I concur in the result of the opinion of the court, but not altogether in its reasoning.
If the jury believed the witnesses for the government, they would have been justified in finding that the claimant, when the vessel on which she was a passenger arrived in port and landed at the dock, was carrying concealed in one of her stockings a necklace worth $16,000, which she had recently bought in Paris; and they were at liberty to find that she had concealed her necklace in her stocking for the purpose of smuggling or clandestinely introducing it into the United States without paying duty thereon. It was seized upon her person, however, before any obligation on her part had arisen to pay or account for the duties. I agree, as the Supreme Court has so decided in the Keck Case, that, until the obligation to pay or account for the duties arises, the offense of smuggling is not complete, and no cause of forfeiture accrues. Consequently, the case made by the government did not authorize a judgment of condemnation based upon the counts of the information alleging an offense under section 3082 of the Revised Statutes of the United States. I think, also, that the case made by the government did not authorize a judgment of condemnation upon the counts alleging an offense by reason of the failure of the claimant to make entry of or “mention” the article as a part of her baggage. An article which the passenger carries concealed on his person for the purpose of smuggling it, and which, perhaps, he has separated from his baggage expressly for that purpose, is not, in the ordinary meaning of language, ba.ggage, or a part of his baggage, though it may well be held that an article should be regarded as baggage which he has temporarily removed from some of his packages, and declared or mentioned as a part of his baggage, and which has thus been treated as such by him. The counsel for the government concedes that, under such circumstances as are disclosed here, the article concealed is not a part of the baggage of the passenger, a conclusion which, it seems to me, is plainly constrained by the language of sections 2799, 2801, and 2802 of the Revised Statutes [U. S. Comp. St. 1901, pp. 1872, 1873]. For this reason, I think the discussion in the opinion of the court of the question whether the claimant made a sufficient declaration of the necklace as a part of her baggage is unnecessary.
The case presented by the record, assuming that the testimony of the special agent, Theobald, was true, discloses a serious defect in the customs laws, and this was adverted to in the Keck Case; but, as the court said in that case, it is for Congress, and not for the courts, to remedy the defect.