Kennedy v. United States

Prom a judgment of conviction on a charge that defendant “did * * * unlawfully receive and conceal and facilitate the transportation and concealment of * * * about thirteen (13) cases, of Canadian whiskey, after its importation into the United States, * * * that said merchandise had been smuggled and clandestinely introduced into the United States, to wit, into the Collection District of Montana from the Dominion of Canada; defendant well knowing that the said merchandise had been imported and brought into the United States contrary to law, * * * ” defendant appeals.

At the close of plaintiff’s case appellant moved for a directed verdict of not guilty, on denial of which defendant rested. The testimony was given by the collector of customs, who testified, among other things, that it was his duty to collect duties on imported goods and prevent the smuggling of goods into the district; that prior to becoming collector he was adjutant general of Montana; that he had known the defendant at sight for four or five years and had some fifteen or twenty conversations with him prior to December 12, 1928; that during the last “two or three or four years” he .had seen him at Great Palls…

On Petition for Rehearing.

The indictment in this case charged that the appellant fraudulently, knowingly, and unlawfully received and concealed and facilitated the transportation and concealment of certain eases of Canadian whisky after their importation into the United States, contrary to law, in that such merchandise had been smuggled and clandestinely introduced into the United States, and into the Collection District of Montana, from the Dominion of Canada. In a petition for rehearing filed by the appellee, there seems to be some contention that this eourt, in its opinion, held that it was incumbent on the government to prove that the intoxicating liquor was introduced into the United States from the Dominion of Canada, as charged in the indictment; whereas, the government contends that this aver *134 ment in the indictment was surplusage and that it was competent to prove importation from any other country. For reasons hereinafter stated, the question whether it was incumbent on the government to prove that the liquor involved was Canadian whisky and was imported into the United States from the Dominion of Canada, or whether these averments in the indictment should be…