171 F. 772 | S.D.N.Y. | 1909
In this case the trunk must be regarded from two points of view: First, as passenger’s baggage; second, as imported merchandise. As passenger’s baggage, the question comes up, under section 2802 of the Revised Statutes (U. S. Comp. St. 1901, p. 1873), whether the claimant “mentioned to the collector before whom such entry was made any article subject to .duty * * * found in” her “baggage.” The government claims that because she did not make a complete description of the trunks, as required by section 2799, the goods were forfeited under section 2802. There is no ground for such contention. United States v. One Pearl Chain, 139 Fed. 513, 71 C. C. A. 500. Her declaration was as though she had said:
“I have here certain goods in a trunk, which I am going to send for your examination to the stores.”
I can see nothing in the government’s position, except that to mention the trunk was not to mention any dutiable article. If this means that “trunk” is not the equivalent of “personal effects in a trunk,” it is too trivial for notice. If it means that “personal effects” is not mention enough of “gowns,” it is met by United States v. One Pearl Chain, supra, in which a pearl necklace was “mentioned” by the term “wearing apparel.” I must certainly look at the substance, not the letter, of the statute; and it is perfectly clear that every possible purpose of the section is answered by this declaration. The case is much weaker for the government than United States v. One Pearl Chain.
The second consideration is whether, as merchandise, the trunk is forfeited because Mrs. McNally “attempted to enter” it. As I understand it, one “attempts” a crime where, with an intent to complete the crime, he does any part of the acts which together constitute the complete crime. I do not understand that anything which leads up to, but does not itself constitute a part of, a crime, can alone constitute an attempt to do it. It is often a matter of some casuistry as to just where the series of acts actually begins which, when completed, would constitute a crime; for by no means all those things which are necessary conditions to the commission of crime are a part of the crime itself. In this case it is no doubt a necessary condition to the entry of the goods that Mrs. McNally should take out the invoices in Paris and send one to the customs house, because that was a condition of entry; but it was not, on that account, necessarily a part of the entry. In my judgment the entry does not begin, at the earliest, until the owner, after the goods reached this country, begins that series of acts through which, by application to the customs officials, he gains possession of his goods. If this is so, the claimant changed her intent before she performed any of the series of acts which, when completed, would have constituted such entry; and so she made no attempt.
It is, perhaps, not necessary to determine with strictness just how much the term “entry” includes. All that is necessary in this case is to show that the taking out of the fraudulent invoice in Paris is not part of the entry. I am satisfied that, in the sense that the statutes use it, the entry does not begin so early as that. Besides, I consider
I direct a verdict for the claimant.