Keck v. United States

Decision Date09 January 1899
Docket NumberNo. 15,15
CourtU.S. Supreme Court

[Syllabus from pages 434-436 intentionally omitted] Francis B. James, for plaintiff in error.

Asst. Atty. Gen. Whitney, Asst. Atty. Gen. Hoyt, and James M. Beck, for the United States.

Mr. Justice WHITE delivered the opinion of the court.

The plaintiff in error was prosecuted under an indictment consisting of three counts. The first was intended to charge a violation of section 3082 of the Revised Statutes by the alleged unlawful importation into the port of Philadelphia of certain diamonds. The second averred a violation of section 2865 of the Revised Statutes by the smuggling and clandestine introduction, on the like date, and into the same port, of the articles which were embraced in the first count. The third count need not be noticed, since as to it the trial judge, at the close of the evidence, instructed the jury to return a verdict of not guilty.

The sufficiency of the first and second counts was unsuccessfully challenged by the accused, both by motion to quash and by demurrer. The jury returned a general verdict of guilty, and, after the court had overruled motions for a new trial and in arrest of judgment, the accused was duly sentenced. Error was prosecuted, and the case is here for review.

The assignments of error are numerous, but we need only consider the questions as to the sufficiency of the first and second counts of the indictment and the propriety of the conviction under the second count.

Was the first count sufficient?

This count was based upon that portion of section 3082 of the Revised Statutes which made it an offense to 'fraudulently or knowingly import or bring into the United States, or assist in doing so, any merchandise, contrary to law.'

It was charged in the count that keck, on the date named, 'did knowingly, willfully, and unlawfully import and bring into the United States, and did assist in importing and bringing into the United States, to wit, into the port of Philadelphia,' diamonds of a stated value, 'contrary to law and the provisions of the act of congress in such cases made and provided, with intent to defraud the United States.'

As is apparent, the alleged offense averred in t is count was charged substantially in the words of the statute. In the argument at bar counsel for the United States conceded the vagueness of the accusation thus made, and, tested by the principles laid down in U. S. v. Carll, 105 U. S. 611, 612, U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, and Evans v. U. S., 153 U. S. 584, 587, 14 Sup. Ct. 934, 939, the count was clearly insufficient. The allegations of the count were obviously too general, and did not sufficiently inform the defendant of the nature of the accusation against him. The words, 'contrary to law,' contained in the statute, clearly relate to legal provisions not found in section 3082 itself; but we look in vain in the count for any indication of what was relied on as violative of the statutory regulations concerning the importation of merchandise. The generic expression, 'import and bring into the United States,' did not convey the necessary information, because importing merchandise in not per se contrary to law, and could only become so when done in violation of specific statutory requirements. As said in the Hess Case, at page 486, 124 U. S., and page 573, 8 Sup. Ct.:

'The statute upon which the indictment is founded only describes the general nature of the offense prohibited, and the indictment, in repeating its language without averments disclosing the particulars of the alleged offense, states no matters upon which issue could be formed for submission to a jury.'

As to the sufficiency of the second count:

In this count it was charged, in substance, that Keck 'did knowingly, willfully, and unlawfully, and with intent to defraud the revenue of the United States, smuggle and clandestinely introduce into the United States, to wit, into the port of Philadelphia,' certain 'diamonds' of a stated value, which should have been invoiced, and duty thereon paid or accounted for, but which, to the knowledge of Keck, and with intent to defraud the revenue, were not invoiced nor the duty paid or accounted for.

Two objections were urged against this count: First, that diamonds, under the law then in force, were on the free list, and hence not subject to duty; and, second, that if all diamonds were not on the free list, at least some kinds of diamonds were on such list, and the count should therefore have specifically enumerated the kinds or classes of diamonds which were subject to duty by law.

With respect to the first objection, counsel for plaintiff in error contends that all diamonds were free of duty, because of the following provision contained in the free list of the tariff act of 1894, to wit:

'Paragraph 467. Diamonds; miners', glaziers', and engravers' diamonds not set, and diamond dust or bort, and jewels to be used in the manufacture of watches or clocks.'

Paragraph 338 imposes duties as follows:

'Precious stones of all kinds, cut but not set, 25 per cent, ad valorem; if set, and not specially provided for in this act, including pearls set, 30 per cent. ad valorem; imitations of precious stones, not exceeding an inch in dimensions, not set, 10 per cent. ad valorem. And on uncut precious stones of all kinds, 10 per cent. ad valorem.'

It is apparent that it was not the intention of congress to put one of the most valuable of precious stones on the free list, while all others were made dutiable. The word 'dia monds,' which is but the commencement on paragraph 467, was plainly designed as a heading, for convenient reference, and the semicolon following should be read as though a colon.

The other ground of objection to the second count is con- trolled by the decision in Dunbar v. U. S., 156 U. S. 185, 15 Sup. Ct. 325. In that case, paragraph 48 of section 1 of the tariff act of 1890 provided that opium containing less than 9 per cent. of morphia, and opium prepared for smoking, should be subject to a duty of 12 cents per pound. Counts charging the smuggling of 'prepared opium, * * * subject to duty by law, to wit, the duty of twelve cents per pound,' were held to sufficiently describe he smuggled goods. Here, as in the Dunbar Case, the words of description made clear to the common understanding what articles were charged to have been smuggled; and for that reason we hold the objection just considered to be without merit.

Was the conviction under the second count of the indictment proper?

The principal witness for the government was one Frank Loesewitz, a resident of Antwerp, Belgium, and captain of the steamer Rhynland, of the International Navigation Company, which vessel plied between Philadelphia and Liverpool. He testified, in substance, that on January 21, 1896, late in the afternoon, while at the residence of one Franzvon Hemmelrick, a jeweler in Antwerp, he for the first time met the accused; that in his company and that of Von Hemmelrick he went to a caf e in the neighborhood; that during the conversation which followed, Von Hemmelrick took from his pocket a small package and handed it to the witness, with the statement, made in the hearing of Keck, that it belonged 'to that gentleman here' (Keck); that it did not contain any valuables, and Von Hemmelrick asked the witness to oblige him by taking it over to America. The captain further testified that Keck also said that the package did not contain any valuables. The witness asked Keck where he wished the package sent, whereupon he tore off a piece of a card which was lying on the table, and wrote on it the address of a person in Cincinnati, whom it subsequently developed was associated in the diamond business with Keck. The card and the package in question were produced in court, and identified by the witness. Subsequently, on leaving the place, Keck requested the witness to send the package to Cincinnati from Philadelphia by Adams Express. There was no address upon the package, and the card handed by Keck to the witness was placed by him in his pocketbook or card case. Soon after, the witness crossed to Liverpool, and joined his vessel there. The package was by him placed in a drawer in his (the captain's) room, where it remained undisturbed until the arrival of the ship at her dock in Philadelphia. Just as the vessel was approaching her moorings, a special agent of the treasury department boarded her. This special agent thus describes in his testimony what then ensued:

'Acting on information received that, at the instance of Herman Keck, the captain of the Rhynland had endeavored to smuggle diamonds, I met the steamship Rhynland upon her arrival here on the 11th day of last February, about four or five o'clock in the afternoon. I went aboard, and examined the passenger list, to see if Keck was on board, or any one under that name, and I also examined the manifest to find if there was any diamonds. I found no one particularly on the passenger list corresponding to the name of Herman Keck, and no diamonds appeared on the manifest.

'The weather was very rough that day, and the boarding officers boarded just as she was coming into the dock. I then asked one of the custom inspectors to examine closely the baggage of one or two of the cabin passengers, whom I suspected, to ascertain whether they had any large quantity of jewelry, after which I went into the chart room, where the captain was, with Special Agent Cummings.'

What occurred in the chart room between the captain and the special agent of the treasury department is thus testified to by the captain:

'When I reached the port of Philadelphia, after the passengers were landed, two gentlemen entered my room, and they said they had information from Antwerp that I had a package to a friend to send it to Cincinnati. I said right away, 'Yes.' I thought those gentlemen came for the package, and that they were sent by...

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