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No question is made in this case that the shawl was dutiable, or that the amount of the duty claimed on it was the proper duty.
Being dutiable, its introduction by mail into the United States was forbidden by the treaty. The revenue laws of the United States require that every owner or consignee of property imported from other countries shall report the same to the customs officers before it is landed from the vessel, and shall furnish an invoice of its character and purchase price, for valuation, or that it may be seen if it is duty free, and all the vexatious and annoying machinery of the custom-house, and the vigilance of its officers, are imposed by law to prevent the smallest evasion of this principle.
Of what avail would it be that every passenger, citizen and foreigner, without distinction of country or sex, is compelled to sign a declaration before landing, either that his trunks and satchels in hand contain nothing liable to duty, or if they do, to state what it is, and even the person may be subjected to a rigid examination, if the mail is to be left unwatched, and all its sealed contents, even after delivery to the person to whom addressed, are to be exempt from seizure, though laces, jewels, and other dutiable matter of great value may thus be introduced from foreign countries.
It is a violation of the law to introduce dutiable articles at all in that mode, and articles so introduced are liable to seizure for such violation.
But the jury found that the shawl was not sent by mail forthe purpose or with the intent, on the part of the sender or the plaintiff, to avoid the payment of duties thereon; and it is said that, under sect. 3082 of the Revised Statutes, the goods cannot be seized or forfeited unless fraudulently or knowingly imported contrary to law.
Rev. Stat., sect. 3082, provides : “ If any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any merchandise, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported contrary to law, such merchandise shall be forfeited, and the offender
shall be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, or be imprisoned for any time not exceeding two years, or both."
The language of this section is that if a person fraudulently or knowingly brings into the United States, or assists in so doing, any merchandise contrary to law, the goods shall be forfeited and the offender punished by fine and imprisonment; and while the jury negative the fraudulent intent, they do not negative the knowledge of the sender that the goods were sent in violation of law, or that they were dutiable goods.
This fraudulent and guilty knowledge, however, relates mainly to the punishment of the offender by fine and imprisonment, and other sections, as 3061, authorize and direct the seizure of any property imported contrary to law; and the officer is to open envelopes for that purpose, and, on reasonable ground to believe it subject to duty or to have been unlawfully imported, he shall seize and secure the same for trial.
In this case the article was unlawfully imported in a sealed envelope, and it was discovered and seized by the proper officer in the hands of the owner after she had opened it.
There is no finding by the jury as to what he did with it, except that he had it appraised. But the presumption is that he did his duty, by notifying the officers whose business it was to institute proceedings for condemnation; and though we may not properly look at the bill of exceptions, which shows what he did with it, this is unnecessary, for if the seizure was rightful, there is no evidence whatever of a wrongful conversion.
It has been suggested that by reason of sect. 16 of the act of June 22, 1874, c. 391, and the finding of the jury that there was no intention to defraud in this case, the defendants are liable. But that section relates to actions brought by the government to enforce the revenue laws by fine, forfeiture, and penalty, and declares that in such cases, unless there is a verdict of the jury or finding of the court that the alleged acts were done with an actual intention to defraud the United States, no fine, penalty, or forfeiture shall be imposed.
If the plaintiff in this case shall, in any proceeding in court for its condemnation, appear and claim this property, or any
suit shall be instituted against her personally for a violation of the revenue law, she can have the full benefit of this statute; or, if she is impatient of the delay of the officers in instituting such proceeding, she can, under sect. 3076 of the Revised Statutes, cause such proceeding to be instituted, in which she can have the same relief.
But if the present action be sustained on the ground of the absence of fraudulent intention on her part, the officer making the seizure is held liable in the absence of such a proceeding, though in such case the court might have protected him by a certificate of probable cause, and though he may have done his duty and been guilty of no conversion. Such a construction of the statųte requires him to know the guilty or the innocent intent of a party violating the law at the hazard of personal liability for the result.
It is to be observed, also, that all the trouble, cost, and vexation of this suit could have been avoided by an application to the Secretary of the Treasury under sect. 5293 and the rules prescribed by that officer for such cases, when he would undoubtedly have remitted the forfeiture on what were the undisputed facts of the case, on payment of the small sum assessed as the duty.
We think that in making the seizure the defendants only did their duty, and that whatever the hardship was to the plaintiff, they are not liable in this action on the facts found in the verdict of the jury.
MR. JUSTICE FIELD did not sit in this case, or take any part in deciding it.
KRING V. MISSOURI.
1. A. was convicted of murder in the first degree, and the judgment of con
demnation was affirined by the Supreme Court of Missouri. A previous sentence pronounced on his plea of guilty of murder in the second degree, and subjecting him to an imprisonment for twenty-five years, had, on his appeal, been reversed and set aside. By the law of Missouri in force when the homicide was committed this sentence was an acquittal of the crime of murder in the first degree ; but before his plea of guilty was entered the law was changed, so that by force of its provisions, if a judgment on that plea be lawfully set aside, it shall not be held to be an acquittal of the higher crime. Held, that as to this case the new law was an ex post facto law, within the meaning of sect. 10, art. 1, of the Constitution of the United States, and that he could not be again tried for murder in the first
degree. 2. The history of the post facto clause of the Constitution reviewed in con
nection with its adoption as a part of the Constitution, and with its subse
quent construction by the Federal and the State courts. 3. The distinction between retrospective laws, which relate to the remedy or the
mode of procedure, and those which operate directly on the offence, is unsound where, in the latter case, they injuriously affect any substantial right to which the accused was entitled under the law as it existed when the
alleged offence was committed. 4. Within the meaning of the Constitution, any law is er post facto which is
enacted after the offence was committed, and which, in relation to it or its consequences, alters the situation of the accused to his disadvantage.
ERROR to the Supreme Court of the State of Missouri.
Mr. Jefferson Chandler and Mr. L. D. Seward for the plaintiff in error.
Mr. Samuel F. Phillips for the defendant in error.
MR. JUSTICE MILLER delivered the opinion of the court.
Kring was indicted in the Criminal Court of St. Louis for murder in the first degree, charged to have been committed Jan. 4, 1875, and he pleaded not guilty. He has been tried four times before a jury, and sentenced once on a plea of guilty of murder in the second degree. His case has been three times before the Court of Appeals, and three times before the Supreme Court of the State. In the last instance, the Supreme Court affirmed the judgment by which he was found guilty
of murder in the first degree and sentenced to be hung. He thereupon brought the present writ of error.
It is to be premised that the Court of Appeals is an intermediate appellate tribunal between the Criminal Court of St. Louis and the Supreme Court of the State, to which all appeals of this character are first taken.
At the trial, immediately preceding the last one in the court of original jurisdiction, the prisoner was permitted to plead guilty of murder in the second degree. The plea was accepted by the prosecuting attorney and the court, and he was thereupon sentenced to imprisonment in the penitentiary for twentyfive years. He took an appeal from the judgment on the ground that he had an understanding with the prosecuting attorney that if he would plead as he did, his sentence should not exceed ten years' imprisonment. The Supreme Court reversed the judgment, and remanded the case to the St. Louis Criminal Court for further proceeding, where, when the case was again called, he refused to withdraw his plea of guilty of murder in the second degree, and refused to renew his plea of not guilty, which had been withdrawn when he pleaded guilty of murder in the second degree. The court, then, against his remonstrance, made an order setting aside his plea of guilty of murder in the second degree and directing a general plea of not guilty to be entered. On this plea he was tried, found guilty, and sentenced to death, and the judgment, as we have already said, was affirmed by the Supreme Court of the State.
By refusing to plead not guilty as charged in the indictment, and to withdraw his plea of guilty of murder in the second degree, the defendant raised the point that the proceedings under that plea — namely, its acceptance by the prosecuting attorney and the court, and his conviction and sentence under it — were an acquittal of the charge of murder in the first degree, and that he could not be tried again for that offence. This point he insisted on in the Circuit Court, the Court of Appeals, and the Supreme Court.
Both these latter tribunals, in their opinions, which are a part of the record, conceded that such was the law of the State of Missouri at the time the homicide was committed. But they overruled the defence on the ground that by sect. 23, art.