
16 F.2d 197 (1926)
SEIDEN
v.
UNITED STATES.
No. 248.
Circuit Court of Appeals, Second Circuit.
December 20, 1926.
*198 Morris D. Reiss, of New York City, for plaintiff in error.
Emory R. Buckner, U. S. Atty., of New York City (C. D. Williams, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before HOUGH, HAND, and MACK, Circuit Judges.
HAND, Circuit Judge (after stating the facts as above).
We have held that, when a jury convicts upon one count and acquits upon another the conviction will stand, though there is no rational way to reconcile the two conflicting conclusions. Marshallo v. U. S. (C. C. A.) 298 F. 74; Steckler v. U. S. (C. C. A.) 7 F.(2d) 59. If they will, jurors may set at defiance law and reason and refuse to find the accused guilty; when they do, he escapes, however plain his guilt. But, though that is within their power, it is not within their right; they are as much bound by the law as a court. No judge is bound to recognize, or even to mention, that power in his dealings with them; on the contrary, he may and ordinarily should direct them to convict, if they find the necessary facts. Indeed, if these be admitted, he may even in substance, if not in form, direct them outright to convict. Horning v. District of Columbia, 254 U. S. 135, 41 S. Ct. 53, 65 L. Ed. 185.
We can see no reason in the case at bar why the judge should not have done in one sentence what he might have done in four, and the only question which can arise is whether the single issue which he left them established the defendant's guilt under all four counts. If that issue be interpreted as meaning that the defendant was the proprietor of the still, all counts but the first were proved. Probably that is what the judge meant, but we think it not altogether clear. The jury might have found him only "engaged in the work," and that is scarcely the equivalent of being the proprietor of the still. The distinction was pointed out, but the charge was not mended. Hence we think we must treat the case as though the jury had found the defendant only to have been engaged in the work, and by that we understand that he might have been no more than a workman for the owner of the still.
The first count was for attempting to defraud the United States of taxes while engaged as a distiller, R. S. § 3257 (Comp. St. § 5993). Under R. S. § 3251 (Comp. St. § 5985), and the Act of August 27, 1894, § 48 (Comp. St. § 5986), the tax is made payable on or before removal from the distillery or warehouse where the spirits are made or kept, and the United States cannot be said to be defrauded until they are removed. The manufacture of spirits is in our judgment rather a step preparatory to the fraud than an attempt to commit it, United States v. Stephens (C. C.) 12 F. 52. It is only when the spirit is about to be moved from the distillery that the series of acts is broached, the commission of any part of which constitutes an attempt. The defendant was therefore not guilty under the first count, even if the owner of the still.
Count 2 was for having possession, control, or custody of an unregistered still. Ordinarily, a servant has no possession of his master's chattels left in his keeping, and this *199 was the basis of the common-law rule that he could be guilty of larceny, U. S. v. Clew, 25 Fed. Cas. 480, No. 14,819; U. S. v. Strong, 27 Fed. Cas. 1356, No. 16,411. But it has never been doubted that a servant to whose keeping chattels were consigned, had their custody, and we are disposed to think that the word was used in Revised Statutes, § 3258 (Comp. St. § 5994), with this distinction in mind. If the defendant was engaged in operating the still and was, as was conceded, alone upon the premises, it followed that it had been left in his custody, if only temporarily. It seems to us mere sophistry to suggest that any one could suppose an illicit still in a New York tenement was registered, and the defendant's ignorance, if it existed, that the law required registry, was irrelevant.
Count 3 was for intending to commence or continue the business of distilling without a bond. This section was plainly directed only against the proprietor, and a workman cannot commit or abet it. It is not disputed that the defendant was guilty under count 4.
It follows that, while the judgment upon counts 1 and 3 must be reversed, it must be affirmed on counts 2 and 4. We may therefore dispose of the case by modifying the sentence and affirming the judgment as modified.
Sentence modified by reducing the fine from $1,500 to $500, and, as so modified, judgment affirmed.
