Estes v. United States

• Decision Date: 15 November 1915
• Docket Number: 4451.
• Citation: 227 F. 818
• Parties: ESTES v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

227 F. 818

ESTES v. UNITED STATES.

No. 4451.

United States Court of Appeals, Eighth Circuit.

November 15, 1915

Edward A. Mann, of Albuquerque, N.M. (R. F. Hamilton, of Deming N.M., on the brief), for plaintiff in error.

Summers Burkhart, U.S. Atty., of Albuquerque, N.M.

Before CARLAND, Circuit Judge, and AMIDON and VAN VALKENBURGH District Judges.

CARLAND Circuit Judge.

Estes was jointly indicted, tried, and convicted with one Faustino Holguin for the violation of section 3082, R.S.U.S. (Comp St. 1913, Sec. 5785), which reads as follows:

'If any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any merchandise, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported contrary to law, such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, 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.'

Having been sentenced to the penitentiary, he brings the case here, assigning error.

The indictment charged in substance that the defendants on the 29th day of March, 1914, at the county of Luna, and district of New Mexico, did receive and conceal and did facilitate the transportation and concealment of certain cattle, which were described, and which had theretofore been fraudulently and clandestinely imported and brought into the United States from the republic of Mexico contrary to law; that is to say, without the same being invoiced or entry thereof being made with any collector of customs of the United States, and without declaration thereof being made to any proper revenue officer of the United States, and without the same having been inspected by an inspector of the Bureau of Animal Industry of the United States, knowing the same to have been so imported and brought into the United States from the republic of Mexico. After a witness had been sworn for the prosecution and a question asked, counsel for the defendant objected to the introduction of any further evidence on the ground that the indictment failed to state any crime or offense punishable by the laws of the United States. Such a motion is unknown to the procedure in criminal cases in the courts of the United States. In United States v. Gooding, 12 Wheat. 461, 6 L.Ed. 693, Justice Story, in delivering the opinion of the Supreme Court, said:

'Undoubtedly, according to the regular course of practice, objections to the form and sufficiency of an indictment ought to be discussed, upon a motion to quash the indictment, which may be granted or refused in the discretion of the court, or upon demurrer to the indictment, or upon a motion in arrest of judgment, which are matters of right. The defendant has no right to insist that such objections should be discussed or decided, during the trial of the facts by the jury. It would be very inconvenient and embarrassing, to allow a discussion of such topics, during the progress of the cause before the jury, and introduce much confusion into the administration of public justice. But, we think, it is not wholly incompetent for the court to entertain such questions, during the trial, in the exercise of a sound discretion. It should, however, be rarely done, and only under circumstances of an extraordinary nature.'

The trial court in its discretion, however, entertained the motion and denied it. This ruling is assigned as error. As the question as to whether the indictment sustains the judgment might probably be raised here for the first time, we will consider the error assigned.

It is contended that as the cattle were not dutiable, and they were not, it was not necessary to enter them for import at a port of entry; but under section 3100, R.S.U.S. (Comp. St. 1913, Sec. 5812), all articles or merchandise imported into the United States from a contiguous foreign country must be unladen in the presence of, and be inspected by, an inspector or other officer of the customs. In other words, an importer cannot determine for himself that articles which he desires to import are not dutiable and bring the same into this country at any place he shall determine. All articles, whether dutiable or not, must be properly declared and entered at the custom house and there be inspected by the proper officer. To bring property into this country from a contiguous foreign country without complying with the provisions of section 3100, R.S.U.S., is to bring it into this country contrary to law.

It is next claimed that there is no law within the meaning of section 3082, supra, which requires the cattle mentioned in the indictment to be inspected by an inspector of the Bureau of Animal Industry of the United States. Section 2 of the act of Congress approved February 2, 1903 (32 Stat. 792, c. 349 (Comp. St. 1913, Sec. 8699)), reads as follows:

'That the Secretary of Agriculture shall have authority to make such regulations and take such measures as he may deem proper to prevent the introduction or dissemination of the contagion of any contagious, infectious, or communicable disease of animals from a foreign country into the United States * * * whenever in his judgment such action is advisable in order to guard against the introduction or spread of such contagion.'

Under the authority of this section and also of...