Dunbar v. United States

• Citation: 15 S.Ct. 325,156 U.S. 185,39 L.Ed. 390
• Decision Date: 28 January 1895
• Docket Number: No. 693,693
• Parties: DUNBAR v. UNITED STATES
• Court: United States Supreme Court

156 U.S. 185

15 S.Ct. 325

39 L.Ed. 390

DUNBAR

v UNITED STATES.

No. 693.

January 28, 1895.

On July 14, 1893, there was returned into the district court of the United States for the district of Oregon an indictment against the defendant, William Dunbar, now plaintiff in error, charging him in five counts, under section 2865, Rev. St., with the crime of smuggling. On November 25, 1893, there was also filed in the same court a second indictment, charging him in nine counts with a violation of section 3082, Rev. St.

Section 2865 provides: 'If any person shall knowingly and wilfully, 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, * * * every such person * * * shall be deemed guilty.' The charge in the third count of the first indictment was 'that on the 2d day of September, 1892, in the state of Oregon and in the district of Oregon, and within the jurisdiction of this court, the said William Dunbar did, on the steamship Haytian Republic, a steamship plying between the port of Portland, Oregon, in the United States, and Vancouver, in the province of British Columbia Dominion of Canada, willfully, unlawfully, and knowingly, and with intent to defraud the revenues of the United States, smuggle and clandestinely introduce into the United States, to wit, into the state of Oregon, and within the jurisdiction of this court, and from a foreign country, to wit, the province of British Columbia, in the Dominion of Canada, certain goods, wares, and merchandise, to wit, a large quantity of prepared opium, being about 1,400 pounds of prepared opium, the exact number of pounds being to the grand jury unknown, of the value of $15,400, subject to duty by law, to wit, a duty of twelve dollars ($12) per pound, and which should have been invoiced, without paying or accounting for said duty or any part thereof, and without having said opium or any part thereof invoiced, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the United States of America.' The fourth count was different only in the time and the amount of opium charged to have been smuggled.

Section 3082 is as follows: 'If any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any merchandise, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported contrary to law, such merchandise shall be forfeited and the offender shall be fined,' etc. The substance of the second, fourth, and fifth counts of the second indictment was that the defendant did 'willfully, unlawfully, and knowingly, and with intent to defraud the revenues of the United States, smuggle and clandestinely introduce into the United States' certain amounts of prepared opium. The ninth count charged that 'on the 5th day of February, 1893, said William Dunbar, in the district of Oregon, and within the jurisdiction of this court, did willfully, unlawfully, fraudulently, and knowingly, and with intent to defraud the revenues of the United States, facilitate the transportation after importation of a large quantity of prepared opium, to wit, about 200 pounds of prepared opium, the exact number of pounds being to the grand jury unknown, which prepared opium was subject to a duty by law, to wit, to a duty of twelve dollars ($12) per pound, and which should have been invoiced, and which prepared opium, on said 5th day of February, 1893, had been knowingly, willfully, unlawfully, and fraudulently brought, imported, smuggled, and clandestinely introduced into the United States and into the district of Oregon, and within the jurisdiction of this court from a foreign country, to wit, from the province of British Columbia, Dominion of Canada, and upon which prepared opium no duty had been paid or accounted for according to law, and none of said prepared opium had been invoiced, he, the said William Dunbar, then and there well knowing that no duty had been paid or accounted for according to law on said prepared opium, and that none of said prepared opium had been invoiced, and that the same and the whole thereof had been unlawfully, willfully, knowingly, and fraudulently brought, imported, smuggled, and clandestinely introduced into the United States and into the district of Oregon from said foreign country, said province of British Columbia, in said Dominion of Canada as aforesaid; that the said William Dunbar did then and there facilitate the transportation of said opium, after importation, by packing the same in trunks, and causing the same to be transported as baggage from Portland, Oregon, to San Francisco, California, contrary to the _____ of statute in such cases made and provided, and against the peace and dignity of the United States.'

On November 27, 1893, the court made an order consolidating the two cases for trial. Upon the trial of the consolidated cases, the jury returned a verdict of guilty, as charged in the six counts above referred to of the two indictments. A motion for a new trial having been overruled, judgment was entered sentencing the defendant to pay a fine of $1,000, and to be imprisoned for a term of two years. To reverse such judgment and sentence, the defendant sued out this writ of error.

Mr. Justice Field dissenting.

John H. Mitchell, for plaintiff in error.

Asst. Atty. Gen. Conrad, for the United States.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

The first question presented for our consideration is as to the sufficiency of these counts in the indictment. The description of the property charged to have been smuggled is 'prepared opium, * * * subject to duty by law, to wit, the duty of twelve dollars per pound.'

The revenue act of October 1, 1890 (26 Stat. 567), commonly known as the 'McKinley Act,' was in force at the time of the commission of these alleged offenses, and the only clauses in it in terms prescribing a duty on opium imported from foreign countries are paragraphs 47 and 48 of section 1, which read:

'47. Opium, aqueous extract of, for medicinal uses, and tincture of, as laudanum, and all other liquid preparations of opium, not specially provided for in this act, forty per cent. ad valorem.

'48. Opium containing less than nine per centum of morphia, and opium prepared for smoking, twelve dollars per pound; but opium prepared for smoking and other preparations of opium deposited in bonded warehouse shall not be removed therefrom without payment of duties, and such duties shall not be refunded.'

The contention is: That opium is dutiable only in certain specified forms and conditions, as follows: Aqueous extract of opium for medicinal uses; tincture of opium, as laudanum; all other liquid preparations of opium not specially provided for in the act; opium containing less than 9 per centum of morphia; and opium prepared for smoking. That there is nothing known to the revenue law simply as 'prepared opium.' And, therefore, that a charge of bringing in 'prepared opium' without any payment of duty states nothing which the law prohibits. It is true that the language of paragraph 48 is 'opium prepared for smoking,' while the indictment reads 'prepared opium,' and thus does not limit the description by stating the purpose for which the opium charged to have been smuggled was prepared. Opium may it is said, be prepared for many uses. The statute only imposes a duty on 'opium prepared for smoking.' Hence the indictment is not precise, as it must be, because the terms of description are broad enough to include opium prepared for purposes other than smoking, and not subject to any duty.

But, although these are purely statutory offenses, it is unnecessary to resort to the very words of the statute. The pleader is at liberty to use any form of expression, providing only that he thereby fully and accurately describes the offense; and the entire indictment is to be considered in determining whether the offense is fully stated. The argument made by counsel omits to notice other words, which clearly limit any generality in the term 'prepared opium,' and so limit it as to bring the article charged to have been smuggled within the bounds of the statute. The description is not merely of 'prepared opium,' but of such opium 'subject to duty by law, to wit, the duty of twelve dollars per pound.' In other words, the defendant is charged to have smuggled that kind of prepared opium which is subject by law to a duty of $12 a pound. Turning to paragraph 48, we find that 'opium prepared for smoking' is the only 'prepared opium' expressly subject to such duty. It is no answer to this to say that opium containing less than 9 per cent. of morphia is also subject to the same duty, and that the term 'opium,' in this clause, is broad enough to include both crude and prepared opium; for if 'opium,' as there used, does not exclusively refer to crude opium, and if opium prepared for other uses than that of smoking is, when containing less than 9 per cent. of morphia, subject to the duty of $12 a pound, 'prepared opium, subject to duty of twelve dollars per pound,' can mean only opium prepared for smoking, which, irrespective of the amount of morphia contained in it, is subject to that duty, or opium having less than 9 per cent. of morphia, and prepared for other uses, which is also subject to like duty. In either case the property charged to have been smuggled is property within the very terms of paragraph 48.

Further, paragraph 48 is not the statute describing the offenses and imposing the penalties. Sections 2865 and 3082 are the penal sections, and the description in the one is ...