Dissenting Opinion: Field, Harlan, JJ.

been able to find, that an entire omission of all averment, as to the essential fact to be established, to justify a forfeiture or conviction, is not fatal. If any different rule has prevailed in any portions of the country, I do not think it should be sustained. This singular result would follow: that a defendant or claimant, admitting all the allegations of the libel, would escape forfeiture or punishment, for without proof of something not alleged, neither could be imposed.

In the case of The Hoppet, decided as far back as 1813, 7 Cranch, 388, 394, a libel of information was held insufficient which contained a general reference to the provisions of the statute alleged to have been violated. And the court, speaking by Chief Justice Marshall, said that "a rule so essential to justice and fair proceeding as that which requires a substantial statement of the offence upon which the prosecution is founded, must be the rule of every court where justice is the object, and cannot be satisfied by a general reference to the provisions of a statute." It was accordingly held in that case that, the information being defective in that respect, the defect was not cured by evidence of the facts omitted to be averred, the court stating that "the accusation on which the prosecution is founded should state the crime which is to be proved and state such a crime as will justify the judgment to be pronounced. The reasons for this rule are: 1st. That the party accused may know against what charge to direct his defence. 2d. That the court may see with judicial eyes that the fact alleged to have been committed is an offence against the laws, and may also discern the punishment annexed by law to the specific offence. These reasons apply to prosecutions in courts of admiralty with as much force as to prosecutions in other courts. It is therefore a maxim of the civil law that a decree must be secundum allegata as well as secundum probata. It would seem to be a maxim essential to the due administration of justice in all courts."

In the United States v. Three Parcels of Embroidery, 3 Ware, 75, it was held that the omission in a libel of information for the forfeiture of those articles for violation of the 66th section of the Collection Act of 1799, 1 Stat. c. 22, p. 627, to

Dissenting Opinion: Field, Harlan, JJ.

allege that the goods were falsely invoiced with a design to evade the duties was a fatal defect in the proceeding, and was not cured by the verdict of the jury. In considering the

omission in that case in arrest of the judgment on the ground that the offence was not set out in the information with that clearness and distinctness which is required by the rules of pleading and practice, the court said: "It was long ago held by the Supreme Court that an information to recover a penalty under the Collection Act of 1799 is in the nature of a criminal proceeding. Locke v. United States, 7 Cranch, 339; Clifton v. United States, 4 How. 242. The description of the offence for which the penalty is demanded must have the same kind and degree of certainty that is ordinarily required in other criminal proceedings; and although it may be true, as is argued by the District Attorney, that in the practice of our courts all that technical accuracy of description may not be required, which is held to be essential in indictments, and even in the exchequer practice in England, and that niceties need not be observed which rest on dry precedent, the reason of which has either ceased to exist or cannot now be discovered, it is still indispensable that every circumstance constituting the offence be clearly and distinctly set out in plain and direct averments."

The language of the 66th section of the act of 1799, under which the libel in that case was filed, declared "that if any goods, wares, or merchandise, of which entry shall have been made in the office of a collector, shall not be invoiced according to the actual cost thereof at the place of exportation, with design to evade the duties thereupon, or any part thereof, all such goods, wares, or merchandise, or the value thereof, to be recovered of the person making entry, shall be forfeited." 1 Stat. 677. And the court held that from this language three facts must concur to complete the offence. First, an entry must be made of the goods. Second, they must be invoiced not according to their actual cost. Third, they must be invoiced with a design to evade the duties thereupon, or upon some part thereof. And that each of these facts must be found in order to entitle the plaintiffs to a verdict, and, all

Dissenting Opinion: Field, Harlan, JJ.

of them being necessary to constitute the offence, each should be plainly and distinctly charged in the information. It was charged that the entry of the goods was made with a design to evade the duties, but it was nowhere distinctly and plainly charged that a false invoice was made with that design; and the court said: "Under this section of the statute it appears to me that this design in making the invoice is an essential part of the offence. If it is so, the rules of pleading require that it be distinctly alleged. If it be said that the jury, under the direction of the court, found the fact, it is still true that, by the strict rules of pleading in penal causes, the plaintiff can recover only according to his allegation, as well as his proofs," and the judgment was arrested. This case, it is true, comes from a District Court, and is therefore not a controlling authority here, but the great learning of the District Judge, and the ability which marked all his opinions, have deservedly entitled them to great weight and consideration in all the federal courts; and the doctrine declared is sustained by a multitude of decisions.

Much stress is laid upon the fact that an information or other proceeding for the forfeiture of goods for a violation of provisions of the customs revenue acts is in form a civil action; but I do not perceive that this fact changes the necessity of alleging, as well as proving, the material facts upon which alone a forfeiture can be adjudged. Though the same strictness in pleading is not required in civil as in criminal actions, in neither can that which is essential to be proved be omitted to be averred. As Chief Justice Marshall indicates in the quotation above, adherence to this rule would seem to be essential to the due administration of justice in all courts; and it may be added, in all proceedings before them, civil or criminal, upon which their judgment is asked.

In the recent case of Boyd v. United States, 116 U. S. 616, 634, this court held "that proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal."

Nor do I perceive that the question of pleading is affected

Dissenting Opinion: Field, Harlan, JJ.

by the fact, that the statute, requiring the fraudulent intent to be proved, applied as well to pending actions and proceedings as to such as might be subsequently commenced. That fact, it is true, might in some cases have compelled an amendment of the pleadings in pending actions and proceedings to make their allegations embrace the essential element of the offence for which the forfeiture was sought; and such an amendment, where a fraudulent intent was not already alleged, was, as I think, contemplated. I cannot believe that Congress intended, by making the law applicable to pending cases, to change a long and well-established rule of pleading, one founded upon manifest principles of justice, so as to allow a conviction of an offence upon which a forfeiture could be adjudged, without averring the fraudulent intent upon proof of which alone such forfeiture could be claimed.

In

A jury should not be allowed to find as to any material fact not alleged. Evidence upon such a fact would be evidence upon something out of the case presented. Even in ordinary civil cases such evidence is not admissible. Much more strictly should the rule be enforced in penal cases like this one. United States v. Ninety Demijohns of Rum, 4 Woods, 637, 639, the libel of information was for the forfeiture of those goods for a violation of provisions of the customs revenue law. It made no allegation of actual intent to defraud the United States, and it was held that the libel was fatally defective. Referring to § 16 of the act of June 22, 1874, 18 Stat. c. 391, 186, 189, the court said: "I think it perfectly clear that this section makes intent to defraud the United States a necessary condition to the forfeiture of any goods, etc., for the violation of the customs revenue laws. A libel of information, therefore, which undertakes to state a case for the forfeiture of goods should aver an intent to defraud the United States. Without such averment no case for forfeiture is made. claimant might well decline to answer a libel in which such averment was wanting, trusting to the court to dismiss the libel for want of necessary averments, when it came to hear the case ex parte, and to adjudge thereon as to law and justice should appertain. The libel must set up all the facts

The

Syllabus.

necessary to a forfeiture. If it fails to do this it is the duty of the court to dismiss it, whether issue is joined or not."

Concurring fully in these views, I dissent from the judgment of the court.

MR. JUSTICE BRADLEY was not present at the argument of this case, and took no part in its decision.

ORIGET v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 186. Argued February 16, 1888.- Decided March 19, 1888.

A paper headed "Bill of Exceptions" not bearing the signature of the judge, but containing at its foot these words, Allowed and ordered on file November 22, '83, A. B.," the trial having taken place in June, 1883, cannot be regarded as a bill of exceptions, because not signed by the judge, as required by § 953 of the Revised Statutes.

An information in a suit in rem against certain imported goods seized as forfeited for a violation of the customs revenue laws, alleged an entry of the goods, which were subject to duties, with intent to defraud the revenue by false and fraudulent invoices, by means whereof the United States were deprived of the lawful duties accruing upon the goods embraced in the invoices. The answer of the claimant denied that the goods became "forfeited in manner and form as in said information is alleged." At the trial the jury rendered "a verdict for the informants, and against the claimant for the condemnation of the goods mentioned in the information, and that the goods were brought in with intent to defraud the United States." The decree set forth that the jury having "by their verdict found for the United States, condemning the said goods," they were " accordingly condemned as forfeited to the United States:" Held,

(1) The verdict was a sufficient compliance with the requirement of § 16 of the act of June 22 1874, c. 391, (18 Stat. 189,) that, in order to a forfeiture the jury should find that "the alleged acts were done with an actual intention to defraud the United States;" (2) The judgment was sufficient without reciting any special finding by the jury as to an intent to defraud.