159 U. S. 510-523

Notes on U. S. Reports.

778

Followed in Lobsitz v. United States, 75 Fed. 834, holding camel's hair noils not waste.

Customs.- Waste produced by process Congress does not recognize must pay double duty as wool whose character is changed, p. 507.

Customs.- Wools scoured are dutiable as such under act of 1SS3, although not commercially known as scoured wool, p. 510.

159 U. S. 510-523, 40 L. 237, THIEDE v. UTAH.

Indictment.- Preliminary examination is not indispensable to finding of indictment or trial thereon, p. 513.

Criminal law.- Utah statute does not forbid trial before filing transcript of testimony on preliminary examination, p. 514.

Courts. Pleading and procedure of territorial courts is left to legislature and courts themselves, p. 514.

Criminal law.- Section 1033, R. S., regarding notice of witnesses, applies only to Federal, not territorial courts, p. 515.

Approved in United States v. McMillan, 165 U. S. 510, 41 L. 807, 17 S. Ct. 398, holding territorial courts not United States courts. Juror is not disqualified in Utah because of opinions formed from newspapers, if not prejudiced thereby, p. 516.

Juror's prejudice against defendant's occupation will not disqualify him if not extending to defendant, p. 516.

Homicide. Great latitude is allowed in reception of circumstantial evidence, p. 518.

Followed in Clune v. United States, 159 U. S. 593, 40 L. 270, 16 S. Ct. 126, and State v. Geddes, 22 Mont. 90, 55 Pac. 927, holding civil complaint filed by deceased against defendant admissible.

Homicide. Where medical testimony shows wound from powerful blow, testimony as to defendant's strength is material, p. 518. Trial court determines order of testimony, p. 519.

Trial.- Party failing to recall witness with court's consent can. not complain of ruling as to proper cross-examination, p. 519.

Witness' credibility cannot be impeached by asking her if she had trouble with her husband, p. 519.

Criminal law.- Defendant consenting to juror's acting as interpreter cannot claim error therefor, p. 519.

Trial.- General exception to instructions is insufficient if one of series is correct, p. 520.

Followed in Shelp v. United States, 81 Fed. 700, 48 U. S. App. 386. Trial.- Party cannot object to charge given substantially as requested, p. 520.

Trial. Exceptions must be sufficiently specific to call attention to precise matter complained of, p. 521.

779

Notes on U. S. Reports.

159 U. S. 523-539

Ind. Ter.

53 S. W. 475,

Followed in Bias v. United States, refusing to consider errors not specifically pointed out. Criminal law. Deliberation and premeditation need not exist for any fixed time before committing crime, p. 522.

Trial. Exception to charge must be taken before verdict, p. 523. Followed in Johnson v. Garber, 73 Fed. 526, 43 U. S. App. 107; Merchants' Exch. Bank v. McGraw, 76 Fed. 936, 48 U. S. App. 66, holding all exceptions must be taken before jury retires.

159 U. S. 523–526, 40 L. 244, WHEELER v. UNITED STATES. Homicide.- Indictment alleging that defendant and deceased are not Indians or citizens of Indian Territory is sufficient, p. 524. Appeal.- Ruling on motion for new trial is not reviewable, p. 524. Followed in Clune v. United States, 159 U. S. 591, 40 L. 270, 16 S. Ct. 125, and Bucklin v. United States, 159 U. S. 685, 40 L. 306, 16 S. Ct. 184.

Witnesses.- Infant's age does not determine competency; it de pends on intelligence and appreciation of oath, p. 524.

Witnesses.- Infant's competency as witness rests in discretion of trial judge, p. 525.

Followed in Commonwealth v. Robinson, 165 Mass. 427, 43 N. E. 122, as to child five years old.

159 U. S. 526-539, 40 L. 247, WINONA, ETC., LAND CO. v. MINNESOTA.

Taxation.-State law providing for taxation of lands that had improperly escaped taxation, is constitutional, p. 529.

Taxation. Statutes exempting, must be strictly construed, p. 529. Followed in Ford v. Delta, etc., Land Co., 164 U. S. 666, 41 L. 592, 17 S. Ct. 232.

Taxation.- Public lands are taxable by State after equitable title has passed from United States, p. 530.

Statute." Conveyed" in statute may mean transfer of legal or equitable title according to context, p. 531.

Taxation.— Minnesota act, exempting railroad lands, ceased to operate upon transfer of equitable title, p. 531.

Taxation.- Law taxing according to value does not take without due process if owner has opportunity to question, p. 537.

Tax statute is not vitiated by provision for notice by publication, of proceeding to collect, p. 537.

Followed in Ball v. Ridge Copper Co., 118 Mich. 12, 76 N. W. 132, upholding substituted service under Michigan statute; State v. Weyerhauser, 68 Minn. 363, 71 N. W. 267. Approved in Yazoo, etc., R. R. v. Adams, 77 Miss. 778, 779, 25 So. 357, 358, holding valua tion by State railroad commissioner cannot be attacked collaterally.

159 U. S. 540-555 Notes on U. S. Reports.

780

Taxation.- Legislature may provide different mode for different property if rule of assessment is same, p. 538.

Taxation.- Act providing that assessment cannot be questioned until proceedings for collection is valid, p. 538.

Taxation.- Statute may provide for collecting back taxes on realty without similar provision for personalty, p. 539.

Approved in State v. Weyerhauser, 68 Minn. 361, 71 N. W. 266, holding statute for reassessing omitted or undervalued property valid.

159 U. S. 540-541, 40 L. 252, WINONA, ETC., LAND CO. v. MINNESOTA.

Courts.- Federal question cannot be raised for first time in Supreme Court, p. 540.

Not cited.

159 U. S. 541-548, 40 L. 253, WEEKS v. BRIDGMAN. Public lands.- Pre-emption before location of road excepts land, although application rejected and pending on appeal, p. 546.

Approved in United States v. Coos Bay Wagon-Road Co., 89 Fed. 153, homesteader's right held prior to wagon-road company. Public lands.- Title finally procured relates back to date of application for homestead wrongfully refused, p. 546.

Public lands not subject to disposition cannot be included in list of lands certified to railroad, p. 547.

Approved in Jamestown, etc., R. R. v. Jones, 7 N. Dak. 628, 76 N. W. 229, reaffirming rule.

159 U. S. 548-555, 40 L. 255, UNITED STATES v. AMERICAN BELL TEL. CO.

Statute must be restricted within narrower limits than words Import where literal meaning would exceed intent, p. 549.

Distinguished in United States v. American Lumber Co., 85 Fed. 832, 56 U. S. App. 665, holding no room for construction of statute. Removal.- Right of removal, under acts of 1887, 1888, must be based on Federal question shown by plaintiff's claim, p. 553.

Followed in Argonaut Min. Co. v. Kennedy Min., etc., Co., 84 Fed. 2, holding Federal court without jurisdiction in action for damages for trespass on mining claim.

United States is not bound by statute of limitations, unless Congress has clearly shown such intent, p. 554.

Supreme Court may review judgment of Circuit Court of Appeals in suit by government to cancel patent, p. 554.

Approved in Durham v. Seymour, 161 U. S. 238, 40 L. 683, 16 S. Ct. 454, holding Supreme Court without appellate jurisdiction in suit to require issuance of patent.

781

Notes on U. S. Reports.

159 U. S. 555-583

Distinguished in United States v. Bell Tel. Co., 167 U. S. 266, 268, 269, 42 L. 163, 164, 17 S. Ct. 820, 821, holding Supreme Court without jurisdiction to review errors of judgment of patent office; Anglo-Californian Bank v. United States, 175 U. S. 39, 20 S. Ct. 20, holding Supreme Court without jurisdiction to review decision of board of appraisers.

159 U. S. 555-562, 40 L. 258, MAGONE v. WIEDERER.

Customs.- Where use is criterion, chief, not exclusive, use determines classification, p. 560.

Customs.-"Chief use" is common, practical and general use, and not exceptional use, p. 562.

Followed in United States v. Simon, 84 Fed. 154, holding rubber tubing for flower-stems dutiable as manufactures of rubber; Meyer v. Cadwalader, 89 Fed. 969, 970, 60 U. S. App. 551, 553, and United States v. United States Exp. Co., 94 Fed. 643, holding pearl-scales not parts of knives.

159 U. S. 562-569, 40 L. 260, DEJONGE v. MAGONE.

Customs.- Paper finished to imitate leather or velvet is dutiable as "paper hangings " under act of 1883, p. 569.

Followed in United States v. Naday, 92 Fed. 140.

Customs. Well-known trade meaning of word used in tariff act controls, p. 569.

Followed in Fink v. United States, 170 U. S. 587, 42 L. 1154, 18 S. Ct. 771, holding muriate of cocaine dutiable as a medicinal preparation.

159 U. S. 569-583, 40 L. 263, COWLEY v. NORTHERN PAC. R. R. Federal courts will follow State practice in entertaining as original action, suit to annul State judgment, p. 579.

Followed in Massachusetts Ben. L. Assn. v. Lohmiller, 74 Fed. 27, 29, 46 U. S. App. 103, refusing to enjoin execution of default entered in State court; Darragh v. H. Wetter Mfg. Co., 78 Fed. 12, 49 U. S. App. 10, arguendo.

Federal court cannot entertain proceeding to impeach State judgment for matter of form, p. 580.

Followed in Davenport v. Moore, 74 Fed. 953, 954, sustaining exceptions to jurisdiction of Federal court.

Federal court's jurisdiction in suit to annul State judgment, based on averments of fraud, cannot be lost by proof that there was no fraud, p. 581.

Followed in Zimmerman v. Carpenter, 84 Fed. 750.

Federal court may assume jurisdiction on bona fide claim of suffi cient amount, though plaintiff fails to prove, p. 582.

159 U. S. 584-595

Notes on U. S. Reports.

782

Removed special proceeding remains such, as to plaintiff's rights, although triable as equity suit in Federal court, p. 582.

Followed in Gillis v. Downey, 85 Fed. 488, 56 U. S. App. 576, holding Federal court had jurisdiction of action to quiet title brought under State statute.

Federal courts sitting in equity or admiralty may enforce new rights created by State laws, p. 582.

Approved in Alderson v. Dole, 74 Fed. 30, 33 U. S. App. 460, holding State statute concerning stockholders' liability cannot give Federal court jurisdiction; Darragh v. H. Wetter Mfg. Co., 78 Fed. 13, 14, 49 U. S. App. 12, 14, holding Federal Circuit Court has power under Arkansas statute to attach and sell property of insolvent; Smyth v. Ames, 169 U. S. 517, 42 L. 838, 18 S. Ct. 422, arguendo. Removal.- One removing cause cannot claim that Federal court lacks jurisdiction unless State court had not, p. 583.

Followed in Long v. Long, 73 Fed. 372, and Purdy v. Müller, 81 Fed. 515.

159 U. S. 584-590, 40 L. 267, HILTON v. JONES.

Judgment that plaintiff holds legal title is res judicata as to original owner, who was party defendant, p. 588.

Judgment.- Unsworn statement in bill that attorney who appeared in former suit was unauthorized, is unavailing, p. 589. Not cited.

159 U. S. 590-595, 40 L. 269, CLUNE v. UNITED STATES. Appeal. Ruling on motion for new trial is not reviewable, p. 591. Post-office.- Telegrams brought home to defendants are admissible to show conspiracy to obstruct mails, p. 593.

Criminal law.— Admission of circumstantial evidence is largely discretionary, p. 593.

Approved in Wiborg v. United States, 163 U. S. 658, 41 L. 298, 16 S. Ct. 1137, Spurr v. United States, 87 Fed. 710, 59 U. S. App. 687, and Farley v. Peebles, 50 Neb. 732, 70 N. W. 234, all holding such evidence admissible to prove conspiracy.

Conspiracy. Acts of co-conspirators are admissible in prosecution, although they are not parties to record, p. 593.

Followed in Borrego v. Territory, 8 N. Mex. 478, 46 Pac. 357. Appeal. All testimony must be presented to sustain claim that verdict is against evidence, p. 593.

Appeal. Instructions are not part of record unless incorporated in bill of exceptions properly authenticated, p. 593.

Followed in Blake v. United States, 71 Fed. 287, 33 U. S. App. 376, Lincoln Sav. Bank, etc., Co. v. Allen, 82 Fed. 150, 49 U. S.