Dissenting Opinion: Field, J.

application of the surrendered notes to the use and benefit of the defendant as charged, nor do they contain any averment that the defendant did not receive the notes as agent, for collection, or to obtain their renewal, which would readily suggest themselves as an answer to the alleged unlawful surrender, or that the bank was in any way a loser thereby. The defect in these counts is substantially the same pointed out in considering the eighth count of No. 922, a copy of which is set forth in the opinion of the court.

The allegations of fraudulent conduct and motive in the transactions, for which the indictments were found, are repeated with wearisome frequency, yet they are of no avail unless accompanied by a statement of facts from which such fraud must necessarily be inferred. A party is not to be condemned by the multitude or opprobriousness of the adjectives applied to his conduct or motives, unsupported by the facts, or, as said by Lord Chief Justice Holt, "a fact that appears to be innocent cannot be made a crime by adverbs of aggravation." Fraud is a conclusion of law from facts respecting the transactions designated, and if they do not necessarily tend to such conclusion, the allegation falls to the ground, however often repeated or with whatever amount of earnest asseveration.

Similar views are announced with great clearness and force in United States v. Watkins, decided by the Circuit Court for this District over sixty years. 3 Cranch C. C. 441. The defendant, who was the Fourth Auditor of the Treasury of the United States, was indicted for devising and intending fraudulently to obtain for his private use moneys of the United States, by means of letters to and drafts on the navy agent at New York and the navy agent at Boston, and certain requisitions on the Treasury of the United States, also sent by him to them, said letters, drafts, and requisitions being used as false pretences to enable him to obtain the moneys. There were three indictments found against him, and objections were taken to the sufficiency of their allegations of fraud. In considering the objections the court said: "Fraud is an inference of law from certain facts. A fraud, therefore, is not suffi

Dissenting Opinion: Field, J.

ciently set forth in an indictment, unless all the facts are averred which in law constitute the fraud. Whether an act be done fraudulently or not is a question of law so far as the moral character of the act is involved. To aver that the act is fraudulently done is, therefore, so far as the guilt or the innocence of the act is concerned, to aver a matter of law, and not a matter of fact. An averment that the act was done with intent to commit a fraud is equivalent to an averment that the act was done fraudulently. No epithets, no averment of fraudulent intent, can supply the place of an averment of the fact or facts from which the legal inference of fraud is to be drawn. Starkey, in his late treatise on Criminal Pleadings, says: 'Whether particular circumstances constitute an indictable fraud is a question of law; and, therefore, according to a fundamental rule of description in indictments, such circumstances must be set out in order to show that the facts amount to an indictable offence.' And he quotes Archbold on Criminal Pleadings as follows: 'An indictment for an offence against the statute must with certainty and precision charge the defendant to have committed acts under the circumstances, and with the intent mentioned in the statute; and if any one of these ingredients in the offence be omitted, the defendant may demur, move in arrest of judgment, or bring a writ of error. The defect will not be aided by verdict, nor will the conclusion, contra formam statuti, cure it.'"

The charges in the two indictments, by their very number, setting forth over seventy-five distinct offences, after dismissing counts for over one hundred other offences those retained varying from each other by confusing differences — were calculated to embarrass and oppress the defendant in his defence. The allegations of fraud in conduct and motive not being supported by any averment of facts from which such fraud is necessarily inferable, the other allegations as to the transactions charged are, upon a reasonable construction, consistent with the innocence of the defendant. And indictments, in my opinion, ought not to be viewed with favor which, by the very multitude of their counts, serve to embarrass and confuse the accused. If an offence cannot be stated in less than one hun

Opinion of the Court.

dred counts of an indictment, I do not think that public justice will suffer if the indictment be dismissed.

My conclusion is that the indictments on all the counts retained are insufficient to hold the defendant, and that the judgment below thereon should be reversed in both cases and judgment entered upon the demurrers in each case for the defendant, and that he be discharged therefrom.

EVANS v. UNITED STATES (No. 2).

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

No. 923. Submitted April 17, 18, 1894. - Decided May 14, 1894.

Evans v. United States, No. 922, ante, 584, followed.

THIS case was argued with No. 922, ante, 584. It was also an indictment against Evans for a wilful misapplication of the funds of the Spring Garden National Bank. The indictment originally contained 152 counts, upon all of which except 57 a nolle pros. was entered. The same proceedings were had as in the former case. The defendant was convicted upon all the counts, and sentenced to imprisonment for two years at and from the expiration of such imprisonment as he might undergo by reason of the sentence in the prior case. He subsequently sued out this writ of error. A reargument was ordered upon the fifth to the eleventh counts inclusive, and upon the fourteenth, fifteenth, sixteenth, and twentieth counts.

Mr. Hampton L. Carson, (with whom were Mr. J. Levering Jones and Mr. Rufus E. Shapley on the brief,) for plaintiff in

error.

Mr. Assistant Attorney General Conrad for defendants in

error.

MR. JUSTICE BROWN delivered the opinion of the court.

Opinion of the Court.

As the verdict of guilty was rendered upon all the counts, and the sentence did not exceed that which might properly have been imposed upon conviction under any single count, such sentence is good if any such count is found to be sufficient. As the fourteenth, fifteenth, and sixteenth counts of this indictment are the same as the eighth, ninth, and tenth of the other indictment, which were held to be good, except that the defendant is charged with aiding and abetting the president instead of the cashier in the fraudulent misapplication of the Nettleton notes, and the twentieth bears the same resemblance to the fourteenth of the other, it follows that these counts are also good, and the judgment of the court below is, therefore, Affirmed.

MR. JUSTICE FIELD dissented for the reasons stated in his dissenting opinion in Evans v. United States, ante, 584.

SEEBERGER v. SCHWEYER.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

The words "date of original importation," as used in Rev. Stat. § 2970, refer to the exterior port of first arrival of the merchandise, and not to the interior port of destination.

THE case is stated in the opinion.

Mr. Assistant Attorney General Whitney for plaintiff in

error.

No appearance for defendant in error.

MR. JUSTICE SHIRAS delivered the opinion of the court.

This was an action brought in the Circuit Court of the United States for the Northern District of Illinois by John

VOL. CLIII-39

Opinion of the Court.

Schweyer, an importer of goods, against Anthony F. Seeberger, the collector of customs for the port of Chicago, to recover duties paid under protest in 1888, upon goods imported in 1886 and placed in a bonded warehouse.

A jury was waived, and the case was tried by the court, which found the facts as follows:

"That on the 26th day of October, 1886, the plaintiff imported, via the port and district of New York, certain merchandise, and from thence transported the same to the port and district of Chicago, under the immediate transportation act, where it was duly entered for warehouse on the 11th day of December, 1886. That within a year after their arrival in Chicago, but more than a year after their arrival at the port of New York aforesaid, the plaintiff offered to pay the duties and charges assessed against said merchandise, but the customs officer at the port of Chicago assessed an additional duty of 10 per cent on the amount of duties and charges due thereon, under section 2970, Revised Statutes, for the reason, as he claimed, that the merchandise had not been withdrawn for consumption within one year from the date of the original importation, claiming that the date of original importation was the date when the merchandise arrived at the port of New York aforesaid."

The court further found that the plaintiff paid the additional duty, under protest, and duly appealed, and the last finding of the court was as follows:

"The court further finds that the merchandise was withdrawn for consumption at Chicago, November 2, 1887, which said withdrawal was at the port of original importation, in accordance with the law."

From the judgment of the court in favor of the plaintiff the case has been brought here on error. The question presented by the record is the single one whether the period of one year, within which the plaintiff was entitled to withdraw the goods upon paying the duties and charges, runs from the date of the arrival at the port of New York, or from the date of the arrival at the port of Chicago.

Section 2970 of the Revised Statutes reads as follows: