Tomplain v. United States, 5615.

• Decision Date: 06 August 1930
• Docket Number: No. 5615.,5615.
• Citation: 42 F.2d 203
• Parties: TOMPLAIN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

42 F.2d 203 (1930)

TOMPLAIN et al. v. UNITED STATES.

No. 5615.

Circuit Court of Appeals, Fifth Circuit.

June 30, 1930.

Rehearing Denied August 6, 1930.

Hugh M. Wilkinson, of New Orleans, La., and C. A. Morvant, of Thibodaux, La. (Finnorn & Todd, John J. Finnorn, and Robert B. Todd, all of New Orleans, La., on the brief), for appellants.

Edmond E. Talbot, U. S. Atty., of New Orleans, La.

Before BRYAN and FOSTER, Circuit Judges, and HOLMES, District Judge.

FOSTER, Circuit Judge.

Appellants, Walter Tomplain, Elexandre Mitchell, and Octave Calle, were convicted on an indictment, which, omitting formal parts, charged that they did "unlawfully, wilfully, knowingly, feloniously, and fraudulently import and bring into the United States contrary to law, certain merchandise consisting of 226 Sacks, twelve bottles each, of Whiskey; 76 five gallon tins of Alcohol, and 28 Cases of Alcohol, consisting of two five gallon tins each, which said merchandise was clandestinely introduced into the United States from Mexico without payment of duties thereon. * * *"

There was evidence for the government tending to show the following facts: At about 6 o'clock a. m. on April 3, 1928, the motor boat Ellen C., with appellants on board, and loaded with the liquor described in the indictment, was seized by coast guardsmen in Bayou Boeuf, which is in the state of Louisiana. The defendant Tomplain stated to a witness that the cargo of liquor was his. He first stated that the boat was his, but later denied it, and he said that the liquor came from a schooner named the Lady Antoinette; that he had come from the Gulf, and had lots of trouble before he got in there. The place where the Ellen C. was seized was more than 60 miles from New Orleans, the nearest port of entry, by the shortest route. Tomplain did not indicate by any word or action that he was on his way to New Orleans to declare and enter the cargo. There was further testimony to the effect that the cargo of the Ellen C. was dutiable, and no duty was paid; that some of it was marked Ron Caney, Habana, and Puerto, Mexico. There was no explanation by the defendants as to their possession of the liquor. Error is assigned to the overruling of a demurrer to the indictment and to the refusal of a directed verdict.

The theory of the case adopted by counsel for the United States and the court is that the indictment sufficiently charged a violation of section 593(b) of the Tariff Act of September 21, 1922 (title 19, § 497, USCA), which is as follows: "If any person fraudulently or knowingly imports or brings into the United States, or assists in so doing, any merchandise, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law, such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is shown to have or to have had possession of such goods, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury."

Appellants contend that, as the vessel had not reached a point in her voyage where it was necessary to declare the cargo and pay duties, the indictment is defective in merely charging, as to the unlawfulness of the importation, that the duties had not been paid, and that under the proof the offense was not complete until the vessel had reached a port of entry and had refused or...