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United States v. Grotenkemper.

will be the duty of the jury to weigh all the circumstances proved. Ordinarily, fraud is only made out by proof of such facts as lead with reasonable certainty to the conclusion of its existence. To illustrate my meaning, I will say, that if the jury believe there was concert of action between Darling the distiller, Harper & Son the warehousemen, and the defendant, by which the spirits were to be offered in market, and disposed of without payment of the tax, and were so disposed of by the defendant, the legal inference of fraud on his part would follow.

The counsel for the defendant have urged, that when the distiller gave bond for the transportation of the spirits from his warehouse A, to bonded warehouse B, and the proper permit for its removal obtained, that it then became what is termed free whisky and was legitimately in market without the actual payment of the tax, the reliance of the government being on the transportation bond as security for the tax. But there is no law which warrants this view. The transportation bond is conditioned for the delivery of the spirits at the bonded warehouse named, and upon such delivery the collector of the proper district looks to the payment of the tax before the spirits can be sold or removed. If, as in this case, the parties to the transportation bond are all pecuniarily worthless, and if the distiller on the execution of the bond was at liberty to offer his whisky in market without paying the tax, it is obvious that a wide door for frauds upon the revenue would be opened. If, therefore, the defendant, knowing the fraud intended by the distiller, co-operated in it upon the false and illegal theory that the spirits were legitimately in market without payment of the tax, he can not thereby be relieved from the imputation of the fraud charged. Even if a construction had been given to the law, by officers of the revenue department, sanctioning such a course, it would be no justification of an intended or accomplished fraud. It is in accordance with the plain intention of the statute, that spirits should in no case be offered for sale without the payment

United States v. Grotenkemper.

of the tax, and any sale without such payment is in violation of law. The distiller has his option to pay the tax on its removal from his bonded warehouse, or give a transportation bond for its removal to a bonded warehouse, class B. If the latter course is pursued, the spirits can not be removed from the warehouse, or any disposition. made of them until the tax is paid. Any other course would inevitably lead to the grossest frauds, and can not for a moment be tolerated. It would afford every facility for collusion between the fraudulent distiller and a dishonest and corrupt collector of the revenue. They had only to procure a transportation bond with parties fictitious or irresponsible, and the spirits would go into the market without the payment of the tax, and without any possible means of indemnifying the government for the loss of the tax.

But while this is the view of the court on this legal question, it is my duty to instruct the jury, that if this defendant came into the possession of the spirits, and removed or sold the same, without any knowledge of its fraudulent character, or any reasonable grounds of suspicion of fraud, he can not be held liable in this form of action. To incur the liability sought to be enforced by the government in this proceeding, it must appear, to the satisfaction of the jury, that the spirits were in the possession of the defendant, and were removed or sold by him, with the intent to evade the payment of the tax. This is in accordance with the language of the statute, and the averment in the declaration. As I have remarked before, the question of intent is exclusively for the jury, to be arrived at by a due regard to the evidence.

It seems unnecessary for the court to extend its remarks. I close by reminding the jury that the case before them is important, as it affects the financial interests of the government, and the pecuniary interests of the defendant. If the jury find for the United States, their verdict must be for a large sum. It must be, in the aggregate, four dollars on each gallon of spirits removed or sold by defendant, claimed

United States v. Chaffee.

by the United States as being 44,500 gallons. The importance of the case will require of the jury their calm and deliberate consideration, and if they find the evidence fairly implicates the defendant in the frauds charged, they will not hesitate to render a verdict accordingly, without reference to consequences. It deeply concerns the interests of the government, as well as our national character, that these frauds on the revenue should be exposed, and the laws efficiently executed.

[The jury reported that they were unable to agree, and were discharged.]

(CIRCUIT COURT.)

THE UNITED STATES v. HIGHLAND D. CHAFFEE ET AL.

A motion for a new trial is an appeal to the discretion of the court, and if there are any grounds for the apprehension that injustice has been done to the defendants, by a verdict for a large amount found against them by the jury, and that a different result would follow from a second trial, it is the duty of the court to grant it.

If, in a joint action of tort, a verdict is rendered against all the defendants, when as to one there was no evidence, it is a verdict against evidence, and may be set aside on that ground.

Where, in an action in tort, against several defendants, they sever in their pleas, and assert different defenses to the suit, if a verdict is returned against all, and there is no testimony against one, the case may be non prossed as to him, and judgment entered against the others. There are authorities that where the plea is joint this may be done, but as to that point there is some conflict. If this was the only ground of exception to this verdict the court would overrule it, and refuse a new trial upon the agreement of the district attorney to enter a nolle prosequi as to William M. Chaffee.

Where a jury give credence to the testimony of two witnesses for the United States as against the testimony of nine unimpeached witnesses for the defendants, they decide against the weight of the evidence, and it is a ground for a new trial.

United States v. Chaffee.

The doctrine is, that testimony merely cumulative does not, in general, afford a sufficient ground for a new trial, but in a case of great importance, involving large interests, courts have given a liberal construction to the rule, and received such testimony on an application for a new trial.

The law does not tolerate the slightest taint of corruption, or the least impropriety of conduct on the part of a juror, and proof that one juror has disregarded the obligations resting upon him and has acted corruptly so infects a verdict with fraud as to make it a nullity.

Durbin Ward, District Attorney, for United States.

Job E. Stevenson, for defendants.

OPINION OF THE COURT:

This is a motion, by the defendants, to set aside the verdict returned in this case, and for a new trial. There are numerous grounds stated as the predicate of this motion. In stating the conclusions of the court, it will not be necessary to notice, in detail, all the grounds set forth in the motion on file. I shall refer only to those that seem to be conclusive as to the proper action of the court.

It may be remarked, preliminarily, that the suit was instituted jointly against the defendants, for an alleged fraud committed by them, in failing, as distillers, to make due returns of, and pay the duties upon, whisky manufactured by them at their distillery at Tippecanoe, in this State, whereby they incurred a penalty of four dollars a gallon on the spirits which they did not return, and on which they did not pay the legal duty. On the trial, the district attorney abandoned the first and second counts of the declaration, and the case was submitted to the jury on the third count only, which alleged, in substance, that, between February 1, 1865, and September 1, 1866, the defendants manufactured and had on hand twenty-four thousand nine hundred gallons of distilled spirits, subject to a duty of two dollars on each gallon, which they fraudulently sold or disposed of, without making a return of the same, and without paying the legal tax thereon; whereby they incurred a

United States v. Chaffee.

penalty of four dollars on each gallon, amounting in the whole to $99,600.

The defendants joined in a plea of not guilty, and the case was submitted to the jury on that issue. After a prolonged and laborious investigation of the facts, and extended arguments of counsel, the jury returned a verdict against the defendants for $253,200.

It may be aptly remarked here that on a motion to set aside a verdict for so large a sum, involving, as it does, the entire pecuniary means of all the defendants, and so largely in excess of the amount claimed by the United States, on the count of the declaration upon which the case was put to the jury, the court is under stringent obligations to exercise some measure of liberality in passing on the motion for a new trial. The motion is an appeal to the discretion of the court, and if there are any grounds for the apprehension that injustice has been done to the defendants in the large amount found against them by the jury, and that a different result would follow from a second trial, it is the duty of the court to grant it.

One reason prominently urged by the defendants' counsel as a ground for the present motion, is that the verdict is excessive, and against the weight of the evidence. In support of this reason, it is urged, first, that against William M. Chaffee, one of the defendants, there was no evidence implicating him in the alleged fraud; second, that as against the other defendants, the verdict is greatly in excess of the amount for which the defendants, from the weight of the testimony, can be held liable.

In reference to the verdict as against the defendant, William M. Chaffee, it is not controverted by the counsel for the United States, that there was no evidence which connected him with the alleged frauds. It is clear from the testimony that the evidence did not justify a verdict against him, and that as to him the verdict should have been not guilty. In its charge to the jury, the court distinctly stated that if they found the evidence of the fraud charged did

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