Indeed, it is believed that there is no case in which a penalty or forfeiture is incurred, or can be enforced, or any crime or offense committed, simply because the duties on imported goods are not paid or accounted for before the importation is complete. It is by acts or omissions subsequent to the importation that forfeitures and penalties are incurred, or crimes or offenses committed, unless there is some law expressly declaring the importation itself, or the manner of making it, unlawful. The nineteenth section of the act of August 30, 1842, which provides for the punishment of any person who "shall knowingly, with intent to defraud the revenue of the United States, smuggle or clandestinely introduce into the United States any goods, wares or merchandise subject to duty by law, and which should have been invoiced, without paying or accounting for the duty," makes the clandestine introduction or smuggling into the United States of dutiable goods, in cases therein provided for, a criminal offense, which is complete as soon as the goods are so clandestinely introduced or smuggled into the United States; but in such cases it is the secret and clandestine manner of the importation, with intent to defraud the revenue, and not the nonpayment of or not accounting for the duties, prior to the importation, which constitutes the gist of the offense.

There are many cases to which this fourth section of the act of 1866 was probably intended to apply, and to which it may be properly applied; but it is unnecessary to refer to more than two or three acts of Congress to show what was probably the general intention of the National Legislature in adopting the section under consideration. By the fifth section of the act of July 10, 1861,1 the President was authorized, under the circumstances therein set forth, to declare the inhabitants of a State, or any section or part thereof, to be in a state of insurrection against the United States; and by the same section it was provided that thereupon all commercial intercourse by and between the same and the citizens thereof, and the citizens of the rest of the United States, should cease and be unlawful, so long as such condition of hostility should continue; and that all goods and chattels, wares and merchandise, coming from said State or section into the other parts of the United States, and all proceeding to such State or section by land or water, should, together with the vessel or vehicle conveying the same or conveying persons to from such State or section, be forfeited to the United States. The fourth section of the same act2 authorized the President to close ports of entry in certain cases, and give notice thereof by proclamation; and declared that thereupon all right of importation and other privileges incident to ports of entry should cease and be discontinued at such ports so closed, until opened by the order of the Presi

dent; and that if, while said ports were so closed, any ship or vessel from beyond the United States, or having on board any articles subject to duties, should enter or attempt to enter any such port, the same, together with its tackle, apparel, furniture and cargo, should be forfeited to the United States.

By some of the revenue acts it is made unlawful to import certain articles except in the form or condition particularly described. Thus, by the first section of the act of July 28, 1866,1 it is provided that no cigars shall be imported unless the same are packed in boxes of not more than five hundred cigars in each box; and that brandy and other spirituous liquors may be imported in casks or other packages of any capacity not less than thirty gallons; and that wine in bottles may be imported in boxes containing not less than one dozen bottles of not more than one quart each; and that wine, brandy or other spirituous liquors imported into the United States and shipped after October 1, 1866, in any less quantity than therein provided for shall be forfeited to the United States.2 It is to such and similar importations contrary to law, and to the importation of articles, the importation of which is entirely prohibited, that the fourth section of the act of 1866 was intended to apply; and as applied to such cases, the rule of evidence, or presumption of guilt, declared in that section, may well be justified, while it would be very hard and oppressive if the provisions of the section in which it is found were to be applied to every case in which goods were actually imported or brought into the United States before the duties were paid or accounted for, that is, to ninety-nine cases of every hundred of honest importations.

Perhaps it might have been suggested, if the question had been at all argued on the part of the United States, that the indictment states that the nutmegs therein mentioned were imported contrary to law, and that so much of the indictment as states in what the illegality of the importation consisted, may be rejected as surplusage. But the short answer to that is, that this is a part of the description of the offense, and can not be rejected as surplusage, even if the indictment would have been good if the particular illegality of the importation had not been set forth; for if an indictment set out the offense with greater particularity than is required, the proof must correspond with the averments, and nothing descriptive of the offense can be rejected as surplage.3 But it is believed that the indictment would have been bad if the allegation of the ille

1 14 U. 8. Stat, at Large, 328.

2 And see, for similar provisions in re. spect to the importation of beer, ale and porter, and refined lump and loaf sugar, section 103 of the Act of March 2 1789.

3 U. S. v. Brown, 3 McLean, 233; U. S. v Howard, 3 Sumn. 15; U. S. v. Foye, 1 Curt. C. C. 364.

gality of the importation had been simply that it was contrary to law, without showing the facts constituting such illegality, or stating the particular illegality intended to be proved.

Upon the whole case, it is very clear that the count on which the defendant was convicted is not sufficient to sustain a conviction, and the motion in arrest of judgment is therefore granted.

REVENUE LAWS-FAILURE TO NOTIFY OF MANUFACTURE OF STILL. UNITED STATES v. REED.

[2 Lowell, 232.]

In the United States District Court, Massachusetts, 1868.

To Constitute the Offense of failing to notify the collector of the making of a still, it must appear that the still was intended to be used within the United States for distil. ling spirits, and that the defendant failed to give such notice.

LOWELL, J. The defendant has been convicted under section 25, of chapter 184, of Statutes 1866,1 for a failure to notify a collector of internal revenue concerning a still which he had made, and now moves in arrest of judgment for alleged defects in the indictment.

The law enacts, that any person who shall manufacture any still, to be used for the purpose of distilling, shall, before the same is removed from the place of manufacture, notify the collector where such still is to be used or sent, and by whom it is to be used, and of its capacity, etc., and if he fail to give such notice, he shall be fined. It is apparent that this statute leaves much to be supplied, and it is not an easy one on which to frame an indictment. It means that when a still is made for the purpose of distilling spirits within the United States, the maker is to notify the collector of internal revenue of the district in which it is intended to be so used where it is to be used or sent, and when, and by whom, etc., etc. I have underlined the words which the statute omits, and an indictment ought to supply them, or something which, to a common intent, will fairly express the same meaning. The general rule that the words of a statute are to be followed in an indictment is not absolutely and always true. On the one hand it is often sufficient, when the statute expresses a simple and clear meaning in one way that the indictment should give the same meaning clearly in another way. And on the other hand, when the statute is itself ellipti

1 14 Stats. 154.

cal so that its meaning must be gathered from the context or from other parts of the same or other statutes, the indictment, which has not the advantage of such aids in its interpretation, must of itself allege a crime according to the true intent of the statute. Both these exceptions or explanations amount only to this, that the statute crime may and must be laid with reasonable certainty according to the true meaning of the law.

In this case the charge in the indictment is, that the defendant made the still at his shop in Chelsea," said still to be used for the purpose of distilling," and that after it was made, the said still was removed with the knowledge and consent of the defendant "to a district within the said United States, which said district is to your jurors aforesaid unknown, without notifying the collector of internal revenue of the district in which said still was intended to be used" of the requisite particulars.

This indictment fails to charge affirmatively, that the still was intended to be used within the United States, for distilling spirits, or that it was the defendant that failed to give the notice. The statement that the collector of the district in which the still was intended to be used was not notified, is not an affirmation that there was any such district. Every fact here charged would be true of a still for making petroleum, and removed from Chelsea to Boston for shipment to Canada, and of a failure by the person who removed it to notify the collector, and of a still intended to be used in district well known to the grand jurors; for their ignorance is of the district to which it was removed which is not averred to be the same in which it was intended to be used.

I do not find here the certainty of allegation which the criminal law, wisely or not, requires in charging an offense.

Judgment arrested.

REVENUE LAW-DISTILLER-FAILURE TO PAY TAX.

UNITED STATES v. SHEA.

[5 Blatchf. 586.]

In the United States Circuit Court, New York, 1867.

A Distiller is not in Default for the mere non-payment of his special tax, until ten days after the receipt by the collector of the assessment list.

Proceedings had upon the trial of defendant, indicted under the twenty-third section of the internal revenue act of July 13, 1866, for

carrying on the business of a distiller, without having paid a special tax.

From the evidence it appeared that though defendant had not paid the tax, he had given due notice of his intention to distil spirits, given a proper bond, etc., and that in pursuance of this the tax had been assessed against him and returned to the collector in the monthly list for December-such list having been put in the latter's hands on the 20th of December, less than ten days prior to the commission of the offense charged.

Upon trial had defendant was convicted, whereupon he moved for a new trial and arrest of judgment.

BENEDICT, J. Upon consideration of the various provisions of the internal revenue law, I am of the opinion that the point raised on the evidence introduced in defence is well taken. The various provisions of the law in regard to special taxes, as set forth in sections 20, 28, and 73, as amended in the act of 1869, and elsewhere, and which seem to make no substantial difference, as regards the particular defence in question, between the business of distilling and other kinds of business subject to a special tax, must, when taken together, be considered to import, that a distiller is not in default for the mere non-payment of his special tax of one hundred dollars, until ten days after the receipt by the collector of the assessment list, in which the special tax is to be inserted, and that he can not be held to be guilty of the offense created in the twenty-third section, unless it appears that he carries on the business after he is in default for the non-payment of the tax. The words of the act are, without having paid the special tax, as required by law," and these words, "as required by law," must be considered to refer to the time and place of payment, as well as to the amount. Therefore, the distiller can not be said to carry on business without payment of the special tax, as required by law, so long as he has taken all necessary steps towards the ascertainment and payment of his special tax, and stands ready to pay it in the manner required by law, that is, within ten days after the assessor shall have returned to the collector the assessment list in which such tax is required to be inserted. This construction of the provisions of the act seems reasonable, and to be necessary to prevent infinite confusion and injustice in the collection of the taxes, as a consideration of the effect of similar provisions made applicable to various trades will show. Although it is true that, under this construction, a distiller may carry on his business a short time without having actually paid his special tax of one hundred dollars, as may persons in other kinds of business, yet he has given security for its payment when due, while the various other provisions in regard to his distillery, etc., all necessary to be complied with before commencing