FEDERAL REPORTER. CASADO'll. SCHELL, Collector.
Oourt, S. D. New York.
December 22, 1887.)
CUSTOMS DUTIES-GAUGING-ExPENSE OF-FEES.
Rev. St. U. S. S\ 2920, relating to the collection of duties, provides that, in all cases in which the invoice or entry does not contain the weight or quantity, or measure of merchandise, now * * * gauged the same, shall be * * * * * * at the expense of the o:wner, agent, or consignee. In an actIOn to recover gauger's fees paid by an importer, held that, where an importer or merchant does not accurately state the quantity of his goods, whether stated in known units employed in this country, orin known foreign units, and the result of the gauging shows that the gauging was necessary in order to determine the fact that the quantity was not accurately stated, the importer or merchant must bear the expense thereof.
This was an action to recover gauger's fees paid in 1857, 1858, and 1859, on importations of wine from Spain. The invoices stated the quantity in quarter-casks and octavE',s, and evidence introduced by the plaintiff tend.ed to show that these were fr.lctions of the pipe or butt, by which wines were bought and sold in Spain, IlDd which, in the different Spanish ports, contained a definite number of gallons; that its capacity was not the same in all ports; but that the respective capacities of the Cadiz, Malaga, Barcelona, and other pipes was well-known to the trade, both there and here. Almon W. Griswold, for plaintiff. Stephen A. Walker, Dist. Atty., for defendant. LACOMBE, J., (oraUy.) Irrespectiye, entirely, of the decision of Judge the more recent deliverances upon the points now raised in this circuit, seem to be sufficiently conflicting to entitle this court to treat it substantially as a new question, and to determine it by a construction of the statute, unconstrained by any particular decision. Nor is there ",anything in the contention that the practical construction of the statute by the treasury department sustains the plaintiff's interpretation, because that department has construed the section differently at different times. ,The statute referred to is that of 1846, which provides that" in all cases in which the invoice or entry shall not contain the weight or quantity. or measure of goods, wares, or merchandise, now [that is, at the time of the passage of that statute, and it appears and is not disputed that, at the time of the passage of that statute, wines of this character were measuredJ-weighed or measured or gauged, the same shall be weighed, gauged, or measured at the expense of the owner, agent, or consignee." What did congress mean by that particular piece of legislation? Before this act was passed, it appears that wines and liquors were measured and gauged, and that the gauger's fees were paid by the government. Congress evidently meant to make a change in that system of some kind, or it would not have enacted this section. The change which it has made may be either oftwoj that is to say, the section lenQ.s itself to either of two constructions. The one construction, which is practically that for which
UNITED STATES V. -:trEE HO.
the plaintiff contends, is that if the invoice or entry contains a statement of a unit of measure, common in a foreign country, and known to gaugers and appraisers and persons in business here, as comprehending a certain, fixed, definite quantity, that in that case the fees shall not be charged to the importer, whether the package, when it is broken here and examined into, does or does not contain the total of that unit, or of its particular multiple or fraction. On the other hand, the section equally lends itself to the construction that it was intended to provide that, in cases where the merchant or ,importer did not accurately state the total quantity of his goods, whether he may have stated it in the known units employed in this county, or in known foreign units, and the result of the gauging showed that the gauging was necessary in order to determine the fact that the qual'ltity, (and consequently the value thereof,) as reported, was different from the quantity and value as found, then, in the event that such a discrepancy appeared, the merchant or importer was to bear the expense of gauging. That seems to me to be the most reasonable interpretation of this particular section, and I shall therefore direct the jury to find a verdict for the defendant.
Ho et ale
(District Oourt, D. Oregon. Decemper 81,1887.)
1. CUSTOMS DUTIES-ILLEGAL !MPoRTATION....,..INDICTM;ENT.
It is not sufficient, in an indictment, under section 8082 of the Revised Stat. utes, to charge the defendant in the language of the statute, with importmerchandise into the United States "contrary to law," or with having receIved or bought the same, after being so imp'orted. but the indictment must state, with reasonable certainty, in what the Illegality of the importation consists.
The offense of merchandise into the United States "contrary to law, .. as defined by sectIOn 8082 of the Revised Statutes, does not include frauds or illegalities concerning the invoicing of the same, or the payment of duties thereon, which can only occur after the importation is accomplished, and the merchandise brought within the cognizance of the cust<1Ins officers; (Syllabu8 by the Oourt.)
Indictment for Importing Contrary to Law. Kee Ho and Lee Ark were indicted for importing opium contrary to law. L. L. McArthur, for the United States. R. Ma.llO'ry, for defendants.
DEADY, J. The indictment in this case is found under section 3082 of the Revised Statutes, the same being section 4 of the act of July 18, 1866, (14 St. 179,) entitled" An act further to prevent smuggling, and for other purposes." It provides that "if any person shall fraudulently or knowingly import or bring into the United States, or assist in 'so"d(}o
ing, any merehandise contrary to la.w, or shall receive, conceal, bUY·r sell, 0); in ahy manner facilitate the transportation, CbI1cealment, or saleof such merchandiseittfter importation; knowing the same to have been imported contrary to law, such merchandise shall be forfeited, and the offendershallbe fined in any sum not exceeding $5,000 norless than $50, or be imprisoned for any time not exceeding two years; or both." The indictment contains five counts; and the merchandise alleged tOo to have been illega.lly imported consists of 161 packages of prepared opium of the value of $1,490. The first connt charges the defendants with importing and bringing the opium into the United States, on May 6, 1887, with il'ltent to defraud the revenue thereof. It is alleged that the opium wRs"subject to duty by la.w," and "should have been invoiced," and was imported "without paying or accounting for the duty dne and payable" thereon, contrary to the statue in snch cases made and provided. The second couDtcharges the deftmdants with receiving the 0.,eiulD from some person to the grand jurors unknown, knowing the same to have been imported contrary to law. The third one charge$ them with buying the same from such unknown person with the like knowledge. The fourth one charges the same offense as the second one, with the additional allegations that the opium had been theretofore imported contrary to law, and "without paying or accounting for the duty due and payable thereon." 'rhe fiftp. one is similar to the third one, with the addition of the allegations' concerning the importation of the opium, and the non-payment of the duty thereon, as in the fourth one. The defendants demur to the first count in the indictment, and the reseparately, for that neither of them "charge a crime maining. four against said 01' either ofthem. " ,It is not al,w.a,ys sufficient to state an offense in the language of the statute declaring 01' :defining it. Unless the statute distinguishes or individuates the offense; so that the defendant is notified by itstenns of what he is really to be tried for, it is not sufficient to follow its language, in drawing an itldictment under it. Whart. Crim. PI. § 220; U. S v.Simmons, 96 U. S. 360.. In thIs calle it was held that an indictment, drawn unofiheRevised StatutE'S, in which the crime was described in'thelanguage thereof, was insufficient. In delivering the opinion of the court, Mr. Justice HARLAN, after stating the general rule to be, that it is sufficient to the defendant "in the substantial words of the statute, with.out any further expansion of the matter," said (page 362:) ('Bund,thisgeneral rule there is the qualification; fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certa-inty, of the nature of the accusation against him, to the end that he may prepare his defense, and plead the as a bar to any subsequent pmsecution for the same offense. so framed is defective, although it may follow the language ofthe statutE'." . ' stattite under which this indictment is drawn is inrendeq', as the title of the act from which it is compiled indicates, to prein.ttdduetionofgoods into the United' vent sn'1'l!lggling-""-the
UNITED STATES V. KEE
States without passing them through the custom-house, and with intent to defraud the revenue of the United States. But its language is broad enough to include, and does include, every case or form of illegal importation, even where the intent to avoid the payment of duties does not exist, as the bringing in of prohibited or goods packed in prohibited methods. The language of the section, "import contrary to law," or individuate anyone of the variis very general, and does not ous .11egal importations that come within its scope and operation. And, ,in charging a crime under the section, to therefore, it becomes state in the indictment in what the illegality of the importation or bringing intO the United States consists; and, unless this is done, no particular crime is charged, and the indictment is demurrable. See U.S. v. Thomas, 4 Ben. 370; U. S. v. Olaflin, 13 Blatchf. 186, in each of which cases a demurrer was sustained to an indictment under this section on this ground. Nor does the statement in the latter part of the count, to the effect that the opium is dutiable, and should have been invoiced, and the duty was not paid thereon , help the case in any respect. Theoffel1se of bringing into the United States" contrary to law" does not include frauds or illegalities concerriing the invoicing of the same or the payment which can only occur after the importation is accomof duties plished, and the merchandise brought within the cognizance of the customs officers. .U. S. v. Claflin, 13 Blatchf. 184. This allegation is immaterial, and must be treated as surplusage. The demurrer to the count . is sustained. In the consideration oUhe demuJ,'rer to the remaining counts in the indictment, the fourth and fifth ones will be regarded, in this respect, as mere repetitions of the second and third ones. The statement in the former concerning then<>;n-payment of duties in the description of the original offense of. importing the opium, being no part of such offense, and therefore immaterial, both the second and fourth counts alike charge the defendantS with the commission of the secondary offense of receiving the opium knowing it to ,have been imported or brought into thc United States contrary to law, while the third and fourth counts charge them with buying thc opium under similar circumstances. In a count charging the secondary offense of buying or receiving goods imported contrary to law, it is not necessary to describe the original offense with the same particularity of time, place, and circumstance that is required in a count for such original offense. The rule in the case of an indictment for receiving stolen goods furnishes a safe analogy. In such case it is not necessary to name the thief, norto allege his conviction, nor to statE: the timea,ud place when and where the goods were stolen; and, generally, it is sufficient to describe the goods, state their value, and allege that before the receipt thereof by the defendant they had been stolen pr feloniottslyta)ten and carriedaway. U.S. v. Olaflin, 13 Blatchf.184; 1 Whart. Crim. Law, §§ 997,...1004. The defendants are charged in these four counts with receiving arid buying thisopiutn, knowing. the Eume to have been imported intI? tht'
United States contrary to law. The fact that such merchandise was so imported is not, however, alleged in either the second or third count, as it should be. And it only inferentially or argumentatively appears from the allegation that. the defendants knew that the opium was imported contrary to law. But the fact is directly alleged in the fourth and fifth counts; and is this a sufficient designation or description of the original offense, even in a count for the secondary offense of buying or receiving? In my judgment it is not. The indictment ought to state, as to these offenses, wherein the importation was illegal or contrary to law-whether the opium was smuggled into the United States, or brought here, whether through the custom-house or not, contrary to a statute prohibiting its introduction into the country, or in prohibited packages, or condition; Hitherto, it may be said that the law permitted the importation of opium. without restraint, as to quantity, package, or condition, and therefore an allegation that such an article was imported contrary to Jaw necessarily implied, and must in law be beld and taken to mean, that it was smuggled.,· .1 This conclusion may be within judicial knowledge, but I hardly think it ought to be imputed to that of the in this or any case, or excuse the prosecution from stating, substantially. in what the illegality of the importation in question consists, so that the defendant may be prepured to meet the charge on the trial. But since the passage of the act of February 23, 1'887, (24 St. 409,) entitled "An act to provide for the execution of the provisions of article two of the treaty" with the emperor of China of November 17, 1880, this right js so restrained that it is now unlawful for any "subject of the emperor of China" to import opium into any port of the United States. Therefore the illegality of this importation of opium may consist in the fact that it was smuggled or that it was imported by a Chinese subject, even if it came through the custom-house, and paid duty. and the indictment ought to show on which of these illegalities, if either. the prosecution relies. The demurrer to the counts for receiving and buying is also sustained.
FAUCHE et 01.
(Oircuit (Jowrt, 8. D. New York. October 24, 1887.)
CUSTOMS DUTIES::"'AcTION TO RECOVER BACK-PROSPECTIVE PROTEST.
A valid prospective protest against the payment of duties, made on a particular importation of merchandise, and expressing the intention of the importer that the protest shall apply to all· future similar importations made by him, is, under the act of February 26, 1845. (5 U. S. St. at Large, 727,) valid as to subsequent importations of similar merchandise on which like duties are exacted by the same collector.
2. SAME. Such prospective protest is not invalidated as to any of such future similar Importations under the act of February 26, 1845, by the same importer's in-