One Plymouth Automobile v. United States

• Decision Date: 01 March 1948
• Docket Number: No. 12019.,12019.
• Citation: 165 F.2d 186
• Parties: ONE PLYMOUTH AUTOMOBILE, etc., et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

165 F.2d 186 (1947)

ONE PLYMOUTH AUTOMOBILE, etc., et al. v. UNITED STATES.

No. 12019.

Circuit Court of Appeals, Fifth Circuit.

December 31, 1947.

Rehearing Denied March 1, 1948.

T. Gilbert Sharpe, of Brownsville, Tex., for appellants.

Leavenworth Colby, Atty., Admr. & Shipping Section, Dept. of Justice of Washington, D. C., and Brian S. Odem, U. S. Atty., and Joseph W. Cash, Asst. U. S. Atty., both of Houston, Tex., for appellee.

Before SIBLEY, HOLMES, and McCORD, Circuit Judges.

Rehearing Denied March 1, 1948. See 166 F.2d 431.

HOLMES, Circuit Judge.

This appeal is from a judgment of forfeiture and sale of one Plymouth coupe and forty-two tires. The statutes upon which the seizure, detention, and forfeiture were based are the Espionage Act of 1917, as amended, 22 U.S.C.A. § 401 et seq., and the Export Control Act of 1940, as amended, 50 U.S.C.A.Appendix, § 701 et seq.

The libel of information charged that the claimants were exporting, intending to export, and attempting to ship and take out of the United States, said merchandise, in violation of said Export Control Act of 1940. More specifically, the libel charged that Napoleon G. Riviera was exporting and attempting to ship out of the United States at the port of Brownsville to Mexico 42 described automobile tires without complying with the Act of July 2, 1940; that is, without a license to do so. It was alleged that they were contained at the time in a described Plymouth coupe. These allegations were squarely denied in a claim filed by Riviera and Rodolfo Gonzales, the former claiming the coupe and the two tires in it, and the latter claiming the other tires.

The defendants demanded a trial by jury, and a jury was impaneled. After the evidence was in, the judge charged the jury that they had but one issue of fact to decide, and submitted a single written question: "Do you find from a preponderance of the evidence that the tires seized by the customs official at the filling station of Napoleon G. Riviera * * * were intended by Rodolfo Gonzales to be taken out of the United States * * * without first obtaining an export license therefor?" The jury answered, "He did." On that sole verdict the judge made a judgment forfeiting all the tires and the coupe. The evidence is clear that all the tires seized at the filling station were those claimed by Gonzales, and that the two tires claimed by Riviera were seized previously a mile away at the bridge which leads into Mexico, being in his coupe there. The verdict therefore relates only to the claim of Gonzales.

1. The record on its face shows that there is no verdict on the claim of Riviera. He has not had the trial by jury which he demanded. The very statute under which forfeiture is claimed, the Espionage Act of 1917, provides in Section 5 that on demand there shall be a "trial by jury of any issue of fact joined in such libel cases." 22 U.S.C.A. § 405. In common law cases involving over $20, a jury trial is a constitutional right; and from the beginning it has been established that, though all seizures for forfeiture are to be prosecuted by libel in rem according to admiralty practice, seizures on land are not admiralty cases but common law informations, in which a jury trial is demandable. The Sarah, 8 Wheat. 391, 5 L.Ed. 644; Union Life Ins. Co. v. United States, 6 Wall. 759, 18 L.Ed. 879; Confiscation Cases, 7 Wall. 454, 19 L.Ed. 196; 443 Cans of Frozen Eggs, 226 U.S. 172, 33 S.Ct. 50, 57 L.Ed. 174.

In Baylis v. Travelers Ins. Co., 113 U.S. 316, 5 S.Ct. 494, 497, 28 L.Ed. 989, after recognizing that an instructed verdict would have been proper practice if there could be but one verdict, the court held: "Without a waiver of the right of trial by jury, by consent of parties, the court errs if it substitutes itself for the jury, and, passing upon the effect of the evidence, finds the facts, involved in the issue and renders judgment thereon. This is what was done in the present case. It may be that the conclusions of fact reached and stated by the court are correct, and, when properly ascertained, that they require such a judgment as was rendered. That is a question not before us." In the present case, the judge ignored the jury in Riviera's claim and condemned his tires and car without any verdict, instructed or...