Opinion · Supreme Court of the United States

Fleisher v. United States

302 U.S. 218

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1937-12-06
Topic
general

Per Curiam. Judgments of conviction on four counts of an indictment charging conspiracies to violate provisions of the internal revenue laws were affirmed by the Circuit Court of Appeals. 91 F. (2d) 404. Certiorari was granted, limited to the question whether the first count of the indictment states an offense under federal law. The first count alleged that defendants from October 1, 1934, to the date of the indictment, October 30, 1935, unlawfully conspired to possess, and cause to be possessed, stills and apparatus for the production of distilled spirits without having the same registered with the Collector of Internal Revenue as required by law.

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UpLaw has not yet analyzed Fleisher v. United States. The absence of a flag is not a finding that it is good law.

Cited by
17 opinions
FLEISHERv. UNITED STATES,302 U.S. 218(1937)
58 S.Ct. 148
HARRY FLEISHER ET AL.v. UNITED STATES.fn*
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.
No. 202.
Argued November 15, 1937.
Decided December 6, 1937.
1. Registration of stills for the production of distilled spirits should be with the District Supervisor of the Alcohol Tax Unit in the Bureau of Internal Revenue. P. 219. A count charging conspiracy to commit the offense of possessing such stills "without having the same registered with the Collector of Internal Revenue, as required by law," is therefore bad. (Cf. Rev. Stats. § 3258; 26 U.S.C. § 1162.) 2. When the first of several counts upon which consecutive sentences are based is defective the sentences should be corrected so as to fix a definite date for their commencement. P. 220.91 F.2d 404, reversed.
CERTIORARI,post, p. 673, to review judgments affirming
judgments sentencing petitioners after conviction upon four
counts of a joint indictment for conspiracy.
Page 219
Messrs. Isadore G. Stone, Alfred A. May, andArthur H.Ratnerwere on the brief and submitted the case for the petitioners.Mr. Bates Booth, with whomSolicitor General Reed,Assistant Attorney General McMahon, andMessrs. Mahlon D.KieferandW. Marvin Smithwere on the brief, for the United States.
PER CURIAM.
Judgments of conviction on four counts of an indictment charging conspiracies to violate provisions of the internal revenue laws were affirmed by the Circuit Court of Appeals.91 F.2d 404. Certiorari was granted, limited to the question whether the first count of the indictment states an offense under federal law.

The first count alleged that defendants from October 1, 1934, to the date of the indictment, October 30, 1935, unlawfully conspired to possess, and cause to be possessed, stills and apparatus for the production of distilled spirits without having the same registered with the Collector of Internal Revenue as required by law. The Government concedes that under the applicable law the charge should have been that there was failure to register the stills with the District Supervisor of the Alcohol Tax Unit in the Bureau of Internal Revenue. The first count failed to state an offense. Act of March 3, 1927, c. 348,44 Stat. 1381; 5 U.S.C. § 281 c; Prohibition Reorganization Act of May 27, 1930, c. 342,46 Stat. 427; Regulations No. 3, Bureau of Industrial Alcohol, Treasury Department (March 24, 1931), Article 14; Act of March 3, 1933, c. 212, § 16,47 Stat. 1518; Executive Order No. 6639, March 10, 1934, 5 U.S.C. § 132 note; Treasury Decision No. 4432, May 10, 1934.Scottv.United States,78 F.2d 791;Bentonv.United States,80 F.2d 162.

The sentence upon count two provides that it shall run "from and after expiration of term of imprisonment imposedPage 220on count one." Each of the sentences on the remaining counts runs from the expiration of the term of imprisonment imposed on the preceding count. In view of the invalidity of the sentence on count one, the sentences on the remaining counts should be amended so as to fix a definite date for their commencement.

The judgments on count one are severally reversed and the causes are remanded for further proceedings in conformity with this opinion.Reversed.
  1. Page 218 Together with No. 203,Sam Fleisherv.United States;and No. 204,Steinv.United States,also on writs of certiorari to the Circuit Court of Appeals for the Sixth Circuit. ↩