Upon the trial of a cause where goods had been seized upon
suspicion of being fraudulently imported and the United States had
shown sufficient ground for an opinion of the court that probable
cause existed for the prosecution, and notice had been given to the
claimant to produce his books and accounts relating to those goods,
it was proper for the court to instruct the jury that if the
claimant had withheld the testimony of his accounts and
transactions with the parties abroad from whom he received the
goods, they were at liberty to presume that, if produced, they
would have operated unfavorably to his cause.
The doctrine laid down in 2 Evans' Pothier 149, cited and
approved, namely,
"That if the weaker and less satisfactory evidence is given and
relied on in support of a fact when it is apparent to the court and
jury that proof of a more direct and explicit character was within
the power of the party, the same caution which rejects the
secondary evidence will awaken distrust and suspicion of the weaker
and less satisfactory, and it may well be presumed that if the more
perfect exposition had been given, it would have laid open
deficiencies and objections which the more obscure and uncertain
testimony was intended to conceal."
The principle established in the case of
Wood v.
United States, 16 Pet. 342, reviewed and confirmed,
namely
"That if goods are fraudulently invoiced, they are not exempted
from forfeiture by having been appraised in the custom house at
valuations exceeding the prices in the invoices, and delivered to
the importers on payment of the duties assessed upon such increased
valuations."
If the information contains several counts, founded on the
following acts, namely, the sixty-sixth section of the act of 1799,
the fourth section of the act of 1830, and the fourteenth section
of the act of 1832, the defectiveness of the counts upon the acts
of 1830 and 1832 would be no ground for reversing a judgment of
condemnation, provided the count is good which is founded upon the
act of 1799, because one good count is sufficient to uphold a
general verdict and judgment.
The difference between these sections explained.
In this case, therefore, it is unnecessary to decide what
averments are required in counts resting upon the acts of 1830 and
1832, or whether the counts are or are not void from
generality.
The facts are fully set forth in the opinion of the Court.
Page 45 U. S. 243
MR. JUSTICE NELSON delivered the opinion of the Court.
The original suit was a libel of information
in rem
founded upon a seizure on land in the said district of some
seventy-one cases of cloths and cassimeres imported into the United
States and alleged to have been forfeited.
The libel contained thirteen counts, resting upon different
sections of the several acts of Congress regulating the collection
of duties on imports and tonnage, but it will be material to notice
particularly those only which are founded upon the sixty-sixth
section of the Act of 1799, ch. 22, Lit. & Brown's ed., the
fourth section of the Act of 1830, ch. 147, and the fourteenth
section of the Act of 1832, ch. 227, which provide against the
making up of false invoices and false packages of the goods
imported, with the intent to evade or defraud the revenue.
Various pleas were put in by the claimant, but as no questions
are raised upon them, they need not be stated.
On the trial of the cause, it appeared that the goods in
question had been originally imported into the port of New York,
and were there duly entered and landed, and the duties paid upon
the invoices produced by the claimant to the collector. The goods
were appraised at the custom house, at a valuation of ten percent
above the invoice prices, and no appeal taken. They were afterwards
transported to the City of Philadelphia, and were there seized by
the custom house officers, under a warrant issued for that purpose,
in the stores of certain persons having the custody of them in that
city for the claimant.
A good deal of evidence was given on the part of the United
States tending strongly to establish the fact that the several
invoices upon which the duties had been paid at the custom house in
New York, and which invoices were produced before the court, had
been made up greatly under the actual cost and value of the goods
in England, the place of exportation, and with the intent to evade
and Defraud the revenue, and in the progress of the trial the
counsel for the government, in pursuance of a notice given some
months previously, called upon the claimant for the production of
his ledger containing entries of each of the several invoices of
the goods thus imported; also for the production of his cash book
for the years 1838 and 1839, embracing the period within which the
goods had been imported, and for the entries therein relating to
the said importations; also, for the charges of the payment of
freight upon said goods, to each of which
Page 45 U. S. 244
calls the counsel were answered, that the claimant had no such
book in court.
The counsel for the government, like previous notice having been
given, also called upon claimant for the production of the accounts
in the ledger, for the years 1838 and 1839, with each of the houses
in England who had sold and invoiced the said goods to him, and for
his letter book for said years, and the correspondence with each of
the said houses respectively, and also for his day book, to which
calls the counsel answered, that neither of them were in court.
When the testimony closed, the court below instructed the jury
that it was alleged on the part of the United States that the goods
in question had been forfeited from having been imported into New
York by false invoices with intent to evade the payment of part of
the duties to which they were subject. That it was incumbent upon
the government to show upon the trial that there was probable cause
for the prosecution, and if that had been shown, of which the court
was to judge, the burden of proof was on the claimant, who must
then satisfy the jury that the goods were invoiced at their actual
cost.
That with a view to show probable cause, the government relied
mainly upon the evidence that the actual value of the goods in
England exceeded the prices per yard mentioned in the invoices, and
that after the testimony which had been produced on the part of the
government of the value of the goods at the time and place of
exportation, as compared with the prices fixed in the invoices, it
was material to notice the negative evidence arising out of the
absence of testimony on the part of the defendant of the actual
cost of the goods, and to consider whether its absence had been
accounted for. That there was evidence that one of the persons, by
whom a portion of the goods in controversy appeared to have been
invoiced to the claimants, was within the reach of a subpoena, and
it was reasonable to presume that it was in the claimant's power to
have produced evidence of the real State of his accounts and
transactions with all the parties in England from whom the goods
had been received, as the correspondence showed that two years ago
his counsel had advised him to procure proof on this subject, which
had not been produced; that the claimant knew from whom he had
bought the goods, and what their actual cost was, and yet he had
not produced the evidence nor accounted for its absence; that to
withhold testimony which was in the power of a party to produce in
order to rebut a charge against him, where it was not supplied by
equivalent testimony, might be as fatal as positive testimony in
support or confirmation of the charge; that if the claimant had
withheld proof which his accounts and transactions with these
parties afforded, it might be presumed that if produced, they would
have operated unfavorably to his case; that the government
Page 45 U. S. 245
had shown probable cause, and that the next inquiry was whether
the claimant had relieved himself from the burden of the proof
&c.
The court further instructed the jury that in respect to some of
the invoices, the government and claimant relied upon the same
circumstance -- namely that goods included in the information, in
passing through the custom house in New York, were appraised at
amounts exceeding the invoice prices, and that the claimant,
without appealing, had paid the duties assessed upon the increased
value and received the goods from the custom house.
The counsel for the government contended that this acquiescence
implied an admission that the invoices were untrue, while the
counsel for the claimant contended that by this appraisement,
assessment, and payment of duty, the government were precluded from
alleging or enforcing a forfeiture of these goods. The court
expressed the opinion that the question of liability to forfeiture
was so far distinct from questions connected with the ascertainment
and payment of duties that the passing of goods through the custom
house under such circumstances was not, in a legal point of view,
decisive of any question before the jury. That the question was
whether the goods were falsely invoiced, with intent to defraud the
revenue &c.
The counsel for the claimant excepted to that part of the charge
in which the jury were instructed that if the claimant had withheld
the testimony of his accounts and transactions with the parties
abroad from whom he received the goods, they were at liberty to
presume that, if produced, they would have operated unfavorably to
his case, and also to that part in which the jury were instructed
that if the goods in controversy were fraudulently invoiced, they
were not exempted from forfeiture by having been appraised in the
custom house at valuations exceeding the prices in the invoices and
delivered to the importer on payment of the duties assessed upon
the amount of such appraisement and also to that part of the
instructions in which the jury were advised that probable cause had
been shown by the government in support of the prosecution.
A general verdict was rendered for the United States.
As to the instructions given to the jury first excepted to, in
which the court below expressed the opinion
"that if the claimant had withheld proof which his accounts and
transactions with the parties afforded, it might be presumed that
if produced, they would have operated unfavorably to his case;"
in order to comprehend fully the appropriateness and legality of
the instructions, it is material to refer to the posture of the
case at the time they were given, and to the question then under
the consideration of the court.
The counsel for the government had furnished proof tending
strongly to the conclusion that the invoice prices of the goods in
question were greatly under the actual cost at the place and in
the
Page 45 U. S. 246
country whence they were imported. This proof rested mainly upon
the testimony of several merchants, importers, and dealers in the
particular article who had examined the goods and estimated their
cost.
The average estimate exceeded the invoice prices some fifty
percent
The counsel also, with a view of further strengthening their
case and in pursuance of previous notice for that purpose, called
upon the claimant for the production of his books and papers
containing an account of the several importations, and of his
dealings in respect to them with the foreign houses, together with
his and their correspondence concerning the same. Neither were
produced nor any account attempted to be given for the
nonproduction.
Upon this the government rested. Probable cause for the
prosecution having been thus sufficiently established, the claimant
went into his defense, and instead of furnishing evidence of the
prices actually paid by him to the houses abroad from whom the
goods were purchased, as he might have done either by executing a
commission to take their testimony or by persons concerned in
making the purchases or by the production of the books of account
that had been called for, as the call afforded him an opportunity
to put them in evidence, he placed the defense altogether upon the
judgment and opinions of merchants and other persons acquainted
with this description of goods as to the value and cost of the
article in the home market, tending thereby to confirm and support
the correctness of the valuations as fixed in the invoices.
The burden of the case was upon the claimant, and it was in this
stage and posture of it that the instructions were given which are
the subject of the exception, and in which the court stated
"That the claimant knew from whom he had bought the goods, and
what was their actual cost, and yet had not produced this testimony
or accounted for its absence; that to withhold testimony which it
was in the power of the party to produce in order to rebut a charge
against him where it is not supplied by other equivalent testimony
might be as fatal as positive testimony in support or confirmation
of the charge. And that if the claimant had withheld testimony of
his accounts and transactions with these parties [meaning the
foreign houses from whom he had purchased the goods], the jury was
at liberty to presume that, if produced, they would have operated
unfavorably to his case."
The instructions had a direct reference to, and are to be
construed as intended to bear upon, the matters of defense,
probable cause having been shown, and upon the nature and species
of the evidence relied on by the claimant in support of it, and in
this aspect of the case, at least, without now referring to any
other, we think they were not only quite pertinent to the question
in hand,
Page 45 U. S. 247
but founded upon the well established rule and principles of
evidence.
The prosecution involved in its result not only the forfeiture
of a considerable amount of property, but also the character of the
claimant both as a merchant and an individual. He was charged with
a deliberate and systematic violation of the revenue laws of the
country by means of frauds and perjuries, and the court, as was its
province under the seventy-first section of the act of 1799, had
pronounced the proof sufficient to establish the offense unless
explained and rebutted by opposing evidence.
Under these circumstances, the claimant was called upon by the
strongest considerations, personal and legal, if innocent to bring
to the support of his defense the very best evidence that was in
his possession or under his control. This evidence was certainly
within his reach, and probably in his counting room -- namely the
proof of the actual cost of the goods at the place of exportation.
He not only neglected to furnish it, and contended himself with the
weaker evidence, but even refused to furnish it on the call of the
government, leaving therefore the obvious presumption to be turned
against him that the highest and best evidence going to the reality
and truth of the transaction would not be favorable to the
defense.
One of the general rules of evidence of universal application is
that the best evidence of disputed facts must be produced of which
the nature of the case will admit. This rule, speaking technically,
applies only to the distinction between primary and secondary
evidence, but the reason assigned for the application of the rule
in a technical sense is equally applicable, and is frequently
applied, to the distinction between the higher and inferior degree
of proof, speaking in a more general and enlarged sense of the
terms, when tendered as evidence of a fact. The meaning of the rule
is not that courts require the strongest possible assurance of the
matters in question, but that no evidence shall be admitted which,
from the nature of the case, supposes still greater evidence behind
in the party's possession or power, because the absence of the
primary evidence raises a presumption that, if produced, it would
give a complexion to the case at least unfavorable, if not directly
adverse, to the interest of the party.
This is the reason given for exacting, in all cases, the primary
evidence, unless satisfactorily accounted for. 1 Phillips on Ev.
218, C. & H.'s notes, 414, 418, and cases.
For a like reason, even in cases where the higher and inferior
testimony cannot be resolved into primary and secondary evidence
technically, so as to compel the production of the higher, and the
inferior is therefore admissible and competent without first
accounting for the other, the same presumption exists in full force
and effect against the party withholding the better evidence,
especially
Page 45 U. S. 248
when it appears or has been shown to be in his possession or
power, and must and should in all cases exercise no inconsiderable
influence in assigning to the inferior proof the degree of credit
to which it is rightfully entitled.
It is well observed by Mr. Evans, 2 Evans' Pothier 149, in
substance that if the weaker and less satisfactory evidence is
given and relied on in support of a fact when it is apparent to the
court and jury that proof of a more direct and explicit character
was within the power of the party, the same caution which rejects
the secondary evidence will awaken distrust and suspicion of the
weaker and less satisfactory, and that it may well be presumed if
the more perfect exposition had been given, it would have laid open
deficiencies and objections which the more obscure and uncertain
testimony was intended to conceal.
We will only add that practical illustrations of this
application of the rule are witnessed daily in the administration
of justice in criminal cases and are too familiar to every lawyer
to require a more particular reference.
We are satisfied, therefore, that no error was committed by the
court below in giving the instruction first excepted to.
The second exception was to that part of the charge in which the
court instructed the jury that if the goods were fraudulently
invoiced, they were not exempted from forfeiture by having been
appraised in the custom house at New York at valuations exceeding
the prices in the invoices and delivered to the importers on
payment of the duties assessed upon the amount of such
appraisement.
In respect to this instruction it is only necessary to refer to
the case of
Wood v. United
States, 16 Pet. 342, in which a similar one had
been given and came up for review, and the correctness of which was
affirmed by the Court.
The third and last exception taken was to the instruction, that
probable cause had been shown by the United States for the
prosecution, which was virtually given up on the argument. There
can be no doubt as to its correctness.
In addition to the foregoing exceptions, the counsel for the
plaintiff in error insisted on the argument that the fifth, sixth,
seventh, eighth, ninth, eleventh, twelfth, and thirteenth counts in
the information, all of which are founded upon the fourth section
of the Act of 1830, ch. 147, Lit. & Brown's ed., and the
fourteenth section of the Act of 1832, ch. 227, were substantially
defective by reason of the generality and uncertainty of the
averments in each and every of the said counts, and that for this
reason the judgment should be reversed.
It was not denied but that the fourth count, which is founded
upon the sixty-sixth section of the Act of 1799, ch. 22, was good
in form and substance, and sufficient, if it stood alone, to
uphold
Page 45 U. S. 249
the recovery; but it was insisted, as the verdict and judgment
were general upon all the counts in the information, that if one or
more were bad, an error existed upon the record for which the court
was bound to reverse the judgment.
The sixty-sixth section of the Act of 1799, vol. 1, 677, Lit.
& Brown's ed., provides
"That if any goods, wares, or merchandise, of which an 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 design to evade the duties thereupon or any part
thereof, all such goods &c., shall be forfeited."
The same section also provides for seizing the goods on
suspicion of fraud and detaining them for examination. This section
condemns the goods to forfeiture in cases where they are invoiced
below their actual cost at the place of exportation, with intent to
defraud the revenue.
The fourth section of the act of 1830 provides
"That the collector shall cause at least one package out of
every invoice, and one package, at least, out of every twenty
packages of each invoice, and a greater number, if deemed
necessary, of the goods imported, which package or packages he
shall first designate on the invoice, to be opened and examined,
and if the same be found not to correspond with the invoice or to
be falsely charged in such invoice, the collector shall order
forthwith all the goods contained in the same entry to be
inspected, and if subject to an
ad valorem duty, the same
shall be appraised, and
if any package shall be found to
contain any article not described in the invoice or if such package
or invoice be made up with intent, by a false valuation, or
extension, or otherwise, to evade or defraud the revenue, the same
shall be forfeited."
This section condemns the goods to forfeiture:
1. If the package is found to contain any article not in the
invoice, and,
2. If it shall be found that the package or invoice is made up
with intent to defraud the revenue by a false valuation or
otherwise.
The fourteenth section of the act of 1832 provides that
whenever, upon opening and an examination of any package or
packages of imported goods composed wholly or in part of wood or
cotton, in the manner provided for by the fourth section of the act
of 1830, the goods shall be found not to correspond with the entry
at the custom house and the package shall be found to contain any
article not entered, such article shall be forfeited, or if the
package be made up with intent to evade or defraud the revenue, the
package shall be forfeited, and so much of the said fourth section
as prescribes a forfeiture of the goods found not to correspond
with the invoice is repealed.
This section condemns to forfeiture:
Page 45 U. S. 250
1. The article in the package which it is found does not
correspond with the entry, and
2. The package which it is found has been made up with intent to
defraud the revenue, and
3. Repeals that part of the fourth section in the act of 1830
which forfeits the package in which an article is found not
corresponding with the invoice.
The fourth section of the act of 1830 and fourteenth of 1832
enlarge the grounds of forfeiture beyond the sixty-sixth section of
the act of 1799, but the frauds provided against in those sections
and upon which the forfeiture proceeds appear to be limited to
cases where the detection takes place in the course of the
examination at the custom house.
The sixty-sixth section limits the forfeiture to the case of
fraud in making up the invoice prices below the actual cost of the
goods, but leaves the time and place of detection unrestricted.
Under this section, whether the discovery of the fraud be made by
the custom house officers while the goods are passing inspection or
afterwards is immaterial. In either case, condemnation follows, as
has already been held by this Court in the case of
Wood v.
United States, 16 Pet. 342.
As already stated, it is not denied but that the condemnation is
well supported under the count founded upon the sixty-sixth
section; but it is insisted that all the counts founded upon the
fourth section of the act of 1830 and the fourteenth of the act of
1832 are substantially defective for their generality and want of
averments setting forth the special circumstance of the examination
and detection of the fraud under the authority of the collectors.
Whether this be so or not, it is unimportant to determine in this
case, as it was held at an early day in this Court, that one good
count was sufficient to uphold a general verdict and judgment upon
all the counts, though some of them might be bad, the information
being regarded in the nature of a criminal proceeding.
Locke v. United
States, 7 Cranch 339; 1 Johns. 320; Doug. 730; 8
Bac.Abr. 114.
The same must have been virtually held in the cases of
Wood
v. United States, already referred to, and
Taylor v.
United States, 3 How. 197.
We will merely add, as to the sufficiency of the counts upon the
fourth section of the act of 1830 and fourteenth section of 1832,
that by the sixty-sixth section of the act of 1799, the collector
was authorized, in case he suspected fraud in the invoice prices,
to seize the goods and detain them for examination as fully as is
provided for in the two sections of the acts of 1830 and 1832.
There is no substantial difference in this respect, except that the
latter makes it the duty of the collectors in all cases to direct
an examination before the goods are allowed to pass through the
custom house, whereas
Page 45 U. S. 251
the sixty-sixth section left it as matter of discretion,
depending upon suspicion of fraud in the invoices.
Upon the whole we are satisfied that the judgment of the circuit
court affirming that of the district court is legal upon all the
grounds which have been urged against it, and should be
Affirmed.