United States v. Gardner

• Decision Date: 22 May 1890
• Parties: UNITED STATES v. GARDNER.
• Court: U.S. District Court — Northern District of New York

42 F. 832

UNITED STATES v. GARDNER.

United States Circuit Court, N.D. New York.

May 22, 1890

Richard Crowley, for plaintiff in error.

John E Smith, Asst. U.S. Atty.

WALLACE J.

This is a writ of error to review a judgment of the district court whereby the defendant below was convicted of the offenses of smuggling and concealing smuggled goods, and sentenced to imprisonment for a term of four years. The indictment contains nine counts. At the close of the evidence the court instructed the jury to render a verdict of acquittal as to the seventh, eighth, and ninth counts. The other counts charge the defendant below with having smuggled into the United States at different times merchandise subject to duty by law, described in some of them as a specified number of pounds of 'smoking opium,' and in others as 'prepared opium,' knowing that the duty due and payable thereon had not been paid or accounted for, and with concealing the opium, knowing that it had been imported contrary to law. The court was asked upon the trial to instruct the jury to acquit him as to the remaining counts of the indictment, upon the ground that the indictment did not describe any dutiable merchandise, there being no duty imposed by statute upon any such article as 'smoking opium' or 'prepared opium.' The court refused so to instruct the jury, and the first point now urged is that this refusal was error. The act of March 3, 1883, (22 U.S.St. at Large, 495,) by section 2502, classifies and subjects opium to duty as follows:

'Opium crude, * * * one dollar per pound. * * * Opium, prepared for smoking, and all other preparations of opium not specially enumerated or provided for in this act, ten dollars per pound. * * * Opium, aqueous, extract of, for medicinal uses, and tincture of, as laudanum, and all other liquid preparations of opium not specially enumerated or provided for in this act, forty per centum ad valorem.'

It cannot for a moment be doubted that under the statute opium whether crude or prepared in a solid or liquid form, is dutiable; and it is obvious, therefore, that an indictment which describes the merchandise smuggled and concealed as 'smoking opium,' or 'prepared opium,' describes it sufficiently to denote that the merchandise was within the classification of dutiable merchandise. The rule of criminal pleading is that, where chattels are the subject of an offense, as in larceny, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods must be stated. The present indictment fully complies with the requirements of this rule. The description of the merchandise is certainly as full and specific as it would be if it had...