Krench v. United States, 5593.

• Decision Date: 27 June 1930
• Docket Number: No. 5593.,5593.
• Parties: KRENCH v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

42 F.2d 354 (1930)

KRENCH v. UNITED STATES.

No. 5593.

Circuit Court of Appeals, Sixth Circuit.

June 27, 1930.

Leonard S. Coyne, of Detroit, Mich., for appellant.

G. S. Fitzgerald, of Detroit, Mich. (John R. Watkins, of Detroit, Mich., on the brief), for the United States.

Before DENISON, MOORMAN, and HICKS, Circuit Judges.

MOORMAN, Circuit Judge.

Appellant was indicted and convicted upon three counts. The first charged the bringing of merchandise into the country in violation of the Tariff Act of 1922, the second concealment of merchandise after it had been brought in in violation of the act, and the third conspiracy to import and bring merchandise into the country in violation of the same act.

It is the contention of appellant that counts 1 and 2 are duplicitous because each of them charges two separate offenses, namely, a violation of section 593(b) of the Tariff Act of 1922 (19 USCA § 497), and a violation of section 3 of title 2 of the National Prohibition Act (27 USCA § 12). In this respect both counts are almost identical with the indictment considered by this court in Kurczak v. United States, 14 F.(2d) 109, and upon the authority of that case the contention must be denied. Nor do the two counts charge the same offense, as appellant also contends. The statute on which they are based, section 593(b) of the Tariff Act of 1922, makes it unlawful for any person knowingly to import into the United States any merchandise contrary to law, or to receive, conceal, buy, sell, or in any manner facilitate the importation of merchandise brought into the United States contrary to law. Thus the statute makes it an offense to bring into the United States merchandise contrary to law, and also an offense to conceal merchandise knowing it to have been brought into the United States contrary to law. Count 1 of the indictment charges the first of these offenses, and count 2 charges the second.

It is also contended that there was no proof of the venue of the offenses. This contention rests upon the failure of the government to introduce evidence of the location of the international boundary line between the United States and the Dominion of Canada. The merchandise, Canadian beer, was seized by customs officers on Mud Island, situated in the dividing waters between the United States and Canada about 200 feet from Ecorse, Mich., a village on the American shore line. While no evidence was offered to show the location of the international line in these waters, the court may take judicial notice of the official charts published by the War Department engineers, and these charts show that Mud Island is on the American side of the international line. The venue thus existed.

The facts which the government proved are as follows: Appellant employed Johnson and Lamond to go across the river and bring back to the American side a quantity of Canadian beer consisting of 286 cases. Johnson was a boy eighteen years of age, but Lamond seems to have been an old hand at "working the river." Under the directions of appellant, Lamond and Johnson crossed the river in appellant's boats, procured a load of beer, 50 cases, and about 9 o'clock at night left the Canadian dock for Mud Island. They arrived at the latter point at 10 o'clock the same night, concealed the boats in the weeds, and about 2 o'clock the next morning were apprehended by officers of the border patrol.

We find nothing in Keck v. United States, 172 U. S. 434, 19 S. Ct. 254, 43 L. Ed. 505, which sustains the contention that these facts, if believed by the jury, did not justify convictions on all the counts. In the Keck Case the first count was held to be demurrable because it did not sufficiently inform the defendant of the nature of the accusation. That count was based upon section 3082 of the Revised Statutes, which is similar to the provisions of section 593(b) of the Tariff Act of 1922, under which counts 1 and 2 in this case are drawn. In the present case it is not denied that counts 1 and 2 are sufficiently definite as to their accusations. The second count in the Keck Case was based upon section 2865 of the Revised Statutes corresponding to section 593(a) of the Tariff Act of 1922 (19 USCA § 496). That statute is directed against smuggling, and what was held by the majority opinion in that case was that the mere act of concealing merchandise on entering the waters of the United States does not of...