punishment of a crime does not enumerate by implication to cases not falling within the facts constituting the crime, an indict- their terms. ment which follows the language of the statute, and does not allege the facts constituting the crime, is fatally defective, and a demurrer thereto should be sustained.

cerning the importation of merchandise. The generic expression, "import and bring into the United States," did not convey the neces sary information, because importing mer chandise is not per se contrary to law, and could only become so when done in violation of specific statutory requirements. As said in the Hess Case, at page 486 [31: 517]:

The plaintiff in error was prosecuted under an indictment consisting of three counts. The first was intended to charge a violation of § 3082 of the Revised Statutes, by the alleged unlawful importation into the port of Philadelphia of certain diamonds. The second averred a violation of section 2865 of the Revised Statutes, by the smuggling and clandestine introduction, on the like date, and into the same port, of the articles which were embraced in the first count. The third count need not be noticed, since as to it the trial judge, at the close of the evidence, instructed the jury to return a verdict of not guilty.

"The statute upon which the indictment is founded only describes the general nature of the offense prohibited, and the indictment, in repeating its language without averments disclosing the particulars of the alleged offense, states no matters upon which issue could be formed for submission to a jury."

As to the sufficiency of the second count. *In this count it was charged in substance[438] that Keck "did knowingly, wilfully, and unlawfully, and with intent to defraud the revenue of the United States, smuggle and clandestinely introduce into the United States, to wit, into the port of Philadelphia," certain "diamonds" of a stated value, which should have been invoiced and duty thereon paid or accounted for, but which, to the knowledge of Keck and with intent to defraud the revenue, were not invoiced nor the

The sufficiency of the first and second counts was unsuccessfully challenged by the accused, both by motion to quash and by demurrer. The jury returned a general verdict of guilty; and, after the court had overruled motions for a new trial and in arrest of judg-duty paid or accounted for. ment, the accused was duly sentenced. Er- Two objections were urged against this ror was prosecuted, and the case is here for count: first, that diamonds, under the law review. then in force, were on the free list, and hence not subject to duty; and, second, that if all diamonds were not on the free list, at least some kinds of diamonds were on such list, and the count should therefore have specific ally enumerated the kinds or classes of diamonds which were subject to duty by law.

The assignments of error are numerous, but we need only consider the questions as to the sufficiency of the first and second counts of the indictment and the propriety of the conviction under the second count. [437] *Was the first count sufficient?

This count was based upon that portion of With respect to the first objection, counsection 3082 of the Revised Statutes, which sel for plaintiff in error contends that all made it an offense to "fraudulently or know-diamonds were free of duty, because of the ingly import or bring into the United States, following provision contained in the free list or assist in doing so, any merchandise, con- of the tariff act of 1894, to wit: trary to law.”

"Par. 467. Diamonds; miners', glaziers', and engravers' diamonds not set, and diamond dust or bort, and jewels to be used in the manufacture of watches or clocks."

Paragraph 338 imposes duties as follows: "Precious stones of all kinds, cut but not set, 25 per cent ad valorem; if set, and not specially provided for in this act, including pearls set, 30 per cent ad valorem; imitations of precious stones, not exceeding an inch in dimensions, not set, 10 per cent ad valorem. And on uncut precious stones of all kinds, 10 per cent ad valorem."

It is apparent that it was not the inten. tion of Congress to put one of the most valuable of precious stones on the free list, while all others were made dutiable. The word "diamonds," which is but the commencement of paragraph 467, was plainly designed as a heading, for convenient reference, and the semicolon following should be read as though a colon.

427; United States v. Smith, 2 Blatchf. 127; The Emily, 9 Wheat. 381. 6 L. ed. 116; United States v. Quincy, 6 l'et. 445, 8 L. ed. 458.

[436] *Mr. Justice White delivered the opinion of the court:

It was charged in the count that Keck, on the date named, "did knowingly, wilfully, and unlawfully import and bring into the United States, and did assist in importing and bringing into the United States, to wit, into the port of Philadelphia," diamonds of a stated value, "contrary to law and the provisions of the act of Congress in such cases made and provided, with intent to defraud the United States."

As is apparent, the alleged offense averred in this count was charged substantially in the words of the statute. In the argument at bar counsel for the United States conceded the vagueness of the accusation thus made; and, tested by the principles laid down in United States v. Carli, 105 U. S. 611, 612 [26: 1135], United States v. Hess, 124 U. S. 483 [31: 516], and Evans v. United States, 153 U. S. 584, 587 [38: 830, 832], the count was clearly in sufficient. The allegations of the count were obviously too general, and did not sufficiently inform the defendant of the nature of the accusation against him. The words, "contrary to law," contained in the statute clearly relate to legal provisons not found in section 3082 itself, but we look in vain in the count for any indication of what was relied on as violative of the statutory regulations con

The other ground of objection to the sec ond count is controlled by the decision in[439] Dunbar v. United States, 156 U. S. 185 [39: 390]. In that case, paragraph 48 of section 1 of the tariff act of 1890 provided that opium containing less than nine per cent of morphia, and opium prepared for smoking, should be subject to a duty of twelve cents per pound. Counts charging the smuggling

arose, were surrendered to the customs authorities.

The United States, on the contrary, maintains that the facts were sufficient to justi fy a conviction for smuggling or clandestine

saw it I said, 'Captain, that is the package I want.' He said, 'Where is your order?' I produced my card as United States Treasury [442]agent. He refused to let me have it until I was identified as a custom house officer. A young man (being) present at the conversa-introduction, as those words embrace all untion opposite the captain's room, who repre- lawful acts of concealment or other illegal sented the steamship company, we agreed to conduct tending to show a fixed intent to go back to the chart room, where I again in- evade the customs duty by subsequently passsisted on getting this package, and this ing the goods through the jurisdiction of the young man who represented the steamship customs officials without paying the duties company, who was present, advised the cap- imposed by law thereon. It is hence contain to give the package to me, which the tended by the prosecution that the crime of captain did." smuggling or clandestine introduction was complete if the acts of concealment were in existence when the vessel entered the waters of the United States, even although at such time the period for making entry and paying or securing the duties had not arisen, and even although subsequently and before or at the time when the obligation to make entry and pay duties arose the goods were delivered to the customs authorities.

The package referred to was found to contain five hundred and sixty-three cut diamonds of the value of about seven thousand dollars, which were subject to a duty of twenty-five per cent. The diamonds were subsequently sold under forfeiture proceedings instituted by the government, and no claimant for them appeared.

Exception was taken on behalf of the accused to the following instruction given by the trial judge to the jury: "If the statements made here under oath by Captain Loesewitz respecting his receipt of the package of diamonds in Antwerp and bring ing them here are true, the defendant is guilty of the offense charged." An excep

also noted to the refusal of

The questions for determination, therefore, are: Did the testimony of the captain justify the court in giving the instruction that believed such testimony? and, Did the court, there was a legal duty to convict, if the jury admitting the testimony of the special agent dict as requested? to be true, err in refusing to instruct a ver

tion was

sec

the court to direct the jury to return
a verdict of not guilty upon the
ond count, and the questions reserved by
these two exceptions are pressed as clearly
giving rise to reversible error.

tion 2865, Revised Statutes, which is as folThe charge of smuggling was based on sec

mon law, and, in the absence of a particularized definition of its significance in the stat ute creating it, resort may be had to the common law for the purpose of arriving at the meaning of the word. Swearingen v. United States, 161 U. S. 446, 451 [40: 765, 766]; United States v. Wong Kim Ark, 169 U. S. 649 [42: 890].

Russell, in his work on Crimes (Vol I. p. 277, 6th English edition), thus speaks of the offense:

mit the offense referred to. It was indeed argued at bar that as the concealment of goods at the time of entering the waters of the United States tended to render possible a subsequent smuggling, therefore such acts should be considered and treated as smuggling; but this contention overlooks the plain distinction between the attempt to commit an offense and its actual commission. If this premise were true, then every unlawful act which had a tendency to lead up to the subse quent commission of an offense would become the offense itself; that is to say, that one would be guilty of an offense without having done the overt act essential to create the offense, because something had been done which, [445]if* carried into further execution, might have constituted the crime. Second. That the smuggling or clandestine introduction of goods referred to in the statute must be without paying or accounting for the duty," is also beyond question.

From the first of the foregoing conclusions it follows that mere acts of concealment of merchandise on entering the waters of the United States, however preparatory they may be and however cogently they may indicate an intention of thereafter smuggling or clandestinely introducing, at best are but steps or attempts not alone in themselves constituting smuggling or clandestine introduction. From the second, it results that as the words, "without paying or accounting for the duty" imply the existence of the obligation to pay on account at the time of the commission of the offense, which duty is evaded by the guilty act, it follows that the offense is not committed by an act done before the obligation to pay or account for the duties arises, although such act may indicate a future purpose to evade when the period of paying or securing the payment of duties has been reached. If this were not a correct construction of the statute, it would result that the offense of smuggling or clandestine introduction might be committed as to goods, although entry of such goods had been made and all legal duties had been paid before the goods had been unshipped. The soundness of the deductions which we have above made from the statute is abundantly demonstrated by the line of argument which it has been necessary to advance at bar to meet the dilemma which the contrary view necessarily involves. For, although it was contended that the offense was complete the moment the concealment existed when the ship arrived within the waters of the United States, it was yet conceded that if in legal time the duties were subsequently paid or secured, there would have been no of fense committed. But the contention and the admission are completely irreconcilable, since if the subsequent act becomes necessary in order to determine whether an offense has been committed, it cannot in reason be said that the offense was complete and had been committed before the subsequent and essential act had taken place. [446] *These conclusions arising from a consideration of the text of the statute are rendered of "for landing" were also to be forfeited. yet clearer by taking into view the definite In 1719, by statute 5 Geo. I. chap. 11, enti legal meaning of the word smuggling. That tled "An Act against the Clandestine Runterm had a well understood import at com- ning of Uncustomed Goods, and for the More

A reference to the English statutes sustains the statement* of the textwriters above[4 47] quoted, that the words "smuggling" and clandestine introduction," so far, at least, as respected the introduction of dutiable goods from without the Kingdom, signified the bringing of the goods on land, without authority of law, in order to evade the pay ment of duty, thus illegally crossing the line of the customs authorities. Thus, in 1661, by statute 12 Car. II. chap. 4, sec. 2, dutiable goods were to be forfeited if brought into any port, etc., of the Kingdom and "unshipped to be laid on land" without payment of duties, etc. So, in 1710, by statute 8 Anne, chap. 7, sec. 17, dutiable goods, “unshipped, with intention to be laid on land" without the payment of duties, etc., were to be forfeited, treble the value of the goods was to be forfeited by those concerned in such unshipping, and the vessels and boats made use

"Among the offenses against the revenue laws, that of smuggling is one of the principal. It consists in bringing on shore, or carrying from the shore, goods, wares, or merchandise for which the duty has not been paid, or goods of which the importation or exportation is prohibited. An offense productive of various mischiefs to society."

This definition is substantially adopted from the opening sentence of the title "Smuggling and Customs" of Bacon's Abridgment, and in which, under letter F, it is further said:

"As the offense of smuggling is not complete unless some goods, wares, or merchandise are actually brought on shore or carried from the shore contrary to law, a person may be guilty of divers practices, which have a direct tendency thereto, without being guilty of any offense.

"For the sake of preventing or putting a stop to such practices, penalties and forfeitures are inflicted by divers statutes; and indeed it would be to no purpose, in a case of this kind, to provide against the end without providing at the same time against the means of accomplishing it."

So, also, Blackstone defines smuggling to be "the offense of importing goods without paying the duties imposed thereon by the laws of the customs and excise." 4 Black. Com. 154. The words "importing without paying the duties" obviously implying the existence of the obligation to pay the duties at the time the offense is committed, and which duty to pay is evaded by the commission of the guilty act.