or the sale therein, of putrid, diseased, or dangerous articles of food; but it cannot prohibit or substantially burden commerce among the states in wholesome or healthful articles of commerce. The reason of this rule is that putrid, and dangerous articles of food do not belong to commerce. They are not commercial articles, and hence the power to regulate them was not granted to the congresf; but every article that does belong to sound com· merciaJ article-is, so fuas intel'l(ltate commerce in it is concerned, subject to reguIationbythe congress alone. The line which determ.bies whether interstate 'commerce in an article is subject to regulation by the state or the congress is perhaps nowhere more clearly sta#d than by· Mr. Jus.tice Matthews in, B()wman v. Railway Co., 125 U. S., at page 490,8 Sup. Ot. Rep. 689, 1062, where he says:
"It trom its nature it does not belong to commerce, or It its oondition, from putrescence or other cause, is such when it is' about to enter the state that it no longer belongs to commerce, or, in other words, Is not a commercial article, ·tIlen.the!state may exciudetts intioduetion, and asantncident to this power it mlo/. to ascertatn.the fact:And here is the limit between the of· ,the .sta,t!'l8.Dd the feq.eral power; that is .to say, that whlchdoes not· belong to commerce is within thepoUce power of the lltate, and that Which dOe!! belong·· to oommeroe is within the jurisdiction of the UDited States."
powder is ,,"well-known . of commerce .among the ,It belongs toconunerce.1'h.esale ot an article impoIied state faa. of interstate commerce, and may not be or burdened. by the states. Brown v. Wheat. 419, 447; Bowman v. Railway 00.,125 U. S. 465, Sup. at. Rep. 6$9, 1062. The stltte law, SQ far as it requires oiiginaJ, of baking powder, not deleterious to health, manuby citizens of another state in that state, and imp,orted into for sale, to be labeled in any particular manner, and so far as. itiInposes a penaJtyfor the sale of such packages when not so labeled, is an unreasonable and vexatious burden upon commerce among the states, and is to that extent in violation of the commercial clause of the constitution. Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ot. Rep. 681; Lyng v. Michigan, 135 U. S. 161, 10 Sup. at. Rep. 725; State v. Gooch, 44 Fed. Rep. 276. Let the prisoner be discharged.
.UNITED STATES v. MARCUS.
(Circuit Court, S. D. New York.
January 20, 1893.)
Act Aug. 5, 1861, (12 St. at Large, p. 313, § 3,), llUthOrized the Issue of flvEHlolliir trell.SUry notes, and an indictment charging the uttering of & oounterfelt of such .R note is good.
Wl:1ere an Jndictm«mt for. passing oounterfelt. money sets forth the oounterfeit note by itS teI,lOf,. but it as a treasury note, when in fact it is a Unlteq. States note, the misdescription is immaterial. U. S. v. Bennett, 17 Blatchf.:a57. followed. 1]. S. T. Mason, 12 Blawht. 497, d1&
UNITED STATES V. l\lARCUB.
SAME- V AIlJANCE.
'fhe allegation in an indictment for passing a counterfeit note that the note was "in the words and figures following," does not mean that all the words and figures printed on the back of the note, and forming no part of the contract set forth on its face, are stated.
Under an indictment for uttering counterfeit money with intent to defraud, the corpus delicti is sufficiently proved by showing that the counterfeit note has been uttered as true, and the agency of the accused in passing the note may then be proved by his confession.
At La,w. Indictment Nathan Marcus for uttering a coun· terfeit note. On motion in arrest of juilgment and for a new trial Dismissed. John O. Mott, for the United States. Abram J. Rose, for defendant. BENEDICT, District Judge. This case comes before the court upon a motion in arrest of judgment and for a new trial. The motions were heard together. The charge against the defendant was of passing counterfeit money. It appeared in evidence that the accused, on a certain dav. took to the Butchers' & Drovers' Bank certain bills for deposit to his credit; that the receiving teller ascertained that one of the bills was a counterfeit, and thereupon stamped on the face of the bill, in plain and large letters, the word "Counterfeit," and returned the bill to the defendant. Afterwards the defendant pasted a piece of white paper over the word "Counterfeit," which had been stamped upon the bill, so as to conceal the word stamped on the bill; and then, on an application made by one Raphael Abel for some money to pay a working girl, the defendant paid him, among other bills, the bill in question. The bill was afterwards given by Abel to the girl, and upon her tendering the bill to a third party it was rejected as counterfeit, and thereupon returned to Abel. The defense was that the defendant passed the bill to Abel by accident, not knowing at the time that the bill on which he had pasted the paper over the word "Counterfeit" was among' the bills he gave to Abel. The jury found the defendant guilty. He now moves in arrest of judgment, and for a new trial, upon several grounds. The first ground is that the illlHctment charges no offense, because it charges the defendant with uttering a treasury note of the denomi· nation of five dollars, when, as it i!'l claimed, no five-dollar treasury by law. This objection seems to be founded notes were upon a misapprehension of the statute. By the act of August 5, 1861, (12 St. at Large, p. 313, § 3,) five-dollar treasury notes were authorized. Next it Is contended that the indictment is repugnant because it designates the bill uttered as a treasury note, whenthe note set forth
in the b}dic4rJ,ent is a Upited States note.. This objection cannot be sustained. .The decisioI1$.ll,re that,where a bill is set out by its tenor in an indictment, any designation of it in the indictment is immaterial. It was so held by this tmurt in the case of U. S. v. Bennett, 17 BlatChf. 357.· The prior case of U. S. v. Mason, 12 Blatchf. 497, is not contrary to this. All that was said in the Mason Case is that. a wrong designation of the bill was a defect. It was not said to be a fatal defect, and the count was not held bad for that reason, but for other reasons stated. The law applicable here is stated in Bennett's Case, supra. it is contended that there is a fatal variance between the indictment and the proof because all the matter printed on the back of the note put in evidence is not set forth in the indictment. The matter set forth in the indictment was proved as laid. The indict· meAt <loes not charge that the matter set forth constituted all the matterotl the back of the bill, nor was it necessary to set forth all the matter on the back of the bill. What is omitted is a mere notice required by law to be placed upon notes of this character, but which is no part of the contract. The allegation of the indictment that the bill was in the words and figures does not mean that all the words and figures printed on the back of the bill, and forming no part set forth on the face. of, .the bill, are stated. Where an in theindictn:i.$t by its purport, the allegation refers to. what on the face of the instrument. U. S. v. Hinman, 1 Baldw.292. The remaiIting question is raised by the objection taken to the proving that .tlle accused was the person who passed the bill to Abel by the of the accused that he so passed it. In support of tb.fs objection, .therule that the corpus delicti cannot be proved by the admission the accused is relied on. That rule was not infringed at the trial of this case. When the charge is uttering counterfeit money with to defraud, the corpus delicti is sufficiently when it is shown that the counterfeit bill described had been uttered as true. That being shown, the agency of the accused in passing the bill may be shown by his confession. Abb. Tr. Brief, p.305. In this case the uttering of the bill a,s true to Abel was clearly proved before evidence of the. cOIIlfession .of the accused was admitted. I am Mked to set aside' the verdict as not supported by the weight of eyidence. .In my opinion the verdict was in accordance with the weight of evidence. Both motions must therefore be dismissed.
In re STANDARD VARNISH WORKS.
(Oireuit Oourt. S. D. New York. January 9, 1893.)
OUSTOMS DU'l'tE8-0ANDLE TAR-ACT OQT. 1, 1890.
'rhe article known in trade as "candle tar" or "palm pitch" is not dutiable as paragraph 472, at 10 per cent. ad valorem, but is properly assessed .as a nonenumerated manufactured article at 20 pet cent. ad valorem, under section 4 of the act of October 1, 1R90.