In a suit
in rem against certain diamonds seized as
forfeited for a violation of the customs revenue laws, it was
competent for the United States to give in evidence the
declarations of S., not the claimant, who was entrusted by the
latter with the custody of the diamonds for sale, such declarations
having been made to a customs officer who took the diamonds from a
person with whom S. had deposited them, and in the course of an
investigation by the officer to determine whether he should seize
them, and having been part of the
res gestae.
It was also competent for the officer to testify that he did not
seize the diamonds till after the declarations were made.
The jury having found, in compliance with § 16 of the Act of
June 22, 1874, c. 391, 18 Stat. 189, that the acts complained of in
the information were done with intent to defraud the United States,
and no motion to dismiss the cause for any defect in the
information and no motion in arrest of judgment having been made,
any such defect which could have been availed of by demurrer, or
exception, or motion to dismiss at the trial, made on the ground of
such defect or motion in arrest of judgment must be regarded as
having been waived or as having been cured by the verdict.
An information under the revenue laws for the forfeiture of
goods which seeks no judgment of fine or imprisonment against any
person is a civil action.
Page 125 U. S. 225
Yet it is so far in the nature of a criminal proceeding that a
general verdict on several counts in the information is upheld if
one count is good.
Where the sections of the Revised Statutes on which the counts
of the information are founded do not prescribe any intent to
defraud as an element of the forfeitures they denounce, said § 16
does not make it necessary, in an information filed since its
enactment, to aver that the alleged acts were done with an actual
intention to defraud the United States.
It is not necessary that the judgment should recite the finding
by the jury that the acts complained of in the information were
done with intent to defraud the United States.
In rem for the forfeiture of diamonds seized for a
violation of customs revenue laws. Decree of condemnation in the
district court, which was affirmed by the circuit court. Claimant
sued out this writ of error.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is a suit brought by the United States in the District
Court of the United States for the Southern District of New York to
condemn 43 diamonds seized as forfeited under the customs revenue
laws. The information contains five counts.
The first count is based on §§ 2872 and 2874 of the Revised
Statutes, and alleges that the goods were brought in a vessel, name
unknown, from _____, a foreign port or place, and were, on the ___
day of _____, 1882, unladen and delivered from such vessel within
the port and collection district of the City of New York without a
permit from the collector and naval officer for such unlading or
delivery, contrary to those two sections, and that the value of the
goods, according to the highest market price of the same at the
said port and district, amounts to $400.
The second count is based on § 3066, and avers that the
collector, having cause to suspect a concealment of goods in
Page 125 U. S. 226
the building No. 66 Nassau Street, in the City of New York, did,
on the 27th of February, 1883, with due warrant therefor, enter the
said building, in the daytime, and there search for such goods, and
did then and there find the same concealed, and did seize and
secure the same for trial, and that the duties had not been paid or
secured to be paid thereon, contrary to said section.
The third count is based on § 2802, and avers that the said
goods, being articles subject to duty, were, on the 27th of
February, 1883, found in the baggage of a person arriving in the
United States, and were not at the time of making entry for such
baggage mentioned to the collector before whom such entry was made
by the person making the same, contrary to said section.
The fourth count is based on § 2809, and avers that the said
goods were, on the ___ day of _____, one thousand eight hundred and
_____, imported into the United States in the vessel, name unknown,
belonging in whole or in part to a citizen or citizens, inhabitant
or inhabitants, of the United States, from a foreign port or place,
and were not included in the manifest, and belonged or were
consigned to the master, mate, officers, and crew of such vessel,
contrary to said section.
The fifth count is based on § 3082, and avers that on or about
the ___ day of _____, one thousand eight hundred and _____, an
unknown person did fraudulently and knowingly import and bring into
the United States, and insist in so doing, the said goods, contrary
to law, and did receive, conceal, buy, sell, and in some manner
facilitate the transportation, concealment, and sale of such goods
after their importation, knowing the same to have been imported
contrary to law, contrary to said section.
One Augusta Friedenstein put in a claim to the goods as owner,
and answered the information, denying the forfeiture. The case was
tried by a jury in the district court, which rendered
"a verdict for the informants and against the claimant for the
condemnation of the goods mentioned in the information, and that
the acts complained of therein were done with intent to defraud the
United States."
A decree of
Page 125 U. S. 227
condemnation was entered thereon, and the claimant took the case
by writ of error to the circuit court, which affirmed the decree of
the district court and remanded the case thereto for execution of
the decree. The claimant has brought the case to this Court by a
writ of error.
The bill of exceptions shows the following state of facts in
regard to the seizure of the goods:
On the 27th of February, 1883, one Brackett, a special agent of
the Treasury Department, went with two subordinates to the store of
Goldsmith & Kuhn, No. 66 Nassau Street, where they found a man
and a woman and the package of diamonds. The woman was a Mrs.
Sussman. When Brackett reached the store, the diamonds were in the
possession of Goldsmith & Kuhn. They told Brackett that Mrs.
Sussman had handed the diamonds to them. Mr. Kuhn, who was behind
the counter, had the package and handed it to Brackett upon his
demand for it. Brackett took it, and requested Mrs. Sussman to
accompany him to the custom house, as he wished to make some
inquiries about the diamonds. He took them to the custom house,
Mrs. Sussman accompanying him. In answer to a question put to
Brackett by the counsel for the claimant, on his examination as a
witness as to when he took the diamonds, he said: "I took them at
the store, and took her down to the custom house with them. If her
explanation was satisfactory, I did not intend to seize them." The
package was opened at the custom house, and the diamonds were
examined and appraised, and were then placed in the hands of the
officer in charge of the seizure room at the custom house. Brackett
was then asked by the district attorney: "When and where did you
make the seizure of these diamonds?" To this question the claimant
objected as calling for a conclusion of law, but the court
overruled the objection, and the claimant excepted. The witness
replied: "The seizure of the diamonds was made at the custom house
in this city, after I was through with my investigation."
It appeared that after Brackett and Mrs. Sussman arrived at the
custom house, and before the package was there opened, a
conversation took place there between him and her. The bill of
exceptions says:
Page 125 U. S. 228
"The witness Brackett was recalled, and asked this question by
the district attorney:"
" Now state the conversation between Mrs. Sussman and yourself,
which occurred prior to the actual seizure of those diamonds in the
custom house, and on the same day when she went in company with you
to the custom house with the diamonds."
"The claimant objected to this question because Mrs. Sussman's
statement, under the circumstances and at that time, could not
affect the claimant; also, because the question involved a
conclusion of law as to the time when 'actual seizure' took place.
The court overruled the objection, admitting the question, and the
claimant excepted."
"The witness Brackett, in reply to this inquiry, testified as
follows:"
" Well, I asked Mrs. Sussman from whom she got the diamonds. She
said they belonged to another party, but she could not give the
name of the party, neither would she give her own proper name. I
told her: 'If you can give a satisfactory explanation, and if these
goods have been brought into the port properly, and duties paid,
the United States government don't want them; why do you object?'
'Well,' she says, 'I can't mention the name of the lady to whom
these stones belong.' Well, she finally said to me, after some
twenty minutes, perhaps, of conversation -- there were two other
parties in the room, Mr. Cohen sitting outside, and the door open
-- she said, 'I would like to see you in private.' 'Well,' said I,
'these are my offices here; this is all private -- these offices.'
'No,' said she, 'I want to speak to you alone.' Well, I went into
the adjoining room with her, and she then said to me, 'These
diamonds belong to a lady, as I said before, whose name I won't
give. The duty has not been paid on these diamonds. I am ready to
go now before the collector and make arrangements to have the
duties paid.' 'Well,' said I, 'I cannot do that, madam.' 'Well,'
she says, 'I am ready; it can't be over $400.' I then went back to
the room and told her that I could not make any such arrangement
with her as that; the diamonds were then [not?] under seizure; then
I made up my mind to seize them after this conversation. She said
the duty would not be over $400; she was ready to go
Page 125 U. S. 229
before the collector and make arrangements to pay that
duty."
"The witness also testified that he sent for Gen. Palmer, and
that Mrs. Sussman reiterated to Gen. Palmer what she had said to
him, the witness. To further sustain the issues, the government
then called George W. Palmer, who, after testifying that he was the
deputy collector in charge of the seventh division or law
department of the custom house, proceeded, under the objection of
claimant's counsel, which objection was overruled and an exception
to such ruling duly taken, to give in detail a conversation which
he had with Mrs. Sussman at that time, of a similar nature to that
testified to by Capt. Brackett."
"It was also proved for the government and acknowledged by Mrs.
Sussman, when on the stand on behalf of the claimant that she, Mrs.
Sussman, had been to Europe, and had returned from thence, and
landed at the port of New York in the latter part of August,
1882."
The ground urged against the admissibility of the conversation
with Mrs. Sussman is that, she not being the owner of the diamonds,
evidence as to her declarations was not admissible in derogation of
the title to them, especially because such declarations were made
after she had ceased to have the custody of them, and that it was
error to permit Brackett to swear that although he took physical
possession of the property at 66 Nassau Street before the
conversation with Mrs. Sussman, he did not make the actual seizure
until he made it at the custom house, after the conversation with
Mrs. Sussman.
But we see no objection to the evidence. It is plain on the
testimony that the goods were not seized for forfeiture until after
the conversation, and that the seizure took place at the custom
house, after the investigation and examination there, and did not
take place at 66 Nassau Street.
See Four Packages v. United
States, 97 U. S. 404,
97 U. S. 411.
The second count of the information does not allege that the
seizure took place at 66 Nassau Street. Its fair import is that the
collector, with a warrant, entered those premises and searched for
the goods, and there found them, and that he afterwards seized and
secured them for trial.
Page 125 U. S. 230
Mrs. Sussman, as appears from other evidence in the bill of
exceptions, had carried the diamonds to the store of Goldsmith
& Kuhn for the purpose of selling them to that firm. If they
really belonged to the claimant, they had been put by her into the
custody of Mrs. Sussman for the purpose of selling them. Under
these circumstances, Mrs. Sussman's declarations to Brackett in
regard to the goods while he was making an official investigation
and examination as to whether they should be seized for forfeiture,
were part of the
res gestae, and admissible in evidence as
against the person claiming to be the owner of the goods in a suit
in rem for their forfeiture. It was competent for the
claimant to contradict the facts stated to Brackett by Mrs. Sussman
in regard to the diamonds, but the minutes of the trial show that,
although Mrs. Sussman was examined as a witness for the claimant,
the claimant herself did not testify as a witness.
We see no objection to the evidence shown by the bill of
exceptions to have been admitted under the exceptions of the
claimant.
The claimant raises a point as to the sufficiency of the
information. The record shows a full compliance with the statute in
regard to the finding by the jury that the acts complained of in
the information were done with intent to defraud the United States.
It does not show that any motion in arrest of judgment was made,
nor that any motion was made on the part of the claimant to dismiss
the cause for any defect in the information. It is stated in the
minutes of trial, which are contained in a paper aside from the
bill of exceptions and forming no part of it, that after the
evidence for the United States had been put in, the counsel for the
claimant moved to dismiss the case, and the motion was denied; but
it is not stated on what ground the motion was made. Under these
circumstances, any defect in the information which could have been
availed of by demurrer, or by exception, or by a motion to dismiss
at the trial, made on the ground of such defect, or by a motion in
arrest of judgment, must be regarded as having been waived or as
having been cured by the verdict.
Coffey v. United States,
116 U. S. 436.
Page 125 U. S. 231
Among the objections covered by the above observations are those
to the first count, that it does not name any vessel, that it does
not name the foreign port or place, or state that its name was
unknown, that it does not state any day or month of the unlading,
and that it does not state that there was then a naval officer at
the port of unlading; that to the second count that it does not
allege that the goods were dutiable or imported; those to the third
count that it does not name the person arriving in the United
States nor allege that his name was unknown, nor when he arrived,
nor at what port he arrived, nor who was the collector, nor that
these things were unknown, nor, affirmatively, that any entry was
made of the baggage in which the goods were found; those to the
fourth count that it avers no day, month, or year, no port,
domestic or foreign, no vessel, no owner, no consignee, and does
not affirmatively state the existence of any manifest in which the
goods should have been included; those to the fifth count that it
does not name time, place, person, or circumstance in regard to the
importation, that it is bad for duplicity because the importation
is distinct from the subsequent dealing with the imported goods,
and that it does not state what the illegality was in the
importation.
This is a civil cause. In
Snyder v. United States,
112 U. S. 216, it
is said that informations under the revenue laws for the forfeiture
of goods, seeking no judgment of fine or imprisonment against any
person, are civil actions, although so far in the nature of
criminal proceedings that a general verdict on several counts in an
information is upheld if one count is good. This latter rule was
also applied in
Locke v. United
States, 7 Cranch 339, in
Clifton v.
United States, 4 How. 242,
45 U. S. 250,
and in
Coffey v. United States, 116 U.
S. 427,
116 U. S.
433-434,
116 U. S. 436,
116 U. S. 442.
In
The Palmyra, 12
Wheat. 1,
25 U. S. 12, it is
said that informations of seizure for forfeitures "are deemed to be
civil proceedings
in rem," and the existence of Rule 22 of
the rules of practice adopted by this Court for the courts of the
United States in admiralty and maritime jurisdiction, on the
instance side of the court, prescribing the contents of
informations on seizures for a breach of the laws of the United
States, shows
Page 125 U. S. 232
that such seizure cases are regarded as civil suits. The
authority to make the rule was conferred by § 6 of the Act of
August 23, 1842, c. 188, 5 Stat. 518, which relates wholly to the
making of rules in suits at common law and in admiralty and equity.
The case of
United States v. Three Parcels, 3 Ware 75,
relied on by the plaintiff in error, is distinguishable from the
present case. There the statute required, in order to forfeit
goods, that they should not have been invoiced according to their
actual cost and that that should have occurred with a design to
evade the duties thereon, and it was held on a motion in arrest of
judgment that an information was bad which only alleged the making
of an entry with a design to evade the duties, and did not allege
the making of a false invoice with such design.
Section 954 of the Revised Statutes, which was always in force
as § 32 of the Act of September 24, 1789, c. 20, 1 Stat. 91,
provides that no judgment or other proceedings in civil causes in
any court of the United States shall be arrested or reversed for
any defect or want of form, but such court shall proceed and give
judgment according as the right of the cause and matter in law
shall appear to it without regarding any such defect or want of
form except those which, in cases of demurrer, the party demurring
specially sets down, together with his demurrer, as the cause
thereof. This statutory provision applies to many of the objections
urged to the information in the present case. These and the other
objections mentioned were not taken in the court below by demurrer
or exception or motion in arrest of judgment, and there has been a
verdict of condemnation. As was said in
Lincoln v. Iron
Co., 103 U. S. 412,
103 U. S. 415,
if the issue joined be such as necessarily required on the trial
proof of the facts defectively stated or omitted, and without which
it is not to be presumed that the judge would have directed the
jury to give the verdict, such defect or omission is cured.
See also Stockton v.
Bishop, 4 How. 155,
45 U. S.
167.
There is, however, one objection made to the information which
it is proper to notice, as the question is an important one, and
arises now for the first time in this Court. It is provided
Page 125 U. S. 233
as follows by § 16 of the Act of June 22, 1874, c. 391, 18 Stat.
189:
"That in all actions, suits, and proceedings in any court of the
United States now pending or hereafter commenced or prosecuted to
enforce or declare the forfeiture of any goods, wares, or
merchandise or to recover the value thereof or any other sum
alleged to be forfeited by reason of any violation of the
provisions of the customs revenue laws or any of such provisions,
in which action, suit, or proceeding an issue or issues of fact
shall have been joined, it shall be the duty of the court, on the
trial thereof, to submit to the jury as a distinct and separate
proposition whether the alleged acts were done with an actual
intention to defraud the United States, and to require, upon such
proposition, a special finding by such jury, or, if such issues be
tried by the court without a jury, it shall be the duty of the
court to pass upon and decide such proposition as a distinct and
separate finding of fact, and in such cases, unless intent to
defraud shall be so found, no fine, penalty, or forfeiture shall be
imposed."
It is contended by the claimant that it is necessary to aver in
an information filed since that statute that the alleged acts were
done with an actual intention to defraud the United States and
that, as no such averment is found in the information in this case,
the judgment cannot be supported. But we are of opinion that such
averment is not necessary. The section relates only to the duty of
the court, on a trial by a jury or a trial without a jury, to
require or make a special and separate finding as to the actual
intention to defraud the United States. This is to be done in every
suit of the character specified in the section in which "an issue
or issues of fact shall have been joined," and the provision
applies to suits then pending as well as to those thereafter to be
commenced. The fair meaning of the section is that the issue or
issues of fact shall have been framed or shall be framed in the
usual manner theretofore in use. No one of the sections on which
the counts of this information are founded prescribes any intent to
defraud as an element of the forfeiture denounced in it, and, if §
16 of the act of 1874 is complied with, as it was in this case at
the trial of the cause before the jury, that is all that
Page 125 U. S. 234
is required. We do not concur in the view taken in
United
States v. Ninety Demijohns of Rum, 4 Woods 637, so far as such
view conflicts with our opinion herein. Besides, with the knowledge
on the part of the claimant and her counsel of the necessity that
the United States should prove on the trial that the alleged acts
were done with an actual intention to defraud the United States,
and that the jury should so find, or no forfeiture could be
imposed, it is impossible for the claimant to allege that she did
not come to the trial with the understanding that such actual
intention was matter to which proof, on the trial, was to be
addressed, although there was no allegation to that effect in the
information.
It is also objected, that the judgment of the district court
recites, as its basis, only the verdict of the jury, that it found
for the United States, condemning the goods, and that it does not
recite the finding by the jury that the acts complained of in the
information were done with intent to defraud the United States. But
we think that this was not necessary. As it appears by the minutes
of the trial that the jury made the finding of the intent to
defraud required by the sixteenth section of the act of 1874, as a
necessary condition precedent to the imposition of the forfeiture,
the judgment of forfeiture is justified.
The verdict was a general one, for the informants and against
the claimant, for the condemnation of the goods mentioned in the
information, and is supported, if any count of the information is
good, against the objections now made.
Clifton v.
United States, 4 How. 242,
45 U. S. 250;
Snyder v. United States, 112 U. S. 216;
Coffey v. United States, 116 U. S. 427,
116 U. S. 433,
116 U. S. 436,
116 U. S. 442.
The bill of exceptions does not state that it sets forth all the
testimony given on the trial, and the names of witnesses on both
sides are given in the minutes of the trial as having been sworn
whose testimony does not appear in the bill of exceptions. There is
nothing to show that any motion was made by the claimant that the
government should elect on which of the five counts it claimed a
verdict. The third count alleges that the diamonds were articles
subject to duty, and is a good count.
On the whole case, we see no error in the record, and
The decree of the circuit court is affirmed.
Page 125 U. S. 235
MR. JUSTICE FIELD, with whom concurred MR. JUSTICE HARLAN,
dissenting.
I am not able to concur in the judgment of the court in this
case. The proceeding is a libel of information for the forfeiture
of forty-three diamonds by reason of alleged violations of
provisions of the customs revenue statute. The several acts for
which a forfeiture is sought are not alleged to have been committed
with any actual intent to defraud the United States, and yet the
statute of June 22, 1874, declares that in all actions, suits, and
proceedings then pending or thereafter commenced to enforce the
forfeiture of any goods, wares, or merchandise, or to recover the
value thereof, or any other sum alleged to be forfeited, by reason
of any violation of the provisions of the customs revenue laws, in
which issues have been joined,
"it shall be the duty of the court on the trial thereof to
submit to the jury, as a distinct and separate proposition, whether
the alleged acts were done with an actual intention to defraud the
United States, and to require upon such proposition a special
finding by such jury; or, if such issues be tried by the court
without a jury, it shall be the duty of the court to pass upon and
decide such proposition as a distinct and separate finding of fact,
and in such cases, unless intent to defraud shall be so found, no
fine, penalty, or forfeiture shall be imposed."
18 Stat. 189, § 16.
The statute thus makes the actual intent to defraud the gist of
the offense, and an essential element of it, without proof of which
no forfeiture can be adjudged. What must be found ought, according
to well settled rules of pleading, to be averred. In every suit for
penalties or forfeitures what must be proved to entitle the
complaining party to judgment against either person or property
must be averred in the libel, and its omission will not be cured by
any verdict in the case. Defects in matters of substance are not
thus cured.
United States v. Hess, 124 U.
S. 483. It may be that libels of information for the
forfeiture of goods do not require such fullness and particularity
of averment as an information for the punishment of a criminal
offense, but there is no decision, or even dictum, I have
Page 125 U. S. 236
been able to find, that an entire omission of all averment as to
the essential fact to be established to justify a forfeiture or
conviction is not fatal. If any different rule has prevailed in any
portions of the country, I do not think it should be sustained.
This singular result would follow: that a defendant or claimant,
admitting all the allegations of the libel, would escape forfeiture
or punishment, for without proof of something not alleged, neither
could be imposed.
In the case of
The
Hoppet, decided as far back as 1813, 7 Cranch 388,
11 U. S. 393, a
libel of information was held insufficient which contained a
general reference to the provisions of the statute alleged to have
been violated. And the Court, speaking by Chief Justice Marshall's
aid that
"a rule so essential to justice and fair proceeding as that
which requires a substantial statement of the offense upon which
the prosecution is founded, must be the rule of every court where
justice is the object, and cannot be satisfied by a general
reference to the provisions of a statute."
It was accordingly held in that case that, the information being
defective in that respect, the defect was not cured by evidence of
the facts omitted to be averred, the Court stating that
"the accusation on which the prosecution is founded should state
the crime which is to be proved, and state such a crime as would
justify the judgment to be pronounced. The reasons for this rule
are first, that the party accused may know against what charge to
direct his evidence; second, that the court may see with judicial
eyes that the fact alleged to have been committed is an offense
against the laws, and may also discern the punishment annexed by
law to the specific offense. These reasons apply to prosecutions in
courts of admiralty with as much force as to prosecutions in other
courts. It is therefore a maxim of the civil law that a decree must
be
secundum allegata as well as
secundum probata.
It would seem to be a maxim essential to the due administration of
justice in all courts."
In the
United States v. Three Parcels of Embroidery, 3
Ware 75, it was held that the omission in a libel of information
for the forfeiture of those articles for violation of the
sixty-sixth section of the collection act of 1799, 1 Stat. c. 22,
p. 627, to
Page 125 U. S. 237
allege that the goods were falsely invoiced with a design to
evade the duties was a fatal defect in the proceeding, and was not
cured by the verdict of the jury. In considering the omission in
that case in arrest of the judgment on the ground that the offense
was not set out in the information with that clearness and
distinctness which is required by the rules of pleading and
practice, the Court said:
"It was long ago held by the Supreme Court that an information
to recover a penalty under the collection act of 1799 is in the
nature of a criminal proceeding.
Locke v. United
States, 7 Cranch 339;
Clifton v. United
States, 4 How. 242. The description of the offense
for which the penalty is demanded must have the same kind and
degree of certainty that is ordinarily required in other criminal
proceedings, and although it may be true, as is argued by the
district attorney, that in the practice of our courts all that
technical accuracy of description may not be required which is held
to be essential in indictments, and even in the exchequer practice
in England, and that niceties need not be observed which rest on
dry precedent, the reason of which has either ceased to exist or
cannot now be discovered, it is still indispensable that every
circumstance constituting the offense be clearly and distinctly set
out in plain and direct averments."
The language of the 66th section of the act of 1799, under which
the libel in that case was filed, declared
"That if any goods, wares, or merchandise, of which entry shall
have been made in the office of a collector, shall not be invoiced
according to the actual cost thereof at the place of exportation,
with a design to evade the duties thereupon, or any part thereof
all such goods, wares, or merchandise, or the value thereof, to be
recovered of the person making the entry, shall be forfeited."
1 Stat. 677. And the court held that from this language three
facts must concur to complete the offense: first, an entry must be
made of the goods; second, they must be invoiced not according to
their actual cost; third, they must be invoiced with a design to
evade the duties thereupon, or upon some part thereof. And that
each of these facts must be found in order to entitle the
plaintiffs to a verdict, and all
Page 125 U. S. 238
of them being necessary to constitute the offense, each should
be plainly and distinctly charged in the information. It was
charged that the entry of the goods was made with a design to evade
the duties, but it was nowhere distinctly and plainly charged that
a false invoice was made with that design, and the Court said:
"Under this section of the statute, it appears to me that this
design in making the invoice is an essential part of the offense.
If it is so, the rules of pleading require that it be distinctly
alleged. If it be said that the jury, under the direction of the
court, found the fact, it is still true that, by the strict rules
of pleading in penal clauses, the plaintiff can recover only
according to his allegation, as well as his proofs,"
and the judgment was arrested. This case, it is true, comes from
a district court, and is therefore not a controlling authority
here, but the great learning of the district judge, and the ability
which marked all his opinions, have deservedly entitled them to
great weight and consideration in all the federal courts, and the
doctrine declared is sustained by a multitude of decisions.
Much stress is laid upon the fact that an information or other
proceeding for the forfeiture of goods for a violation of
provisions of the customs revenue acts is in form a civil action;
but I do not perceive that this fact changes the necessity of
alleging, as well as proving, the material facts upon which alone a
forfeiture can be adjudged. Though the same strictness in pleading
is not required in civil as in criminal actions, in neither can
that which is essential to be proved be omitted to be averred. As
Chief Justice MARSHALL indicates in the quotation above, adherence
to this rule would seem to be essential to the due administration
of justice in all courts; and, it may be added, in all proceedings
before them, civil or criminal, upon which their judgment is
asked.
In the recent case of
Boyd v. United States,
116 U. S. 634,
this Court held
"that proceedings instituted for the purpose of declaring the
forfeiture of a man's property by reason of offenses committed by
him, though they may be civil in form, are in their nature
criminal."
Nor do I perceive that the question of pleading is affected
Page 125 U. S. 239
by the fact that the statute requiring the fraudulent intent to
be proved applied as well to pending actions and proceedings as to
such as might be subsequently commenced. That fact, it is true,
might in some cases have compelled an amendment of the pleadings in
pending actions and proceedings to make their allegations embrace
the essential element of the offense for which the forfeiture was
sought, and such an amendment, where a fraudulent intent was not
already alleged, was, as I think, contemplated. I cannot believe
that Congress intended, by making the law applicable to pending
cases, to change a long and well established rule of pleading --
one founded upon manifest principles of justice -- so as to allow a
conviction of an offense upon which a forfeiture could be adjudged,
without averring the fraudulent intent upon proof of which alone
such forfeiture could be claimed.
A jury should not be allowed to find as to any material fact not
alleged. Evidence upon such a fact would be evidence upon something
out of the case presented. Even in ordinary civil cases, such
evidence is not admissible. Much more strictly should the rule be
enforced in penal cases like this one. In
United States v.
Ninety Demijohns of Rum, 4 Woods 639, the libel of information
was for the forfeiture of those goods for a violation of provisions
of the customs revenue law. It made no allegation of actual intent
to defraud the United States, and it was held that the libel was
fatally defective. Referring to § 16 of the Act of June 22, 1874,
the court said:
"I think it perfectly clear that this section makes intent to
defraud the United States a necessary condition to the forfeiture
of any goods, etc., for the violation of the customs revenue laws.
A libel of information therefore which undertakes to state a case
for the forfeiture of goods should aver an intent to defraud the
United States. Without such averment, no case for forfeiture is
made. The claimant might well decline to answer a libel in which
such averment was wanting, trusting to the court to dismiss the
libel for want of necessary averments, when it came to hear the
case
ex parte, and to adjudge thereon as to law and
justice should appertain. . . . The libel must set up all the
facts
Page 125 U. S. 240
necessary to a forfeiture. If it fails to do this it is the duty
of the court to dismiss it, whether issue is joined or not."
Concurring fully in these views, I dissent from the judgment of
the court.
MR. JUSTICE BRADLEY was not present at the argument of this
case, and took no part in its decision.