UNITED STATES V. PAGLlANO.

1001

,.,pirits from the bonde<l. warehouse, therefore the spirits cannot be held to have been removed by the fire. If this contention does not involve a non sequitur, it hardly changes the question under consideration; for it is not much more difficult to conceive that a combustible substance may be withdrawn from a place of deposit by fire than that it may be removed by fire. The real question is whether the disappearance of the spirits from the place of deposit was not the real contingency which the statute contemplated, and whether the fact of fire being the means or agent of disappearance was in the contemplation of congress in enacting the law. The act of May, 1880, was an amendment of section 3293 of the Revised Statutes; and sections 3293 and 3221 of the revisal must be construed together as parts of the same statute. Congress was at pains in section 3221 to provide relief to the owners of spirits deposited in distillery warehouses and under bond for the payment of a tax on removal thence, in all cases of their destruction by fire, It provides that the secretary of the treasury, on satisfactory proof of destruction of ,spirits by accidental fire or other casualty without fraud, Collusion, or negligence on the part of the owner, before the tax has been paid, may abate the tax in whole or in part, and may cancel the warehouse bond given by the owner. Such a provision would have been wholly useless if the removal contemplated in section 3293 did not embrace the accident or casualty of destruction by fire. It is a· necessary implication from the fact of the insertion of section 3221 in the law which embraced section 3293 that destruction by fire was one of the modes of removal contemplated by congress in enacting the latter section. We think, therefore, that the court below erred in setting aside the verdict which was found by the jury in favor of the plaintiff at the trial, and in holding that destruction by fire of spirits deposited in a distillery warehouse was not such a removal as is contemplated by section 3293 of the Revised Statutes and the acts amending it. The judgment of the court be· low is therefore reversed, and the cause mnst be ['emanded for further proceedings in accordance with this decision.

UNITED STATES v. PAGLIANO et aL (Circuit Court, S. D. New York. .January 27, 189a.)

1.

IMMIGRATION -IMPORTATIONS FOR PURPOSES OF PnOS'l'ITUTION-INDTCTMENT.

An indictment charging that defendants did knOWingly and willfully im· port and bring into the southern district of New York, from Naples, Ital)-, six women. named, for the purposes of prostitution within the Ullitc"fl States, sufficiently charges the offense proscribed by Act March 3, 1875, § 3, (18 St. p, 477,) forbidding the lmowing and willful importation of women into the United States for the purposes of prostitution.

2.

3.

SAME-INDICTMENT.

Such an indictment need not set out the facts constituting the ultimate facts of importation. Nor need the indictment specify the kind of prostitution referred to; the word "prostitution," as used therein, being sufficiently definite.

SAME.

J'EDERALREPORTER,

vol. 53.

, , ' "Nor'lS it necessary to state the place within the Uliited; States 'at wWch the women were to be used for the purposes of prostitution.'
IS.SAHE.

6.

Tbeindiotment was not objectionable in alleging tQ.at defendants did "imPP:rt bring," etc., whereas the statute merely uses "import;" for, in tws connection, the words are synonymous.
'

,SAME.

Such indictment need not allege that the importation was in pursuance of an agreement made prior thereto. 7. SAME-VERDICT-MoTION FOR NEW TRIAL. The verdict on trial of such an Indictment will not be disturbed on motion new trial on the ground that the court Was without jurisdiction, the ,evidence rendering it douptful whether the importation was into anotber district, where no such, objection was taken at the trial or presented by the record. '
S.ufEl.-..;EVIDENOE......ADMISSIBIIATY.

,On, trial, of the indictment, testimony tending to show that defendants kept a',bouse of prostitution in New York city for three years prior to the l:Ild1ctment is admissible to prove defendants' OCCUpation, and the in· tent of 'the importation. 9., Suilt; " . The contents of the baggage women SQ, Importedbe1ng material on question, of their chaJ.1LCter,.'evidence that one qefe;ndant had possesslon of I;he checks for all suchpllggage was comp(!tent to show his connectionWith the importation, and, in ,the absence of explanation, justified the that he committed tIle offense charged. 10. SAME:-IMPEAoJirNG WrrNESS. On trial of an indictment charging a violation of Act March 3, 1875, § 3, (18St.p. 477,) forbidding the importation of women for purposes of three of ,the ,women alleged to have, been for such purpose, ,being called on behalf of the government, testified that they were not pl'Ostttutes.Held, that atIldavits of such persons, taken before the commissioner of immigration, and ,their testirriony on an examination before States commissioner, wherein they swore they were prostitutej!l, bnported for purposes of prostitution, were admissible in ovp@rtunity !;laving been given them to explain tlleir affidavits. 11. SA¥:Ql-IN8TRUOTIONS. 'l'here was no error ,b:!"l'efusing to charge that, if the jury believed that the women committed pe1'jury by swearing they were not prostitutes, then they were not worthy of belief, ,and the case was devoid of evidence that they were.

8.

At Law. Trial of an indictment against Clementino Pagliano and Francesco p,agliano, for violatioJil of the act of March 3, 1875, (section 3,) forbidding the importation of women for purposes of prostitution. Judginent of conviction. Defendants move in arrest of judgment, and fora new trial. Denied. The section in question reads as follows:
"Sec. 3. That the importation into the United States of women for the purP68esof prostitution is hereby forbidden:; and all CQntracts and agreements in relation made in, advance or in 'pursuance of such megal importation and purposes, are hereby declared void;' 'and whoever shall knowingly and willfully import, or cause any importation of, women into the" United States for the of prostitution, or shailknowingly and willfUlly hold, or attempt to hold, any woman to such purposes, in pursuance of such illegal importation and contract or agreement, shall be deemed guilty of a felony, and, on conviction thereof,shall be imprisoned not five years, and pay a fine Dot excHeding :ftW, thousand dollars."

UlU'rEDSTATES 11. PAGLIANO.:

1003

E.dwal'd Mitchell, U.S.·Atty., and John O. Mott, Asst U. S. Atty. Daniel O'Connell, for defendants. BENEDICT, District Judge. The defendants were indicted for a violation of the act of March 3, 1875, and, having been convicted,now move in arrest of judgment, and for a new trial. The indictment count, which charged that the defendants "did contained a unlawfully and feloniously, knowingly and willfully, import and bring into the United States, to wit, into the southern district of :New York,from a foreign place and country, to wit, from :Naples, in the kingdom of Italy, six certain women,. named, for the purposes of prostitution within the United States, against the peace," etc. The first point made is that the facts constituting the importation are not stated in the indictment. It is said the indictment should state whether the importation was by steamer or over land, and where from, and that the importation was into the port of :New York. The statement of the indic.tment is that the defendants imported into the United States, to wit, into the southern district of :New York, from :Naples, in the kingdom of Italy, the women named. This is, in my opinion, sufficient It was not necessary to state the facts constitlltinJt the ultimate fact of importation; and the description of the importation as being from :Naples into the southern. district of :New York was sufficient to inform the defendants of the nature of the It is next contended that the word "prostitution" as used in the indictment is not sufficiently definite; that the indictment should have specified the kind of prostitution referred to. In my opinion, to use the word "prostitution,'" as that word is used in connection with the other of the indictment, was sufficient. There could be no mistake as to its meaning. The next point is that the place in the United States at which the women were to be used for the purposes of prostitntion' is not stated. It is unnecessary, in an indictment under this statute, to state the place at which the women are to be used for the purposes of prostitution. It is next objected that the indictment is fatally defective, because it uses the words "did import and bring," whereas the statute uses the word "import" only. This objection is without force. :No distinction can be made in the law between the "importations" of persons and ''bringing in" of persons. When the snbject is persons, "importing" and ''bringing'' are synonymous terms. It is further contended that the indictment should have alleged that the importation was in pursuance of an agreement made prior to the importation. The statute contains no such requirement The next point to be considered is whether the motion for a new trial should be granted, upon the ground that an importation into the southern district of :New York was not proved. There was evidence tending to show that the women were brought from :Naples in a steamer, which came from Naples to New York harbor, and there anchored. The defendants and the women left the steamer and went to Ellis island, on their way to New York city, and were

DDEBAL REPORTER,

vol. 58.

there detained; by theenngrationcom1niSsioner. .ElliS island was within the state of New York, and within the: southern .district of New York; but it is said that by the agreement of 1892 (Laws 'N. Y. 1892) it became part ofthe state of New Jersey, and the point is made thatunon the evidence the women were imported either into the eastern district of New York or into the district of New Jersey, and that this 'COOrt had no jurisdiction because of the provisions of article 6 of the .amendments to the constitution, which declares that "in all crimin8J prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury olthe state and district where the crime shall. have been committed, which district shall be previously aScertained by law." It has that the effect of section 542 of the Revised Statutes, whicligives to the district courts of the southern and east· erndiBtrictsof. New York concurrent jurisdiction over the waters witliin the C',ounties of New York and Kings, etc., is to make these wa.ters 'within the southern district of! New York, as well as within the eastern district of New York, for the purposes of a prosecution like the present; If such an effect 'can be given to section 542 it wci11ld be desiJ,'able to do so, but this' case does not require a consideration ofthaitpoint, for the reason that the objection under consideration was not in any way raised at the trial. If such a point had beenraiSed:at the trial it might have been met by testimony show· ing an importation of the women within the city and county of New York; but no. such question was'citlled to the attention of the court at the trial, and no determination oftha question was then made. Under such circumstances, it is too late to raise the quesoon;The record, as it stands, shows the jurisdiction of the court, for the indictment charges the importation to have been within the southern district of New York, and the jury has found the charge true, The verdict should not now be disturbed upon a question not taken at the trial, :por presented by the 'record. It is next contended that error was made in admitting testimony tending to show that the defeIidantskept a house of prostitution in the city of New York three, years before the present indictment. Where the is of such a character as the one in question, in my· opinion, the fact that the' defendants had at any time kept 01' b.oon connected with or lived in a house of prostitution may be shown for the purpose the intent with which the girls in question were imported :l>y the defendants. The testimony was not admitted for the purpose of showing, and did not show, a distinct· offense on of the defendants, but only for the purpose of showing the ooeupation of, the defendants; and for that purpose it was competent. . ; . " It: is next objected that the court erred in admitting in evidence two: photographs fomid in the possession of one of. the defendants at the, time of their arrest.. ,, If the photographs were considered by the; jury to be portraits of any of the:women named in the indictment, the possession of the phOtographs by the defendants was competentas testimony to show the connection of the defendant with the, women. If the jury did not consider the pictures, to be portraits

UNlTED STATES t1.PAGLIANO.

1005

of any o-f the women. it is not seen how the admission of the phot(}o graphs could prejudlcethe defendants. ' . It is next contended that the court erred in admitting evidence as to baggage checks. and as to the contents of the baggage represented by the checks. The checks were found in the possession of the male defendant. and were, for baggage of steerage passengers. It was also proved that the girls had no baggage checks, and came in the steerage. while the defendants came in the cabin. The contents of the baggage was material on the question of the character of the women, and the possession by the defendant of the checks for all their baggage was competent to show his connection with the importation of the women. It is further contended that the court erred in refusing to charge the jury that, if the jury believed that the women committed perjury on the trial by swearing that they were not prostitutes, then they were not worthy of belief, and the case is devoid of evidence that they were prostitutes. But, in my opinion, aside from the testimony of the women, there was sufficient testimony to carry to the jury the question. whether the women were prostitutes or not. Moreover, if the jury found that the testimony of the women upon the stand that they were not prostitutes was false, the fact that the women swore falsely upon that point might properly be considered by the jury in connection with the other evidence in determining the issues of fact presented by the pleadings. It is next contended that there is no evidence in the case that the male defendant. Francesco, committed the offense charged in the indictment. In my opinion, the possession by the defendant of the checks for all the baggage of the party tended to connect the defendant with the importation, and, in the absence of any explanation, would justify the conclusion that he was engaged in the importation. On the trial, after three of the women named in the indictment were called by the government to prove that they were prostitutes, and had been imported by the defendants, and each for herself testified that she was not a prostitute, the district attorney was thereupon permitted to put in evidence an affidavit made by the witnesses in the inquiry before the commissioner of emigration, and the testimony of the witnesses given before the United States cQmmissioner on the proceedings before him upon the· preceding examination, in which the witness had distinctly sworn that she was a pro-stitute, brought from Naples by the defendants for the purposes of prostitution. These affidavits, and the testimony before the commissioner, were admitted in pursuance of the rule as stated in 1 Green!. Ev. 443, 444. Full opportunity was giv-en to the witnesses to explain their affidavits, and they did explain the same, and showed that they knew of their existence, and the contents; and (whether correctly or not I do not say) the jury were charged that the affidavits could not be taken as proof of the facts stated therein. I am. of the opinion that no error was committed by admitting the affidavits under snch circumstances. The motions are denied. .

J,,9Pf
In re DAVISQOI4UlORE ,et

Li/"! .

I

.

Court, '8. D.New Ye'rk.Jantiary 9. 1893.)

,

OCT,,1, '1.890. , ' 'ArtiStio paintings in oil upon a plain slab of porcelain, intended used solely for 'ornamental purposes, and not susceptible to any' other use, and; ,'WJ\l.ose valuable and distinotiwfeature is: the painting, and not the pQrc,elain, are4utiable as "paintings, in oil or water oolor" at 1:> per cent. ;:uJ. valorem,unq.er paragraph 465,; an4,not as ware, painted," 'under 100, of,the act of'October 1, 1890.

At ers.

Law.

Appeal from decision of United States general apprais-

Tha :lmpbrtation in this' stt.lt oonsisted of five articleS f:ilvoiced as "porcelain paintings/'valued at. £26. 'lOs. sterling, from Bng., which were duty by the collector ,of customs at New York at 60 per cent. ad valoreiIldihder the following paragraph of the act of October 1, 1890: "Par" 100. ChIna, porcela1n, patlan, bisque, earthen, stone, and crockery ware, 'inCluding placques, ornaments, toys" charms, vases, and statuettes, Palntedl,tinted, stained, enameled; printed, gilded, or otherwise deoorated or any mlllmer, centum ad valorem; if pla1n white, and not' or deoorate4; 1p. any manner, fifty-five per centum ad valbrem;'" " , The importers duly protested,' cWming the same to be dutiable at 15 per cent. ad valorem, ael'paintings in ou or watercolors," Within paragraph 465 of act. The United appraisers found the articles were not placques, but were well executed oil paintings done by hand on fiat pieces of and the of· the importers, the same to be properly cIassifiedunder paragraph 465. The collector appealed from their decision to the United States circuit oourt under the provisions of the act of J\l.Ae JO, l890. It was contendedl)n behalf of ,the collector that the articles cll,me within i;4e, description of paragraph 100, which tnclY,ded, eo nomine, * * * painted," and, if they were paintings, tMy were thUS pro'Vided for; that paragraph 465 only covered pamtlngs that were "not otherwise provided for." The' importers contended that an inspec1;!.on, of the sample, showed that it was a 'Work' of art; the porcel!W;l,is an insignJ,ficant elemflJlt of COSt, and the painting is the valuable and dlfiltin,ctive It is not porgelain ware, ,but1;he porcelain slab was used merely as aground ,for' the pa.1rltlrlg,and the article is, not susceptible of use otherWise than as a painting.' "

;Edward, Mitchell,U. B.Atty., and Henry a,Platt, Asst. U. S. Atty., for collector. Ha.rtley, importers. ,OQXE, District Judge, I think the imported articles are and are, not porcelain ware or placques. The deciflion ()f ihe board is, atfirmed, and ,it is directed that the articles J>e' for duty under paragraph 465.
Iu

(Olrcult Court,

,

et ,al. New York. January 6, 1893.)

, " ,',

OttittOM8 DUTIES-:Cl;.ASSJFlOATIbN-cRUDE COCAINE;.

Orude cocaiJ:ie. being' an' alkaloid derived from the leaves of the coca. J;llant, in the extraction or puri1icatlon whereof alcohol was used, but which contaIned, as imported, from 10 to 20 per cent. of impurities, and