United States v. Hirsch

CERTIFICATE of division in opinion between the judges of the Circuit Court of the United States for the Southern District of New York.

An indictment, consisting of four counts, was found, Feb. 3, 1877, against Hiram Hirsch and others, who pleaded that the offences therein charged had been committed more than three years before the finding of the indictment.

The first count was drawn under sect. 5440, Rev. State., and charges the defendant with a conspiracy, entered into on the first day of September, 1873, to defraud the United States out of the duties on certain described merchandise to be thereafterwards imported into the United States.

The second count charges a conspiracy, entered into on the thirteenth day of September, 1873, to defraud the United States out of duties on certain merchandise theretofore imported into the United States. The remaining counts were drawn under sect. 5445, and charge that the defendants knowingly effected an entry of the goods at the custom-house, by a fraudulent invoice of them, and by a false classification as to their quality and value.

The United States demurred to the plea, and the judges of the Circuit Court were divided in opinion upon the question 'whether the trial is barred by sect. 1044, the indictment having been found more than three years after the commission of the alleged offence, or whether it is within the provisions of sect. 1046, as having been found within five years next after the commission of the alleged offence.'

It is enacted by sect. 1044 that 'no person shall be prosecuted for any offence, not capital, except as provided in sect. 1046, unless the indictment is found within three years next after such offence shall have been committed;' and by sect. 1046, that 'no person shall be prosecuted, tried, or punished for any crime arising under the revenue laws or the slave-trade laws of the United States, unless the indictment is found or the information is instituted within five years next after the committing of such crime.'

The Solicitor-General for the United States.

Mr. George Hoadly, for the defendants, cited United States v. Mayo, 1 Gall. 396; United States v. Norton, 91 U.S. 566.

MR. JUSTICE MILLER, after stating the case, delivered the opinion of the court.