The San Francisco call., 1903-09-05
OPINION FAvORS
BOLD SMUGGLERS
Jurors Refuse to Obey
De Haven's Order
to Acquit.
Court Instructs Them as to
What Must Be Proved
to Convict.

It does not happen very often that a
jury disregards the instructions of the
court to acquit the defendant, but such
was the case with the jury that tried
Naoi Nanamatsu last Thursday on a
charge of smuggling silks. The defend
ant was caught with the goods in his
possession before he had passed off the
gangplank, and his attorney raised the
point that in accordance with the de-
cision in the case of the United States
VS.. Keck the prisoner and the smuggled
goods never having escaped beyond the
control of the customs officials, no SNUG
Cling had been done.
In the Keck case the customs officials
boarded the ship before she had arrived
in the harbor of New York and finding
a quantity of diamonds concealed in the
captains cabin seized them and placed
the captain under arrest on a charge of
smuggling. On the appeal it was held
that as the goods had not been brought
through the customs lines, it was impos-
sible to determine whether the captain
had intended to smuggle the diamonds.
In other words, he had not been given an
opportunity to show criminal intent.
Upon this point Judge de Haven
charged the jury as follows:
Gentlemen of the Jury; There are two in
dictments against the defendant. They have
Deen consolidated, ana you are required 10 re-
turn verdict upon each of the indictments.
The Indictment which is numbered 4l02 con-
tains two counts, in the first one OF which the
defendant is charged with smuggling into the
port Of San Francisco certain articles and the
second count charges him with importing the
same articles into the United States contrary
to law.
In regard to this indictment. gentlemen, l
deem it my duty to say to you that there is
no evidence whatever to sustain 1t. and 1t will
be your duty to return verdict Of not guilty
as to that Indictment. There be no smus-
Cling of goods within the meaning of the law
unless they actually pass the line of the Gus
toms officers. The mere attempt to clandes-
timely introduce goods into the United States
is not smuggling within the meaning of the
So, gentlemen there will be left FOR your con,
sideration the charge contained in the second
indictment, number 4O99
The jury was sent out to deliberate at
2:25 p. m. and was discharged at $3.50 p.
m, having failed to agree. Six were for
conviction in spite of the positive instruc-
tion of the court.
Duncan E. McKinlay, Assistant United
States District Attorney, who prosecuted
the case, has notified Acting Collector
William B. Hamilton of the opinion of the
court. Duncan McKinlay spoke as fol-
lows of the CASE
Under the instructions of Judge de Haven
given to the jury on Thursday In the Mana
matsu case, there are several men in Jail
serving sentences for smuggling who never
should have been convicted. Unless Judge de
Haven changes his opinion as to the interpre-
tation of the decision in the Captain Keck
case it Will be impossible TO convict "A snug
gler until after he has landed the goods be-
yond the customs lines. In which event the
goods and the smuggler will have escaped In
nine cases out of ten. This class of cases
differ from the Keck case because there Is no
doubt to their intention to smuggle. The
concealment of the goods, the neglect to de-
clare them when requested by the customs
officials to do so. are circumstances clearly
showing the criminal intent OF the smuggler
II Judge de Haven adheres 10 his opinion IT
will be a waste of time for customs officers
to search passengers and baggage the gang
plank the vessel The only thing left
for them TO do will be allow the
pected smugglers and their baggage to escape
and then follow them up and arrest them be-
fore the property shall have been disposed OF.