c39:No. 12394

PARKINSON, Circuit Judge
(concurring) .
The rule is inherent in our system of criminal jurisprudence that a penal statute must be strictly construed. It is for-the legislature, and not the court, to define a crime and ordain its punishment. Such a statute cannot be extended by intendment and no act can be punished, thereunder unless clearly within its terms. Todd v. United States, 1895, 158. U.S. 278, 282, 15 S.Ct. 889, 39 L.Ed. 982 United States v. Weitzel, 1918, 246 U.S. 533, 543, 38 S.Ct. 381, 62 L.Ed. 872; Yates v. United States, 1957, 354 U.S. 298, 304, 77 S.Ct. 1064, 1 L.Ed.2d 1356.
I agree that 26 C.F.R. § 182.864 is invalid as it is not authorized by § 3070 (a) nor any section of the Industrial Alcohol Plants Act, § 3100 et seq., and is not consistent with any statute under which the Government claims it was promulgated. McCeney v. District of Columbia, 1956, 97 U.S.App.D.C. 282, 230 F.2d 832, 835. A regulation cannot amend a statute. Miller v. United States, 1935, 294 U.S. 435, 440, 55 S.Ct. 440, 79 L.Ed. 977. Therefore, the sole remaining question, under the contested issues as formulated by the Government, is whether the indictment is valid or invalid under § 3072.
This section applies only to alcohol which has been withdrawn for denaturation but never denatured, and alcohol which has been recovered after denaturation. Thus if one uses alcohol, withdrawn tax free and prior to denaturation or recovered after denaturation, for manufacturing any beverage or liquid medicinal preparation or sells same he commits an offense as defined by § 3072. In order for this statute to make it a crime to so use denatured alcohol or sell a beverage or liquid medicinal preparation- made therefrom we would have to judicially legislate by enlarging the statute and inserting the word “denatured” in at least two places therein. This we cannot do even to supply inadvertent omissions, Iselin v. United States, 1926, 270 U.S. 245, 251, 46 S.Ct. 248, 70 L.Ed. 566; but to do so here would completely change § 3072 from a tax enforcement statute implementing § 3070(a) to one not only repugnant thereto but internally incongruous.
The indictment fails to charge a criminal offense and the District Court was correct in so holding.

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