
116 U.S. 270 (1886)
UNITED STATES
v.
SPIEGEL.
Supreme Court of United States.
Submitted December 11, 1885.
Decided January 11, 1886.
CERTIFICATE OF DIVISION FROM THE SOUTHERN DISTRICT OF NEW YORK.
*274 Mr. Assistant Attorney-General Maury for plaintiff.
Mr. William P. Fiero for defendant.
MR. JUSTICE MATTHEWS delivered the opinion of the court. After stating the facts in the language above reported, he continued:
The twelfth section of the act of March 1, 1879, does not define the offence of removing stamps from packages of imported liquors, or of having in possession stamps so removed, except by adopting the provisions of Rev. Stat. § 3324, defining such offences in relation to stamps upon packages of other distilled spirits, not imported, and applying them in the case of imported liquors. In doing this its language is that of reference merely, and not of definition. For the precise and statutory description *275 of the offence described we must have recourse to the words of Rev. Stat. § 3324, in the context there found, there being nothing in the act of 1879 showing an intention to qualify their original meaning.
Referring for that purpose to the section of the Revised Statutes in question, we find that the felonies therein defined are as follows:
1. The removal by any person of any stamp provided by law from any cask or package containing, or which had contained, distilled spirits without defacing and destroying the same at the time of such removal, or aiding or assisting therein.
2. Having in possession any such stamp so removed as aforesaid.
3. Having in possession any cancelled stamp, or any stamp which has been used, or which purports to have been used, upon any cask or package of distilled spirits.
Of these the offences described in the last division are not adopted by the act of March 1, 1879, and applied to casks or packages of imported liquors. It is not an offence, therefore, under this act for one merely to have in his possession any cancelled stamp provided by law to be affixed to each package of imported liquors, or any stamp which has been used on such package, or which purports to have been so used. To constitute the offence of unlawfully having in possession any such stamps they must have been removed from the package on which they were once placed without being defaced and destroyed at the time of such removal. But every such stamp, once in use upon such package, to come afterwards into the possession of a person, must in one sense have been removed; that is, must in some way and by some means have ceased to be affixed to the package on which it was used, and have become detached and separated from it. This may have happened without the agency of a human will, by mere accident, or as the effect of unintelligent causes, and without design on the part of any person.
But it is not in this sense, that possession of removed stamps is made an offence in the previous clause of the section; for so to construe it would be to obliterate the statutory distinction *276 between the two crimes, that of having in possession removed stamps, and of having in possession used stamps. A stamp, once in use, may have accidentally fallen off the package, yet afterwards to have it in possession is an offence under § 3324. But it is not an offence under the act of March 1, 1879. To have in possession stamps that have been removed, without at the time of removal having been defaced and destroyed, is an offence under both laws, one in the case of domestic distilled spirits, the other in that of imported liquors. The removal, therefore, which describes a removed stamp, possession of which is thus made unlawful, must be a designed removal from the package by human agency, without defacing and destroying it at the time; such removal as by the first division of the described offences, constitutes the guilty act of the person removing it. It is the possession of such a stamp, "so removed as aforesaid," in the language of the clause defining the offence, that must be shown to constitute guilt; that is, possession of a stamp, not merely once used and afterwards found and taken into possession, but possession of a stamp, which some person, although he may be unknown, has removed intentionally and by design, and failed, by neglect or otherwise, at the time of removal, to deface and destroy. So to remove such a stamp is one offence; to aid and assist in such a removal is another; the third is, to have in possession such a stamp, "so removed as aforesaid;" and these are all of that class of offences embraced by the 12th section of the act of March 1, 1879.
It follows, from this view of the law, that the indictment in the present case is substantially defective, because it does not set out an offence under the statute. It does not describe the crime intended in the language of the act, inasmuch as it does not charge that the defendant had in his possession a stamp of the kind and description mentioned, which stamp had been theretofore removed in the manner prohibited by the law; that is, by some person, without defacing and destroying the same at the time of such removal. It also follows that whatever presumptions may arise as to the manner of removal, when properly charged, from the circumstances in proof accompanying the fact of possession, it is competent for the defendant to *277 introduce evidence in explanation of those circumstances, and tending to show that the stamp in question was not removed by any person, without defacing and destroying the same at the time of removal, but was in fact detached and removed from the cask or package without human agency, and by the accidental intervention of other causes.
Proceeding to dispose of the questions certified specifically, we answer the first, fourth, fifth and eighth questions in the negative, and the seventh in the affirmative. The second, third and sixth questions we decline to answer, because the answers given to the other questions necessarily dispose of the whole case, and because we cannot answer them without a more complete statement of the facts on which they are supposed to have arisen than is furnished by the present record.
The cause is remanded, with directions to take further proceedings therein, not inconsistent with this opinion; and it is so ordered.
