The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-11-06

that by means OF such sale Drew and the other de-
PENDANTS himself cxcuded) received the sums charged
In the complaint and which they applied 10 their own
He therefore asks that the complaint DO dismissed
as against him.
THE CLAFLIN 81 co. INDICTMENTS
It will be remembered that a motion recently
made In the United States Circuit Court before Judge
Benedict, to quash the indictments against II. b.
Clahln Co. in connection with alleged silk smuggling
frauds Judge Benedict yesterday rendered his de-
csion sustaining all but the fourth and last count OF
the Indictment The following is his decision: The
Indictment charges FIRST concealing second facilita-
ting the transportation, and third facilitating the sale
of certain merchandise. These three counts are sim
liar in form and the objections to be considered apply
to each Of them. The fourth count is different
and will be considered by ITSELF The nrst
objection which i examine is that the goods
forming the subject Of the transaction charged are not
sufficiently identified The language used to identify
the goods here quoted in the opinion the Court
proeeeds-The rules by which the sunciency OF In
dictment is to be determined have been too often
stated to require repetition These rules as they have
been understood and applied in the adjudicated cases
are 70 be applied here. Their operation cannot be
tended because Of any embarrassments under which
these defendants lie because Of the extent OF their
business Judged thus the description under considera
tion will be found sufficient Plainly the language used
shows the subject Of the transaction be within the
scope OF the statute creating offence for the
in terms includes all kinds OF merchandise II Is also
clear tnat the description In the Indictment together
with such evidence as trial must necessarily furnish
VIII fully protect in any future prosecution for the
same offence II is not necessary to describe property
with such particularly will obviae all necessity for
proof outside the record 10 support plea In
jeopardy. Says the Court, in Rex against Mansfield
(l6 and page 140;-'There must be some parole evil |
dence in all cases to show what it as that he
was tried for before" 10 require
the various species of silk goods in the cases
to be set forth could omen too wide
door for the defeat sf the prosecution upon ques
ton OF variance To demand the statement in the in
10 tn auc1t ha rtla hnun
all reason. pass to consider the next objection that
the iivgslity In the importation OF these is not
properly stated In support OF this objection the prop
oston Is advanced that an Indictment for buying |
goods which havs .rvn pruugnt Untes States
contrary to law must set out the offence committed IN
the original importation with the same particularly OF
time place and circumstances that would DO required
In an indictment for the original offence Such |
proposition cannot be maintained The offence of
knowingly buying struggled goods is similar |
in character to that of receiving stolen goods,
much that it has been conceded that the rule APP
piled indictments for receiving stolen goods may be
properly applied TO this Indictment Theconcession is
fatal TO the objection under consideration |
l next consider the proposition taken that the in |
diotment to be good should not only con1ne the |
charge TO dealing in smuggled goods but also should |
state facts from which the Court determine such
to have been the character Of the importation referred
to. The word ''smugged' is technical word |
having known and accepted meaning in bad sense |
1t implies something Illegal and is inconsistent with
any innocent intent ~ | have |
sdered the objections urged against the |
first three counts Of the Indictment It |
remains TO consider the fourth and last count This
count Is nkeWlse DaSed upon section OF the act OF
1866. The difference between it and the other counts
is that in assigning the egalty of the original mpor
taton II uses simply the words OF the statute averrng
only that the goods had been imported into the United
States contrary to law II the act of 1866 confined in
operation to single form of iegality it might be
questioned whether count like this indictment
for secondary offence would not be supported by the
authorities already referred to- And certainly there is
weight in the argument derived from the repeal pro-
visions of section 10 of the act of 1872 1t would
seem that the illcgaty should be designated
with particularly than afforded by the
N he 1apU
of the comprehends under general terms divers
forms of iegality having different characteristics, 1t
may well be considered proper to require something
more than the words Of the statute. y For these
reasoii ard because such count based upon this
statement has been ~ Tenorted case IN
this circuit am of the opinion that the fourth
should be rejected. My determination upon the motion
therefore Is that the fourth count of the Indictment be
snashed and TO the other counts the motion IS de-
MED.