On Petition for Rehearing.
PEE CUEIAM.The indictment in this case charged that the appellant fraudulently, knowingly, and unlawfully received and concealed and facilitated the transportation and concealment of certain eases of Canadian whisky after their importation into the United States, contrary to law, in that such merchandise had been smuggled and clandestinely introduced into the United States, and into the Collection District of Montana, from the Dominion of Canada. In a petition for rehearing filed by the appellee, there seems to be some contention that this eourt, in its opinion, held that it was incumbent on the government to prove that the intoxicating liquor was introduced into the United States from the Dominion of Canada, as charged in the indictment; whereas, the government contends that this aver*134ment in the indictment was surplusage and that it was competent to prove importation from any other country. For reasons hereinafter stated, the question whether it was incumbent on the government to prove that the liquor involved was Canadian whisky and was imported into the United States from the Dominion of Canada, or whether these averments in the indictment should be rejected as surplusage, we need not inquire; .and the question will be left open for future consideration. We adhere to the views expressed in our former opinion, that there was no substantial evidence tending to prove that the liquor was imported from any source, aside from the labels found on the bottles; and we think it is well settled that such labels, when found on containers of intoxicating liquor, have little or no tendency to prove the kind or quality of the liquor, or the place of manufacture, in the absence of evidence tending to prove that the labels are genuine. United States v. One Packard Sedan (D. C.) 14 F.(2d) 874; United States v. Packard Sedan (D. C.) 23 F.(2d) 865. As said by the Circuit Court of Appeals for the Eighth Circuit, in Bronstein v. United States, 17 F.(2d) 12, 14:
“The liquor, in all probability, resembled gin as closely as it did any recognized preprohibition liquor. Most modem hard liquors, aside from their flavor, come from the same still, and it is a matter of commón knowledge that a few drops of the oil of juniper constitutes these days the difference between beverage alcohol and so-called gin.”
In the absence of evidence of importation, there is, of course, no room for presumptions of any kind.
The judgment is reversed and the case remanded, as heretofore ordered.