United States v. White

• Decision Date: 12 June 1909
• Citation: 171 F. 775
• Parties: UNITED STATES v. WHITE et al.
• Court: U.S. District Court — Southern District of New York

171 F. 775

UNITED STATES v. WHITE et al.

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

June 12, 1909

This is a demurrer by the defendants to an indictment charging them in six counts with conspiracy, under section 5440 of the United States Revised Statutes (U.S. Comp. St. 1901, p 3676). The first, third, and fifth counts charge conspiracies to violate section 2865 of the Revised Statutes (U.S. Comp St. 1901, p. 1947), and the second, fourth, and sixth counts to defraud the United States. The indictment in each count consists of the allegation of a conspiracy, and then of several paragraphs alleging different overt acts done in partial fulfillment of the conspiracy. The allegations of the conspiracy in the first and second counts are typical of those objected to throughout. The allegation of the conspiracy in the first count is that the defendants, on the 30th day of January, 1907, at the Southern district of New York and within the jurisdiction of this court, did unlawfully and willfully conspire to commit an offense against the United States in and by knowingly and willfully smuggling and clandestinely introducing into the United States at the port and collection district of New York, from a foreign country, with intent to defraud the revenue of the United States, certain goods, wares, and merchandise, to wit women's wearing apparel and materials for women's wearing apparel, a more exact description of which is to the grand jurors unknown, subject to duty by law, and which should have been invoiced, without invoicing the same, and without paying or intending to pay or account for the duty thereon. The allegation of conspiracy in the second count is that the defendants did, on the 31st day of January, 1907, at the Southern district of New York and within the jurisdiction of this court, unlawfully and willfully conspire to defraud the United States of its customs duties on certain merchandise, to wit, divers articles of women's wearing apparel and materials for women's wearing apparel, a more exact description of which is to the grand jurors unknown subject to duty by law, to be imported into the United States from a foreign country, that is to say, France, without invoicing or entering the same, and without paying the duties then and there accruing upon said merchandise so imported, or accounting for the same.

Goldthwaite H. Dorr, Asst. U.S. Atty.

Battle & Marshall (George Gordon Battle, of counsel), for defendant White.

Walter Evans Hampton and Allan C. Rowe, for defendant William H. Kilgannon.

Van Schaick & Brice (Wilson B. Brice, of counsel), for defendant Elizabeth Kilgannon.

HAND District Judge.

The first, third, and fifth counts of the indictment are clearly good. The only portion of them open to attack is the allegation of the conspiracy. To allege that the defendants conspired is, at least, to allege that they agreed to do the matters which are set forth as the substance of their conspiracy. I do not mean to say that the mere fact that a conspiracy is alleged is sufficient to show that the conspiracy was unlawful, but that, taken at its lowest terms to allege a conspiracy is to allege an agreement. The substance of the agreement is in the words of the statute, and none of the words stating a conspiracy contain any propositions of law, except the following, that the goods were 'subject to duty by law and which should have been invoiced. ' Now the agreement is a fact, even if the substance of it was in the very words of the statute. No doubt the parties may contract in the words of the statute, if they so chance to do. Therefore there is no merit upon demurrer in urging that the contract of conspiracy was in legal terms. Two parties may say: 'Let us convey an easement in all our corporeal hereditaments. ' The...