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to discuss, because "the present suit is a test case, destined for the supreme court of the United States”; and for the same reason we also refrain from discussing it, and deem it expedient to merely state our affirmance of the constitutionality of the section, upon the ground that the presumption in favor of its validity has not been clearly confuted.
2. The use which the plaintiff really made of its wharves was in "carrying on or doing the business of * refining sugar." They were part of the plant of that business, and, as it was actually conducted, they were an essential condition of it. Consequently their receipts were its receipts, and as such they were properly comprised in the assessment. Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194, 17 Sup. Ct. 305, 41 L. Ed. 683.
3. The interest received by the plaintiff upon its corporate funds, either deposited in bank or invested in income-producing securities, was also rightly included. The special verdict states that it was "interest upon its investments of moneys and property as explained by the testimony of Mr. Ball"; and it appears from that testimony that the only business of the plaintiff was sugar refining, and that this interest was received by it upon investments or deposits of such part of the capital of that business as at the time being was not in active use therein. Mr. Ball, it is true, also testified that it did not have anything to do with sugar refining; but the question for our decision is not whether this interest was derived from the refining of sugar, which, of course, it was not, but whether or not it was received in the business of sugar refining, and upon this very different question the facts found are conclusive. The funds of the corporation, however any portion of them may have been temporarily applied or held, were all embarked in the sugar refining business, and to it, therefore, all receipts which those funds produced necessarily belonged. Any diminution of them would certainly have been its loss, and it seems to be equally clear that their augmentation, however occasioned, must have been its gain. Except in connection with and as incidental to that business, the plaintiff was neither an investor nor a depositor, and therefore, by becoming either the one or the other, it did not engage in an additional and separate business.
4. The learned judge, in deciding that the collector had been justified in demanding monthly payments, said:
"The tax is, no doubt, an annual tax, in the sense that it is paid each rear; and, if provision for its assessment and collection had been made by the act, snch provision would have been obligatory, both upon the government and upon the refiner.”
But he was of opinion that the act contained no such provision, and that therefore the regulation of the commissioner of internal revenue directing its monthly assessment and collection was authorized by section 3447 of the Revised Statutes. We are unable to concur in the construction which was thus given to section 27 of the act of June 13, 1898. It is, of course, a possible one, but its correctness is at least so questionable as to render it inadmissible to impose a duty upon a citizen. Hartranft v. Wiegmann, 121 U. S.
609, 7 Sup. Ct. 1240, 30 L. Ed. 1012; U. S. v. Isham, 17 Wall. 496, 21 L. Ed. 728. But aside from this consideration, the meaning attributed by the court below to the phrase "shall be subject to pay annually” is not, we think, its natural meaning. The requirement, as directly and plainly expressed, is for payment annually, and upon annual receipts; and, this being so, there is, in our opinion, no warrant for inferring from the quite distinct provision for monthly returns that it was intended that monthly payments might also be demanded, and upon monthly receipts. The tax, moreover, is only on gross annual receipts in excess of $250,000; and it cannot be supposed to have been contemplated that any person or company whose first return, as in the present instance, exhibited gross receipts exceeding that amount, would be subject to a different rule respecting the time of payinent from that which would apply to others, whose gross annual receipts might be shown to be greater than $250,000 only by a later return. We have already pointed out that it is not necessary to put an interpretation upon this section which might involve such inequality in its administration, and, except ,by necessity, no such interpretation could be justified.
Solely upon the ground that the circuit court erred in holding that the plaintiff was required to pay the tax in question otherwise than annually, its judgment is reversed, and the cause is remanded to that court for further proceedings to be there taken in conformity with this opinion.
GRAY, Circuit Judge. Agreeing with the opinion of the court as written in paragraphs 1, 2, and 4, I am compelled to dissent from that expressed in paragraph 3, to the effect that the interest received by the plaintiff in error upon its deposits in bank, and as dividends from investments in shares and other securities, should be included in the amount of gross receipts in its business of sugar refining, returned for assessment and taxation. Keeping in mind the wellsettled rule that the citizen is exempt from taxation unless the same is imposed by clear and unequivocal language, and that, where the construction of a tax law is doubtful, the doubt is to be resolved in favor of those upon whom the tax is sought to be laid, I cannot assent to the affirmance of the judgment of the court below in this respect. I do not think that the income derived from such investment of funds is in any proper sense receipts in the business of sugar refining. The very term “gross receipts” in “the business” would seem to exclude all such receipts as the interest upon investments here referred to.
(113 Fed. 248.)
PILCHER v. UNITED STATES.
(Circuit Court of Appeals, Fifth Circuit. February 11, 1902.)
No. 1,043. 1. CRIMINAL LAW-REMOVAL OF SPIRITS—BREAKING LOCK OF WAREHOUSEEVIDENCE-FORMER ACQUITTAL OF BREAKING LOCK.
On the trial of one indicted under Rev. St. U. S. § 3296, for the removal and concealment of distilled spirits on which the tax had not been paid, testimony was offered that, on the night before the whisky was removed, accused broke the lock of the warehouse where it was stored. Defendant objected on the ground that he had been indicted under section 3268 for breaking such lock, and at the last term of the court had been tried thereon and acquitted. Held that, though such acquittal could be considered by the jury in considering the credibility of the
witnesses, it was not ground for excluding the testimony. 2. SAME-IMPRESSION OF WITNESS.
On the trial of defendant for removing whisky on which the tax had not been paid from a distillery warehouse belonging to his father, a witness testified that he was employed by a revenue officer to get up evidence against the guilty parties; that, while concealed under the father's house, witness heard some men discussing the removal of the whisky, and the best way to get out of the trouble, and it was his impression that one of the voices was that of defendant, but he was not quite certain. Held, that the admission of such testimony was error. In Error to the District Court of the United States for the Middle District of Alabama.
Wm. C. Oates, for plaintiff in error.
McCORMICK, Circuit Judge. The plaintiff in error was indicted under section 3296 of the Revised Statutes of the United States, which reads:
"Whenever any person removes, or aids or abets in the removal of, any distilled spirits on which the tax has not been paid, to a place other than the distillery warehouse provided by law, or conceals or aids in the concealment of any spirits so removed, or removes, or aids or abets in the removal of any distilled spirits from any distillery warehouse, or other warehouse for distilled spirits authorized by law, in any manner other than is prorided by law, or conceals or aids in the concealment of any spirits so removed, he shall be liable to a penalty of double the tax imposed on such distilled spirits so removed or concealed, and shall be fined not less than two bundred dollars nor more than five thousand dollars, and imprisoned not less than three months nor more than three years."
There were five separate counts in the indictment, each charging different ones of the specific acts against which this section denounces a penalty. The verdict in the case was, “We, the jury, find the defendant guilty as charged in the indictment;" and the judgment and sentence ordered that the defendant be imprisoned in the state prison at Nashville, in the state of Tennessee, for the term of two years, and pay a fine of $500 and costs. The defendant brought this writ of error. Numerous errors are assigned, but we notice only two.
The United States offered to prove by the witnesses Rees Pilcher and Henry Pilcher that, on the night before the whisky was removed from the warehouse, the defendant broke the lock of the warehouse, or drew out the staple to the lock with a road pick. To the admission of this evidence the defendant objected on the ground that he had been indicted for breaking the lock, and had been tried thereon at the previous term of the court and had been acquitted, and that this evidence was irrelevant in this case, and calculated to confuse, mislead, and prejudice the jury against him. The court overruled the objection, and the defendant duly excepted. He assigns this as one of the grounds of error. The transactions were so close together in point of time, and so nearly related in their character, that the evidence offered would have been clearly admissible if the case then on trial for a violation of section 3296 had been heard before the trial and judgment in the case against the defendant brought under section 3268, which reads:
"Every person who destroys, breaks, injures, or tampers with any lock or seal which may be placed on any cistern-room or building by the duly auth rized officers of the revenue, or opens said lock or seal, or the door to said cistern-room or building. or in any manner gains access to the contents therein, in the absence of the proper officer, shall be fined not less than five hundred dollars nor more than five thousand dollars, and imprisoned not less than one year nor m re than three years."
While the judgment of acquittal in that case would be a bar against any further effort to punish him for a violation of section 3268, and could rightfully be considered by the jury in passing upon the credibility of the witnesses testifying on this trial, it was not ground for sustaining the objection to the introduction of the testimony offered. This assignment of error is not well taken.
The United States offered to prove by one John Harmon that about one week after the burning of the distillery warehouse, while he was in the employment of a revenue officer, and charged, as such employé, to get up evidence against the guilty parties, he crawled under Richard Pilcher's house one night, and overheard some other men talking with Richard discussing the removal of the whisky, the destruction of the warehouse, and the best way to get out of the trouble, and that it was his impression that one of the voices he heard talking was that of the defendant, with whom he was acquainted; but of this he was not certain, and he could not say it was the defendant's voice because he did not see him. The defendant objected to the admission of this evidence on the ground that it was too indefinite, and did not tend to prove the defendant's actual presence or participation in the conversation. The court overruled the objection, the evidence was admitted, and the defendant excepted. This action of the court is assigned as error. The bill of exceptions shows that the distillery warehouse was a legal one; that there were a number of packages of whisky therein, subject to the tax imposed by the laws of the United States, on which the tax had not been paid; that the warehouse was de stroyed by fire on the night of July 5, 1899; that, soon after the burning, six or seven barrels of this whisky, which had been in the warehouse, and on which the tax had not been paid, were found concealed in Rees Pilcher's potato patch; that this Rees Pilcher had also been indicted for removing and concealing this whisky, and on a day prior to this trial had pleaded guilty to that indictment; that the distillery at which the whisky was made, and the warehouse that was burned, belonged to Richard Pilcher, and that steam to run the distillery was supplied by means of a pipe from the boiler of the sawmill of the defendant, situated 300 feet distant from the distillery. The defendant's dwelling house, in which he and his family resided at the time the offense was committed, was situated half a mile distant from the distillery and the warehouse. The objection to the admissibility of John Harmon's testimony was that it was too indefinite, and did not tend to prove the defendant's actual presence or participation in the conversation. This seems to present, somewhat vaguely, two grounds of objection: (1) That the witness was not able to identify the defendant by his voice so as to show that he was present in the house under which the witness had placed himself in prosecution of his effort to get up evidence against the guilty parties; and (2) that the witness did not attempt to relate anything that the voice, which impressed him as being that of the defendant, uttered; did not testify to any language, or the substance of any language, used by the defendant, or others present, which would tend to incriminate the defendant, or to incriminate specifically any other person; and hence that the testimony was irrelevant, and should not have gone to the jury for any purpose. It is not expressly stated in the record what was the family relation existing between the various Pilchers mentioned in the record; but it seems to be clearly implied that Richard Pilcher, now deceased, the owner of the distillery and of the warehouse that was burned, was the father of the defendant and of the witnesses Rees and Henry Pilcher. There can be no question that a witness will be allowed to identify a person by his voice if able to do so; that is to say, the testimony is competent to be considered by a jury. And if the presence of the defendant at his father's house a week after the removal of the whisky and the burning of the warehouse was a fact which of itself would tend to charge him with the offense, the objection to the testimony that he was identified only by his voice, and that the witness would say no more than that it was his impression that it was the voice of the defendant,-was giving his impression, rather than stating a fact,---would not be well taken. The presence of the defendant at his father's house a week after the commission of an offense at another place does not tend to show that either the defendant or his father, or any other certain person, had committed the offense. The witness was allowed to testify that he, while under Richard Pilcher's house, overheard some other. men in the house talking with Richard, and discussing the removal of the whisky, the destruction of the warehouse, and the best way to get out of trouble, and that it was his impression that one of the voices he heard talking was the voice of the defendant. The witness does not give any of the language, or the substance of the language, that impressed him as having been uttered by the voice of the defendant. He does not give any of the language of any of the other persons present in the house that would show, or tend to show, that the