749
LACOMBE, Circuit Judge. The articles here enumerated are indisputably "japanned." As such they are within the phrase "japanned ware of all kinds" in the tariff act. To take them out of that clause, trade testimony is all that is relied upon. The extreme extent to which such testimony goes in this case is this: that in a branch of trade which deals in a very large number of articles, those articles which it deals in and which are japanned are called "japanned ware" to distinguish them apparently from the articles in which that trade deals which are not japanned. It appears, however, by the testimony of the same witnesses that there are a very great many other goods which are japanned in which they do not deal. What the particular trade that deals in those other goods calls them does not appear; but that they are "japanned ware," within the ordinary meaning of the term, is plain. It seems, then, that the trade testimony is not sufficient to show that, in the general trade and commerce of this country, the words "japanned ware" have received such an exclusive and peculiar trade meaning that they cover only the articles of tin-ware,or what not, that the witnesses here have told us that they dealt in, and do not cover the other articles of metal,'ofwood, etc., which, it appears, are dealt in in trade, and are japanned, and which .are, in the ordinary use of the English language, very plainly covered by the phraseology "japanned ware of all kinds." For that reason I deny the motion' of the defendant, and direct a verdict for the plaintiffs.
UNITED STATES 'V ·. BROOKS.
(D£strict Court, D. Washington, N. D. December 9, 1890.) {JRIMINAL LAW-BILL OF PARTICULARS-DISMISSAL-EMBEZZLEMENT.
An indictment cbarging .an ex-collector of customs with embezzlement being so indefinite that the Lvurt was unable to understand whether it involved but a single transaction or a series of peculatlOns, the court ordered that a bill of particulars be furnished, and continued the Cllese to allow time to it. At a subsequent term, upon the case being called for trial, the district attorney declared his inability to furnish the bill of particulars, and moved to discontinue the cause. Bela, that the statement of the district attorney was equivalent to an admission of a lack of evidence to sustain the charge, and, as the prosecution must faH, the motion was granted, notwithstanding the defendant's protest and demand for a jury trial. (Syllabus by the Court.)
On Indictment for Embezzlement. Patrick H. Winston, U. S. Atty. A. R. Coleman, for dt'fendant. HANFORD, J., (orally.) The defendant in this case was indicted by a grand jury in the district court of the third judicial district of Washington territory, holding terms at Port Townsend, for the crime of grand larceny, by embezzlement of funds belonging to the United States, alleged to have been received by him in his official capacity as collector ,of customs for the district of Puget sound.. The indictment alleges that
750 l\
FEDERAL REPORTER,
vol. 44.
certain gross sum of money came into his hands officially as collector of customsjthat he has not accounted for all of it, but has em bezzled a part of it. The case w.as pending at the time of the change from the territorial to a state government, and in due time this court, as successor of the territorial district court, assumed control of the case, and the defendant was arraigned in this court upon that indictment. On being arraigned, he asked to be furnished a bill of particulars. Upon due consideration, the court was unable to understand, from the facts stated in the indictment, whether the government intended to charge him with having received at one time the amount of money alleged to have come into his hands, and from that single amount appropriated a part, or whethel'it was claimed that at different times during his incumbency in office he had received sums aggregating a gross sum, as mentioned,and had appropriated a part of each of' the different sums, or whether it was claimed that the sum total of all his receipts while in office was the gross sum mentioned, and that, after allowing him all proper credits upon a statement of account, there remained a balance for which he was indebted to the United States, or, in other words, a shortage upon a settlement equal in amount' to the'smu alleged to have been embezzled by him. Hthe latter contention is the theury on which this indictment was framed, it is obvious that a. plea of not guilty would put in issue every cash transaction of the custom-house during the time that Mr. Brooks was in control as collector. It would require a considerable time in the trial. It would require here the presence of a multitude of witnesses, in order to prove all the different items of debit and credit. This being so, for the sake of economy in time, and to save the annoyance and expense of bringing here so large a number of witnesses from almost everywhere, the. court deemed it reasonable on the part of the defendant' to ask for this bill of particulars, and also deemed that the interest of the government required that it should be furnished before the tJialofthe case, and therefore granted the motion and continued the Jor the purpose of affording the government an opportunity to furnish this bill <?f particulars. The United States attorney now states to the court, on the case being called for trial, that he is not able to furnish this ·bill of particulars, and therelore asks permission of the ,court to dismiss the prosecution. I certainly think that, if the government is unable to furnish the bill of particulars, it is unable to go on with the prosecution. If it cannot state the items of the account, it certainly is not in a position to prove these items; and, as the court will not permit the defendant to be convicted or punished until his guilt is established by some proot, it is impossible to proceed with this prosecution further. The defendant objects to Ii dismissal of the case, and claims that ne is 'entitled to have a verdict of' not guilty from a jury to vindicate him frorothe charge that has been made,andwhichappears to be unsupported.. I will grant the United Statesattomey's motion, undin doing so will answer the obJection of the defendant' in: this way: 1 c.onsider that the mere formal matter' of a verdict will :aud ,nothing to his vindication. If the jury
,UNITED STATES V.
751
were called here, I would, be obliged to direct them to render a verdict for the defendant for want of evidence against him; and such a verdict would not be at all different from the ruling which I make in allowing the case to be dismissed for want of evidence to support it.
UNITED STATF8 tl. HAnNED. (Dl.Btrict Oourt, D. Washington, N. D. December 9,1890.) I
Mr. Winston. ,I move to dismiss-discontinue-this ,bill of indictment. The amount charged in it to have been embezzled by the defendant Harned constitutes 8. part of the larger amount alleged to have been embezzled bytbe defendant Brooks in the case just disposed of. I bave no testimony to prOo' ceed uponio one case more than another. The government is without testimony to sustain the indictment, being unable to get the items of account from the department; therefore, I ask the court for permission to discontinue the indictment. Mt·. Ooleman. The statement we made in the other case, your honor, would be applicable to this one, and on the same grounds' we desire a verdict in this case. We have a statement certilied from the commissioner of customs, showing that the government was at that time indebted to Mr. Brooks, who was Mr. Harned's (Jrincipal, instead of Mr. Brooks being a defaulter; that it ,is impossible that Mr. Harned could have been an embezzler, his principal having been largely a creditor of the government at that time. We think, as we stated before, under these circumstances, we are entitled to a verdict ofa jury, and we ask for it. The Oourt. I will grant the United States attorney's motion, and the reDlarks make in the case of U. 8. ag'<linst Brook8, ante, 749, are in a large degree applicable to this case; tbis being but another CQunt, really, upon the same indictment against the .custom-horise officials. The same order will be made. The defendant will be discharged, and bail exonerated.
UNITED STATF8 11. WILSON, (Dl.Btrict Oourt, D. Ootorado. January 15,1891.) UTTBRING COUNTBRFBIT MONBy-WHAT CONSTITUTBS-CONFBDBRATB MONBY.
The putting off a note of the late Confederate States of America as lawful money upon an ignorant man, in the night-time, is not the offense contemplated biRev. St. U. S. 5 5415, punishing the passing, uttering, or ,PUbli.Shing of any note 1l1imi· tation of the cirCUlating notes "issued by the bankmg associations acting under the laws olthe United States," and it iBnot indiOtable thereunder. .
On moti6hto Quash Indictment. J. D. Flrmiing, U. S. Atty. for the prisoner.