United States v. Larkin

• Decision Date: 05 April 1907
• Docket Number: 1,595.
• Citation: 153 F. 113
• Parties: UNITED STATES v. LARKIN.
• Court: U.S. Court of Appeals — Sixth Circuit

153 F. 113

UNITED STATES v. LARKIN.

No. 1,595.

United States Court of Appeals, Sixth Circuit.

April 5, 1907

This is a proceeding to declare the forfeiture of certain valuable jewelry alleged to have been fraudulently smuggled into the United States, through the port of New York, on June 10 1902, by one Cassie L. Chadwick. The information contains the usual and requisite averments touching the intentional and fraudulent importation with intent to cheat and defraud the revenue of the United States, and then avers that the property so smuggled had been seized by Charles F. Leach collector of the Northern District of Ohio, within said district, on May 19, 1905. Adrian H. Larkin, being interested as a claimant, came in and entered his appearance for the sole purpose of denying the jurisdiction of the court below to entertain jurisdiction of any proceeding for the forfeiture of said property. To this plea a demurrer was filed, which, upon argument, was overruled. A reply to the plea was then filed, and to this reply the claimant demurred. This demurrer was sustained. The government declined to amend or further plead. The court sustained the plea, and dismissed the information. From this judgment, the United States have appealed, and assigned error.

John J Sullivan, for the United States.

A. C Dustin, for defendant.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON Circuit Judge (after stating the case).

The articled against which this forfeiture proceeding was begun were illegally imported through the port of New York. Subsequently, they were found in the city of New York and in the possession of the claimant as bailee. These jewels had been pledged by the owner and importer, Mrs. Cassie L. Chadwick, to one J. W. Friend, and Friend placed them in the custody of Adrian H. Larkin, as bailee and attorney. Friend, learning that a claim had been made that same had been illegally and surreptitiously imported through the port of New York by the pledgor, visited the Secretary of the Treasury and made disclosure of his possession of same and his rights, and, as averred by the plea, made an agreement with the Secretary that same should be kept in the city of New York, open to the inspection and examination of any official of the department. Friend, not being himself a resident of New York, placed them in the custody of the claimant, with authority to conduct any transactions with the Treasury Department growing out of the claim that same may have been fraudulently imported. At the request of the department, Mr. Leach, collector of the port of Cleveland, went to New York for the purpose of examining the jewelry and determining by inspection whether same had been illegally imported, and whether it was subject to seizure and forfeiture. He accordingly applied to Larkin to be allowed an inspection, and this was permitted. The plea then states that Leach 'informed said Larkin that certain of said jewelry had not been wrongfully imported, and that he did not care to make further examination thereof, but that certain of said pieces he was in doubt about, and would like to exhibit them to a person, located in New York City, who was expert in such matters, for his opinion, and asked permission to take said jewelry away from the office of said Larkin for that purpose, he promising and agreeing to return said property to said Larkin, at his office in New York City, on the afternoon of that same day. Thereupon, said Larkin, relying upon said promise and agreement of said Leach, delivered said property into his possession and custody, receiving from said Leach a receipt therefor in writing, a true copy of which is hereto attached and marked 'Exhibit A,' and made a part hereof.

The receipt referred to is in these words:

'New York, March 14, 1905.

'Received of A. H. Larkin, attorney for J. W. Friend, the following pieces of jewelry, for examination and identification:

'1 Marquise (single stone) diamond ring.

'1 ruby and diamond ring.

'1 diamond ring, about three karats, off color diamond.

'1 ring set with two cabochin rubies and sixteen diamonds.

'2 earrings set with two karat diamond and small pear-shaped diamond pendants.

'1 Marquise (canary) diamond ring.

'1 ring set with diamonds in shape of shield.

'2 empty settings.

'1 ring set with diamond in shape of shield.

'1 ring set with two five-karat diamonds, twelve diamonds in shank.

'1 six-karat diamond (white) ring.

'1 seven-stone pearl ring.

'2 opal stick pins.

'1 chatelaine watch.

'1 brooch (one oval opal) surrounded by eight diamonds and small spr. rubies.

'1 card case set with jewels.

'(Signed)

Chas. F. Leach, Collector of Customs.'

It is then averred that said Leach, in violation of his agreement, carried same to Cleveland. That from there he returned certain pieces of the lot to Larkin, as not subject to seizure, and seized the remainder at Cleveland, as having been illegally imported, and then caused this proceeding to be instituted in the District Court for the Northern District of Ohio. To this plea the district attorney replied. So far as this relates to the promise or agreement under which the collector received the property here involved, it is in these words:

'That after an examination of the jewelry aforementioned, the said collector informed the said Adrian H. Larkin that he was in doubt as to which specific articles of jewelry and merchandise were unlawfully imported, and that it would be necessary for him to take such articles as to which he was in doubt and further examine them as to whether or not they had been unlawfully imported; and thereupon the said ...