ties do any act to effect the object of the conspiracy," is a part of the revenue laws, and prosecutions under it are not barred until the expiration of five years, as provided in section 1946, limiting the time in which prosecutions may be brought for crimes arising under the revenue laws. United States v. Fehrenback,* 2 Woods, 175.

774. Act not repealed.— The act of July 13, 1866, § 23, punishing the carrying on of the business of a distiller without paying a special tax, is not impliedly repealed by the fifth section of the act of March 31, 1868, punishing a distiller who attempts to defraud the government of the tax on the liquors distilled by him, on the theory that the offenses are the same and the latter act provides a heavier penalty. The offenses are not the same, although the extent of the business carried on is made, by the former act, the measure of the lowest fine. United States v. Cushman,* 1 Low., 414.

$775. Payment of tax after arrest. Where a person has been arrested for carrying on a certain business without the required license, and the offense, to some extent examined into, the acceptance from the prisoner, by the officers of the internal revenue, of an application for a license, and the acceptance from him of the amount of the special tax, does not work a pardon for the offense previously committed. United States v. Devlin,* 6 Blatch., 71. See $720.

$776. Neglect of officer does not excuse citizen. The neglect or failure of the officer of the revenue to perform the duties which the law requires of him does not excuse the citizen for a violation of the law caused by such neglect. Failure of the officer to register the application of a citizen for license to carry on a certain business will not make it lawful for the citizen to proceed without a license. Ibid.

§ 777. Distiller in default, when.- Under the twenty-third section of the internal revenue act of July 13, 1866, a distiller is not in default for the mere non-payment of his special tax of $:00, until ten days after the receipt by the collector of the assessment list, in which the special tax is to be inserted, and he cannot be held guilty of the offense created by this section, unless he carries on the business after he is in default for non-payment of the tax. United States v. Shea,* 5 Blatch., 546.

§778. What tobacco liable under act of 1888. - In the statute of July 20, 1868, which provides that any person who shall use, sell, or offer for sale, or have in his possession, except ia the manufactory or in a bonded warehouse, any manufactured tobacco, or snuff, without proper stamps affixed and canceled, shall on conviction thereof be liable to a penalty therein prescribed, there is no exception of refuse or worthless tobacco, or tobacco to be re-manufactured, or of tobacco upon which a tax has been paid. Such kinds of tobacco are all included within the act, and one having such in his possession is liable to the penalty, wherever he would be liable to the penalty for having in his possession other manufactured tobacco. United States v. Keyes,* 10 Fed. R., 876.

$779. As to date of manufacture of tobacco.- By section 78 of the laws of July 30, 1868, declaring that "after the 1st day of January, 1869, all smoking, fine-cut chewing tobacco, or snuff, and after the 1st day of July, 1869, all other manufactured tobacco of every description, shall be deemed and taken as having been manufactured after the passage of this act," such tobacco, if on hand after the date fixed by the act, must be taken to have been manufactured since the act, whether such be the actual fact or not; and the court cannot instruct the jury that a defendant is not liable for having such tobacco in his possession contrary to a clause in the same act, if it was manufactured before the act. Ibid.

§ 780. Sale of tobacco at retail.- Section 3363 of the Revised Statutes, which declares that "no manufactured tobacco shall be sold or offered for sale unless put up in packages and stamped as provided in this chapter, except at retail, by retail dealers, from wooden packages stamped as provided in this chapter," and punishing those selling such tobacco not so put up and stamped, does not require that a sale at retail must be made directly and literally from the package, and thereby render a sale of a part after it has been separated from the whole unlawful. One who has paid a special tax as a dealer in tobacco, and purchased plug tobacco in wooden packages, put up and stamped as required by the internal revenue laws, may keep the packages in the back room and sell the plugs from his show window, without becoming liable to the penalty of this section. United States v. Veazie,* 6 Fed. R., 867.

71. Manufacturers of tobacco are not exempt from criminal prosecution for violation of the internal revenue laws. The government may proceed by indictment as well as in rem. Unred States v. McGinnis, 1 Abb., 120 (§§ 2429-30).

$72. Assault upon revenue officers. Where a party of internal revenue officers, all of whom held commissions as deputy collectors of internal revenue for the district of Georgia, were, while in search for illicit stills, fired upon by distillers in ambush, and they returned the fire, killing one of the distillers while he was in ambush and at or immediately after the time of the discharge by himself and his comrades of their weapons at the revenue officers, the court, upon the preliminary examination of the charge against the revenue officers, dis

charged them from custody, under section 4739 of the code of Georgia, on the ground that there was no "sufficient reason to suspect the guilt of the accused." State v. Port,* 3 Fed. R., 124.

§ 783. Possession of cigars. An indictment under section 3397 of the Revised Statutes, charging that the defendant "did buy, receive and have in his possession" cigars on which the tax to which they were liable had not been paid, is divisible, and conviction may be had on proof of possession alone, the statute using the words, "buys, receives or has in possession." United States v. Millard,* 13 Blatch., 534.

§ 784. A peddler was indicted under section 73 of the act of 1861, for carrying on business without a license. He had applied in April to pay the tax for the year beginning May 1st, but the assessor was not ready to receive the tax, and did not present the bill until May 20th. In the mean time defendant had sold out his business, having carried it on for a few days in May, and refused to pay the tax. Held, that an indictment would not lie. United States v. Pressy, 1 Low., 319.

§ 785. Rectifier of spirits. Upon an information prosecuted under section 3317 of the Revised Statutes, as amended by the act of March 1, 1879, charging the defendant with having carried on the business of a rectifier of distilled spirits, with intent to defraud the United States of the tax on distilled spirits rectified by him, proof of partial rectification, and that the defendant had in his possession a rectifying apparatus, and that illicit spirits had been conveyed to said apparatus in ale barrels, and, in the presence of the defendant, poured into the receiving tub of said apparatus, on two different occasions, and under suspicious circumstances, is sufficient to justify the jury in finding him guilty. United States v. Byrne,* 19 Blatch., 259.

786. Setting out means of fraud.- Under the third section of the act of congress of March 3, 1863 (12 Stat. at Large, 739), the means employed to effect the fraud on the revenue may be set out in the indictment or information or not, at the option of the pleader. United States v. Ballard,* 13 Int. Rev. Rec., 195.

$ 787. Fraudulent bonds.— A deputy collector who accepts bonds, knowing them to have been fraudulently signed, is guilty of conniving at the fraud in their execution. `United States v. Allen,* 7 Int. Rev. Rec., 161.

§788. Material fit for distillation.- Any mash, wort or wash from which alcohol may be evolved, whether profitably or not, is fit for distillation, within the meaning of the revenue law of July 20, 1863, and the production and use of such wash, wort or mash in the manufacture of vinegar is a violation of the law. United States v. Prussing,* 2 Biss., 341.

$789. Use of excess of material, etc.- Under an indictment charging fraud on a distiller, in using more material and manufacturing more spirits than he had returned, the government is bound to exclude every other conclusion in order to convict. United States v. Furlong.* 2 Biss., 97.

$790. Place where spirits are distilled.- Under section 45 of the act of congress of July 13, 1866, the "place where spirits is distilled" is the distillery premises, and does not mean the worm or the still itself. United States v. Blaisdell,* 3 Ben., 132.

IX. LARCENY.

[See §§ 490, 508, 530, 1780, 2619.]

SUMMARY- Plundering a wreck; indictment, § 791, has no analogy to the crime of larceny of goods on land, § 792; casting goods into river, § 793; not material whether goods were taken from the wreck or from the water, § 794; taking goods from water is prima facie lawful, § 795.— Larceny on the high seas; coin and bank-notes are personal goods, § 796. § 791. Section 5358 of the Revised Statutes, punishing “every person who plunders, steals or destroys any money, goods or merchandise, or other effects, from or belonging to any vessel in distress, or wrecked, lost, stranded or cast away upon any sea, or in any place within the admiralty or maritime jurisdiction of the United States," does not define several offenses: one, of plundering from a vessel; another, of plundering goods belonging to a vessel; another, of stealing goods from a vessel, etc. It describes a single offense, which may be charged in the language of the statute. An indictment framed as though the statute created several offenses may, nevertheless, be treated as if it charged the whole as one offense. If the defendant has either plundered, stolen or destroyed the goods mentioned in the indictment, from a vessel wrecked or in distress, in any place within the admiralty or maritime jurisdiction of the United States, he is guilty under this section, without reference to the separation of the allegations into several counts as if the section created several offenses. United States v. Stone, §§ 797-803. See § 828.

$792. Neither the word "steal," nor other words used in section 5358 of Revised Statutes, punishing the offense of "plundering, stealing or destroying" any goods belonging to any distressed or wrecked vessel, authorize the importation into this statute, from the common or statutory laws of England or any state, the elements of the crime of larceny of goods upon land as known to those laws. No specific intent is necessary to constitute this offense, and any intent is unlawful, except that alone of taking the goods for the purpose of restoring them to the vessel or the owner. The manner of taking is wholly immaterial also, whether by open force, stealth or otherwise. Ibid.

§ 793. The casting of goods belonging to a wreck into the river is destroying them within the meaning of section 5358 of the Revised Statutes punishing such an offense; but if the defendant rescued the goods from the river and cast them back again, not for the purpose of depriving the owner of them, but because he thought they were of no value, he is not guilty. Ibid.

794. Under section 5358 of the Revised Statutes, punishing the offense of plundering, stealing or destroying any money, goods, etc., "from or belonging to any vessel in distress," etc., it is not material whether the goods be taken from the wreck itself, or from out of the water, or while cast away upon the shore. From the moment of the wreck, or the commencement of the distress, until restored to their rightful owner, the goods are within the protection of this statute, into whosesoever possession they may come with knowledge that they belong to the wrecked or distressed vessel. Nor is the smallness of their value material. Ibid.

$795. The taking of goods belonging to a wrecked vessel from the water is prima facie lawful; the presumption is that they were taken with the proper motive, and not for the purpose of stealing, plunder or theft, as punished in section 5358 of the Revised Statutes. Ibid. § 796. It is held that foreign and domestic coin and bank-notes are "personal goods" within the meaning of section 16 of the crimes act of 1790, chapter 33, providing "that if any person, etc., upon the high seas, shall take and carry away, with intent to steal or purloin, the personal goods of another, the person, etc., shall, on conviction, be fined not exceeding the fourfold value of the property so stolen," etc. United States v. Moulton, §§ 804, 805. See 821, 830. [NOTES.

See §§ 806-830.]

UNITED STATES v. STONE.

(Circuit Court for Tennessee: 8 Federal Reporter, 232-262. 1881.)

STATEMENT OF FACTS. Stone was indicted for depredations committed on a wrecked steamboat on the Mississippi river. The proof of the prosecution was that Stone and others cut into the texas of the steamer and took the articles in question from there, and that Stone afterwards confessed to Bennett, a detective, that he had done so. Defendant denied the confession, and, testifying for hin.self, said that he had taken the articles in question out of the river. Further facts sufficiently appear in the opinion of the court on a motion for a new trial.

The court charged the jury that, if the defendant either plundered, stole or destroyed the goods mentioned in the indictment from a vessel wrecked or in distress, in any place within the admiralty and maritime jurisdiction of the United States, he was guilty under the statute, without reference to the separation of the allegations of the indictment into several counts; that it was not material whether the goods were taken from off the wreck itself, from out the water, or while cast away upon the shore.

On the meaning of the word "steal," the court charged as follows: "We are not authorized by the use of the word 'steal' in this section, nor other words used in describing this offense, to import into this statute from the common or statutory laws of England or the state the elements of the crime of larceny of goods upon land as known to those laws. No specific intent is necessary to constitute this offense, and any intent is unlawful and sufficient for the guilt of the offender, except that alone of taking the goods for the purpose of restoring them to the master or other officer of the unfortunate vessel,

or to their ultimate rightful owner. If a person near the wreck does not intend to restore the goods, or intends to make any other use of them than preserving them for the master or owner of the vessel, or owner of the goods, he must let them alone or he violates this statute. Nor is the time when the unlawful intent is conceived material. If the accused takes the goods with the lawful intent to preserve and restore them, and afterwards yields to the temptation of avarice or cupidity, and converts or destroys them, he violates this statute. Again, the manner of taking is wholly immaterial, whether by open force or stealth or otherwise. The words of this statute are sweeping and comprehensive. They include all unlawful taking, whether on the facts the crime at common law would be piracy, robbery, larceny simple, mixed or compound, malicious mischief, or what not; and include such taking as would, under statutory offenses, be called embezzlement, criminal or fraudulent breach of trust."

The court gave the following, asked by the defendant: "If the jury believe that the defendant rescued the property in question from the river, and afterwards, believing or supposing that said property was not worth preservation, threw it again into the river for the sole reason that he thought it not worth preservation, and not for the purpose of depriving the owners of it, then you will not be authorized to convict him of this offense because of throwing them into the river. If the proof shows that the defendant took goods belonging to the steamer Vicksburgh which had floated from the wreck, the court charges the jury such taking was prima facie lawful; that every person has a legal right to save goods which belong to a wreck, and are derelict; and, when he does take goods under such circumstances, no presumption of guilt can arise from such taking per se; on the contrary, without more, the fair presumption is that the taking was with a proper motive."

Other instructions were refused, but the questions presented are covered by the instructions given, and by the course of reasoning in the opinion.

797. Construction of Revised Statutes, section 5358. What offenses are created by it.

Opinion by HAMMOND, J.

The court is satisfied that the construction put upon the Revised Statutes (section 5358) is the correct one. I cannot consent to emasculate this statute by whittling it down by construction to the paltry proportions of larceny of lost goods on land, as understood at common law; and certainly not to the once still narrower doctrine of our state that there can be no larceny of lost property, which has everywhere been repudiated as unsound, and is now changed by statute. T. & S (Tenn.) Code, 4685; 2 King Dig. (2d ed.), tit. "Larceny," 1986, 1992; 2 Ben. & Heard, Lead. Cr. Cas. (2d ed.), 409, 426; 1 Cr. L. Mag., 209, 214; 2 Whart. Cr. L. (7th ed.), § 1791 et seq.; id., § 1867; 2 Bish. Cr. L. (6th ed.), § 758, note; par. 17, § 838; § SSO et seq. I am of opinion, therefore, that the instructions asked by the defendant, defining larceny and the specific intent necessary to constitute that crime, and applying it to goods "floating in the water, at the time when they had escaped from the cus tody and control of the crew of the steamer," were properly refused. $ 798. When goods are and are not "derelict."

In the first place, goods so situated are neither lost nor abandoned, in the circumstances of this case, while floating near a recent wreck to which they belong, with full knowledge on the part of those who take them that they do so belong. Even in the eyes of the common law they are not lost, but certainly

not in those of the maritime law. 2 Pars. Ship. & Adm., 258, 292; 1 Abb. Diet., word "Derelict." And if they can ever belong to the first finder, it is only when they are both derelict and abandoned. Weyman . Hurlbut, 12 Ohio, 81. Wreck is not properly so called if the real owner is known, and is not forfeited till a year and a day. Id.; Reg. v. Thurborn, 1 Den., 387; 2 Ben. & Heard, Lead. Cr. Cas., 409, 411. The floating goods are still in the constructive possession of the owner of the vessel, more like those in a house on fre, and are not abandoned because in peril. If one remove them for preservation, intending to keep them for the owner, but afterwards secrete and appropriate them, there is no larceny at common law, but only a breach of trust. Rex v. Leigh, 2 East, P. C., 694; 2 Bish. Cr. L., § 837; 2 Ben. & Heard, Lead. Cr. Cas., 426. If, however, the intent at the time of taking had been to appropriate the goods to her own use, the judgment in that case would have been different, nor would the defendant have been excused upon any theory that she entertained a bona fide belief that when a house was on fire the goods in it or taken from it belong to any one who secured possession of them, or that she did not think it stealing and did not intend to steal, but only to take what she supposed she might rightfully take. That would have been trying the act of the accused by her own mental characterization of that act. On that theory, if one takes money from under a pillow at night, and by stealth, he might have his crime excused by showing by his own testimony or otherwise his state of mind on the subject, and that he entertained an honest belief that he could do that thing without any wrong to the owner. This seems to me the result of the argument made for the defendant here, when we are asked to hold that, if he believed that he had a right to take these goods for his own use, he is not guilty.

That there is a prevalent belief along this river that goods floating from a wreck may be appropriated by those who "capture" them from the water is, perhaps, true; and it may be that goods so situated are supposed to belong to the first taker by those who know better than to apply the same rule of conduct to goods lost or in peril by fire or other disaster on land. But it seems to me plain that this preposterous claim of right cannot serve to excuse the taking either at common law or under the statute. I do not see how any man whose moral sensibilities are not blunted by the temptation always afforded by such disasters, whether on land or sea, and who is not wholly demoralized in the presence of the temptation, can fail to recognize the wrong in it. The duty of restoring the goods is enjoined by the oldest rules of the moral law. Deut. xxii: 1-3. Every instinct of right and fair dealing suggests their return, and this statute was enacted to enforce that duty. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law; nor will any belief, not even a religious belief, in the right of the act excuse the crime. Reynolds v. United States, 93 U S., 145, 167 (§§ 854-865, infra). There is a principle, undoubtedly often misapplied, I think, in the law of larceny that excuses the taking or avoids the criminal intent where there is a fair color of claim or right to the property. For example, in the case already put, if one takes money from under a pillow at night by stealth, with the intention by that means to recover that which had been before in his belief wrongfully taken from him, there would be no larceny, although the money was not in fact the same, nor was there in truth any wrong done to him. Merry v. Green, 7 Mees. & W., 627; State v. Homes, 17 Mo., 379; State ". Conway, 18 Mo., 321; State v. Deal, 64 N. C., 272; Herber v. State, 7 T:x., 69;