36 · mnmmn Mzrorrrmz.
directly within the statute, as they were not stamped with the num-
ber of the manufactory from which they were removed, at the time
they were removed or at any other time.
The plaintiff in error contends that it was incumbent upon the gov-
ernment to show affirmatively that when the cigars were removed
from the factory in which they were made they were not in boxes
properly stamped, and that proof of their being found in the boxes
seized does not establish the fact that they were in them when re-
moved from the factory, and that it is to be presumed in favor of in-
nocence that they were taken out of the original and properly stamped
boxes and put in those where they were when seized. The excep-
tions to the findings of the court below raise this point, and it is the
only point made by the exceptions which has any color of merit. The
cigars could not have been removed from the original and properly
stamped boxes ·and packed in those in which they were seized without
violating some of the several stringent provisions of the internal rev-
, -enue laws, and subjecting the offender to criminal punishment. The
presumptions in favor of innocence, therefore, neutralize each other.
Undoubtedly it is incumbent upon the government in such a case to
show affirmatively the existence of every fact which is an element of
the act made penal. This rule, however, does not require every con-
jecture which may be started by the fertility of counsel to be over-
thrown; it sufhces, if, upon the evidence in the case, the existence of
the facts can be legitimately presumed. Aside from any presump-
tions founded upon the observance of the statutory regulations, the
natural and reasonable inference is that the cigars were removed from
the factory in the condition in which they were found. It is not usual,
after articles have been prepared for sale in the market, to remove the
packages, wrappers, or boxes in which they are ordinarily prepared
for sale, and substitute others unnecessarily. The presumptions
drawn from the ordinary conduct of men and the usages of trade are
often as cogent as direct evidence. They were sufficient here to make
a prima facie case.
As the case was tried by the court below without a jury, the ex-
ceptions raised by the plaintiff in error to the Endings of fact and
law by the district judge cannot be reviewed, however meritorious
they might be. Town of Lyons v. Lyons Nat. Bank, 19 Blatchf. 279;
S. C. 8 Frm. REP. 369; Blair v. Allen, 3 Dill. 101 ;‘ Wear v. Mayer,
2 McCrary, 172; S. C. 6 Fran. REP. 658. It has been deemed proper,
however, to consider them, at the request of counsel, as they have been
fully argued.
Judgment is afiirmed.