such, some with the maker's or proprietor's name, and some without, some dry, some co'n'densed,somesemi-fluid or semi-solid, (thicker than ordinary molasses, as one of the witnesses describes it,) and some 'fluid, and Of the further facts that different rates of duty had been from time to time assessed upon it under treasury rulings, and that both proprietary and nonproprietary malt extracts are manufactured in this country, it seems reasonable to infer that when congress imposed a duty upon malt extract, if fluid and in casks, at 20 cents a gallon; if fluid and in bottles or jugs, at 40 cents a gallon; and, if solid or condensed, at 40 per cent ad valorem,-it intended to cover all the known kinds of malt extract in all the knowIJ. conditions in which it is imported. Certainly the language used in the tariff act, construed according to the ordinary rules of interpretation, supports such conclusion. The duty laid on medicinal proprietary preparations is exclusive of such as are elsewhere in the act specially provided for; and, although Johann Hoff's Malt Extract be a medicinal proprietary preparation, it is specially provided for by the term "malt extract," since it is as a malt extract that it is described, labeled, advertised, bought, and sold. In our opinion, this case is not controlled by the decision of the supreme court in Ferguson v. Arthur, 117 U. S. 482, 6 Sup. Ct. 861. In that case the general provision as to calcined magnesia was, as the court held, by its terms applicable only to the single kind of magnesia that was sold in bulk by the pound, whereas the provisions of paragraph 338 of the act now under consideration are manifestly enlarged so as to cover malt extract in all conditions of consistency, and whether in bulk or in such smaller packages as are frequently characteristic of proprietary preparations. Moreover, in the Ferguson Case the paragraph touching proprietary preparations did not, in terms, exclude such preparations as were elsewhere specifically provided for. The .decision of the circuit court is reversed, and the classification of the board of general appraisers affirmed.
UNITED STATES v. WARNER.
(District Comt, D. Washington, N. D. No. 690.
POST OFFICE-OBSCENE SEALED LETTERS.
January 16, 1894.)
The mailing of an obscene private sealed letter is not within the pro· hibition of Rev. St. § 3893, even as amended September 26, 1888, by inserting the word "letter;" for all the enumerating words are limited by the concluding words "or other publication." U. S. v. Wilson, 58 Fed. 768, followed.
At Law. Indictment of J. M. Warner for mailing an letter in a sealed envelope, in violfltion of section 3893, Rev. St., as amended by Act Sept. 26, 1888, (1 Supp. Rev. St. [2d Ed.] 621.) Demurrer sustained.
Wm..]I. BriJ:lker, U. S. Atty., . 'A. R.JoIlesand C., W. TUJ,'ner, for defend,ant. HANFORD, District Judge. The question raised by the demurrer to the 'indictment in this case is whether the sending by mail in a sealed envelope of a personal written communication from one individual to another is a crime, cognizable in this court. The indictment ,is founded upon'section 3893, Rev. St., which, as amended by Act Sept. 26, 1888, (1 Supp.Rev. St. [2dEd.] 621,) reads as follows:
"Every obscene, lewd or lascivious book, pamphlet, picture, paper, letter, writing, print,' or other publlcation of an' indecent character, · · · whether Sellled, as ,first-class matter or not,. are hereby declared to be non mailable. matteI;', , .· · · . And every person who shall knowingly deposit, or cause to be deposited fol' mailing or delivery, anything declared by this section to be non mailable, · · · shall, for each and every offense, be fined. · · ."
The supreme court of the United States in the case of U. S. v. Chase, 135 U. S. 255, 19 StlP. Ct. 756, gave an authoritative interpretation to this law, as it stood previous to the amendatory act of. 1888, as fonows: '
"In the s1:ll,tute wider consideration, the word 'writing' Is used as one ot a group or class of words,-book, pamphlet,. picture, paper, writing, print,ot which is ordinarily and prima facie understood to be a publication; and the enu:n:u!l"8ition concludes with the general phrase '01' other publication,' which applies to all the articles enumerated, and marks each· with the commCJ1t quality ilidicated. It must therefore,according 1Jo a well-defined rule ot COnstruction, bea pnblisl1 wIiting which is contemplated by the statute, d a:t\d not a private letter, on the outside of which there is nothing but the name and addtess c:>f the person to whom ins written."
It.is impossible to follow the rule of construction which the supreme court has applied to this statute, and yet hold that the word "letter," interpolated into it by the amendment, is not qualified by the gener!;l1 phrase "or other publication." It is also hard to give the amendment any effect, and yet hold that mere private let- , ters of an indecent character are not within the inhibition of the statute. The question is therefore. perplexing. I am unable to agree with Judge Ross, who, in passing u.pon the same question, in the case of U. S. v. Andrews, 58 Fed. 861, is reported as saying that:
"It is difficult to see how the intent of congress to exclUde all letters of the character denou,nced could have been made plainer."
The opinion of Judge Morrow in the case of U. S. v. Wilson, 58 Fed. 768, contains a careful review of the history of legislation and of the authorities upon thi!! subject, and, for reasons which to me appear to be sufficient. he sustained a demurrer to a similar indict· ment. After deliberation I am in doubt. I cannot say that the facts stated bring the case clearly within the intent and letter of the statute. The courts of the United States have no power to punish an act which is merely wrongful, nor, by construction, to include within the penal statutes offenses which are not plainly specified. Being conscious of having an actual in this case,
UNITED STATES V. JARVIS.
which I consider that a reasonable mind may justly entertain, I am constrained to follow the decision of Judge Morrow in U. S. v. Wilson. The demurrer is therefore sustained, and the indictment will be quashed.
UNITED STATES v. JARVIS. (District Court, N. D. Washington. January 16, 1894.) No. 70S.
POST OFFICE-OBSCENE SEALED LETTERS.
The mailing of an obscene private sealed letter is not within the prohibi· tion of Rev. St. § 3893, as amended September 26, 1888. U. S. v. Warner, 59 Fed. 355, followed.
The word "notorious," when written on the outside of a letter, after the name of the person addressed, as follows, "Room 32, Pease House, Front St., City, The Notorious," is not "obviously intended to reflect i)1' juriously on the character or conduct of another," and the mailing of such letter is therefore not within the of the statute.
At Law. Indictment of George Jarvis for mailing letters of an indecent character in sealed envelC'pes, upon the outside of which scurrilous epithets were written, in violation of the act of Septem· ber 26, 1888, (1 Supp. Rev. St. [2d. Ed.] 621.) Demurrer sustained. Wm. H. Brinker, U. S. Atty. D. O. Finch, for defendant. HANFORD, District Judge. The indictment contains several counts, each charging the defendant with having sent, by mail, a private sealed letter of an indecent character, in violation of the act of September 26, 1888, (1 Supp. Rev. St. [2d Ed.] 621.) In this case, as in the case of United States v. Warner, I hold that the offense is not indictable by reason O'f the indecent matter contained in the letter. The United States attorney claims, however, that by an allegation to the effect that upon the envelope of each letter there was written an epithet, to wit, the words "The Notorious," calculated and obviously intended to reflect injuriO'Usly upon the character of the person addressed, the case is brought within the first section of said statute, which reads as follows:
"That all matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which, or any postal card upon which, any delineations, epithets, terms, or language of an indecent, lewd, lascivious, obscene, libelous, scurrilous, defamatory or threatening character, or calculated by the terms or manner or style of display and obviously intended to reflect upon the character or conduct of another may be written or printed, or otherwise impressed or apparent, are hereby declared non-mailable matter; * * * and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be non-mailable matter, * * * shall, for each and every offense, upon conviction thereof, be fined not more than five thousand dollars, or imprisoned at hard labor not more than five years or both, at the discretion of the court."
The superscription upon the envelope, as set forth in the indict· ment, after the name of the person, is as follows: "Room 32, Pease