The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1867-08-27

when
it is not perceived that there isany
such want of clearness as would mislead the
Jury. Courts aIe not inclined to grant q new
trial merely on account OF an ambiguity in the
charge to the jury, where 1t appears that the
party made no effort at the trial
to have the point explained. Castler et al W.
Billiard % How. p. 1S9. If the claimant sup
posed that there was any danger that the Jury
would be misled he might well have asked that
iurtner and more definite instructions should
~ pe gwen and II he had done so and the prayer
i ,laa been refused this objection would be entit-
iSa;,fe 70 more weight Correctness Of the pre-
l;;tS,ty observation of The court as applied to
iS a',a11 snpments cannot be doubted, and it
IL e4uaiiy accurate as applied to shipmant3 by
a railroad in foreign country wbcI, consider
ed IN connection with the subseouent instruc-
tions. Merchants often purchase goods "a an
adventure, snincient IN quantity to load several
vessels, but 1t Is clear beyond doubt that an
invoice executed in triplicate in due form as re-
aured must be produced at or before each
shipment to the consul and when so produced
must have endorsed thereon the required de-
claration. Those requirements attach To each
shipment and it is obvious that il it were not
SO the revenue regulations might as well be
repealed, as the contrary rule would oDe1 the
door to every species OF evasion and fraud.
Same reasons require that the same rule should
he anplied to each train of one or more ears
laden with dutiable goods purchased or other
wise acquiTedin foreign country and design
ed for importation under our revenue laws
Such shipments are subject to the same laws
as importatiOns in ships and they must be gov
erned by the same rules of construction.
Granting that to be so, then it is clear that the
first instruction was correct as the express
words OF the act of Congress require that an
invoice in trplicate shall be produced to the
consul at or before the shipment. Object of
the provision was doubtless to afford protec-
tiOn to the revenue, but it is obvious that it
would afford none unless it be required that
one copy of the invoice shall be presented to
the collector at or before the entry Adopt
the construction that the shipper may forward
bis goods and procure his invoice afterwards
and the acts Of Congress and the regulations of
the Treasury Department are Of no avail. Ar
gument however upon the point Is unneceS5a-
ry as the language of the provision in the act
Of Congress sustains the instruction in ex-
press words.
Closing paragraph of the second instruction
is also the subject of complaint, but the criti-
esms, as the language is understood by the
Court are without merit and the objection
must be overruled on that ground and also for
the reason that il was the duty Of the claimant
he thought the language was ambiguous to
have requested a clearer statement of the views
of the Judge. Plain inference from the lang
uage reported is that the Judge intended 10 re-
information is founded and it is not doubted
that II must have been so understood by the
jury. .-r1l .sle
that the goods brought forward on the last car,
which were accompanied by the substituted
invoice, were forfeited in case they found that
the goods previously transported in the four
teen cars without any invoice and before the
substituted invoice was made, were contained
in the same invoice, and in a manner that they
could not be distinguished Theory Of the
United States is that fourteen cars he'd been
sent forward without any invoice With the in
tenton of defrauding the revenue, but that the
t1,ar. ha fha ONfla Ea1 haa aX
amined apprehending difficulty returned and
procured the substituted invoice, and the evil
dence tends to prove that theory OF the trans
action. 1latuf .n 'nijr.e9 sf y
Irrespective, however, OF the evidence 1
am OF the opinion that the instruction is quite
correct. Importers cannot commingle unlaw-
full and lawful importations in the same in
voice SO that they cannot be distinguished
and be allowed TO save any portion Of the
goods from forfeiture, because such an invoice
is false and subjects the goods TO the conse-
quences attaching to false Invoice. afl.
Due executions were also taken to the re-
fusal of the court to instruct the jury as re-
quested by the claimant. He presented fif.
teen prayers for instruction as appears in the
transcript and they were all refused by the
court Refusal to grant an instruction as
prayed, is not error, unless the instruction
Itself was correct nor unless it was needful to
enable the jury rightly to perform their duty.
Some of the prayers for instructions were
plainly correct as abstract propositions of law,
but i am of the opinion that the instructions
given by The court were amply sufficient to en-
able the jury to determine the whole contro-
versy. Substantial charge in all the counts ex
cept one was that the entry was knowingly
made by means OF false invoice, and that
question was fully and fairly submitted to the
jury in the charge Of the court. Whole con-
trOversy turned upon that question as involved
in five out of the six counts. Where the in
structions given by the court cover the whole
controversy and are sufficiently full to enable
the jury to decide the entire issue between the
parties, the refusal Of the court to give other
Instructions is not error. Prayers for instruc-
tiols applicable to the fourth c cunt were pre-
sented and refused. But the objections to the
ruling in that behalf were not much pressed
at the trial and If they~had been they could
not be sustained.
After verdict and before Judgment the claim
ant submitted motion in arrest of Judgment.
Foundation of the motion as alleged, is GER
tain defects in the information, which are pre-
sented in thirty-One points. Bill Of excep-
tiOnS was filed on the nineteenth day OF Jan
uary 1865 and the statement in the minutes Is
that the motion to arrest was overruled on the
31st day of March following. Clerk s minutes al
50 state that the claimant excepted to the rul-
ing of the court, and that the bill of exceptions
was sealed and placed on file, but both parties
agree that no sucn bill of exceptions was ever
allowed. Repeated decisions Of the Supreme
Court have established the rule that such
statement in the minutes is of no benefit to
party unless he seasonably ayails himself OF
the rieht to reduce the exception to writing
and procures it to be sealed by the Judge prs
siding at the trial Pomeroy q Lesser VS..
Bank of Indiana, Wall 59S. Thompson VS..
Riggs Wall p-. Conceding that there Is
no exception in this case still the claimant in
sists that the point is open to him because he IN
sists that the ruling of the judge is apparent
in the record and refers to certain well-knowp
cases which affirm the rule that error appar-
ent in the record may be corrected without
any bill of exceptions. But the error of the
proposition consists in the fact that the ruling
of the courts is not apparent ia the record. tie
insists that it Ia 80 because it IS 80 stated in
the minutes, but the cases already referred to
decide that such statement in the minutes Is
of no avail In the appellate court unless the
same is seasonably reduced to writing and in
corporated into regular bill of exceptions.
Recurring to the record it will be seen that OBJ
iections to the admissibity of evidence were Tes'
peatedly made by the claimant during the
trial, which were overruled by the court aud
in his printed argument be proceeds upon the
ground that all the rulings of the court in
that behalf are included in the excepting
clause of the bill of exceptions. Statement
in the paragraph Immediately following the
instructions of the court is that the claimant
did then and there except 10 the
aforesaid rulings and instructions Of
| the court as well as to the refusal
OF the court to give the instructions as
prayed for by the claimant. Better opinion IS
.hc rulings Of the court in giving the instruc-
tious, and TO the refusal of the court to grant
the csaimant's prayers tor Instructions
REQUEST OF the claimant as stated in the con-
Guiding paragraph of the exceptions, is that
the co1rt win set their seal to tile bill Of excep-
tion containing the several matters proved and
given in evidence, aid .the rulings, reflections,
and directions of the adge. No particular
ruling, rejection, or direction, is speclhed, and
there is nothing in the record b which the pre-
else meaning OF the excepting party can DC as
certained Mere objectiont to evidence are
of no avail in an appellate court, uni$ss 10 ap-
pears that the party excepted at the time EA-
ceptions must be taken at the time,
but il seasonably taken and reserved they
NAV be drawn out afterwards. Dredge v.
Forsyth, Black 568; Ufited States VS..
Breitling 20 How. 254; Phillips v. Mayer, Is
How 160. Exception was taken during the
trial by claiman. to the ruling of the court a.
lowing a certain question to be put to the WIT
ness, s. b. Locke, but the objections was not
insisted on at the argument. Record also states
in effect that the claimant objected to the de-
position of John 8. Bowen, when offered by
the District Attorney, and the inference from
the re:ord is that the claimant excepted TO the
admissibility, but upon what ground does not
appear and the caption of the deposition Is
not in the case. Special objection was also
made to certain parts of the deponent's testi-
mony, which was admitted by the court, but
no exceptions were taken to the ruling of the
court. Complaint is also made of the rnllng
of the court in excluding certain parts OF the
deposition of James Reid, and the statement
in the record is that the claimant then aud
there excepted to the ruling of the court. les
timony rejected was offered to show that held,
who on the second day of May, 1904 had sworn ,Ia