The Steamer Cambridge, the Steam Tugs Underhill and Chase.

answer, in another place she avers that the rotten condition of the schooner was the sole cause of the damage. Moreover, it appears from the evidence that the schooner was just ready for sea, with a part of her lines cast off, and in the act of hoisting her foresail. So situated, she had the right to suppose that no vessel would, at that time, attempt to land alongside of her-certainly she could not suppose that this large steamer would thus come alongside of her as she did. Nor was she notified of such intention by those in charge of the landing of the steamer-a notice which could easily have been given, and which, under the circumstances, should have been given, to make a case of neglect on the part of the schooner. I do not, therefore, consider the schooner in fault for not having fenders out on her outside, assuming, what is by no means clear to me, that fenders on the schooner would have prevented the injury. The libel as against the "Underhill" will, accordingly, be dismissed with costs. The libel as against the "Cambridge" will also be dismissed with costs, and a decree rendered in favor of the libellant against the "Chase" for the amount of the damages, with costs.

For libellant-Benedict & Benedict.

For the Cambridge-W. W. Niles.

For the Underhill and the Chase-Beebe, Donohue & Cooke.

BT. VOL. IV.-24

The United States v. David H. Thomas.

Northern District of New York.

NOVEMBER, 1970.

THE UNITED STATES vs. DAVID H. THOMAS.

SMUGGLING.-PLEADING.-IMPORTATION.-Indictment.

As a general rule it is not contrary to law, to import or bring into the United States goods subject to duty without having paid or accounted for such duties. Goods are brought into the United States as soon as they are brought into its territory, and the act of their importation is complete when they are volun tarily brought into a port of delivery, with intent to unlade them there. There is no case, in which a penalty or forfeiture is incurred, or any crime or offence committed, simply because the duties on imported goods are not paid, or accounted for before the importation is complete. It is by acts or omissions subsequent to the importation, that forfeitures or penalties are incurred or crimes or offences committed, unless there is some law expressly declaring the importation itself, or the manner of making it, unlawful.

The secret and clandestine manner of the importation with the intent to defraud the revenue, and not the non-payment of or not accounting for the duties prior to the importation, constitutes the gist of the offence of smuggling under the 19th section of the Act of August 30, 1842.

An indictment for illegally importing foreign goods is insufficient when it does not show the facts constituting the illegality of the importation alleged, or state the particular illegality intended to be proved.

If an indictment set out the offence with greater particularity than is required, the proof must correspond with the averments, and nothing descriptive of the offence can be rejected as surplusage.

HALL, J. The defendant was tried at the present term, and a verdict of guilty was rendered upon one count of the indictment against him. He thereupon moved in arrest of judgment on account of the alleged insufficiency of the count on which he was convicted. This count charged "that the said David H. Thomas, now or late of Niagara, in the county of Niagara, in.

The United States v. David H. Thomas.

the State of New York, heretofore, to wit, on the first day of September, in the year of our Lord one thousand eight hundred and sixty-nine, at Niagara, in the county of Niagara, and State of New York, in said district, and within the jurisdiction of this court, did fraudulently, knowingly and unlawfully receive and conceal certain goods, wares and merchandise, to wit: five hundred pounds of nutmegs, after their importation into the United States contrary to law, knowing the same to have been imported contrary to law, in that, that the said goods, wares and merchandise so imported as aforesaid were, at the time the same were so imported into the United States, subject to duty by law, the duties due and payable upon said goods, wares and merchandise not having been paid and accounted for, he, the said David H. Thomas, at the time he so received and concealed the said goods, wares and merchandise as aforesaid, well knowing that the duty due and payable upon said goods, wares and merchandise had not been paid or accounted for, contrary to the statute of the United States of America in such case made and provided, and against the peace of the United States and their dignity."

The count was intended to be based upon the 4th sec. of "An act further to prevent smuggling and for other purposes," approved July 18, 1866 (U. S. Stat. at Large, vol. 14, 179), and which provides "that if any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any goods, wares or merchandise contrary to law, or shall receive, conceal, buy, sell or in any manner facilitate the transportation, concealment or sale of such goods, wares or merchandise after their importation, knowing the same to have been imported contrary to law, such goods, wares and merchandise shall be forfeited, and he or she shall, on conviction thereof before any court of competent jurisdiction, be fined in any sum not exceeding $5,000, nor less

The United States v. David H. Thomas.

than $50, or be imprisoned for any time not exceeding two years, or both, at the discretion of such court; and in all cases where the possession of such goods shall be shown to be in the defendant, or where the defendant shall be shown to have had possession thereof, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury."

It will be seen that the indictment in express terms limits the allegation that the nutmegs mentioned in the indictment were imported and brought into the United States contrary to law, by stating that the same, being subject to duty by law, were so imported and brought into the United States without the duties due and payable thereon having been paid or accounted for; at least, that is the substance of what it was intended to allege by the inartificial language used in the indictment.

This makes it necessary to consider what is the true construction of the fourth section of the act of 1866, above recited, and whether the allegation made brings the case stated within its provisions.

As a general rule, it may be said that it is not contrary to law to import, or bring into the United States, goods subject to duty without having paid or accounted for such duties. In almost every case of importation the goods are not only brought into the United States, but are imported, in the true legal sense of that term as used in the revenue acts, before there is any obligation to account for or make payment of the duties. They are brought into the United States as soon as they are brought into its territory; and the act of their importation is complete when they are voluntarily brought into a port of delivery with intent to unlade them there (United States v. Lindsay, 1 Gallison, 365); and if the goods are subsequently entered, and the other provisions of the law afterwards complied with, and the duties paid, no penalty or forfeiture is incurred.

The United States v. David H. Thomas.

Indeed, it is believed that there is no case in which a penalty or forfeiture is incurred, or can be enforced, or any crime or offence committed, simply because the duties on imported goods are not paid or accounted for before the importation is complete. It is by acts or omissions subsequent to the importation that forfeitures and penalties are incurred, or crimes or offences committed, unless there is some law expressly declaring the importation itself, or the manner of making it, unlawful. The 19th section of the act of August 30, 1842, which provides for the punishment of any person who "shall knowingly, with intent to defraud the revenue of the United States, smuggle or clandestinely introduce into the United States any goods, wares or merchandise subject to duty by law, and which should have been invoiced, without paying or accounting for the duty," makes the clandestine introduction or smuggling into the United States of dutiable goods, in cases therein provided for, a criminal offence, which is complete as soon as the goods are so clandestinely introduced or smuggled into the United States; but in such cases it is the secret and clandestine manner of the importation, with intent to defraud the revenue, and not the non-payment of or not accounting for the duties, prior to the importation, which constitutes the gist of the offence.

There are many cases to which this 4th section of the Act of 1866 was probably intended to apply, and to which it may be properly applied; but it is unnecessary to refer to more than two or three Acts of Congress to show what was probably the general intention of the National Legislature in adopting the section under consideration. By the 5th section of the act of July 10, 1861 (12 U. S. Statutes at Large, 257), the President was authorized, under the circumstances therein set forth, to declare the inhabitants of a State, or any section or part thereof, to be in a state of insurrection against the United States; and by the same section it was pro