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disposes of the whole case on its merits, it is
not final. Consequently, it has been uni-
formly held that a judgment of reversal,
with leave for further proceedings in the
court below, cannot be brought here on writ
of error;" also citing cases.

This case and those it cites have been applied many times, but we will confine our notice to instances of demurrer. DeArmas v. United States, 6 How. 103 [12: 361], was of this kind, but the grounds of demurrer urged there made the rule when applied to them not very disputable, and the case is not of much aid.

In Meagher v. Minnesota Thresher Mfg. Co. 145 U. S. 608 [36: 834], the demurrer was overruled with leave to answer over. Upon appeal to the supreme court the order overruling the demurrer was affirmed with costs. The rule of the supreme court provided that "upon the reversal, affirmance, or modification of any order or judgment of the District court by this court, there will be a remittitur to the district court, unless otherwise ordered." Held, that the plaintiffs in error upon the return of the case to the court could plead over, and hence judgment was

not final.

cases of that kind, not because they are sep-
arable in principle from the other cases de-
cided, but to observe and explain the rule in
its special applica tion. That rule is in its
utmost generality hat no judgment is final
which does not terminate the litigation be
If anything
tween the parties to the suit.
substantial remain to be done to this end,
the judgment is not firal. The law of the
case upon the pleadings, and hence as pre-
sented by the demurrer, may be settled, but
if power remain to make a new case, either
by the direction of the supreme court or in
the absence of such direction by the statutes
of the state, the judgment is not final.

The statute of Kansas permitted such
amendment, and the order of the supreme
court did not take it away. Its order pro-
ceeds no further than a direction to sustain
the demurrer to the petition. That done,
the lower court had and has all of its power
under the statute, and may exercise it at the
What they
invocation of plaintiffs in error.
may be advised to do we cannot know. We
can only consider their right and the power
of the court. These existing, if we should
affirm the judgment of the supreme court,
that court, and maybe this court, may be
called upon to determine other issues be-
tween the parties.

It follows from these views that the judgment of the supreme court is not final, and the writ of error must be dismissed, and it is so ordered.

In Werner v. Charleston, 151 U. S. 360 [38: 192], the announcement by the Chief Justice was: "The writ of error is dismissed. Meagher v. Minnesota Thresher Co. 145 U. S. 608 [36: 834]; Rice v. Sanger, 144 U. S. 197 [36: 403]; Hume v. Bowie, 148 U. S. 245 [37: 438]."

The statement of the case shows that it was analogous to the case at bar. The motion to dismiss stated that

UNITED STATES, Petitioner,

v.

[339]

BUFFALO NATURAL GAS FUEL COM-
PANY.

(See 8. C. Reporter's ed. 339-343.)

"The judgment brought here by writ of error for review is a judgment of the supreme court of the state of South Carolina, which simply affirmed a decision of the lower court overruling a demurrer, and thereby remanded the case to the court below for a Natural gas free from duty under the tariff hearing on the merits. It is therefore an interlocutory judgment, and is in no sense a final decree.

act of 1890.

"An examination of the record will show that the main ground of the demurrer, interposed in the court below by the plaintiff in error, was the unconstitutionality of the act of 1830. It was claimed both there and in the court above, as well as in this court, to be in violation of due process of law."

Rice v. Sanger and Hume v. Bowie, cited by the Chief Justice, were not rulings on demurrer, and we have confined our notice to

Natural gas imported for use as fuel and for Illuminating purposes is free from duty under 496 (p. 604) of the tariff act of October 1, 1890, as crude bitumen, or under ¶ 651 (p. 607) as crude mineral.

"To this the plaintiff in error replied: "The judgment brought here by writ of error for review is the judgment of the supreme court of the state of South Carolina, holding that a certain act of the general assembly of the state of South Carolina, entitled, "An Act [338]to Authorize the City Council of Charles

[No. 64.]

ton to Fill up Low Lots and Grounds in the Submitted December 2, 1898. Decided Janu

ary 3, 1899.

City of Charleston in Certain Cases and for
Other Purposes,"
on the 18th of
December, 1830, is not in violation of the
Constitution of the United States, thereby
affirming the judgment of the trial court and
so ending the constitutional defense inter-Court of the United States for the Northern
posed by the plaintiff in error.'
District of New York which affirmed the de-
cision of the Board of General Appraisers
that natural gas was exempt from duty un-
der the tariff act of 1890. Affirmed.

OF United
States Circuit Court of Appeals for the
Second Circuit to review a decision of that
court affirming the decision of the Circuit

See same case below, 45 U. S. App. 345. The facts are stated in the opinion. Messrs. Henry M. Hoyt, Assistant Attorney General, for the United States, petitioner.

Mr. Herbert P. Bissell for the Buffalo Natural Gas Fuel Company, respondent.

469

ion of the court:

[239] *Mr. Justice Peckham delivered the opin-acterize and embrace natural gas, and they
are in the free list, and are known as para-
graphs 496 and 651. *The language used in[341]
each, when taken in its popular and common-
ly received sense, or according to the sense
in which it is used commercially, would
cover and include the substance generally
spoken of and loosely described as natural
gas. The fact that it is not thus named in
the act compelled the collector to assess it
as a raw or unmanufactured article not enu-
merated, a description which does not fit
nearly so well as that which is contained in
each of the paragraphs mentioned above. We
think the evidence shows that natural gas
is included in the language of one or both
en-those paragraphs.

The defendant gas company, doing business at Buffalo, in the state of New York, imports natural gas from the Dominion of Canada, for the purpose of supplying its customers with that article. The gas is brought in pipes under the Niagara river, and is used for consumption as fuel and for illuminating purposes.

In 1893 the gas imported by the company was assessed for duty by the collector of the port of Buffalo as a nonenumerated unmanufactured article at ten per cent, under section 4 of the tariff act of October 1, 1890. 26 Stat. at L. 567, at page 613.

The rule is familiar that in the interpretation of laws relating to the revenues the words are to be taken in their commonly received and popular sense, or according to their commercial designation, if that differs from the ordinary understanding of the word. Two Hundred Chests of Tea, Smith, Claimant, 9 Wheat. 430 [6: 128].

The importers claimed that the gas was titled to free entry under section 2 of the above act, providing for a free list, either under paragraph 496 (page 604), as crude bitumen, or under paragraph 651 (page 607), as a crude mineral, not advanced in value or condition by refining or grinding, or by any other process of manufacture, not specially [840]provided for in the act. The importers made proper protest, and obtained a review of the Mr. Justice Story, in that case, in deliv. decision of the collector by the board of gen-ering the opinion of the court, said: "The eral appraisers. That board, on a second object of the duty laws is to raise revenue, hearing, after testimony had been given as and for this purpose to class substances acto the character of the gas, decided that nat- cording to the general usage and known deural gas was a crude mineral, and the board nominations of trade. Whether a particular on that ground sustained the claim that it article were designated by one name or anwas exempt from duty under paragraph 651 other in the country of its origin, or whether of the tariff act of 1890. it were a simple or mixed substance, was of no importance in the view of the legislature. It did not suppose our merchants to be naturalists, or geologists, or botanists. It ap plied its attention to the description of ar |ticles as they derived their appellations in our own markets, in our domestic as well as our foreign traffic." See also Lutz v. Magone, 153 U. S. 105 [38: 651], and cases there cited.

Prior to 1890 natural gas had not been im-
ported, although its existence in this country
and in foreign countries was well known.
After the passage of the tariff act of 1890,
this corporation commenced its importation
from Canada as stated. It appeared in the
evidence that an analysis of the gas thus
imported had been made by competent chem-
ists, and it was found to contain methane, or
marsh gas, to the extent of 95.6 per cent, the
balance being made up principally of hydro-
carbons other than methane.

In the opinion of some of the witnesses the
natural gas thus examined was a crude bitu-[342]
It was stated "that bitumens are mix-
tures of hydrocarbons of various kinds, mixed
with other materials in varying proportions;
a crude bitumen as found in nature is mixed
with other materials." It was also testified
that this natural gas contains 97.2 per cent
of natural hydrocarbon, and the balance of
2.8 per cent is composed of substances usu-
ally found with the hydrocarbons in crude
bitumen; that the term "bitumen" does not
refer to any substance of definite chemical
composition, but is distinctively a generic
term applied to a large number of natural
substances which consist largely or chiefly
of hydrocarbons. These substances may be
gaseous, as natural gas or marsh gas; fluid,

The circuit court affirmed that decision, and upon a review by the circuit court of appeals for the second circuit (45 U. S. App. 345), the decision was again affirmed. The latter court, by Circuit Judge Lacombe, said: "We do not undertake in this case to decide whether or not natural gas is a 'crude bitumen.' If it be such, the provisions of paragraph 496 would control its classification, being more specific than those of paragraph 651. Both paragraphs are in the free list, and since natural gas comes fairly within the general provision for crude minerals, and is therefore free, it is unnecessary now to inquire whether it is also within the more specific description 'crude bitumen,' which is also free. The board of general appraisers properly reversed the collector's assessment of the article for duty; it is not a 'raw or unmanufactured article not enumerated.'”

Circuit Judge Wallace, while concurring in the affirmance of the decision of the circuit court, was of the opinion that the importation in controversy ought to be classi-men. fed under paragraph 496 as crude bitumen, and exempt from duty on that ground.

The decision having been duly entered, this court upon the petition of the government issued a writ of certiorari, and the case has been brought here for review.

We are of opinion that the circuit court of appeals was right in its disposition of the case. The substance that is taken from the bosom of the earth and which burns brightly without any further labor put upon it, is popularly designated as natural gas. This name is not contained in the tariff act, but there are two paragraphs thereof which it is claimed do properly and sufficiently char

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(See S. C. Reporter's ed. 343-351.) Testimony in criminal action-decoy letter.

as petroleum or naphtha; viscous, as the semifluid asphaltum; elastic, as elaeterite, found in Utah, and elsewhere; solid, as some forms of asphaltum, bituminous or anthracite coal; that the common compositions of crude bitumen are naturally classified as above stated. The deposits of bitumen occur in various portions of the earth's crust; they differ naturally in appearance, in consistency, in various physical and chemical properties; but they are everywhere found to consist essentially of hydrocarbons, and they are correctly designated as crude bitumens. That natural gas should be designated as a crude bitumen was the opinion of some of the witnesses.

1.

Testimony of the persons named by the accused as his enemies, that they have no ill will against him, is not collateral to the main issue, or a contradiction of what the prosecution has brought out, where the accused on his direct examination said that enemies had placed in his pocket stolen money that was found there, and their names were brought out on cross-examination.

HENRY W. SCOTT, Plff. in Err.,

v.

UNITED STATES.

2.

We think the evidence in this case shows that, within the language of paragraph 651 of the act of Congress, interpreting that language in accordance with the rule above mentioned, natural gas would fairly come under the head of a crude mineral, if there were no more limited classification in the act; but that the classification as crude bitumen is more limited, and we are of opinion that, upon the evidence, natural gas is properly thus described. If it be within the more specific classification, it would be controlled thereby. It is not important in this case to conclusively decide which classification covers it, because both are on the free list. As the gas is described in one or both of the paragraphs, it cannot come under section 4 of the act, which provides for the levy, collection, and payment on the importation of all raw or unmanufactured articles, not enumerated or provided for in the act, a duty of ten per centum ad valorem.

The judgment of the Circuit Court of the United States for the Northern District of New York was right, and should be affirmed.

The fact that a letter stolen from the mails was a decoy addressed to a fictitious person is not a defense to an indictment under U. S. Rev. Stat. § 5467, when the letter had been delivered into the jurisdiction of the postoffice department by dropping it into a letter box.

[No. 80.]

uary 3, 1899.

Evidence on the part of the government was given by witnesses who were connected with the Government Geological Survey, and their evidence would tend to show that the word "minerals" in the mineralogical sense of the word almost invariably refers to solids; that in the mineralogical definition gases would not be included, but that there was a wider definition, which, according to some authorities, includes all the constituents Submitted December 5, 1898. Decided Janof the earth's crust, and that would include gases. It was also stated that if a scientific man wants to be precise he confines his use of the term "mineral" to a certain homogeneous substance, a chemical entity, having a definite composition, just as the mineralogist does. But nevertheless minerals are both solids and liquid, according to most definitions, and that some authorities include gases among minerals and others exclude them. [843] *One witness for the government said if you exclude from the mineral kingdom the gases included in the atmosphere, you must set up some fourth class of substances; the division being, generally, the vegetable kingdom, the animal kingdom, and the mineral kingdom; but no such fourth division is ordinarily designated, and the constituents of the atmosphere are not vegetable and they are not animal, and ordinarily they are included in the mineral kingdom.

ERROR to the Circuit Court of the of New York to review a judgment of that court convicting Henry W. Scott of stealing a letter and its contents from the mail, under U. S. Rev. Stat. § 5467. Affirmed.

The facts are stated in the opinion.
Mr. T. C. Campbell for plaintiff in er-

ror.

Mr. James E. Boyd, Assistant Attorney General, for defendant in error.

*Mr. Justice Peckham delivered the opin-[344] ion of the court:

Henry W. Scott, the plaintiff in error, was indicted under section 5467, Revised Statutes, for stealing a letter and its contents from the mail, and the indictment alleged that he unlawfully and wilfully secreted and embezzled a certain letter intended to be conveyed by mail and directed to Miss Mary Campbell, Cottonwood, Yavapai county, Arizona, he being a letter carrier in the city of New York and the letter having been intrusted to him and having come into his possession in his capacity as such carrier. The letter contained $3.50 in two silver certificates of the United States, each of the denomination of one dollar, and a United States Treasury note of the denomination of one dollar, and a fifty-cent piece of the silver coinage of the United States. The evidence showed that the letter was what is termed a decoy letter; that the money was placed therein by one of the inspectors of the Postoffice Department; that it was sealed, stamped, and addressed as above mentioned, and deposited about 2:30 o'clock P. M. in one of the street letter boxes in the city of New York, in the district from which the defendant collected such letters. Within a few moments after it was deposited in the letter box by the inspector, he saw the defendant come to the box, unlock it, take out its con-[345] tents, put them in his bag and continue on

his route. The carrier returned to the branch postoffice, station E, where he was employed, a little after three o'clock, turned the contents of his bag upon the proper table for distribution, and hung the bag and also his coat on a peg, and left the room and was gone about half an hour. One of the clerks of the department had been told before the defendant's arrival with his letter bag to look out for a letter addressed as above described, and withdraw it from the mail, and in obedience to such instructions and during the defendant's absence he looked through the letters thus taken from his bag, and the letter was not to be found. Upon the defendant's return to the distributing room, he took his coat and bag and started on his route for another collection of letters, and while on the street he was met by the officers of the government about five minutes after four o'clock P. M., and was then arrested and brought to the station. He was charged with having the letter, and was asked to show what he had in his pockets. The letter was not found, but the defendant took from his right-hand trousers pocket, among other things, the three bills which had been placed in the letter. The fifty-cent piece was found loose among other coins in another pocket. The officers identified the bills by marks which had been placed on them, and also by reason of the numbers of the bills, a memorandum of which had been taken. The coin had been marked and was identified by the officers.

In relation to the letter, it appears that it was prepared by the inspector of the department, who addressed the same to Miss Mary Campbell. The inspector wrote the body of the original letter. He did not know Mary Campbell, and never saw her; it was addressed to her at Cottonwood, Arizona, at which place there is a postoffice, but there was no one of the name of Miss Mary Campbell residing at Cottonwood, Arizona, to his knowledge. The address on the letter was to a fictitious person; the money placed in the letter was the money of Mr. Morris, one of the inspectors.

Upon the trial the defendant was sworn in his own behalf, and upon his direct exam[346]ination testified that when he was arrested and the money found upon him, he said to the inspectors, "Somebody has done me a dirty trick;" to which one of the inspectors replied. "Do you think I am concerned in that?" The defendant says that he answered him, "I did not think or did not know whether he was; but if he was not, some enemy of mine in that office was." He denied on the witness stand, that he abstracted, or took from the collection table, or at all, any letter such as is described in the indictment, or any money belonging to any other person in the world.

Upon cross-examination the district attorney endeavored to obtain a fuller statement from the defendant as to what he meant when he said on his direct examination that somebody had done him a dirty trick, and that some enemy of his in the office was concerned in it, and to that end the district attorney

asked him: "Have you any enemies among the employees at that station?" and the defendant answered that he had one by the name of Augustus Weisner and another named John D. Silsbee, his former superintendent; that he was an enemy of his and so was Weisner, and that those two were all that he regarded as enemies in that office, both being employed in the same branch office as the defendant, and he said that for a month before he was arrested he was not on speaking terms with Weisner.

The court asked the defendant: "What is the trick that you mean to suggest to the jury that was played upon you?" and the defendant answered: "The only solution that I can give of it is that that two dollars had been abstracted from my pocket and these marked three dollars put in the place of it. Three dollars and a half placed there; fifty cents in with this change." The witness had just previously stated that he left two onedollar bills belonging to himself in his coat pocket at the time he hung his coat upon the peg in the sorting room and left it there to go down stairs, and from which room he was absent about twenty-five minutes.

When the defendant rested the government called as witnesses John D. Silsbee and Augustus Weisner, the two men named by the defendant as his enemies, both of whom testified under the objection and exception of[347] defendant's counsel, that they had no ill-will whatever towards the defendant, and that they had never had any quarrels with him, and Weisner said, on the contrary, that he had liked the man. The counsel for the defendant objected to this testimony on the ground that the evidence of defendant upon this subject was collateral, brought out by the government on his cross-examination, and that the government was bound by his answers.

After the evidence was all in the counsel for the defendant requested the court to charge, "that a letter intended to be conveyed by mail, under the statute, must be addressed to an existing person, at an existing place, or to a real and genuine address." The court refused so to charge, and the defendant excepted.

The defendant's counsel further requested the court to charge, "that a letter with an impossible address, which can never be delivered and which the sender, acting conjointly with postoffice officials, determined should be intercepted in the mail, is not such a letter as was, in the meaning of the statute, 'intended to be conveyed by mail.'" This was also refused, and an exception to such refusal taken by defendant's counsel.

The jury having convicted the defendant, he has brought the case here by writ of er

ror.

Regarding the objections taken by the defendant to the evidence of Silsbee and Weisner, above alluded to, we think they were properly overruled. The evidence objected to was not irrelevant, and the government was not bound by the answers of the defendant as to Silsbee and Weisner being his en

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"Error was likewise assigned to the refusal of the court to charge that there was a fatal variance between the indictment and proof in respect to the description of the letters, for the stealing or embezzling of which the defendant was indicted.

emies. When arrested the defendant had up- I mailed them and by whom they were to be on his person the three bills and the fifty-intercepted and to be withdrawn from the cent piece which had been marked by the mails before they reached the persons to postoffice inspectors and placed in the letter whom they were addressed, was no defense, and deposited in the letter box, addressed as and that such letters were in reality instated. Appreciating his position, the de- tended to be conveyed by mail within the fendant endeavored then and there to ac- meaning of the statute on that subject. In count for his possession of the money, and he that case the court, speaking through Mr. accounted for it by saying that someone, some Justice Shiras, said: enemy of his at the office, had done him a dirty trick, by which, as he testified, he meant to say that someone had deposited that money [348]in his coat pocket while his coat hung up in the sorting room, and while he was absent from that room. This evidence of defendant was an attempt to raise a suspicion, at least, that some enemy of his in the building had placed this money in his coat, and thereby to relieve himself from the suspicion of having stolen it and to show his own innocence. It was an attempt at an explanation showing an honest possession of the money. It was therefore admissible, upon cross-examination, for the purpose of showing the improbability of the explanation, to obtain from the witness all the circumstances which might throw light upon the subject. For that purpose he was asked if he had any enemies in the department, and he said that he had, naming two employees at this particular station, one the superintendent and the other a fellow letter carrier.

[349]

"In the indictment it was averred that the letters in question had come into the defendant's possession as a railway postal clerk, to be conveyed by mail, and to be delivered to the persons addressed. It was disclosed by the evidence that the letters and money thus mailed belonged to the inspectors who mailed them, and were to be intercepted and withdrawn from the mails by them before they reached the persons to whom they were addressed.

"There is no merit in this assignment. The letters put in evidence corresponded, in address and contents, to the letters described in the indictment, and it made no difference, with respect to the duty of the carrier, whether the letters were genuine or decoys with a fictitious address. Substantially this question was ruled in the case of Goode v. United States, above cited."

In the last-cited case, which is reported in 159 U. S. 663 [40: 297], the court said, at page 671 [40: 301], speaking through Mr. Justice Brown:

If this were true, it might have been argued to the jury that the explanation of defendant was strengthened, and the inference that one or both of these enemies had done this trick might for that reason have been maintained with more plausibility. To show that no such inference could properly be drawn, the government proved that the men "It makes no difference, with respect to the defendant named as enemies were not the duty of the carrier, whether the letter be such in fact. The evidence was not collateral genuine or a decoy, with a fictitious address. to the main issue of guilt or innocence, nor Coming into his possession, as such carrier it was the subject first drawn out by the gov-*is his duty to treat it for what it appears to[350] ernment. The district attorney on the cross-be on its face-a genuine communication; to examination simply obtained the names of make an effort to deliver it, or, if the address those upon whom the defendant attempted to cast a suspicion by his statement in chief. He could not escape from the possibility of being contradicted, by the failure to name the enemies on his direct examination. That examination suggested an explanation which, if believed, showed an innocent possession, and however improbable it was, the government had the right to pursue the subject and to show that it was unfounded. The objection to the evidence cannot therefore be sustained.

We think the court below was also right in its refusal to charge as above requested regarding the decoy letter. The correctness of the ruling has in substance been already upheld in this court.

be not upon his route, to hand it to the proper carrier or put it into the list box. Certainly he has no more right to appropriate it to himself than he would have if it were a genuine letter. For the purposes of these sections a letter is a writing or document, which bears the outward semblance of a genuine communication, and comes into the possession of the employee in the regular course of his official business. His duties in respect to it are not relaxed by the fact or by his knowledge that it is not what it purports to be-in other words, it is not for him to judge of its genuineness."

In this case the letter was addressed although to a fictitious personage, yet to a postoffice within the territory of Arizona. It In Montgomery v. United States, 162 U. was properly stamped, and it was placed S. 410 [40: 1020], we not only decided that, and came within the jurisdiction and auupon an indictment against a letter carrier, thority of the Postoffice Department by becharged with secreting, etc., a letter con- ing dropped into a United States street_lettaining money in United States currency, ter box, in the city of New York. The duty the fact that the letter was a decoy was no of the defendant was, as above stated predefense, but it was also held that the further cisely the same in regard to that as to any fact that the decoy letters (mentioned in the and all other letters that came into his poscase) and the moneys inclosed therein, al-session from these various letter boxes. The though belonging to the inspectors who intention to convey by mail is sufficiently

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