United States v. Thomas. It will be seen that the indictment in express terms limits the allegation that the nutmegs mentioned in the indictment were imported and brought into the United States contrary to law, by stating that the same, being subject to duty by law, were so imported and brought into the United States, without the duties due and payable thereon having been paid or accounted for; at least that is the substance of what it was intended to allege by the inartificial language used in the indictment. This makes it necessary to consider what is the true construction of the fourth section of the act of 1866, above recited, and whether the allegation made brings the case stated within its provisions. As a general rule it may be said that it is not contrary to law to import or bring into the United States goods subject to duty without having paid or accounted for such duties. In almost every case of importation the goods are not only brought into the United States, but are imported, in the true legal sense of that term as used in the revenue acts, before there is any obligation to account for or make payment of the duties. They are brought into the United States as soon as they are brought into its territory; and the act of their importation is complete when they are voluntarily brought into a port of delivery with intent to unlade them there (United States v. Lindsay, 1 Gall. 365); and if the goods are subsequently entered, and the other provisions of the law afterwards complied with, and the duties paid, no penalty or forfeiture is incurred. Indeed, it is believed that there is no case in which a penalty or forfeiture is incurred, or can be enforced, or any crime or offense committed, simply because the duties on imported goods are not paid or accounted for before the importation was complete. It is by acts or omissions subsequent to the importation, that for.eitures and penalties are incurred, or crimes or offenses com United States v. Thomas. mitted, unless there is some law expressly declaring the importation itself, or the manner of making it, unlawful. Section 19 of the act of August 30, 1842, which provides for the punishment of any person who "shall knowingly, with intent to defraud the revenue of the United States, smuggle or clandestinely introduce into the United States any goods, wares, or merchandise subject to duty by law, and which should have been invoiced, without paying or accounting for the duty," makes the clandestine introduction or smuggling into the United States of dutiable goods, in cases therein provided for, a criminal offense, which is complete as soon as the goods are so clandestinely introduced or smuggled into the United States; but in such cases it is the secret and clandestine manner of the importation, with the intent to defraud the revenue, and not the non-payment of or accounting for the duties prior to the importation, which constitutes the gist of the offense. There are many cases to which this fourth section of the act of 1866 was probably intended to apply, and to which it may be properly applied; but it is unnecessary to refer to more than two or three acts of Congress to show what was probably the general intention of the national legislature in adopting the section under consideration. By section 5 of the act of July 10, 1861, 12 Stat. at L. 257, the President was authorized, under the circumstances therein set forth, to declare the inhabitants of a State, or any section or part thereof, to be in a state of insurrection against the United States; and by the same section it was provided that thereupon all commercial intercourse by and between the same and the citizens thereof and the citizens of the rest of the United States should cease and be unlawful so long as such condition of hostility should continue; and all goods and chattels, wares, and merchandise, coming from said State or section into the other parts United States v. Thomas. of the United States, and all proceeding to such State or section by land or water, should, together with the vessel or vehicle conveying the same, or conveying persons to or from such State or section, be forfeited to the United States. Section 4 of the same act (page 256), authorized the President to close ports of entry in certain cases, and give notice thereof by proclamation; and declared that thereupon all right of importation and other privileges incident to ports of entry should cease and be discontinued at such ports so closed, until opened by the order of the President; and that if, while said ports were so closed, any ship or vessel from beyond the United States, or having on board any articles subject to duties, should enter or attempt to enter any such port, the same, together with its tackle, apparel, furniture, and cargo, should be forfeited to the United States. By some of the revenue acts it is made unlawful to import certain articles except in the form or condition particularly described. Thus, by section 1 of the act of July 28, 1866, 14 Stat. at L. 328, it is provided that no cigars shall be imported unless the same are packed in boxes of not more than five hundred cigars in each box; and that brandy and other spirituous liquors may be imported in casks or other packages of any capacity not less than thirty gallons; and that wine in bottles may be imported in boxes containing not less than one dozen bottles of not more than one quart each; and that wine, brandy, or other spirituous liquors imported into the United States, and shipped after October 1, 1866, in any less quantity than therein provided for, shall be forfeited to the United States. And see, for similar provisions in respect to the importation of beer, ale, and porter, and refined, lump, and loaf sugar, section 103 of the act of March 2, 1789. It is to such and similar importations contrary to law, and to the importation of articles the importation of which is en United States v. Thomas. tirely prohibited, that section 4 of the act of 1866 was intended to apply; and, as applied to such cases, the rule of evidence, a presumption of guilt, declared in that section, may well be justified; while it would be very harsh and oppressive if the provisions of the section in which it is found were to be applied to every case in which goods were actually imported or brought into the United States before the duties were paid or accounted for,-that is, to ninety-nine cases out of every hundred of honest importations. Perhaps it might have been suggested, if the question had been at all argued on the part of the United States, that the indictment states that the nutmegs therein mentioned were imported contrary to law, and that so much of the indictment as states in what the illegality of the importation consisted, may be rejected as surplusage. But the short answer to that is, that this is a part of the description. of the offense, and cannot be rejected as surplusage, even if the indictment would have been good if the particular illegality of the importation had not been set forth; for if an indictment set out the offense with greater particularity than is required, the proof must correspond with the averments, and nothing descriptive of the offense can be rejected as surplusage. United States v. Brown, 3 McLean, 233; United States v. Howard, 3 Sumn. 15; United States v. Foye, 1 Curt. 364. But it is believed that the indictment would been bad, if the allegations of illegality of the importation had been simply that it was contrary to law, without showing the facts constituting such illegality, or stating the particular illegality intended to be proved. Upon the whole case, it is very clear that the count on which the defendant was convicted is not sufficient to sustain a conviction; and the motion in arrest of judgment is therefore granted. Order accordingly. McKay v. Campbell. MCKAY v. CAMPBELL. District Court, District of Oregon; July T., 1870.、 PLEADING.-ACTION FOR REFUSING A LAWFUL VOTE. Where the plaintiff, in an action under the act of May 31, 1870, 16 Stat. at L. 140, for damages for preventing him from voting, alleges in the same count or cause of action that defendant prevented plaintiff from voting for several different officers, and that he refused his vote, refused to swear him as to his qualifications, &c., his pleading is bad for duplicity, upon special demurrer or motion to strike out. These different acts are distinct causes of action, under the statute, and should be alleged in separate counts or statements. But as the objection could only be taken, at common law, by special demurrer, it must be taken, under a reformed code which substitutes a motion to strike out for the special demurrer,-such as the Oreg. Code of Pro. § 103,-by such motion, and not by demurrer. In order to sustain an action, under the statute, for refusing to swear the plaintiff in order to enable him to prove his qualifications as an elector, as prescribed by the State law, the evidence upon the trial must show that the reason for the defendant's alleged refusal was on account of the race, color, or previous condition of servitude of the plaintiff. Hence, this fact must be alleged in the complaint. Demurrer to a complaint. DEADY, J.-This action was commenced July 1, 1870, to recover a penalty of five hundred dollars, under and in pursuance of section 2 of "An Act to enforce the rights of citizens of the United States to vote in the several States of this Union, and for other purposes," approved May 31, 1870. Among other things it is alleged in the complaint that on June 6, 1870, as provided by law, a general election was held in the State of Oregon, and county of |