Before MARIS, McLAUGHLIN and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
In this appeal from a conviction of unlawful possession of untaxed liquor, appellant attacks the indictment on the ground that the facts alleged therein do not make out a crime under the controlling statute.
The indictment charged in its first count:
"That on or about January 25, 1955, at Philadelphia in the Eastern District of Pennsylvania, James H. Smith, Sr., did knowingly and unlawfully have in his possession, to wit: 36-1 gallon jugs of whiskey, upon which said containers or jugs was not affixed thereto the requisite stamps denoting the quantity of distilled spirits contained therein, and evidencing payment of all Internal Revenue taxes imposed by law on such spirits; in violation of Title 26 U.S.C. Section 5008(b)(1)".
The second count alleged "transportation" by appellant of the same whiskey.
The district judge sitting without a jury found appellant guilty on Count I and sentenced him to imprisonment for a year and to pay a fine of $250.Judgment of Not Guilty was entered on Count II.
Section 5008(b)(1) took effect on January 1, 1955; the repeal of its predecessor, 26 U.S.C. § 2803(a), was effective on the same date. 26 U.S.C.A.§ 7851(a)(5). Although Count I purports to be founded on § 5008(b)(1), it is actually a verbatim recitation of repealed Section 2803(a). Thus, 26 U.S.C.A. § 2803(a) provided in relevant part:
"No person shall * * * possess * * * any distilled spirits, unless the immediate container thereof has affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all interal-revenue taxes imposed on such spirits."
Section 5008(b)(1) changed the law as it had existed in Section 2803(a), it provided only that:
"No person shall * * * possess * * * any distilled spirits, unless the immediate container thereof has affixed thereto in such manner as to be broken on opening the container, a stamp evidencing the tax or indicating compliance with the provisions of this chapter."
House Report No. 1337 points up the modifications in the law as it had existed in Section 2803(a).
"Subsection (b), 'Stamps for other containers of distilled spirits':
"Paragraph (1), 'Requirements,' is existing law (see sec. 2803(a)) except that, due to the method of payment by return, the stamp cannot in all instances be deemed evidence that tax has been paid. The stamp does, however, evidence that tax has been determined and that all applicable provisions of law relating to the bottling of spirits * * * have been complied with. Accordingly, the phrase 'evidencing payment of all internal revenue taxes imposed on such spirits' has been deleted and ...