§ 1. Parties to offenses.
Under Pen. Code Alaska, §§ 186, 188, which abolish the old distinctions
between principal and accessory before the fact, one who aids and abets
another in the commission of a crime may be charged in the indictment
and convicted as a principal.
-Rosencranz v. United States, 155 Fed. 38....
Under the rule that when a court has jurisdiction of a crime a statute
which merely confers the same judisdiction on another court, or author-
izes a municipality to define and punish the same act, does not deprive the
first court of its jurisdiction unless there is an express provision or clear
implication to that effect, Act April 28, 1904, c. 1778, 33 Stat. 529, confer-
ring power on municipalities in Alaska to prohibit certain things and pun-
ish the same as misdemeanors, and which repeals all prior acts and parts
of acts inconsistent therewith, although acted upon by a town, does not
affect the jurisdiction of the District Court over prosecutions for the
same acts which are made offenses by Carter's Alaska Code March 3.
1899, c. 429, 30 Stat. 1253, there being no inconsistency between the dual
jurisdictions.
-Rosencranz v. United States, 155 Fed, 38............83 C. C. A. 634
An ordinance prohibiting gambling and prescribing punishment for the
same, enacted by a town of Alaska under authority conferred by Act April
28, 1904, c. 1778, 33 Stat. 529, does not deprive the district courts of juris-
diction of a prosecution for gambling within the limits of the town, in-
stituted under the Penal Code of the district, which makes the same a
criminal offense.
-Hornstein v. United States, 155 Fed. 48....
The presumption that accused would not remain a party to a conspiracy
to defraud after his co-conspirators had adopted a criminal course by
using the United States mails in furtherance of their scheme overcame
the inference of fact that he was still a party to such conspiracy arising
from proof of his former connection therewith.
-Dalton v. United States, 154 Fed. 461............83 C. C. A. 317
During the trial of a criminal case the district attorney stated to the
court in the presence of the jury that he was informed that attempts had
been made by a brother of defendant to induce persons who were ac-
quainted with jurors in the case to influence them in favor of defendant.
and such attorney was directed by the court to investigate the matter, and,
if he thought the information correct, to institute proceedings in contempt.
On exceptions by defendant's counsel and on their request, the court at
once admonished the jury that they should not be influenced in favor of
or against either party by what had been said, but should lay the same en-
tirely out of their minds and consider the case on the evidence alone, which
admonition was repeated in the charge. Held, that the occurrence was not
prejudicial to defendant so as to require a reversal of a judgment of con-
viction which was amply supported by the evidence.
-Carroll v. United States, 154 Fed. 425......
It is a general rule, with rare exceptions arising from extreme cases,
that prejudice created by unwarranted statements of counsel in the pres-
ence of the jury is sufficiently cured by an admonition by the court to the
jury to wholly disregard such statements.
-Carroll v. United States, 154 Fed. 425.....
The use of language by counsel calculated to prejudice a defendant in
a criminal case and not justified by the evidence is improper and censur-
able and should be discontinued by the court, but invective based on the
evidence and inferences legitimately to be drawn therefrom is not inhib-
ited, and it is usually within the discretion of the trial court to determine
whether or not the limits of professional propriety have been exceeded.
-Johnston v. United States, 154 Fed. 445............83 C. C. A. 299
Where the charge of the court in a criminal case was correct and clear
in the interpretation of the statute and the definition of the issues and
the burden and measure of proof required to authorize conviction, without
detailing or reviewing the evidence, the refusal of requests referring to
and predicated upon different phases of the evidence was not error.
Gourdain v. United States, 154 Fed. 453..........83 C. C. A. 309
5. Motions for new trial and in arrest.
The overruling, instanter, of motions for new trial and in arrest of
judgment in a criminal case, which raised only questions that were con-
sidered during the trial, and the refusal to hear argument or to grant an
extension of time to prepare and file written motions and specifications,
was not a refusal to consider such motions nor a denial to defendant of
any right.
-Gourdain v. United States, 154 Fed. 453..........83 C. C. A. 309
6. Appeal and error, and certiorari.
Where the record in the appellate court does not contain the whole
charge of the trial court, it will be presumed that it properly charged
upon every branch of the case and that further instructions were given
to correctly modify erroneous instructions shown by the record, if it is
clear that they could have been so corrected.
-Johnston v. United States, 154 Fed. 445..........83 C. C. A. 299
The reversal of a judgment of conviction in a criminal case and the
remanding of the case for a new trial generally leaves the trial court free
to proceed as though the cause had never been tried, and it may consol-
idate other indictments for trial with those upon which the first trial
was had.
-Booth v. United States, 154 Fed. 836.....
Defendant, which had recently built a mill for the crushing of cotton
seed at New Roads, La., authorized a broker in New Orleans by telegraph
to sell for it a quantity of oil cake for future deliveries "F. O. B. New
Roads," at certain prices which had been quoted by the broker as pre-
vailing in the market. The broker negotiated a sale to plaintiff, and
wired defendant for its acceptance, which was also sent by wire. On re-
ceipt of the sale contract, defendant refused to execute the same, because
it provided for delivery of the cake at a shipping port. In an action to re-
cover damages for breach of the contract, plaintiff claimed that the deliv-
ery provided for in the contract was in accordance with the usage of the
market and the rules of the International Cottonseed Crushers' Associa-
tion, of which, however, defendant was not a member. Held, that the ques-
tion whether a contract of sale binding on defendant was made by the cor-
respondence and acts of the broker, in view of the evidence as to usage,
was one for the jury.
-New Roads Oilmill & Mfg. Co. v. Kline, Wilson & Co., 154 Fed.
296.....
.....83 C. C. A. 1
Whether a trade custom or usage is established by the evidence in a case,
and, if so, whether it, was known to a party contracting, or was so gen-
eral and well established that he must be presumed to have known of and
contracted with reference to it, are questions for the jury.
-New Roads Oilmill & Mfg. Co. v. Kline, Wilson & Co., 154 Fed.
296...
...83 C. C. A. 1
written contract it must
In order that a usage may be read into a
be consistent with the terms of the writing.
-New Roads Oilmill & Mfg. Co. v. Kline, Wilson & Co., 154 Fed.
It is competent for the parties to a contract to exclude a usage there-
from.
-New Roads Oilmill & Mfg. Co. v. Kline, Wilson & Co., 154 Fed.
296....
.83 C. C. A. 1
The usage of a trade being always eligible to supersede the ordinary
or public meaning of words as used in a contract, it is merely a question
for the particular case whether the parties have in fact spoken according
to that standard, and, if one of the parties was not a member of the trade
or circle in which the usage obtained, his actual knowledge of it as ap-
plicable to the transaction must be shown before it can be inferred that he
contracted with reference thereto.
-New Roads Oilmill & Mfg. Co. v. Kline, Wilson & Co., 154 Fed.
...83 C. C. A. 1
296.....
Where a New York fire policy, providing that it should expire at noon
on a specified day, was performable in Virginia, parol evidence was ad-
missible to show the custom of the place where the property was insured
for the purpose of determining whether the parties intended the time to
be governed by standard or solar time.
-Globe & Rutgers Fire Ins. Co. of New York v. David Moffat Co.,
154 Fed. 13......
......83 C. C. A. 91
While evidence of custom and usage is admissible to explain the mean-
ing of words and phrases used in a written contract and to annex thereto
certain incidents which circumstances indicate the parties intended, when
the words used do not necessarily exclude the operation of such custom
or usage, evidence thereof is inadmissible to contradict the contract.
-Lima Locomotive & Machine Co. v. National Steel Castings Co.,
155 Fed. 77...............
.....83 C. C. A. 593
Where plaintiff had knowledge that its furnace was working badly, and
that normal results could not be relied on, at the time it contracted to
supply defendant's requirements of steel castings for the remainder of
the year, the subsequent necessity to shut down its plant for repairs was
not an "accident" or an unavoidable cause of delay, within a custom or
usage among manufacturers of steel castings that all contracts are subject
to the contingency of accidents and unavoidable delays.
-Lima Locomotive & Machine Co. v. National Steel Castings Co.,
155 Fed. 77.....
..83 C. C. A. 593
§ 1. Validity, construction, and operation of customs laws in general.
Tariff Act July 24, 1897, c. 11. § 7, 30 Stat. 205 [U. S. Comp. St. 1901.
p. 1693], providing that the component material of chief value in imported
merchandise shall be determined with reference to the value of the com-
ponents in their condition as found in the article, means the state which
the materials are in when put together, without regard to their value
after being advanced to completion; and articles of cotton covered with
varnish, in which, before combination, the latter is of less value, should
be regarded as composed in chief value of cotton, irrespective of the fact
that subsequent labor in applying the varnish may render it the compo
nent of chief value in the completed articles.
-United States v. Johnson & Johnson, 154 Fed. 39...83 C. C. A. 151
In construing Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 391,
30 Stat. 187 [U. S. Comp. St. 1901, p. 1670], relating to "all manufactures
** ** * of which silk is the component material of chief value," and con-
taining a proviso that "all manufactures of which wool is a component ma-
terial shall be classified and assessed for duty as manufactures of wool,"
held, that the ordinary rule should be applied that a proviso at the close
of an independent paragraph like this should be construed as limiting only
what precedes it, and that the words "all manufactures" in the proviso
have no broader relation than the same words in the beginning of the
paragraph.
-United States v. Walsh, 154 Fed. 770......
2. Goods subject to duty, rate, and amount.
The hand-made papers covered by Tariff Act July 24, 1897, c. 11, § 1,
Schedule M, par. 401, 30 Stat. 189 [U. S. Comp. St. 1901, p. 1672], enumer-
ating "writing, letter, hand-made, drawing, *
and typewriter
paper," are not only those used as writing papers, but also that suitable
for other uses, as hand-made India transfer paper used for making litho-
graphic transfers and in printing.
-Edward Benneche & Bros. v. United States, 153 Fed. 861..
The provision in Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par. 414,
30 Stat. 190 [U. S. Comp. St. 1901, p. 1674], for "button molds," includes
articles commercially known as button shanks, consisting of pairs of metal
disks so constructed that when a piece of cloth is placed on top of one
of the disks, and they are subjected to pressure, a cloth-covered button
is produced.
-Hormann, Schutte & Co. v. United States, 153 Fed. 868; United
States v. Hormann, Schutte & Co., Id.............
.83 C. C. A. 50
414, 30 Stat. 190
and button
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Tariff Act July 24, 1897, c. 11, § 1, Schedule N, par.
[U. S. Comp. St. 1901, p. 1674], provides that "buttons
molds
* * shall pay duty at the following rates," and the schedule
of rates then prescribed mentions only "buttons." Held, that this provi-
sion for "buttons" should be construed as though reading "buttons and
button molds," and that metal button molds should pay the rate assigned
to metal buttons.
-Hormann, Schutte & Co. v. United States, 153 Fed. 868; United
States v. Hormann, Schutte & Co., Id............83 C. C. A. 50
Under Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 387, 30
Stat. 186 [U. S. Comp. St. 1901, p. 1669], providing for silk fabrics when
"in the gum" and when "boiled off," held, that fabrics which on boiling
lost from 18 to 27 per cent. in weight were classible under the former,
rather than the latter, clause.
-H. Mendelson & Co. v. United States, 154 Fed. 33....83 C. C. A. 145
In proving the character of imported merchandise, it is not essential
that actual samples of the importations should be produced. Such proof
may be supplied by witnesses familiar with the goods, testifying from
their recollection as to the invoice descriptions.
-United States v. Herrmann, 154 Fed. 196; Same v. Saks & Co.,
Id.; Same v. Leon Rheims Co., Id.....
.83 C. C. A. 179
Paragraph 661, Tariff Act July 24, 1897, c. 11, § 2, Free List, 30 Stat.
201 [U. S. Comp. St. 1901, p. 1688], enumerating "silk cocoons and silk
waste," includes those articles only when not manufactured at all.
-Fawcett v. United States, 154 Fed. 1003.........83 C. C. A. 197
Combed silk that has fallen from or been caught in the machines in
which it was undergoing further operations is dutiable under the pro-
vision in paragraph 384, Tariff Act July 24, 1897, c. 11, § 1, Schedule L,
30 Stat. 185 [U. S. Comp. St. 1901, p. 1668], for silk not further manu-
factured than combed, and is not subject to the provision for silk waste
in paragraph 661, § 2, Free List, 30 Stat. 201 [U. S. Comp. St. 1901, p.
1688].
-Fawcett v. United States, 154 Fed. 1003...... .83 C. C. A. 197
Sweet crackers, known as "wafers and biscuits," in which the propor-
tion of the sweetened centers to the pastry envelopes, is large, but in which
flour is used to a substantial extent, are not dutiable either directly or
by similitude as "confectionery," under Tariff Act July 24, 1897, c. 11,
§ 1, Schedule E. par. 212, 30 Stat. 168 [U. S. Comp. St. 1901, p. 1647].
-United States v. Thomas Meadows & Co., 154 Fed. 1005..
The term "comfits" in paragraph 263, Tariff Act July 24, 1897, c. 11.
§ 1, Schedule G. 30 Stat. 171 [U. S. Comp. St. 1901, p. 1651], is practically
synonymous with "confections," and includes boiled marrons (chestnuts)
preserved in syrup.
-Schall & Co. v. United States, 154 Fed. 1005......83 C. C. A. 329
Marrons (chestnuts) preserved in syrup are not dutiable as "nuts" under
paragraph 272, Tariff Act July 24, 1897, c. 11, § 1, Schedule G, 30 Stat. 172
[U. S. Comp. St. 1901, p. 1652]; nor do they resemble nuts sufficiently to
be dutiable at the same rate by virtue of the similitude clause in section
7 of said act, 30 Stat. 205 [U. S. Comp. St. 1901, p. 1693].
-Schall & Co. v. United States, 154 Fed. 1005.. ..83 C. C. A. 329
§ 3. Entry and appraisal of goods, bonds, and warehouses.
White and colored wools were sold together in the Bagdad market at
one price, without any distinction as to color; this being in accord with
immemorial practice in that market. Held, that in finding "the actual
market value
* in the principal markets of the country whence
imported, and in the condition in which such merchandise is there bought
and sold for exportation to the United States," under Customs Administra-
tive Act June 10, 1890, c. 407, § 19, 26 Stat. 139 [U. S. Comp. St. 1901, p.
1924], both kinds of wool should be appraised at the same price, in ac-
cordance with the manner of purchase, without regard to any difference
in value which may attach to each kind in any other country.
-G. Gulbenkian & Co. v. United States, 153 Fed. 858..83 C. C. A. 40
The Board of General Appraisers sustained an importer's protests, di-
recting that the collector should reliquidate the duties at the rates ap-
pearing to be applicable "from the invoices, samples, or record," or, in
the absence of sufficient data, should reliquidate at the rate of 40 per
cent. ad valorem. Held, that the terms of this decision did not require
the collector to consider data outside of the record made before the Board.
-United States v. Hunter & Witcombe, 153 Fed. 873...83 C. C. A. 55
In determining whether sugar dinings should be classed under a tariff
act as "not above fifty-six degrees' by the polariscope, or as "fifty-six de-
grees and above," held, that the rule of de minimis non curat lex does
not apply to drainings testing 56.025, so as to require their classification
under the former provision as testing 56, by disregarding the fraction of
a degree.
-United States v. Lueder, 154 Fed. 1....... .....83 C. C. A. 131
Under the general authority conferred by section 251, Rev. St. [U. S.
Comp. St. 1901, p. 138], the Secretary of the Treasury promulgated regu-
lations for ascertaining the polariscopic test of sugar drainings. Held
that, where these regulations were substantially followed by the govern-
ment polariscopists, the findings by those officers are conclusive.
-United States v. Lueder, 154 Fed. 1.....
.83 C. C. A. 131
As to the rule of U. S. v. China & Japan Trading Co., 71 Fed. 864, 18
C. C. A. 335, that, where an importer fails to appear before the Board of
General Appraisers, he may not introduce further evidence in the Cir-
cuit Court, on appeal from the Board, under Customs Administrative
Act June 10, 1890, c. 407, § 15, 26 Stat. 138 [U. S. Comp. St. 1901, p. 1933],
held, that that rule does not apply where the importer appeared before
the Board and offered some evidence.
-H. Mendelson & Co. v. United States, 154 Fed. 33...83 C. C. A. 145
It was an offer of "evidence" where an importer appeared before the
Board of General Appraisers and submitted an affidavit made by a person
in a foreign country.
-H. Mendelson & Co. v. United States, 154 Fed. 33...83 C. C. A. 145
Under Customs Administrative Act June 10, 1890, c. 407, § 19, 26 Stat.
139 [U. S. Comp. St. 1901, p. 1925], requiring appraised value to include,
besides coverings, etc., "all other costs, charges and expenses incident to
placing the merchandise in condition, packed ready for shipment to the
United States," an invoice item described as a "converter's commission"
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