
    LOZANO v. UNITED STATES.
    (Circuit Court of Appeals, Fifth Circuit.
    January 31, 1927.)
    No. 4856.
    I. Customs duties <§= 121 — Definition of “merchandise,” importation of which is forbidden in Tariff Act, held to include foreign coin (Tariff Act 1922, § 401 [Comp. St. § 584ld]).
    Definition of “merchandise” in Tariff Act 1922, § 401 (Comp. St. § 5841d), as meaning goods, wares, and chattels of every description, including merchandise, importation of which is forbidden, is broad enough to include foreign coin.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Merchandise.)
    2. Customs duties <§=»I30(4) — Mexican gold coin, concealed) on person with intent not to declare it, held not subject to forfeiture, if possession was disclosed as soon as opportunity was afforded (Tariff Act 1922, §§ 401, 46!, 593 [Comp. St. §§ 584Id, 584Ie30, 5841h 13]).
    That Mexican gold coin, importation of which is not forbidden, and which is not subject to duty, was concealed on person of individual who was bringing it from Mexico, with intent not to declare it, did not make it subject to forfeiture under Tariff Act 1922, §§ 401, 461, 593 (Comp. St. §§ 5841d, 5841e30, 5841hl3), if possession was disclosed to customs inspector as soon as opportunity to do so was afforded.
    3. Customs duties <§=>I33(7) — Whether Mexican gold coin concealed on person was seasonably disclosed to customs inspector held for jury (Tariff Act 1922, §§ 401, 461, 593 [Comp. St. §§ 584Id, 5841 e30, 5841 hi3]).
    Conflict in evidence respecting whether person bringing Mexican gold coin into country concealed on his person disclosed his possession thereof to customs inspector as soon as opportunity was afforded, so as not to make it subject to forfeiture under Tariff Act 1922, §§ 401, 461, 593 (Comp. St. §§ 5841d, 5841e30, 5841hl3). held to present issue for jury.
    In Error to tbe District Court of tbe United States for tbe Southern District of Texas; William B. Sheppard, Judge.
    Libel by tbe United States of America for forfeiture of 16,000 pesos, Mexican gold coin, claimed by E. Garza Lozano. Judgment of forfeiture, and claimant brings error.
    Reversed and remanded for new trial.
    R. D. Wright, of Laredo, Tex. (John S. Morris, of Laredo, Tex., Hicks, Hicks, Dickson & Bobbitt, of San Antonio, Tex., and R. D. Wright, of Laredo, Tex., on the brief), for plaintiff in error.
    H. M. Holden, U. S. Atty., of Houston, Tex.
    Before WALKER, BRYAN, and FOSTER, Circuit Judges.
   WALKER, Circuit Judge.

This was a libel for tbe forfeiture of “16,000 pesos Mexican gold coin.” Tbe libel, after alleging tbe seizure of tbe coin by a United States customs inspector on or about tbe 13th day of June, 1924, alleged that said inspector “bolds the same subject to condemnation and forfeiture to tbe United States of America by reason of tbe fact that at tbe time of tbe seizure tbe said 16,000 pesos Mexican gold coin were concealed upon tbe person of said Emilio Garza Lozano, Jr., and were then and there being smuggled from the Republic of Mexico into the United States across the footbridge at Laredo, Tex., without being submitted to customs inspection or being declared at tbe customs bouse, or entry being made thereof, as required by tbe customs laws of tbe United States.” Tbe evidence adduced was testimony as to tbe circumstances of the discovery of tbe gold coin by tbe customs inspector, and tbe seizure of it. J. R. Devine, tbe customs inspector, testified to tbe following effect: Emilio Garza Lozano passed tbe door of tbe customs offiee into which a person ordinarily would enter to declare merchandise. Witness bailed him, and be said “No” in reply to a question whether be bad anything from Mexico to declare. After be came into tbe customs offiee, tbe witness felt a bard substance on bis person, and, in reply to a question as to what it was, ■he said it was $16,000 gold Mexican money. Thereupon tbe coin was seized. Tbe claimant’s son, who was the person who brought tbe coin from Mexico, testified to tbe following effect: In bringing tbe money from Mexico be bad it concealed on bis person, because that was tbe only way be could bring it from Mexico, as tbe exportation of Mexican gold coin is forbidden by tbe law of Mexico. When be left Mexico, be did not intend to declare tbe money on this side of the river, because be did not think it was necessary, and knew there was no duty on it. When be approached Mr. Devine, tbe customs inspector, who was standing at the door of tbe customs offiee, Mr. Devine motioned to witness, and told him to come in, and be went into tbe offiee. When asked by Mr. Devine if be bad anything on, be said, “Yes, gold,” and stated the amount be bad. Tbe court directed a verdict for tbe United States, and made tbe following statement to tbe jury: “While there is a conflict in tbe testimony of the government and that of the claimant as to whether tbe claimant seasonably declared tbe gold, all tbe circumstances and admissions of Emilio Garza Lozano strongly corroborate tbe government’s case that Lozano did not make a declaration as required by statute and regulations before tbe seizure. Tbe gold was concealed on tbe person of Lozano, and be admitted be bad no intention of declaring it. His conduct further evidenced bis purpose in passing tbe line without declaring, and, according to testimony of Devine, be bad passed tbe line when be was stopped.”

The forfeiture was adjudged under section 593 of tbe Tariff Act of 1922 (Comp. St. § 5841hl3), which provides: “If any person fraudulently or knowingly imports or brings into the United States, or assists in so doing, any merchandise, contrary to law, * * * such merchandise shall be forfeited and tbe offender shall be fined [etc.]. * * * Whenever, on trial for a violation of this section, tbe defendant is shown to have or to have bad possession of such goods, such possession shall be deemed evidence sufficient to authorize conviction, unless tbe defendant shall explain tbe possession to tbe satisfaction of tbe jury.” 42 Stat. 982. Tbe following is section 461 of that act (Comp. St. § 5841e30): “All merchandise and baggage imported or brought in from any contiguous country, except as otherwise provided by law or by regulations of tbe Secretary of tbe Treasury, shall be unladen in tbe presence of and be inspected by a customs officer at tbe first port of entry at which tbe same shall arrive; and such officer may require tbe owner, or bis agent, or other person, having charge or possession of any trunk, traveling bag, sack, valise, or other container, or of any closed vehicle, to open tbe same for inspection, or to furnish a key or other means for opening tbe same.” 42 Stat. 956.

That act (section 401 [Comp. St. § 5841d]) contains tbe following: “When used in this title * * * the word ‘merchandise’ means goods, wares, and chattels of every description and includes merchandise tbe importation of which is prohibited.”

Tbe statute’s definition of merchandise is broad enough to cover foreign coin. Patton v. Brady, 184 U. S. 608, 22 S. Ct. 493, 46 L. Ed. 713. No phase of tbe evidence tended to prove a ground of forfeiture other than a failure to declare tbe coin or to submit it to customs inspection. A finding that tbe coin was declared as soon as an opportunity to do so was afforded was supported by a phase of the evidence. Tbe facts that tbe coin was concealed on tbe person of tbe individual who was bringing it from Mexico and that that individual did not intend to declare it did not make it subject to forfeiture if bis possession of it was disclosed to tbe inspector as soon as an opportunity to do so was afforded. United States v. One Pearl Chain (C. C. A.) 139 F. 513; United States v. One Trunk (C. C. A.) 184 F. 317; Rogers v. United States (C. C. A.) 180 F. 54, 31 L. R. A. (N. S.) 264. Tbe importation of tbe coin was not forbidden, and it was not subject to duty. Tbe allegation of tbe libel to tbe effect that tbe coin was not submitted to customs inspection and was not declared at tbe custom bouse was not supported by uncontroverted evidence. There being testimony to the effect that the possession of the coin and the amount of it were disclosed at the first opportunity afforded for doing so, the above-mentioned rulings of the court were erroneous. The judgment is reversed, and the cause is remanded for a new trial.

Reversed.  