1842 U.S. LEXIS 377
U.S.
1842
Mr. Justice Story

delivered the opinion of the Court.

. This is a writ of error from the judgment of the Circuit Court' of the district of Maryland, affirming, piro formé, a judgment of the District Court of the same district. •

The original suit was a.,libel of information, in rem, upon a seizure, upon land, in the said district, of twenty pieces of cloths imported into the United States, and alleged to be forfeited. 'The libel Contained a number of counts; but thát alone which is necessary to be here stated, is the count founded Upon the sixty-sixth section of the revenue collection act of 1799, chapter 128, which declares, “ 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 design to- evade the duties thereupon, or any part, thereof, all such goods,wares, and merchandise, or the value thereof, to -be recovered of. the person making the entry, shall be forfeited.” The coUnt stated that thé goods in controversy were not invoiced according to the actual cost thereof at th'e place of exportation, with design ,to evade the duties. Various pleas were put in, to some of which there were demurrers, and upon others issue was joined, upon which a trial-was had by" a jury. The jury found a verdict for the United States.. The claimant (as well as the United States) prayed certain instructions to the jury which were-refused, and the Court gave' certain instructions to which the claimant excepted; and the cause came before the Circuit Court upon the bill of exceptions, filed, by the claimant, as well to the refusal-as to the instructions of the Court.. At the trial 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 at the custom-house. They were afterwards .transmitted to Baltimore, and there séized in the stores of. certain persons having the custody thereof for the claimant, under a search. warrant óf a magistrate, procured for that purpose. The validity of the original seizure is contested in some of the pleadings ; and this seems to have been insisted upon 'before- the jury as- one of the grounds of defence.

At the trial, -to" establish the fraud in the invoices, beside other evidence, the • counsel for the United States offered in evidence sundry -other invoices' of cloths' and cassimeres, twenty-pine in number: imported into the port of New York by the complainant, or consigned to him, for the purpose, of showing - the fraudulent intention of the claimant in those importations, as well as in the present. An objection was taken to the admissibility of this evidence, which was overruled by the Court; and the evidence was admitted: and this constitutes one of the exceptions, in the cauáe.

The District Jüdgs, after the -whole evidence was gone through, gave the following instructions to the jury, which involve the whole merits of the controversy:

1. - That the issues formed, and which the jury are sworn to try, involve no question except upon the causes of forfeiture Alleged in the information and traversed, and therefore no question relating to the mere 'seizure of the goods is in issue or material under the pleadings in this cause.

2. If the jury shall find from the evidence in the cause, that the invoices of the goods in question were made up with intent, by a false valuation to evade or defraud the revenue, the plaintiffs are entitled to recover, although the jury should' also find from the evidence that.the said'goods have been passed through the custom-house at New York, by the collector thereof, and the duties calculated by him on said invoices shall'have been paid or secured to be paid, and the said goods delivered by said collector ■ to the importer.

t ’3. That there has been shown on the part of the United States, probable cause for the present prosecution under the third count,- and the sixth, seventh, eighth, and ninth counts in the informa..tion, and that the burden of proof lies under the seventy-first section of the act of the 2d of March, 1799, upon Thomas Wopd, Jr., the claimant, and that it is incumbent upon him to prove to the jury that the charges in the said five counts are untrue; that is, to prove that the goods in question were invoiced according to their actual cost at the port of exportation, and that the invoices and packages were not made up with intent to evade or defraud the revenue.

4. 'That the burden of proof being upon the said Thomas Wood, Jr:, under the seventy-first section of the act of 1799, and the fifteenth section-of the act of the 14th of July, 1832, it is incumbent upon him to prove to the .jury the actual cost of the twenty-two .pieces of cloth in the invoices and entries stated to have been purchased, by him, and that the value of the goods at the times or dates of the seizure or of any other subsequent times are not material, except, so far as they may assist or tend to enable the jury to ascertain the prices at the respective periods of purchase or shipment.

5. That the burden of proof being upon the claimant to prove that the ■ invoices were not made up with intent to defraud the revenue, it is not sufficient for -him .to rely upon the invoices themselves, merely as proving their own truth and fairness.

In respect to the point made at the bar, as to the validity of the original seizure, or of the causes thereof, we are of opinion that thq first instruction of the District Judge" was entirely .correct. It is of no consequence, whatsoever, what -were the original grounds of the seizure, whether they were well foundéd or hot, if in point of fact the- goods are by law subjected to forfeiture; few the United States are not bound down by the acts of the seizors to the causes which influenced them in making the seizure, nor by ány irregularity on their part in conducting it", if in point of fact the seizure can now be maintained as founded' upon an actual forfeiture thereof at the time of. the seizure; and therefore it was rightly held by the judge, that no question arose upbn the issues which the jury were to try, except upon the causes of forfeiture alleged in the information.

The remarks just made constitute an answer to the argument upon the demurrers to the two first pleas of the claimant; for, as has been already suggested, if a seizure, has been actually made, and is a continuing seizure; it is no bar. -to proceedings 'thereon that the cause of forfeiture relied on' is not the same upon which the seizure was originally made. It is sufficient'- for the United States that it adopts the seizure and now proceeds for a good cause of forfeiture, although utterly unknown to the- original seizors.

Passing from this, the next point presented for consideration, is, whether there was an error in the admission of the evidence of •fraud: deducible from the other invoices offered in the case. We are of opinion that there was none. The question was one of fraudulent intent or not; and upon questions of that sort, where the intent of the party is matter in issue, it has always been. deemed' allowable, as well in criminal as in civil Cases, to introduce evidence of other acts and doing's of the party'of a kindred character, in order to illustrate or establish his intent, or motive in'the'particular act, directly in judgment. Indeed, in po other, way would it be practicable, in many cases, to establish such intent or motive, for the single act taken by itself may not be decisive, either way '; but when taken in connection with others of the like character and nature, the intent and motive may. be demonstrated almost with a conclusive certainty. The treatise on evidence by-Mr-. Phillipps and Mr. Starkie contain many illustrations to this effects See Starkie on Evidence, vol. 1, p. 64, vol. 2, p. 220, 221, second London edit., 1833; Phillipps on Evidence, by Cowen, vol. 1, ch. 7, s. 7, p. 179, 180, vol. 2. p. 452, note 333, p. 465, note 352, edit. 1839.

They constitute exceptions to the general rule, excluding -evidence not directly comprehended within the issue; or rather, perhaps,-it' may with more certainty be said, the exception is necessarily imbodied in the very substance of the rule: for whatever does legally conduce- to establish the points in issue is necessarily embraced in it, and therefore a proper subject of'proof; whether it be', direct, or only presumptive. This' doctrine was held in a most solemn' manner in the -case of the King v. Wylee, 4 Bos. and Pull. 92, where upon an indictment-for'disposing and putting aw,ay a forged bank note, knowing it to be forged, evidence was admitted of other forged notes having been uttered by the prisoner, in order to prove his knowledge of the forgery. The same doctrine has been held in cases of the uttering of bad money and spurious notes; and also in Cases of conspiracy. The same doctrine was affirmed and acted upon by this Court in the case of the United States v. Wood, 14 Peters’ Rep. 430, in the case of a prosecution for perjury.

Cases of fraud present a still more stringent necessity for the application of- the same .principle; for fraud being essentially a matter of motive and intention, is often deducible only from a great variety of circumstances, no one of which -is absolutely decisive; but all combined, together, may become almost irresistible as to the true nature and character, of the transaction in controversy. The cáse of Irving v. Motley, 7 Bing. Rep. 543, turned upon this very, point. There the (action was trover to recover bade goods which liad been purchased by an agent for his principal by means of a fraud... In order Uj establish the plaintiff’s case, it became necessary to show that other purchases had been made, by .the same agent for the same principal,' under circumstances strongly presumptive of á like-fraud; no doubt was entertained by the Court of the admissibility of the evidence; and the main point urged.at the' bar was that the agent should himself 'have -been called to establish-the purchases, but. this objection was'-overruled,-'and the jury, haying found a .verdict for the plaintiff, the Court gave judgment in his favour.

Indeed, it is admitted by. the counsel for- the plaintiff in error in the cáse before us, that it is a general principle of law that whenever a fraudulent intention is to ■ be established, collateral facts tending to show Such intention are admissible proof; but the objections taken' are,' first, that when the proof‘was ofiered no suitable foundation had been laid for .its .admission, and that-the cause was launched with this proof; and secondly, that the proof related to importations after, as well as before the'particular importation in question. We do not think either-of these objections maintainable. ' The fraud being to be madé out iuevidence, the order in which, the proof should be brought to establish it, was rather a matter in the discretion of the Court, than of strict right in the parties. Tt is impossible to lay- down any universal rule upon such a subject. Much must depend upon the posture and circumstances of the particular case; and at all events, if the '. proof be pertinent and competent, the admission of it cannot be matter of error. The other objection has as little foundation,: for fraud in ihe first importation may be as fairly deducible from other subsequent fraudulent importations by. the same party, as fraud would be in the last importation rom prior fraudulent- importations. In each case the quo animo.is in question, and'the presumption of fraudulent intention may equally'arise pud equally prevail.

The second instruction of the Court is, in effect, that if the invoices of the goods now in question were fraudulently made, by a. false valuation to evade or defraud the revende, the fact that they had been entered and the duties paid or secured at the custom-house at New York, upon those invoices, was no bar to the present information. This. instruction was certainly cdrrect, if the sixty-sixth section of the revenue collection act of 1799, ch. 128, now remains in full force and unrepealed: for it can never be permitted that a party who perpetrates a fraud upon the custom-house, and thereby enters ms goods upon false invoices and false valuations, and gets a regular delivery thereof upon the mere payment of such duties as such false invoices and false valuations require, can avail himself of that very fraud to defeat'the purposes of justice. It is but an aggravation’of his guilt that he has practised imposition upon the public officers, as well as perpetrated such a deliberate fraud. The language of the sixty-sixth section completely covers such a case. It supposes an entry at .the custom-house upon false invoices with intent to. evade the payment of the proper duties, and the forfeiture attaches immediately upon such an entry upon, such invoices with such intent. The success of the fraud in evading the vigilance of the public officers, so that it is not discovered until after the goods have passed from their custody, does not purge away the forfeiture; although it may render the detection of the offence more difficult and more uncertain. The whole argument turns upon this, that if the custom-house officers have not pursued the steps authorized by law to be pursued by them, by directing an appraisement of the goods in cases where they have a suspicion of illegality, or fraud, or no invoices are produced, but their suspicions are lulled to rest; the goods are untainted by the forfeiture the moment they pass from the custom-house. We cannot admit that such an interpretation of the objects or language of the sixty-sixth, section is either sound or satisfactory. The same reasoning governs the ruling of the Court, upon the demurrer to the third plea.

The question then arises whether the sixty-sixth section of the act of 1799, ch. 128, b?s been repealed, or whether it remains in full force, That it has not been expressly or by direct terms repealed is admitted; and the.question resolves itself into the more narrow inquiry, whether it has been repealed by necessary implication. We say by necessary implication, for it is not suffi cient to establish that subsequent laws cover some or even all oí the cases provided for by it; for they may be merely affirmative, or' cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of- the new laws, and those of the old; and even then the old law is repealed, by implication only pro tanto, to the extent of the repugnancy. And it may be added, that in the interpretation of- all laws for the collection of revenúe, whose provisions are often very complicated and numerous to guard against frauds by importers, it would be a strong ground to assert that the main provisions of any such laws sedulously. introduced to meet the case of a palpable fraud, should be deemed repealed, merely because, in subsequent laws other powers and authorities are given to the custom-house officers* and other modes of proceeding are allow ed to be! had by them before- the goods - have parsed from-their custody, in order to ascertain .whether there has been any fraud attempted upon the government. The more natural, if not'the necessary inference in all such cases is,/that the legislature intend the new laws to be auxiliary.to and in aid of the purposes of the old law, even when some of the cases provided for- may equally be within the reach of each. There certainly, under such circumstances, ought to be. a manifest and total repugnancy in the provisions to lead to the conclusion that the latter laws abrogated, and were designed to abrogate the former.

Down to the-act of the 28th of May, 1830, ch. 147, it does not appear to us that any act of Congress whatsoever has been cited at the argument which can, upon a reasonable construction,, be deemed to repeal the sixty-sixth section of the act of 1799. The act of 1830, in the fourth section, provides that tbé collectors of the customs 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,.should he deem it-necessary, of goods imported, to be opened and examined; “and if the same be not found 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 such .goods be subject to an ad valorem.duty, the same shall be appraised; and if any package shall be found to cóntain 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.” The section then proceeds to repeal the thirteenth section of the actof the 1st of March, 1823, ch. 149) without saying one word as to any repeal of any section of the act of 1799, ch. 128. Now, if here the rule' be properly applicable, that “Expressio unius est exclusio alterius,” the presumption of any repeal by implication of th.e sixty-sixth section of the act of 1799, would seem to be completely repelled.

' Besides, the fourth section of the act of 1830, is not pointed at the same .class of cases as the sixty-sixth section of the act of 1799. It obyiously and naturally, -in its whole provisions, applies solely to cases where the packages have been opened and examined by order of the collector, and upon such examination if any article is found not contained in the invoice, or the package or invoice is found to.be made up with an. intent by a false valuation, or extension, or otherwise, to evade or defraud the revenue, and then the same, are declared to be forfeited. It would be a strong doctrine to affirm that where no such examination or detection had taken place at the custom-house, but the same had passed from the public custody unopened, the forfeiture under this provision did apply, or was designed to apply. The fourteenth section of the act of the 14th of July, 1832, ch. 224,' has in some, measure qualified and mitigated the effect of the fourth section of the act of 1S30; by providing, that whenever upon opening and examination of any package or packages of imported goods, composed wholly or- in part of wool or eotton, (under which predicament the present goods fall) the goods shall be found not to correspond with the entry thereof at the custom-house, and if any package shall be found to contain any article not entered, such article shall be forfeited; or if. the packages shall be made up with intent to evade or defraud the revenue, the package shall be forfeited; and so much of the fourth section of. the act of 1830, as prescribes a forfeiture' of goods found not to correspond with the invoice thereof, is thereby expressly repealed.

In truth, however, there .is. not the slightest repugnancy between these sections of the act of 1830 and 1832, and the sixty-sixth section of the act of 1799. The former apply only to cases where there has been an opening and examination of the packages irhported, before they have passed from the custody of the' custom-house; and in the course of such examination, the fraud* ulent intent in the making up of the package or invoice has been detected; and,. thereupon, it declares the same to he forfeited. Now, tne sixty-sixth section of the act of 1799, may cover the same cases, but the forfeiture is the same; and, therefore, the provisions in such a case may well be deemed merely cumulative, and auxiliary to each other. But the sixty-sixth section is not confined to such cases; on the contrary, it covers all cases where the' goods have been entered, and have passed from the customhouse without any.examination or detection of the false invoice^: it' is, therefore, much more broad in its reach. To enforce a forfeiture under the sections of the acts of 1.830 and 1832, it would be necessary to allege,.in .the information or libel, all the special circumstances of the examination and detection-of the fraud, under the authority of the collector;-for they constitute a part of the res gestee, to which the' forfeiture is attached. But under the-sixty-sixth section no such allegations would be'necessary or proper, as the forfeiture immediately attaches tq every entry of goods falsely and fraudulently invoiced; without’ any reference, whatever to the mode, or the circumstances under, or by which, it is ascertained.

Besides, the sixty-sixth section not only provides for a forfeiture of the goods, but in the alternative, for a forfeiture of the value thereqf, to be recovered of the person making the false entry. • No such provision exists in the acts of 1830 or 1832. It is impossible, therefore, successfully to contend that the sixty-sixth section is repealed in toto, since ho subsequent act covers all the casqs provided fo£ by it. • It is, indeed, not a little singular-that the argument that it is repealed by implication must found ■•''self' upon the very ground that the present case is not covered by the other' acts. It must in effect assert, that the repeal, ought to be implied in all cases where-the goods have passed from the cústom-house without detection of the fraud, simply because if-, they had bpen examined, and the fraud detected there, they might, in thatcase, and in that case only, have been subjected to forfeiture, which would at most only establish á repeal pro tanto.- In our opinion, there is. no just foundation for the argument, Under any aspect.- ■ The provision in’ the' sixty-sixth section, is. intended -to suppress frauds upon the revenue. The other acts' are designed to. be au iiliary to the same important purpose — there is no repugancy. between the provisions; and to construe the latter as repealing the'former, would be to construe provisions’ to aid.in the detection of fraud, in such a manner as to promote fraud, by cutting down provisions of a far more general and important character, and essential to the security- of the revenue, ' It seems to us that no Court of justice is at liberty to adopt such a mode of interpretation of the revenue laws, unless driven -to it. by a stern .and irresistible'necessity.

" This reasoning might be expanded- by á more minute comparison of the Various acts of Congress with each other, and of the particular langüage used in each with reference to this subject. But, in our judgment, it is wholly unnecessary, because, after all, the whole-question must rest upon the broad grounds already stated. 'We think the second instruction given by the District Judges entirely correct.

The three remaining instructions turn upon the point whether, under the circumstances, th.e onus probandi as to the. facts stated in those instructions was upon- the claimant. Upon this we do not entertain the Slightest doubt. The seventy-first section of the act of 1799, .declares .that, “in actions, suits, or informations to be brought; .where any seizure shall be- ma4e pursuant to this act, if the property be’ claimed by any person, in every such case, the onus probandi shall lie upon such claimant;” and it is afterwards added, “but the onus probandi shall lie on the claimant only where probable cause is shown for the prosecution, to be judged of by the-Court before whom the prosecution is had,”

Probable cause must, in (this connection, mean reasonable ground of presumption that the charge is,, or ’may be, well founded; and we think, in this case, that there was abundance of proof not only to justify such a reasonable presumption, but to ■ give it solid weight; and, in the absence of all countervailing evidence., which was completely within the. reach of the claimant if the invoices were bona fide, to give it a force difficult to be resisted. Upon the whole, our opinion is, that there is no error in the judgment of the Circuit Court, affirming the judgment of the District Court, and therefore it will be affirmed by this Court.