The same principle was involved there as is involved here. It is undoubtedly true that the claimant must have had a bad mind, an unlawful purpose, but it is no defense that his main purpose was to escape the black list mentioned. United States v. Kirby, 7 Wall. (U. S.) 482, 19 L. Ed. 278. There it was held as to "knowingly and willfully obstructing the mail," that, "When the acts which create the obstruction are in themselves unlawful, the intention to obstruct will be imputed to their author, although to attain other ends may have been his primary object." Here the primary object of the claimant was to keep from the alleged black list, the existence of which is denied by the Waltham Watch Company; but in so doing he knowingly violated the law, and intended so to do. "Knowingly" is frequently used, as here, in contradistinction to "innocently," "ignorantly," or "unintentionally." United States v. Claypool (D. C.) 14 Fed. 127. See Commonwealth v. Boynton, 12 Cush. 499. In United States v. McKim, Fed. Cas. No. 15,693, it was held that:

"The words 'knowingly and willfully,' as used in a revenue law providing a penalty for so constructing cisterns in a distillery as to permit the abstraction of spirits, do not require an intent to defraud the revenue, but the penalty prescribed by the act is incurred and the offense is complete when the defendants have left undone those things which they ought to have done, and done those things which they ought not to have done, without any fraudulent or criminal intent."

Valuable remarks and references to cases on the question of intent will be found in 2 Lewis' Sutherland Statutory Construction (2d Ed.) §§ 526, 527.

In Regina v. Tolson, L. R. 23 Q. B. Div. 168, 40 Alb. Law J. 250, it was said by Willis, J.:

"The intention may belong to one or other of two classes. It may be to do a thing wrong in itself and apart from positive law, or it may be to do a thing merely prohibited by statute or by common law, or both elements of intention may coexist with respect to the same deed."

The claimant here knew that in so acting as to escape the said alleged black list of the Waltham Watch Company, the existence of which is denied by the Waltham Watch Company-that is, in so acting as to serve and protect his own personal, private, business. interests he was violating the laws of the United States, and doing what he was forbidden to do, and failing to do what he was commanded to do by those laws. Conceding that to constitute a criminal offense in violating a statute there must be "a criminal intent," or a "bad mind," it seems clear to this court that, where the statute offended against fails to specify a particular intent as the one which must exist in order to make the doing of the act criminal, the knowing and willful violation of the statute (if not justified) for some personal end or gain shows the bad mind and establishes the criminal intent. Where acts constituting a crime at common law are described in general terms in a statute of the United States, and made a criminal offense, and a criminal intent is not in terms or by necessary implication mentioned as an ingredient of the offense, such intent must be read into the statute and proved on the

trial in those cases only where such intent was a necessary ingredient of the common-law offense. United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135. The acts done by the claimant here did not constitute an offense at common law. By section 16 of the act of June 22, 1874 (18 Stat. 189, c. 391), it was, in substance and effect, provided that in all actions, suits, and proceedings in the courts of the United States for the forfeiture of any goods or chattels the question should be submitted whether or not there was an actual intent to defraud the United States, and, if no such intent was found, there should be no forfeiture. This provision was repealed. United States v. Ortega (D. C.) 66 Fed. 713.

Sections 6 and 9 of the customs administrative act of 1890 (26 Stat. 131, c. 407), as amended by the act of July 24, 1897 (30 Stat. 211 [U. S. Comp. St. 1901, p. 1886]), have no application in this

case.

The court finds and holds that, notwithstanding the fact that the primary intent or purpose of the claimant was to escape being put on the alleged black list of the Waltham Watch Company, the existence of which is denied, and no proof has been given of its existence, except the admission of the said Racicott and of the government for the purposes of this case-the Waltham Watch Company denying its existence-he brought in and imported the 50 Waltham watch movements into the United States knowingly, contrary to law, and with an intent and purpose to defy and evade the law, and that the watch movements described in the information are forfeited to the United States. Judgment accordingly is directed.

R. HOEHN CO. v. UNITED STATES.

(Circuit Court, S. D. New York, November 3, 1904.)
No. 3,450.

CUSTOMS DUTIES-CLASSIFICATION-ARTIFICIAL EYES-DECORATED GLASSWARE. Glass eyes for dolls, in which, in order to complete the resemblance to the human eye, the iris and the pupil have been skillfully painted or traced, are within the provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule B, par. 100, 30 Stat. 157 [U. S. Comp. St. 1901, p. 1633], for "articles of glass, or otherwise ornamented, decorated," etc.

painted

On Application for Review of a Decision of the Board of United States General Appraisers.

The decision under review is G. A. 5,471, T. D. 24,779, which affirmed the assessment of duty by the collector of customs at the port of New York. The opinion of the Board of General Appraisers reads as follows:

** *

or

Somerville, General Appraiser. The goods consist of eyes for dolls, classified as dutiable at the rate of 60 per cent. ad valorem, under paragraph 100, Tariff Act July 24, 1897, c. 11, § 1, Schedule B, 30 Stat. 157 [U. S. Comp. St. 1901, p. 1633], which provides for "articles * colored, ** * otherwise ornamented, decorated, or ground." They are claimed by the importers to be dutiable under the provision in paragraph 112 of said act, 30 Stat. 158 [U. S. Comp. St. 1901, p. 1635], for "manufactures of glass, * not

specially provided for." The articles are made entirely of glass, in imitation of the human eye, being hollow, globular shapes, with an opening and projection at the back, presumably intended for fastening them in place. The glass of which they are made is white, except the parts representing the iris and the pupil, which are colored blue, gray, or brown. This coloring is applied skillfully, being delicately shaded and traced in a way to produce the desired effects. In reaching our conclusions in this case we must be governed by the decision of the Circuit Court of Appeals in Koscherak v. U. S., 98 Fed. 596, 39 C. C. A. 166. That case involved the construction of paragraph 90, Tariff Act 1894, c. 349, 28 Stat. 513, which provided for various classes of glassware, when cut, colored, etched, etc., "or otherwise ornamented or decorated." The court held that to bring glassware within that paragraph the cutting, coloring, etching, etc., thereon must (1) be substantial, and (2) amount to an ornamentation or decoration. In our judgment, both requirements are answered in this case. The colored portion of the eyes is certainly substantial, constituting as it does a large proportion of the articles as made, and the most prominent feature of them as used. So, also, in our opinion, is the coloring ornamental or decorative. This case differs from In re Glaenzer, G. A. 3,373, T. D. 16,854, where similar articles were held to be dutiable as colored glassware under paragraph 94, tariff act of 1894, in that that paragraph did not contain the words "or otherwise ornamented, decorated, or ground," or their equivalent. So there was no implication that the coloring should be ornamental, etc. The protests are overruled, and the decision of the collector affirmed.

Comstock & Washburn, for the importers.
Charles D. Baker, Asst. U. S. Atty.

HAZEL, District Judge. The importation in question consists of glass having a globular shape in imitation of the human eye. For the purpose of fastening the eyes in place, a small hollow extension or stem is provided at the back. The iris and the pupil are skillfully painted or traced in order to complete the resemblance and to effectuate the desired object. The duty assessed by the collector of customs was under paragraph 100, which provides for the payment of 60 per cent. ad valorem. The importers claim the merchandise should have been assessed at 45 per cent. ad valorem, under paragraph 112; and they contend that the coloring is not decorative or ornamentative, and hence is not dutiable under the first-mentioned paragraph of the act of 1897. The Board of General Appraisers was of the opinion that, considering the use to which the article is put, namely, for dolls, the painting and tracing of the iris and the pupil was in the nature of an ornamentation, and, further, that a substantial part of the glass was colored, and therefore the decision of the collector was proper.

The protest, in my judgment, was properly overruled, and I concur in the conclusions and reasoning of the board. The decision is therefore sustained.

WILLIAM CRAMP & SONS SHIP & ENGINE BLDG. CO. v. UNITED STATES.

(Circuit Court, E. D. Pennsylvania. June 26, 1905.)

No. 40.

CUSTOMS DUTIES-CLASSIFICATION-BRONZE HARDENER UNWROUGHT Metal. As to an alloy used chiefly as a hardener in the manufacture of manganese bronze, which in its present condition is of no use except to be melted and mixed with other metals to produce such effect as it is capable of producing, held, that it is dutiable as a metal unwrought under Tariff Act July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 166 [U. S. Comp. St. 1901, p. 1645], and not as an article of metal, not specially provided for, under paragraph 193, 30 Stat. 167 [U. S. Comp. St. 1901, p. 1645], nor either directly or by similitude, as ferro-manganese, under paragraph 122, 30 Stat. 159 [U. S. Comp. St. 1901, p. 1636].

On Application for Review of a Decision of the Board of United States General Appraisers.

The decision in question affirmed the assessment of duty by the collector of customs at the port of Philadelphia. Compare United States v. Roessler & Hasslacher Chemical Company (C. C. A.) 137 Fed. 770.

Hatch, Keener & Clute, for importers.

Wm. M. Stewart, Jr., and J. Whitaker Thompson, for the United States.

J. B. MCPHERSON, District Judge. The merchandise in question is an alloy of metal, composed of 62 per cent. of iron, 32 per cent. of tin, and 6 per cent. of manganese. It is chiefly used as a hardener in the manufacture of manganese bronze, although it is capable of being used for some other purposes. The board of appraisers classified it under paragraph 172 of the tariff act of July 24, 1897, c. 11, § 1, Schedule C, 30 Stat. 165 [U. S. Comp. St. 1901, p. 1643], as an alloy of which aluminum is the component material of chief value; but this is conceded to have been a mistake. The question for decision now is whether the material should be classified under paragraph 183 (30 Stat. 166 [U. S. Comp. St. 1901, p. 1645]), as a metallic mineral substance in a crude state, or a metal unwrought; or under paragraph 122 (30 Stat. 159 [U. S. Comp. St. 1901, p. 1636]), either directly or by similitude, as ferro-manganese; or under paragraph 193 (30 Stat. 167 [U. S. Comp. St. 1901, p. 1645]), as an article or ware of metal, either partially or wholly manufactured, not specially provided for. The testimony leaves the answer in some doubt, but I have finally come to the conclusion that paragraph 183 is more nearly applicable than either of the other two. The alloy is of no use in its present condition. It must be melted and mixed with other metals to produce such effect as it is capable of producing, and the process it has already undergone is so obviously a mere preliminary that it seems to me to be properly described as a

metal unwrought. Inspection of the sample tends to confirm this conclusion.

The decision of the Board of General Appraisers is reversed, with instructions to classify the merchandise under paragraph 183.

UNITED STATES v. McGETTRICK (two cases).

(Circuit Court, D. Vermont. July 12, 1905.)
Nos. 1,600, 1,601.

CUSTOMS DUTIES-CLASSIFICATION-OATMEAL FEED-OAT HULLS.

Held, that a by-product in the manufacture of oatmeal, which consists merely of the broken hulls of the oats, and is known as "oatmeal feed," is dutiable as "oat hulls," under paragraph 231, Schedule G, § 1, c. 11, Tariff Act July 24, 1897, 30 Stat. 169 [U. S. Comp. St. 1901, p. 1649].

On Application for Review of a Decision of the Board of United States General Appraisers.

For decision below, see G. A. 5,656, T. D. 25,235, which reversed the assessment of duty by the collector of customs at the port of Burlington on importations by P. McGettrick.

James L. Martin, U. S. Atty.

WHEELER, District Judge. These importations are of what is invoiced as oatmeal feed classified by the collector as oat hulls, under paragraph 231 of the act of July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 169 [U. S. Comp. St. 1901, p. 1649], which reads:

"Oatmeal and rolled oats, one cent per pound; oat hulls ten cents per hundred pounds."

On protest they were classified as nonenumerated manufactured articles, not otherwise provided for, under section 6, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693].

An affidavit in behalf of the importers, and the finding thereon by the Board of General Appraisers, show that:

"The said oatmeal feed is purely a by-product of oats, and is obtained from the hulling, dusting, and cleaning of oats which are used in the manufacture of oatmeal. The method of obtaining said oatmeal feed is briefly this: The oats are passed through special machinery arranged for cleaning and hulling them before they are put in the crusher to make oatmeal. Consequently the said oatmeal feed corresponds to the bran and shorts which are obtained from the milling of wheat, being a by-product of an oatmeal mill, as wheat bran and wheat shorts are a by-product of flour mills."

This by-product appears therefrom to be merely the broken hulls. The provision is not, and could not be intended to be, for whole hulls. They would necessarily be broken by any possible process of removal. It seems to fall exactly within the description of this paragraph. The analogy to bran and shorts fails when it is noticed. that there is no such provision for wheat hulls as this is for oat hulls, and that such by-products of wheat are left by the act to go to the general provisions. The classification of the collector seems, therefore, to have been right.

Decision of board reversed, and that of collector affirmed.