the time; such removal as by the first division of the described offenses, constitutes the guilty act of the person removing it. It is the possession of such a stamp, so removed as aforesaid,' in the language of the clause defining the offense, that must be shown to constitute guilt: that is, possession of a stamp, not merely once used and afterwards found and taken into possession. but possession of a stamp which some person, although he may be unknown, has removed intentionally and by design, and failed, by neglect or otherwise, at the time of removal, to deface and destroy. So to remove such a stamp is one offense; to aid and assist in such a removal is another; the third is, to have in possession such a stamp, so removed as aforesaid; and these are all of that class of offenses embraced by the 12th section of the Act of March 1, 1879." U. S. v. Spiegel, (1886) 116 U. S. 275. The duty is on the transportation company, before receiving empty barrels for transportation, to ascertain whether there were or were not uncancelled stamps upon the barrels, and in an action to recover the penalty for transporting empty barrels upon which were internal revenue stamps not effaced or obliterated, the fact that the stamps were obscured from ordinary view by the presence of dirt, dust, and stains upon the heads of the barrels where the stamps were placed is no defense. U. S. r. Goodrich Transp. Co., (1878) 8 Biss. (U. S.) 224. Illicit spirits. The offense of removing a stamp without destroying it is committed whether the spirits in the cask be the product of a licensed or an illicit distillery, and without reference to the circumstances under which the stamp was affixed. U. S. v. Bayaud, (1883) 16 Fed. Rep. 376. Fault of employees. The owners of a rectifying establishment may be so said to cause the emptying of spirits used in their business by those in their employ, within the meaning of the statute, as to render them guilty of the felony, when there is failure on the part of the employees to efface and obliterate marks, stamps, or brands, at the time of emptying casks or packages of distilled spirits. U. S. r. Adler, (1875) 24 Fed. Cas. No. 14,424. See Quantity Distilled Spirits, (1869) 3 Ben. (U. S.) 552. For the precise and statutory description of the offense of removing stamps from packages of imported liquors, or of having in possession stamps so removed, recourse must be had to the words of this section, as there is nothing in section 12 of the Act of March 1, 1879, showing an intention to qualify their original meaning. U. S. v. Spiegel, (1886) 116 U. S. 270. Indictments. - An indictment charging the failure to efface and obliterate the stamp, on emptying the barrel, need not allege that the offense was committed intentionally or fraudulently. U. S. v. Ulrici. (1875) 3 Dill. (U. S.) 532. See Jones v. Townsend, (1885) 21 Fla. 431. An indictment charging the removal of stamps without defacing them need not state that the spirits contained in the casks were of domestic manufacture, as, by section 12 of the Act of March 1, 1879, under section 3330, infra, the prohibition is made applicable to imported spirits as well. U. S. v. Bayaud, (1883) 16 Fed. Rep. 376. An indictment charging the removal of stamps without defacing them need not set out the stamps verbatim. U. S. v. Bayaud, (1883) 16 Fed. Rep. 376. An intent to use the stamps again, or an intent to defraud the United States, need not be charged in an indictment charging the removal of stamps without defacing them, as neither an intent to use the stamps again, nor an intent to defraud the United States, nor any particular intent, is made by the statute an ingredient of the offense. U. S. v. Bayaud, (1883) 16 Fed. Rep. 376. Knowledge of the contents of the casks, that they contained distilled spirits, need not be alleged in an indictment charging the removal of stamps without defacing them. U. S. v. Bayaud, (1883) 16 Fed. Rep. 376. The joinder of two defendants in an indictment charging the removal of stamps without defacing them is not objectionable, as all present at the time of committing the offense are principals, although only one acts, if they are confederates and engaged in a common design of which the offense is a part. U. S. v. Bayaud, (1883) 16 Fed. Rep. 376. Sec. 3325. [Buying or selling spirit casks having inspection-marks.] Whenever any person knowingly purchases or sells, with inspection-marks thereon, any cask or package, after the same has been used for distilled spirits, he shall forfeit and pay the sum of two hundred dollars for every such cask so purchased or sold. [R. S.] Act of July 13, 1866, ch. 184, 14 Stat. L. 160. Sec. 3326. [Changing stamps, shifting spirits, etc. - penalty.] Whenever any person changes or alters any stamp, mark, or brand on any cask or package containing distilled spirits, or puts into any cask or package spirits of greater strength than is indicated by the inspection-mark thereon, or fraudulently uses any cask or package having any inspection-mark or stamp thereon, for the purpose of selling other spirits, or spirits of quantity or quality different from the spirits previously inspected therein, he shall forfeit and pay the sum of two hundred dollars for every cask or package on which the stamp or mark is so changed or altered, or which is so fraudulently used, and shall be fined for each such offense not less than one hundred dollars nor more than one thousand dollars, and imprisoned not less than one month nor more than one year. [R. S.] Act of July 20, 1868, ch. 186, 15 Stat. L. 141. A fraud upon the government is one intended by the clause referring to the fraudulent use of any cask or package for the purpose of selling spirits of quantity or quality different from spirits previously inspected. It is apparent that Congress was legislating for the protection of the revenue rather than for the prevention of merely private wrongs, and an indictment which shows that defendant made use of the inspection marks to misrepresent the proof of the liquor to one of his customers, or to aid in such misrepresentation, but does not allege that the change in proof was due to the fact that other spirits had been placed in the several casks after the original inspected contents had been wholly or partially withdrawn, is sufficient. U. S. v. Bardenheier, (1892) 49 Fed. Rep. 847. See Three Packages Distilled Spirits, (1882) 14 An obliteration of a portion of a government inspection mark or stamp is a change or alteration thereof within the meaning of this section. U. S. v. Bardenheier, (1892) 49 Fed. Rep. 846. An unintentional or accidental erasure of a stamp, or some part of it, is not an offense under this section, and an indictment should accordingly allege that the act was done knowingly and intentionally, or it should employ language of a similar import, and an information which avers that the defendant "did unlawfully change and alter" the marks and stamps in question sufficiently shows that the act was done wilfully and intentionally. U. S. v. Bardenheier, (1892) 49 Fed. Rep. 846. SEC. 17. [Affixing imitation stamps on packages of distilled spirits - penalty.] That if any person shall affix, or cause to be affixed, to or upon any cask or package containing, or intended to contain, distilled spirits, any imitation stamp, or other engraved, printed, stamped, or photographed label, device, or token, whether the same be designed as a trade mark, caution notice, caution, or otherwise, and which shall be in |