
    UNITED STATES v. ROSENTHAL et al.
    (Circuit Court of Appeals, Fifth Circuit.
    November 2, 1909.)
    No. 1,838.
    Customs Duties (§ 133) — Customs Daws — Violation—Forfeitures—Plea ini Bab.
    A verdict for defendants, indicted for smuggling certain diamond rings into the United States, was ground for a plea in bar to a libel by the United States for the forfeiture of the rings.
    [Ed. Note. — For other cases, see Customs Duties, Dec. Dig. § 133.]
    In Error to the District Court of the United States for the Western District of Texas.
    Proceeding by the United States against eight solitaire diamond rings, and Max Rosenthal, claimant, for forfeiture under the United States customs laws. From a judgment dismissing the libel, the United States brings error.
    Affirmed.
    The following is the opinion of Maxey, District Judge, on sustaining a plea in bar:
    This is a libel of information filed by the government to forfeit eight diamond solitaire rings, and other items of jewelry mentioned in the information, because of their unlawful introduction into the United States, and Max Rosen-thal and Abraharh Rosenthal appear as claimants of the jewelry in the information described. The court finds that there was probable cause for the seizure of the diamonds and other jewelry mentioned in the information, and directs that a prop'er certificate thereof be entered of record. The plea avers, and it is admitted by counsel for the government, that Max Rosenthal and Abraham Rosenthal were indicted, tried, and acquitted of the offense of smuggling into the United States the articles in the information described, , The court desires further to say that it differs with the jury in the conclusion reached by. them in acquitting the defendants, Max and Abraham Rosenthal; but the question submitted to the jury was one of fact, which it was their .duty to resolve as they deemed proper under the evidence and instructions of the court, and, the jury having seen fit to acquit the defendants, there is no. appeal from such a verdict. The claimants in this ease having been acquitted of the offense of smuggling in the criminal prosecution, the law declares that such verdict and judgment of acquittal may be interposed in bar of a libel of information based upon practically the same offense.
    Counts 1 and 3 of the information charge that the articles of jewelry mentioned therein were smuggled by Max and Abraham Rosenthal into the United States. The Judgment of acquittal in the criminal case may clearly be interposed as a bar to these two counts. There may be some doubt as to whether such Judgment of acquittal may be Interposed as a bar to the remaining counts of the information; but the court is of the opinion that sucli judgment of acquittal is a bar to all the counts in the information contained, for the reason that all the counts of the information charge substantially the smuggling of the articles, that is to say, the clandestine introduction of the same into the United States without paying or accounting for the duties with intent to defraud the revenue, and the same proof substantially is necessary to sustain the counts as was required upon the trial of the criminal cause of smuggling.
    The court, as stated, being of the opinion that the judgment of acquittal I» a bar to all the charges contained in the information, directs that an order be entered sustaining the plea in bar filed by the claimants and dismissing the Information.
    Chas. A. Boynton, U. S- Atty.
    W. B. Ware, for defendants in error.
    Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.
    
      
       For other oases see same topic & § number in Deo. & Am. Digs. 1907 to date, £ Re.p’r indexes
    
   PER CURIAM.

The judgment of the District Court is affirmed. See opinion of Judge Maxey in this cause, and Coffey v. United States, 116 U. S. 436, 6 Sup. Ct. 437, 29 L. Ed. 684; Stone v. United States, 167 U. S. 184, 17 Sup. Ct. 778, 42 L. Ed. 127.  