Opinion of the Court.

the articles subject to duty by weight." In this section it is spelled both "draft" and "draught." This provision was reënacted in the tariff act of March 2, 1799, c. 22, § 58, 1 Stat. 627, 671, the word being spelt "draft.”

A judicial interpretation of the word is suggested in a dictum in the opinion of Mr. Justice Woodbury in Marriott v. Brune, 9 How. 619, 633, in which he says: "Another reduction is made in weight for tare and draft. This last should be draff, meaning dust and dirt, and not what is generally meant by 'draught' or 'draft.'" The case, however, did not call for a definition of the word.

There has been a peculiar use of the word "draught” in England, and perhaps also in this country, in connection with commercial transactions, in which it is defined as an arbitrary deduction from gross weight made by custom, to assure the buyer or importer, as the case may be, that there is no discrimination against him from difference in scales. In Webster's Dictionary of 1890 "draught" is defined as "an allowance on weighable goods;" and "draft" as "an allowance or deduction made from the gross weight of goods." In the Century and the Imperial, "draft" and "draught" are spoken of as an allowance made for waste in goods sold by weight, or the allowance made by the custom-house on excisable goods. The two words are in reality different spellings of the same word.

In Napier v. Barney, 5 Blatchford, 191, both draft and tare were allowed on sugar imported in bags, Mr. Justice Nelson observing: "Draft and tare, in a commercial sense and usage, have a separate and distinct meaning and application. The former is an allowance to the merchant when the duty is ascertained by weight, as in the present instance to insure good weight to him. It is to compensate for any loss that may occur from the handling of the scales, in the weighing, so that, when weighed the second time, the article will hold out good weight."

As the word "draught" or "draft" has a particular and uniform meaning given to it by the lexicographers, and such definition seems to be a reasonable one as applied to the statute in

Opinion of the Court.

question, we see no good reason for saying that it is a mere mis-spelling for "draff," especially in view of the fact that this is an unusual word, with a totally different meaning, and not found elsewhere in any tariff acts to which our attention has been called. The enactment in question seems to have been intended to prohibit a custom, which had grown up under the tariff act of 1790, and was probably inherited from the tariff laws of England, of making an arbitrary deduction from the gross weight, to which the importer was really not entitled.

Assuming, then, that the word "draught" refers to this arbitrary deduction and not to impurities, we think the court below was correct in assuming that the flaxseed in question, which is made dutiable by the act of 1883 at "twenty cents per bushel of fifty-six pounds," less the tare, means 56 pounds of clean seed, or at least seed freed from any accidental impurities, such as the clay, sand, and gravel in question. If this seed had been washed or otherwise cleansed of these impurities, it certainly will not be contended that they would be subject to an increased duty by means of such cleansing, or that a bushel of 56 pounds of such seed would be anything more or less than a statutory bushel. So if, without such cleansing, the amount of such impurities can be fixed at a certain percentage, as the findings in this case assume, we see no objection to the allowance being made, though the seed be not in fact cleansed.

The case is readily distinguished from Earnshaw v. Cadwal lader, 145 U. S. 247, in which the question was whether, as a matter of fact, the term "iron ore," as known to persons familiar with the commerce respecting it, meant ore which had or had not been dried, and thus freed of the water which is naturally found in it. And as it appeared that dried ore was not known to commerce, that the allowance between dealers for the moisture that would be expelled by heating the ore had been based upon express contract or stipulation, and that no custom existed authorizing such allowance, except by contract, it was held that the tariff act referred to ore in its natural state. It was said, however, in the opinion of Mr. Justice Blatchford, that the principle of that case was different from that in regard

Statement of the Case.

to dirt clinging to the skin of a potato, or clay, sand, or gravel mixed with flaxseed, such impurities being plainly discoverable and readily eliminated.

There was no error in the judgment of the court below and it is, therefore,

STOKES v. UNITED STATES.

Affirmed.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ALABAMA.

No. 746. Submitted March 4, 1895. Decided March 18, 1895.

In an indictment and prosecution under Rev. Stat. § 5480, as amended by the act of March 2, 1889, c. 393, for a conspiracy to defraud by means of the post office, three matters of fact must be charged in the indictment and established by the evidence: (1) That the persons charged devised a scheme to defraud; (2) that they intended to effect this scheme by opening or intending to open correspondence with some other person through the post office establishment or by inciting such other person to open communication with them; (3) and that in carrying out such scheme such person must have either deposited a letter or packet in the post office, or taken or received one therefrom.

An objection to the admissibility of an envelope against the defendant in such a case upon the ground that it was not shown to be in his handwriting is not sustained, as the bill of exceptions did not purport to contain all the evidence.

Other objections to the admissibility of evidence considered and held to be without merit.

When a paper admitted to be in the handwriting of a defendant in a criminal prosecution is admitted in evidence for another purpose, it is competent for the jury to compare it with the handwriting of a letter which he is accused of, and indicted for, writing, for the purpose of drawing their own conclusions respecting the latter.

THIS was an indictment against the defendant Stokes and thirteen others for a conspiracy to commit the offence described in Rev. Stat. § 5480, of using the post office establishment of the United States for fraudulent purposes.

The artifice was described as one wherein each of the defendants represented himself as a dealer in various kinds of

Opinion of the Court.

merchandise, certifying each other to be financially responsible, and ordering merchandise from various parties, having no intention of paying for the same.

Upon the trial Stokes and eight others were found guilty, and subsequently sentenced to fines and imprisonment. Defendants thereupon sued out this writ of error.

Mr. John D. Burnett for plaintiffs in error.

Mr. Solicitor General for defendants in error.

MR. JUSTICE BROWN delivered the opinion of the court.

Error is assigned to the action of the court in overruling a demurrer to the indictment, and to the introduction of certain testimony.

1. The indictment is claimed to be defective in failing to set out with sufficient certainty the agreement showing the conspiracy. The indictment is for a conspiracy, Rev. Stat. § 5440, to commit an offence described in section 5480, as amended by the act of March 2, 1889, c. 393, 25 Stat. 873, which reads as follows: "If any person having devised or intending to devise any scheme or artifice to defraud.

to be effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside the United States, by means of the Post Office Establishment of the United States, or by inciting such other person or any person to open communication with the person so devising or intending, shall, in and for executing such scheme or artifice or attempting so to do, place or cause to be placed, any letter in any post office

or shall take or receive

any such therefrom, such person so misusing the Post Office Establishment shall, upon conviction, be punishable," etc.

We agree with the defendant that three matters of fact must be charged in the indictment and established by the evidence. (1) That the persons charged must have devised a scheme or artifice to defraud. (2) That they must have

Opinion of the Court.

intended to effect this scheme, by opening or intending to open correspondence with some other persons through the post office establishment, or by inciting such other person to open communication with them. (3) And that, in carrying out such scheme, such person must have either deposited a letter or packet in the post office, or taken or received one therefrom.

So also a conspiracy to commit such offence must state a combination between the defendants to do the three things requisite to constitute the offence. In this particular the indictment charges that the defendants "did then and there conspire, combine, confederate, and agree together to commit the act made an offence and crime by section 5480 that is to say, the said defendants conspired

and agreed together in devising, and intending to devise, a scheme and artifice to defraud various persons, firms, and companies out of their property, goods, and chattels, and particularly to defraud, (here follows the names of certain individuals and firms,) and other persons, firms, and companies to the grand jury unknown, of their goods and chattels."

Defendants' argument assumes that these are all the allegations of the agreement constituting the conspiracy, but the indictment continues as follows: "The scheme and artifice to defraud as aforesaid was to be carried out by each of said defendants representing himself to be engaged as a dealer in various kinds of merchandise and goods, and to have an office, and to use in correspondence sheets of paper with his pretended business printed thereon; and the said defendants were mutually to represent each other to the said persons, firms, and companies, and others unknown to the grand jurors, intended to be defrauded as aforesaid, as financially responsible and entitled to receive various kinds of merchandise and goods on credit, and the said scheme and artifice to defraud as aforesaid was to be further effected by ordering merchandise and goods from the persons, firms, and companies as aforesaid, and from other persons, firms, and companies to the grand jurors unknown, having no intention, then and there, to pay for such merchandise and goods so ordered as aforesaid,