832

FEDERAL REPORTER, vol.

42.

. :U appeared in evidence upon the trial that the chattels, the larceny Q'hVihieh object of the conspiracy, were at the. time in the possession ,of the collector of customs, at tbecustom-houae at Ogdensburg, having been seized by the collector as smuggled merchandise preparatory to the institution of proceedings for forfeiture and condemnation. The chattels were therefore in tbe possession of an officer of the United States, and his possession wtis in law tbepossession of the United States; and the United States had a sufficient special property in them to warrant the averment of the indictment. Possession is sufficient evidence of title; and if goods are stolen from a thief they may be described lIS tbe property of: the thief inwbosepossessiontbey were when stolen', or of the true 6wner, at the electionof the pleader. Ward v. People,S Hill, 396.· There was no error in the rulings excepted to upon the and the judgment is accordingly .

UNITED STATEs 11. GARDNER.

(C(rcuU. Court, N. D. New York. May 22, 1800.)

1.

"smokingopiUIn " and" prepared opium" suft!.oiently dei6ribes dutiable me:robandise under 22 U. B. St. at Large, p. 495 '5 2502,presorib-· iUjf, on" opium prepared for all other preplWatlons of opiumnot specially enumerated orpl'ovided for in this act.» '. , \:leing oa.ught with smuggled opium in his possession, represented to tbe oMoer that he was apting under instruotions of a government oJDoer.and as\!:ed hbli tCi telegraph aboutllhe matter. The reply to the telegram stated that dMend!i\nl)\VasDot a(lting ul'ldel'. instruction&, al14 tbathis false statement, coupled with his arrest while in the aot !If smuggling .,,\,as stro}lg eyidenoe of tell'l,gram and reply were shown defendant,1and on hIS tnal were. admItted In eVidence· 'though of the reply expressing an opinioll. Of defendant's guilt might if objeoted to on the ground th,at it was not sive to the telegram, yett the court was justified in assuming at the time it was adw0111d be oft'ered all to defendant's statements or silence when the reply was shown him, whioh would,haveIQade it admissiple.

.,6.p. indlctment for

Oll' PBQPERTY.

..

9. EVIDENCE-.ADMISSIBILIT't.

a

SA.ME-WAlVEB 011' ERROR.

In such :case, the evidence, on the assumption of theintrodulJtion of whioh the tel:. egram,and reply n.ot In been introduced, defendant should have moved to have the admitted eVIdenoe WIthdrawn from the jury. Not havin.g done so.· he cannot complain. .

Error to the District Court. Richard Or(f/l)ley, for plaintiff in error. John E.Sm:Uh, Asst. U. S. Atty.
WAl.LACE, J. Thisisa writ of error to review a judgment of the district court whereby the defendant below was convicted. of the offenses ofsrituggling and concealing smuggJedgoods, and sentenced to imprisonment for a terril of four years'.,The:indictment contains Iiine corln,ta. At the close of the evidenceth& court instructed the jury torertdera verdibt:of acquittal as totha. eighth, and ninth counts. ' The

UNITED STATES!'. GARDNER.

833

other counts charge the defendant below with having smuggled into the United States at different times merchandise subject to duty by law, described in some of them as a specified number of pounds of "smoking opium," and in others as "prepared opium," knowing that the duty due and payable thereon had not been paid or accounted for, and with concealing the opium, knowing thatit had been imported contrary to law.. The court was asked upon the trial to instruct the jury to acquit him as to the remaining counts of the indictment, upon the ground that the indictment did not describe any dutiable merchandise, there being no duty imposed by statute upon any such article as" smoking opium" or "prepared opium." The court refused so to instruct the jury, and the first point now urged is that this refusal was error. The act of March 3, 1883, (22 U. S. St. at Large, 495,) by Se<ltion 2502, classifies and sub-: jects opium to duty as follows: .. Opium, crude, ... ... ... one dollar per pound. ... ... ... Opium, prepared for smoking, and all other preparations of opium not speciallyenumerated or provided for in this act, ten dollars per pound, ... ... * Opium, aqueous, extract of. for medicinal uses, and tincture of, as laudanum, and all other liquid preparations of opium not specially enumerated or provided for in this act, forty per centum ad valo1'em." It cannot for a moment be doubted that under the .statute opium, whether crude or prepared in a solid or liquid form, is dutiable; and it is obvious, therefore, that an indictment which describes the merchandise smuggled and concealed as "smoking opium," or" prepared opium," describes it sufficiently to denote that the merchandise was within the classification of dutiable merchandise. The rule of criminal pleading is that, where chattels are the subject of an offense, as in larceny, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods must be stated. The present indictment fully complies with the requirements of this rule. The description of the merchandise is certainly as full and specific as it '''ould be if it had been described as so many pounds of opium "prepared for smoking," or of" a preparation of opium." It is insisted that the court below erred in receiving in evidence upon the trial the telegraphic message sent by Mr. Winslow,a specialtreamry agent, and the reply in answer thereto. These were admitted against· the objections of the defendant, and the exception to the ruling raises the question of the competency and materiality of the evidence. The case made upon the trial was this: The revenue officers of the United States had seized within the collection district of Cape Vincent two lots of opium in boxes. One lot. at the time of seizure, was being transported in a sleigh, accompanied by the defendant and one Ephraim Gardner, a relative of his; the other lot was concealed in a barn belonging to Ephraim Gardner. It was shown that the defendant and Ephraim Gardner, while passing under assumed names, had been concerned in removing the opium from the Canada side of the St. Lawrence r;ver to the American side. When the defendant wu arrested he represented, v.42F.no.14-53

884>

FEDERAL REl?ORTER,

vol. 42.

that he had formerly beep a government officer, and was actingl rat the of certain government officers, as a confederate of Canadian opium smllgglers, with a view to break up the operations of tbesnlUgglers, and effect the of their opium; and he aske<l Mr. Winslow to telegraph to one Ayres, a special agent of the treasury departlllent, at San Fl1'ncisco, and ask him if he (the. defendant) was not llr<;ltinK under instruqtions. Mr. Winslow sent a telegram, :lI.ud received a ,reply from Mr. Ayres; The day after the reply. messllge .and the \fere ;shown to the defendant., substance,wall that the defendant was not acting under the direcm();u ()r.\Vith the knowledge or approval of Mr. Ayres, and that his . false; statenientin with his arrest in .the act of was, to the Dlilld of M,.. Ayres, strong evidence of his guilt. Inasmuch as no evidence was offered on the part of the defendant to conwhich had. been shown on the part of the . and .as the evidence shoWhig that the defendant hadhrpught the opium clandestinely from Canada into this country, and had concealed some of it, and was about removing the rest, was overwhelo1ing, it would seem that hie falee statementiHls to the nature of his connection with the transaction were of but little importance either as tending to show that he was a participant inswuggling the opium or was actuated by a crimwas sent He left it to the dis- . inal intent. The cretiQn o,f:Mr. Winslow .to .frame the inqtliry, and in effect he authorized thf reply to be. made by ])Ir.Ayres as his own Mr. Winslow to, statement. If the p&.:t·qfthe reply ()f ])Ir. Ayr(lswbicb was not properly .resp()nsiYeto the, inquiry, and which gave Mr. Ayres' own opinion of the guilt of tpe defendant, was inadmissible, the objection. should thll.t ground. But t}Ie. ruling can be vindicated have beell was malie it had been upon another consideration. When. proved. that the message and. reply had peen shown the defendant, and th.e cO\lrt in assuming that testimony would be offered by the government respecting the starementsor .silence <of the defendant when t11e. papers were exhibited to him. . Such testimony would certainly have rendered the message and reply admissible. When such introduced, a motion should have been made to strike testimony was ·If such a motion· out the evidence, Qr instruct the jury to disregard had been maqe, the. testimony which. would have rendered it competent might haVe Qeen,suppUed. Not ha"ing .mllde such 8. motion, the defendant eannQtjustly Gomplain of a ruling which was not necessarilyerroneous when it was mad-e. The judgment is.

I

i

UNITED STATES

v. HARTlEY.

835

UNITED STATES tI. HARTLEY.

(DiBtrf.ct Court, N. D. Mf88is8ippt,W. D. .Tune 111, 1890.)

L

9.

Rev. St. U. s. § 5467, provides: "Any person employed in any department of the postal service who shall secrete, embezzle, or destroy any letter * * * which shall contain any note t bond, * * *, "-but provides no penalty after su()h clause. After a semicolon, it turtherprovides: "Any such person who shall steal or take away of the things aforesaid out of any letter, * * * shall be punished," etc. that, since there is no penalty attll.ched to the first clause, the section only eov4;lrs the offense described iii the second clause, of stealing or taking away.
BAME-INDICTMENT.

'i ' " '

FROM M..uLS-CONSTRtlCTION OF STATUTE.

Where an indictment under Buch section that defendant,"did secrete, embezzle, and destroy" certaillletters, etc., "withln the intent and of section 5467 ,Revised Statutes of> the United States, "the recital of such section Will be oonsldered surplusage, and the indictment, though not good under said section 5467, will be considered suftlcientunder section SSIlI, which provides that "any person employed in any department of the postal service who shall unlawfUlly detain, delay, or. open any letter, packet,' * * * or who .shall secrete, embezzle, or destroy any such letter, packet, * · · shaH be punlshed, " eoo. '

On Motion to Quash Indictment. Rev. St. U. S. § 5467, provides: "Any person employed in any department of the postal service who shal1aecrete, embezzle, or destroy any letter * * * which shall contain any note, bond, * * *; any such person who shall steal or take any of the things aforesaid out of any letter, * * * shall be punished," etc. Section 3891 provides: "Any person employed in any department of the postal service. who shall unlawfuilydetain, delay, or open any letter, packet, * * ·· or who shall secrete, embezzle, or destroy any such letter, packet,"'''' * shall be punished," etc. Henry a. N'Iles, U. S. Dist. Atty. Edward Mayes, for defendant.
HILI" J. The questions for decision now presented arise upon thE' defendant's motion to quash the indictment. The indictment charge, that the defendant, on the 17th day of June, 1887, within this district, did secrete, embezzle, and destroy certain letters intrusted to him, and which then and there came into his possession, and which were then and there intended to be conveyed by the mail, which said letters then and there contained articles of value within the intent and meaning of section 5467, Rev. St. U. S., a more particular description of which said letters and contents to the grand jurors were unknown; the said George A. Hartley then and there being a clerk in the post-office of the United States at Lyon, in said district, contrary to the form of the statute of the United States, and against the peace and dignity of the United States. The grounds of the motion to quash the indictment, as stated, are: (1) The indictment does not charge that the acts set forth were done feloniously. (2) That the indictment does not charge that the articles were taken out of the letters. (3) That the indictment does not sufficiently describe the contents of the letters. (4) Because that, as to the first count in the indictment, the charge therein contained is self-