Dunbar v. United States
156 U.S. 185 (1895)

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U.S. Supreme Court

Dunbar v. United States, 156 U.S. 185 (1895)

Dunbar v. United States

No. 693

Argued December 5-6, 1894

Decided January 28, 1895

156 U.S. 185

Syllabus

In an indictment for smuggling opium, a description of the property smuggled as "prepared opium, subject to duty by law, to-wit, the duty of twelve dollars per pound," is a sufficient description of the property subjected to duty by paragraph 48 of § 1 of the Tariff Act of October 1, 1890, c. 1244, 26 Stat. 567.

It is no valid objection to an indictment that the description of the property in respect to which the offense is charged to have been committed is broad enough to include more than one specific article, and any words of description which make clear to the common understanding that in respect to which the offense is alleged to have been committed are sufficient.

A defendant who waits till after verdict before making objection to the sufficiency of the indictment waives all objections which run to the mere form in which the various elements of the crime are stated, or to the fact that the indictment is inartificially drawn.

One good count in an indictment containing several is sufficient to sustain a judgment.

United States v. Carll,105 U. S. 611, distinguished from this case.

A charge that the defendant willfully, unlawfully, and knowingly, and with intent to defraud the revenues of the United States smuggled and clandestinely introduced into the United States prepared opium carries with it a direct averment that he knew that the duties were not fully paid, and that he was seeking to bring such goods into the United States without their just contribution to the revenues, and is therefore not subject to the objection that a scienter is not alleged.

An objection to the admissibility of testimony as to a count upon which the accused is acquitted is immaterial.

Page 156 U. S. 186

Secondary evidence is admissible to show the contents of letters in the possession of the defendant in a criminal proceeding, when he refuses to produce them on notice to do so, and cannot be compelled to produce them.

When a competent witness testifies that a writing which he produces was received by him and that a defendant on trial in a criminal proceeding admitted that he sent it to him, a foundation is laid for the introduction of the writing against the defendant, although not in his handwriting.

An instruction objected to as misrepresenting the testimony and as attempting to enforce as a conclusion from the misrepresented testimony that which was only a possible inference therefrom is examined and held to fairly leave the question of fact to the jury, and not to overstate the inference from it, if found against the defendant.

An instruction to the jury that

"a reasonable doubt is not an unreasonable doubt -- that is to say, by a reasonable doubt you are not to understand that all doubt is to be excluded; you are required to decide the question submitted to you upon the strong probabilities of the case, and the probabilities must be so strong as not to exclude all doubt or possibility of error, but as to exclude reasonable doubt,"

gives all the definition of reasonable doubt which a court can be required to give.

On July 14, 1893, there was returned into the District Court of the United States for the District of Oregon an indictment against the defendant, William Dunbar, now plaintiff in error, charging him in five counts, under § 2865, Rev.Stat., with the crime of smuggling. On November 25, 1893, there was also filed in the same court a second indictment, charging him in nine counts with a violation of § 3082, Rev.Stat.

Section 2865 provides:

"If any person shall knowingly and willfully, 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, . . . every such person . . . shall be deemed guilty."

The charge in the third count of the first indictment was

"That on the second day of September, 1892, in the State of Oregon and in the District of Oregon, and within the jurisdiction of this Court, the said William Dunbar did, on the steamship Haytian Republic, a steamship plying between the port of Portland, Oregon, in the United States, and Vancouver, in the Province of British Columbia,

Page 156 U. S. 187

Dominion of Canada, willfully, unlawfully, and knowingly, and with intent to defraud the revenues of the United States, smuggle and clandestinely introduce into the United States, to-wit, into the State of Oregon, and within the jurisdiction of this Court, and from a foreign country, to-wit, the Province of British Columbia, in the Dominion of Canada, certain goods, wares, and merchandise, to-wit, a large quantity of prepared opium, being about 1,400 pounds of prepared opium, the exact number of pounds being to the grand jury unknown, of the value of $15,400, subject to duty by law, to-wit, a duty of twelve dollars ($12) per pound, and which should have been invoiced, without paying or accounting for said duty or any part thereof, and without having said opium or any part thereof invoiced, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the United States of America."

The fourth count was different only in the time and the amount of opium charged to have been smuggled.

Section 3082 is 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,"

etc. The substance of the second, fourth, and fifth counts of the second indictment was that the defendant did

"willfully, unlawfully, and knowingly, and with intent to defraud the revenues of the United States, smuggle and clandestinely introduce into the United States'"

certain amounts of prepared opium. The ninth count charged that

"On the 5th day of February, 1893, said William Dunbar, in the District of Oregon, and within the jurisdiction of this Court, did willfully, unlawfully, fraudulently, and knowingly, and with intent to defraud the revenues of the United States, facilitate the transportation after importation of a large quantity of prepared opium, to-wit, about 200 pounds of prepared opium, the exact number of pounds being to the grand jury unknown, which prepared

Page 156 U. S. 188

opium was subject to a duty by law, to-wit, to a duty of twelve dollars ($12) per pound, and which should have been invoiced, and which prepared opium, on said 5th day of February, 1893, had been knowingly, willfully, unlawfully, and fraudulently brought, imported, smuggled, and clandestinely introduced into the United States and into the District of Oregon, and within the jurisdiction of this court from a foreign country, to-wit, from the Province of British Columbia, Dominion of Canada, and upon which prepared opium no duty had been paid or accounted for according to law, and none of said prepared opium had been invoiced, he, the said William Dunbar, then and there well knowing that no duty had been paid or accounted for according to law on said prepared opium, and that none of said prepared opium had been invoiced, and that the same and the whole thereof had been unlawfully, willfully, knowingly, and fraudulently brought, imported, smuggled, and clandestinely introduced into the United States and into the District of Oregon from said foreign country, said province of British Columbia, in said Dominion of Canada as aforesaid; that the said William Dunbar did then and there facilitate the transportation of said opium, after importation, by packing the same in trunks, and causing the same to be transported as baggage from Portland, Oregon, to San Francisco, California, contrary to the _____ of statute in such cases made and provided, and against the peace and dignity of the United States."

On November 27, 1893, the court made an order consolidating the two cases for trial. Upon the trial of the consolidated cases, the jury returned a verdict of guilty, as charged in the six counts above referred to of the two indictments. A motion for a new trial having been overruled, judgment was entered sentencing the defendant to pay a fine of $1,000, and to be imprisoned for a term of two years. To reverse such judgment and sentence, the defendant sued out this writ of error.

Page 156 U. S. 189

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