GUUO, C. " S; F. B. 00. tI. MARTIN.
The court erred In declining to instruct the jury to return a verdict in favor of defendant, as was requested by defendant at the close of the testimony. Sixth. Said court erred in refusing to charge the jury in writing, and before the argument of counsel, as to the law in this case" Seventh., The court erred in charging the jury as follows: ·The engineer should be for stock when running his train, and should use due care and vIgIlance 10 keeping such lookout.'" , The first assignment is well taken, and for that error the case must be re· versed. The second, third, and fourth assignments are frivolous. As the case must go back for a new trial" we refrain from expressing any opinion on the question of the sufficiency of the evidence to support the verdict of the jury. It was not error for the court to refuse to put its charge in chief to the jury in writing. Railway Co. v. Oampbell, 49 Fed. Rep. 854. (at the present term.) The cOllrt did not err in giving the instructions set out in the seventh assignment. Railway Co. v. Washington, 49 Fed. Rep. 347, (at tbepresenf term.) The judgment is reversed, and the cause remanded, with directions to grant a new trial.
GULF. C. & S. F. R. Co. 'D. MARTIN.
(Circui' Court of ..a.ppeaZ8, Eighth. (;trcu:£t. February 8, 1899.)
In Error:tvthe United States Court!n tbelndlan Territory. Action. by 1'. A. Martin against the Gulf, Colorado & Santa Fe Railro;ld Company to recover for the killing of st.ock. Verdict and judgment for plaintiif. Defendant brings error. Rt'versed. E. D. Kenna, J. W. TerrtI, and O. L. Jack8on, for plaintiif in error. Before CALDWELL, Circuit Judge. and SHIRAS and THAYER, District JUdges. CALDWELL, Circuit Judge. This action was commenced before a United States commissioner in the Indian Territory by Martin against the railway company to recover damages for a sorrel mare alleged to have been killed through the negligence olthe company. The plaintiff below recovered judg. ment before the commissioner for $75, from which jUdgment the company appealed to the United States court. where the case was tried de novo before a jury, and there was 8 verdict and judgment In that court In favor of the plaintiff for $75, and the company sued out this writ of error. Every error assi/;tned has been decided In the cases of this plaintiff in error against Washington. the Same against Campbell, and the same against Ellidge, in which the opinions were tiled at this term. Reference is made to the opinions in those cases. It is needless to go over the ground again. The only error in this case was in refusing the defendant's request for a panel of 18 jurors. For this error the jUdgment is reversed. and the cause remanded. with direo-tions to grant a new trial.
In re McDoNOUGH.
OOU7·t, D. Montana.
Beer lB not a "spirituous liquor," within the meaning of Rev. St. U. S. § 21319, denouncing the offense of sell:ng spirituous liquors and wine to Indians. Cong. July 4, 1884, declaring (p. 94) that section 2139 shall not be a bar to the prosecution of any officer, soldier, or employe of the United States who shall fUrnlah'l'liquors, wines, beer, or any intoxicating beverage whatever" to any Indiall, lB not a legislative construction of such section. 4psnaI statute must be strictly construed, and cannot be enlarged beyond the ordinary meaning of Its terms, in order to carry into effect tile general purpose for which it was enacted.
Petition by W. J. McDonough f,r a writ of habeas corpus to release him from imprisonment on a complaint before a United States commissioner for selling beer to an Indian. Prisoner discharged. Rufus O. Garland, for petitioner. J. M. !-fcDonald, Asst. U. S. Atty. KNOWLES, District Judge. The petitioner was arrested on complaint before a United States circuit court selling to an lndianin charge of an Indian agent spirituous liquer, to-wit, one bottie of beer. SectIon 2139 of the RevisedStatutes of the, United States provides:, ,:(IEverypersoo (except an Indian in the Indian country) who sells, exchanges, gives, barters, or disposes of any spirituollS liquors 01' wine to an Indian under the charge of any Indian superintendent or agent * * :« llhal,lQepl1oished by imprisonment .for, not more than two years,.a:nd by a tine ofI;lot mOl;e than three hundred dollars." ! It is claimed on the part of petitioner that "spirituous liquor," does not include beer. , "The popular or received import of words furnishes. the generll1 rule for the interpretation of public laws as. well as pci,vatea\1d transactions." Maillard v. Lawrence, 16 How. 261; Arthur V. Morrison, 96 U. S. 108; Martin v.Bunter's Lessees, 1 Wheat. 326; Sedg.St. & Const. Law, § 220. What is the general definition of 'ispirituouilliquors?" The definition of the word "spirituous," as given by Webater's Dictionary, is: "Containing spirit; consisting of refined spirit; ardent; as, spirituous If we turn to the word "spirit," we find this, as a definition of that word: "Hence a liquid produced by distillation, especially alcohol; the spirits of wine from which it was first . distilled. Hence rum, whisky, brandy, and other distilled liquors having much alcohol, in distinction from wine and malt liquors." Turning from the definition given in the dictionary to legal authors, we find: "Spirituous liquor is composed, wholly or in part, of alcohol extracted by distillation. It need not be rectified,-that is, it is within the terms, though it has passed through the still once. Fermented liquors are not included." Bish. St. Crimes, § 1009. "In common parlance, 'spiritu-
ousliquor' means 'distilled liquor.' * * · Fermented liquor, though intoxicating, is not spirituous." In Com. v. Grey, 2 Gray, 502: "Wina is a fermented liquor; spirits are distilled liquors. We therefore think that the words I spirituous liquors' em brace all those procured by distillation, but not-those procured by fermentation." Pritz v. State, 1 Baxt. 17. In the case of PeOple v. Orilley, 20 Barb. 246, STRONG, J., said in speaking of ale: "Neither is it a spirituous liquor, as spirits are man· ufactured by distillation; whereas, ale is produced by fermentation." "Fermented liquors are not, in common parlance, spirituous The latter term is ,properly used to designate distilled liquors, as tinguished from fermentedliqU6rs." State v. Adams, 51 N. H. 568. In this case,it was held that ale, potter, and cider arenoi liquors; In the case of Statev. Oliver, 26W. Va. 422, the court said: "From thesb definhions it will be perceived that ale, porter, and beer are drinks of a like nature, differing from, but to, each other, but Wholly diffel'io ing from spirituous liquors or wine." , There are two caseS which define "Elpirituous liquor" so as to iui. elude "beer." These'areNevittv. 3 Denio, 43, and State v. Giersch,98 N. C. 720. 1 In the first of these cases the court say: '" is defined by Webster to be a spirituous liquor made from any farina:ceous grain, but generally from barley, which is first malted and and its fermentable substance extracted by hot water. This extract or effusion is evaporated by caldrons, and hops or some other plant of an agreeable bitterness added. The liquor is then suffered t6 ferment in vats." I have been unable to find this aefinition in Webster's Dictionary. In the unabridged Webster's' Dictionary of our time is defined to be "a fermented liquor, made from any malted grain, with hops and other bitter flavoring matter; a fermented extract from the roots and other parts of various plants,-as spruce, ginger, etc. Undoubtedly this decision was based upon a different definition of beer from any we now have in use. It was reviewed in the court of errors of the state of New York. (Reported in 3 Denio, 437.) Chancellor WALWORTH, in his opinion in the case, enters into an exhaustive and curious history of the manufacture and use of fermented liquors. I do not think anyone can read the discussion of that distinguished cellor in that case without coming to the conclusion that he thought there was a difference between spirituous liquors and fermented liquors. holds that beer would come within the meaning of "strong liquors," used under the statute in consideration. In the case of People v. Crilley, 8upra, the court did not think these cases determined the question at is'sue, and felt justified in giving a definition to spirituous liC[uor which did not include beer. In the case of State v. Giersch, supra, the court maintains that all liquors which have alcohol in them are spirituous liquors·. It says: "Hence, also, distilled liquors, fermented liquors, and various liquors are all alike spirituous liquors." In the light of the nition which "spirituous liquors" have generally received, I do not thinit
I,S. E. Rep. 19&.
this definition can be maintained. To maintain it would, be to Sa)! that the term "wine," as used in ,the very statute under consi4eration in this case, was a redundant and uSeless word. Yot the general' rule is that, in the construction of a statute, every wordl!hould be considel'OO of use, and giveq a meaning. The same point is urged in tbis case as was urged in that.of Statev. Giersch, naml;lly. that the object of the statute to, preveIit iqt(}xication. In that, intoxication generaUy,j in tbis, the evil is lhnited to intoxication amopg the Indians under the charge of the nati(}nal government. Undoubtedly this is true. But this is denominated a '" penal" statute, and should be strictly out the object aimed at by such construed, and with a statute., or ou the of p\1blicpolicy, a court has no light to ininto it.· or to give a to words used from whata!.lltheir, import as comD;lonly used. There is no better presentation ,of ,this poipt by Justice MARSHALL, in U. S. v. Wiltberger, 5 Wheat. 76. And I do llo.t ,see that I can better present th.is question than by \lsing' his He sl;l.ld: '
"The rule pel\alJaw!l are to be construed strictly is perhaps not less old than \COnstrUjJtion ',It lA, fori ndejl on the ten.dernells of the 1aw for the rights of indivIduals; and on th'e;plainprlneiple ment isvestedrn 'the' not in department. It is the legislature, not the courtlVlhieh is to deti ne a cl'ime, and ordain its punishment. It Is said that. notwithstanding,thia rule, the intention of the law-maker must 'govern, i,,,, the CODI'ltl'ucti9R of illtS' other statutes. This is true, but new, independent whi9h subverts the old.. It is a modification1of .the ancient m:axhri, and aOlounts to tMs: that, though penal laws are to be cpliatrued s£rictly, they are not to be construed so strictly as to deteat the obVious bl'tention of the legislature. The maximisilOt to be so applied ail to narrow the words of the statute to'the exclusion of cases which these words in their ordinary acceptation, or in that trense in which the legisJature bssobvipusly usedthem"woul4 comprehend. The int,ention of the .legislature is to be collected from the words they employ. Where there is no ambiguity in the words. there is QO roomfor construction. "the case must be a strong pne, wbi.chwould justify a court in departing from the plain meaning of words; especially In a penal act; in search of an'lI11eotioo which the wordsthemseives did not suggest. 'ro determine that a case is within the ·intention of a statute its:language must authorize us to say so.·. It would be dangero\ls, indeed, to carry thepriIlciple thl1j; a.-case whi<:\1: is within the reaBon .or .JPiscbief of a statute is within its provisions so far as tp punish a crime not enll,P1erll,l;e4 i", the statute because it is of'equal atrocity, or of a kindred character; \YUh those Which are enumerated,"
These remarks of that I quote as an answer to the remarks, of the able counselforthe. government, whoaremost energetic and persistept national law within this :And I also,:would place, them,. in contrast with some 9£ the views Jearned coUr,t 1!S' .expressyd In the case of $tate v. Giersch, do ,not,thlp.k the u. S. St. be .secti()n..2139, der conSIderation. It d6es not purport to be 8uch a con'structlOD, and IS in no true sense a construction of the same. For the reasons assigned I . ::-,
8RlER 11. BAYNES.
am satisfied beer is not within the meaning of spirituous liquors or wine; and it is hereby ordered that the defendant be discharged from further custody.
GRIER ". BAYNES
(Circuit COUf1, N. D. NtJID York. February 10,189ll.)
P6.U1f'l'll J'O"R INVENTloNs-ConrrroluL .AssIGlOlBNT. A patentee granted to a company a license to make, D88. and sell the ·patentecl artiel. throughout the United States, and an exolusive 11censelor certain western states} escept that he reserved W himself the right to sell in those statile, and to transler that right to one other. Thereafter he executed an assignment to other parties of one-third of his Interest in the patent, In which he, in terms, excepted the rights granted to the company. aud also reserved to himself the right to 8811 in all the remaining states, and to trall8fer that right to one other; and further reeerved to himself the exclnslve control "of and over all sales of thll right to main,.. Dee, and sell" the patented articles, whil'h right he agreed should not 1)& granted or sold at less than a specUledrrice; anol be agreed to ac.("onnt to the assignees for one-third of the proceeds 0 such 8<1".''''; and that, he neglect 80 to or to pay "hem share tbereof}hisexcluslveconL,'ul over suchsaiee should cease and the asslgnment should "tnereupon become and be absolute fol"'" ever." H.eld that, until suoh default, the assignment. was. mere.ly conditional, lD \he natuJ."8 of a security tor the by tho. patentee of Jl1a agreement.
In Equity. Suit by William Watson Grier against James B. Baynee and others for royalties under letters patent. On settlement of final d. cree. Bee former report, 46 Fed. Rep. 523.
STATEMENT 011' ll'AC'l'B.
On the 5th of June, 1891, a decision was rendered in favor of the complainant for an accounting. 46 Fed. Rep. 523. On the 24th of June, 1891, an interlocutory decree was entered referring it to Mr. Charles B. Germain, of Buffalo, N. Y., astnaster to take the accounting and directing him to state "separately the number of sets of springe made and sold by said defendants prior to I?ecember 6, 1887, and the number made and sold subsequent to that date." On the 11th day of December, 1891, the master filed his report in which he finds: .F'i.rBt, that the complainant is entitled to recover $138.60 on account of royal. ties and $47.50 interest thereon, in all $186.14, against the defendant Baynes for springs made and sold by him. Second, that the complainant is entitled to recover $1,896.30 on account ofroyalties and $527.79 interest thertlon, in all $2.424.09,againllt defendants Baynes and tho Buffalo Spring & Gear Company for. springs made and sold by them subsequent to and including March 12\ 1886, and prior to December 6, 1887. Third, that complainant is entitled to recover $12,012.70 OD account of royalties and $1,057 .36 interest thereon, in all $13,070.06, against the defendants Baynes and the Buffalo Spring & Gear Company for springe made and &Old by them 6, 1887. to I, 1891.