United States v. Gay

25 F. Cas. 1270, 2 Gall. 359

Opinion

STORY, Circuit Justice,

directed the jury as follows:

In order to maintain this indictment, it is necessary that the resistance or impediment to the inspector should be, while he was in the execution of the duties of his office. It is the duty of the inspector to make seizures of goods imported contrary to law, and if resisted in the act of making such seizure, or in securing the property seized, it is a ease within the statute. But it is uot the duty of the inspector to make any seizures at his arbitrary discretion. He cannot lawfully seize goods, which have been lawfully imported, or which are liable to no reasonable suspicion of illegal importation. To justify him, it is not necessary to show, that the goods were liable to condemnation; but there must, at all events, be a probable cause for the seizure. S. P., Rex v. Akers. 6 Esp. 125. note 126. Otherwise, the power of au inspector would be most arbitrary and mischievous. It is true, that the law vests him with a discretion; but it is a legal discretion; and he cannot protect himself, if he acts wantonly, and • without probable cause, for he is then a mere trespasser, and not in the execution of the duties of his office. What constitutes probable cause for seizure is. when the facts are given, a mere question of law, on which the court ought to instruct the jury. It is not a mere question of fact, of which the jury are the sole judges; and. therefore, the court are bound to direct the jury, whether upon the facts, there be probable cause or not. In the present case, I am clearly of opinion, that there is no probable cause shown for the seizure: and that the defendant ought, upon this ground, to be acquitted.

Verdict for the defendant.