The first question presented for our consideration is as to the sufficiency of these counts in the indictment. The description of the property charged to have been smuggled is "prepared opium ... subject to duty by law, to wit, the duty of twelve dollars per pound."
The revenue act of October 1, 1890, c. 1244, 26 Stat. 567, commonly known as the "McKinley act," was in force at the time of the commission of these alleged offences, and the only clauses in it in terms prescribing a duty on opium imported from foreign countries are paragraphs 47 and 48 of section 1, which read:
"47. Opium, aqueous extract of, for medicinal uses, and tincture of, as laudanum, and all other liquid preparations of opium, not specially provided for in this act, forty per centum ad valorem.
"48. Opium containing less than nine per centum of morphia, and opium prepared for smoking, twelve dollars per pound; but opium prepared for smoking and other preparations of opium deposited in bonded warehouse shall not be removed therefrom without payment of duties, and such duties shall not be refunded."
The contention is that opium is dutiable only in certain specified forms and conditions, as follows: aqueous extract of opium for medicinal uses; tincture of opium, as laudanum; all other liquid preparations of opium not specially provided for in the act; opium containing less than nine per centum of morphia; and opium prepared for smoking; that there is nothing known to the revenue law simply as "prepared opium," and, therefore, that a charge of bringing in prepared opium" without any payment of duty states nothing which the law prohibits. It is true that the language of paragraph 48 is "opium prepared for smoking," while the indictment reads "prepared opium," and thus does not limit the description by stating the purpose for which the opium charged to have been smuggled was prepared. Opium may,
But although these are purely statutory offences, it is unnecessary to resort to the very words of the statute. The pleader is at liberty to use any form of expression, provided only that he thereby fully and accurately describes the offence; and the entire indictment is to be considered in determining whether the offence is fully stated. The argument made by counsel omits to notice other words, which clearly limit any generality in the term "prepared opium," and so limit it as to bring the article charged to have been smuggled within the bounds of the statute. The description is not merely of "prepared opium," but of such opium "subject to duty by law, to wit, the duty of twelve dollars per pound." In other words, the defendant is charged to have smuggled that kind of prepared opium which is subject by law to a duty of twelve dollars a pound. Turning to paragraph 48 we find that "opium prepared for smoking" is the only "prepared opium" expressly subject to such duty. It is no answer to this to say that opium containing less than nine per cent of morphia is also subject to the same duty, and that the term "opium" in this clause is broad enough to include both crude and prepared opium. For, if "opium" as there used does not exclusively refer to crude opium, and if opium prepared for other uses than that of smoking is, when containing less than nine per cent of morphia, subject to the duty of twelve dollars a pound, "prepared opium subject to duty of twelve dollars per pound" can mean only opium prepared for smoking, which, irrespective of the amount of morphia contained in it, is subject to that duty, or opium having less than nine per cent of morphia and prepared for other uses, which is also subject to like duty. In either case the property charged to have been smuggled is property within the very terms of paragraph 48.
Further, paragraph 48 is not the statute describing the offences and imposing the penalties. Sections 2865 and 3082
Further, no objection was made to the sufficiency of the indictments by demurrer, motion to quash, or in any other
In this connection, also, reference may be made to section 1025, Revised Statutes, which provides that "no indictment ... shall be deemed insufficient ... by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." This, of course, is not to be construed as permitting the omission of any matter of substance, United States v. Carll, 105 U.S. 611, but is applicable where the only defect complained of is that some element of the offence is stated loosely and without technical accuracy. For these reasons we are of opinion that the first and principal challenge of the indictment cannot be sustained.
A second objection, which is made to all of these counts with the exception of the ninth in the second indictment, is that a scienter is not alleged. But one good count is sufficient to sustain the judgment, and as it is conceded that the ninth is not open to the objection, it is perhaps unnecessary to consider whether the others are justly exposed to such criticism. Nevertheless, we have carefully examined them and are of the opinion that to none is this objection well taken. They charge that the defendant "did wilfully, unlawfully, and knowingly, and with intent to defraud the revenues of the United States, smuggle and clandestinely introduce, into the United States" the prepared opium. It is stated in 1 Bishop Crim. Pro. (3d ed.) § 504, that "the words `knowingly' or `well knowing' will supply the place of a positive averment
Again, it is insisted that the court erred in permitting one Nathan Blum, an accomplice who had turned State's evidence, to give testimony as to the contents of a letter he had written to the defendant, and also of letters written by defendant to parties in British Columbia. According to the bill of exceptions
With reference to the letters written by the defendant, the witness testified that they were all copied in the letter-books belonging to the Merchant Steamship Company, and were all in the possession of the defendant. Whereupon the following proceedings were had, as shown by the bill of exceptions:
"Mr. Gearin, (counsel for the United States): Counsel says they have not had any notice. We now give counsel and the defendant notice to produce these letters and the copies they have — the letters written to Dunbar and letter-press copies of letters written by him.
"Mr. McGinn, (counsel for defendant): There are no such letters in existence. We have not got any such letters.
"Court: If you have the letter-books of the company you can produce them.
"Mr. McGinn: Does your honor make a ruling on the request of counsel?
"Court: You have objected to this evidence on the ground that he has not produced these letters. The witness says they are in the letter-book itself of Dunbar & Company.
"Witness: Yes, sir.
"Court: Counsel has notified you that you may produce these letter-books.
"Mr. McGinn: We have no such letters and never have had.
"Court: You may produce the letter-books if you want to."
No objection was made to the time or manner in which this notice was given; no suggestion that the defendant wished time to look over the letter-books and among his papers to see what he could find corresponding in any degree to the description given by the witness. On the contrary, the positive declaration was that he had no such letters, and never had them. Under those circumstances there was no error in permitting the witness to testify as to what he claimed
Again, error is alleged in respect to the admission in evidence of a certain telegram. The facts in respect to this matter are as follows: The witness Blum was stating that defendant telegraphed certain things to him. An objection being raised, he produced a type-written telegram, and said that he received it from the defendant. It was further objected that it was not the original, the one prepared and signed by the defendant; whereupon the witness testified that it was delivered to him by the telegraph company, and that he afterwards talked with the defendant about it, who confirmed it and admitted that he had sent it. Thereupon the court permitted the telegram to be read in evidence. In this there was no error. Whatever may be the rule in other cases, an admission by defendant that the writing which is offered is the message which he sent, is sufficient to justify its introduction in evidence. An admission as to a writing is like an admission of any other fact, and when a competent witness testifies that a certain writing, which he produces, was received by him, and that the defendant admitted that he sent it to him, he has laid the foundation for the introduction of the writing, and this though it be not in the handwriting of the defendant.
Again, it is objected that the court erred in permitting a witness, Sigmund Baer, to testify that he had appropriated the proceeds of the sale of some of the opium charged to have been smuggled, in part to take up a draft drawn by the defendant, on the ground that the paper was itself the best evidence as to the party by whom it was drawn. The witness
"The ninth count charges the defendant with having facilitated the transportation of 200 pounds of opium on the 5th day of February, 1892. Now, this is the opium that it is claimed was sold probably by Sigmund Baer. I think it is claimed to be the opium sold by Sigmund Baer, as is claimed, for Dunbar and Blum. Sigmund Baer testifies that Dunbar's drafts were paid out of the sale of opium, and it is claimed it was the sale of this opium, and that the balance of the money after the payment of the draft was deposited to Dunbar's credit. If that is so, the circumstances would be inconsistent with innocence on the part of Dunbar of this transportation, and the tendency would be to connect Dunbar with it, because ordinarily men do not deposit money to pay the debts of other people or deposit it to the credit of other people unless that money belongs to those people and there is some understanding that it is to be done. Dunbar has denied that he has any
The complaint of this is, first, that it misrepresents the testimony; and, second, that it attempts to enforce as an absolute conclusion from such testimony, thus misrepresented, that which is only a possible inference therefrom. We do not think that it is justly exposed to this criticism. It refers to the testimony of the witness Baer, and, stating that the defendant denies any knowledge of the transaction as testified to by Baer, submits to the jury the question as to whether this denial is overcome by the testimony offered by the government. If so overcome, and the jury find that not only was the money, the proceeds of the sale of the smuggled opium, in fact applied to defendant's benefit, but also that it was so applied with his knowledge, a legitimate inference would be that he was connected with the importation, for ordinarily men do not dispose of money in the manner indicated, unless it belongs to the party for whom it is so used. This instruction, it must be borne in mind, is given in reference to that count in the indictment which charges the defendant with facilitating the transportation of the opium, and not those which charge him with being himself the party who was guilty of smuggling. If he knowingly permits the appropriation of the proceeds of the smuggled opium to his own benefit, either in the payment of his drafts or in increasing the amount of his account at the bank, he is helping to make successful the unlawful venture, and certainly those facts would be inconsistent with the idea of his entire innocence in respect to the matter. It will also be borne in mind that this instruction is not that if these things be so the defendant must be found guilty, but only that they are inconsistent with his innocence in respect to the transportation. We think that the question of fact was fairly left to the jury, and that the inference from those facts, if found against the defendant, was not too strongly stated.
Again, error is alleged in the instructions in respect to the matter of reasonable doubt. It is urged that the court failed
It is further objected that the court erred in stating to the jury that the testimony of certain witnesses was of the character of corroborating testimony, that is, testimony tending to support that given by accomplices. As the record fails to preserve all the evidence, either that of the accomplices, or that of the corroborating witnesses, we are unable to say from the reference thereto made by the court in its charge that there was any error in this respect. So far as we can gather from what is before us it would seem that the court made no mistake in pointing out certain items of testimony as corroboratory to that furnished by the accomplices. One purpose in
These are the substantial questions presented by counsel. We have examined them all carefully, and are of the opinion that no substantial error appears in the record. The judgment is, therefore,
MR. JUSTICE FIELD dissented.