United States v. Mescall

Section 9, chapter 407, Laws of June 10, 1890 (26 Stat. at L. 131-135, U.S.C.omp. Stat. 1901, pp. 1886-1895), known as the customs administration act, under which defendant was indicted, reads as follows:

'That if any owner, importer, consignee, agent, or other person shall make, or attempt to make, any entry of imported merchandise by means of any fraudulent or false invoice, affidavit, letter, paper, or by means of any false statement, written or verbal, or by means of any false or fraudulent practice or appliance whatsoever, or shall be guilty of any wilful act or omission by means whereof the United States shall be deprived of the lawful duties, or any portion thereof,. . . embraced or referred to in such invoice, affidavit, letter, paper, or statement, or affected by such act or omission, such merchandise, or the value thereof, to be recovered from the person making the entry, shall be forfeited, which forfeiture shall only apply to the whole of the merchandise or the value thereof in the case or package containing the particular article or articles or merchandise to which such fraud or false paper or statement relates; and such person shall, upon conviction, be fined for each offense a sum not exceeding five thousand dollars, or be imprisoned for a time not exceeding two years, or both, in the discretion of the court.'

The indictment, in the first count, alleges that the steamship Alice arrived at the port of New York on November 2, 1907, from Greece, having on board eighty cases of cheese, consigned to one Stamatopoulos; that the said cheese was unloaded and an invoice and entry thereof filed with the collector of customs of the port of New York by the said Stamatopoulos; that the defendant was, at the time, an assistant weigher of the United States in the customs service at the port of New York, and engaged in the performance of his duties as such assistant weigher; that it was his duty to weigh accurately the said cheese, and make return thereof to the collector of customs, and, upon the weight so returned, the said entry was to be liquidated; that the said defendant 'did knowingly, wilfully, and unlawfully make and attempt to make an entry of imported merchandise, to wit, the said eighty cases of cheese, by means of a false and fraudulent practice, by means whereof the United States was to be deprived of the lawful duties, or a portion thereof, accruing upon the said merchandise;' that he did knowingly, wilfully, and unlawfully return the net weight of said cheese as 13,358 pounds, whereas the true weight thereof, and the weight upon which the entry should have been liquidated and the duties paid, was 17,577 pounds. The second and third counts contain the same statement of facts, but it is averred in the one that the defendant was 'guilty of a wilful act and omission, by means whereof the United States was to be deprived of the lawful duties,' or a portion thereof, and, in the other, that he unlawfully made and attempted to make the entry 'by means of a false written statement.' To this indictment a demurrer was filed and sustained, the court, after discussing several matters, saying:

'But it is apparent from the allegations of the indictment that the defendant is not in fact any of the persons within the contemplation of § 9 with relation to these particular importations, and cannot be considered either an owner, importer, consignee, agent, or other person.

'The defendant, Mescall, was not making or attempting to make an entry of these goods. According to the charge, he was, contrary to his duty, rendering assistance to the importer, who was the 'person' making the entry.'

The case is here under the act of March 2, 1907 (34 Stat. at L. 1246, chap. 2564, U.S.C.omp. Stat. Supp. 1907, p. 209), which authorizes a writ of error 'direct to the Supreme Court of the United States' in a criminal case wherein there has been a decision or judgment sustaining a demurrer to an indictment, when such decision or judgment is based upon the invalidity or construction of a statute upon which the indictment is founded.

Assistant Attorney General Fowler for plaintiff in error.

[Argument of Counsel from page 28 intentionally omitted.]

Mr. George F. Hickey for defendant in error.

[Argument of Counsel from page 29 intentionally omitted.]

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Mr. Justice Brewer delivered the opinion of the court: