able merchandise, the passenger is bound to declare it in all respects the same as he is bound to declare merchandise contained in his trunk."

Certainly, neither the size of a package nor the material of which the covering is made, whether wood, leather, or paper, is material. There is no sound distinction between articles carried in a dress suit case and articles carried in the small wrist bag which in feminine attire has taken the place of the undiscoverable pocket of a few decades ago. Nor is there any distinction between articles in the pocket of an overcoat worn on the owner's back and articles in the same pocket when the overcoat is rolled up with steamer rugs, a cardigan jacket, and an umbrella, and carried in a shawl strap. Such fine distinctions seem wholly without merit, especially in view of the circumstance that the section does not provide for articles found "in packages of baggage," but "in the baggage of any person arriving," etc. It is unnecessary to discuss the question further in view of former deliverances of this court. In U. S. v. One Pearl Necklace (Dodge) 111 Fed. 165, 49 C. C. A. 287, 56 L. R. A. 130, we held that section 2802 was applicable to jewelry wrapped up in a handkerchief and carried in a lady's small handbag, and in so doing discussed at great length the various sections relating to the introduction into this country of articles brought from abroad. Referring to this decision in the subsequent case of One Pearl Chain v. U. S. (Dullas) 123 Fed. 374, 59 C. C. A. 499, we said:

"Upon the trial and argument of the case at bar it seems to have been assumed that this court held that a passenger's wearing apparel, articles of adornment, and personal effects ceased to be baggage the moment they were taken out of the trunk and placed on the person of the passenger, and were to be treated, for purposes of entry, etc., as imported merchandise. It is true that the opinion, in contradistinction to 'merchandise,' spoke of dutiable articles brought by passengers 'in their packages of baggage'; but Mrs. Dodge brought her necklace in one of her packages of baggage, in a hand satchel, which, however, she failed to declare. There being no question of wearing the article, and nearly all dutiable articles coming in packages of some sort. the above-quoted phrase was used. To hold that an incoming passenger, who, arriving on a cold day, opens one of his packages of baggage and takes out a silk muffler to wrap around his neck, would be subject to have the same forfeited, although he may declare it to the customs officers, because he walked ashore with it without presenting invoice, bill of lading, and consular certificate, and obtaining a special permit, seems to us a most unreasonable proposition. The Dodge Case held only that the 'merchandise' sections did not apply to passenger's baggage. It did not undertake to define 'baggage.' No such question arose in the case. Nobody disputed that the necklace in that case was passenger's baggage, to be declared and entered as such."

And on the last appeal in the Dullas Case, 139 Fed. 516, 71 C. C. A. 500, reference was again made to the same subject, as follows:

"On the former appeal we held that a passenger's wearing apparel, articles of adornment, and personal effects did not cease to be baggage the moment they were taken out of a trunk and placed on the person. Whether they are hid from view by being stowed in the middle of a trunk, or by being placed under some part of the passenger's clothing, is immaterial."

Claimant relies upon two decisions only. U. S. v. Pearl Chain (D. C.) 139 Fed. 517, 71 C. C. A. 500, is a minority opinion. In U. S. v. Tapestry (D. C.) 114 Fed. 496, the facts are not fully reported; but the articles had apparently been smuggled through the custom

house, and were not found until after the claimant had ceased to be "a person arriving," and what he brought with him had ceased to be baggage.

The judgment is affirmed.

NOTE. TOWNSEND, Circuit Judge, heard argument, participated in consultation, and voted to affirm, but did not see the opinion.

ENNIS v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. May 30, 1907.)

No. 259.

POST OFFICE-EMBEZZLEMENT OF MAIL MATTER-DECOY LETTERS.

A post office superintendent discovered a misboxed letter, which had been placed in a "dead" pigeonhole at the top of the case, where defendant, a clerk, was engaged in sorting mail. The letter was removed by the superintendent and handed to a post office inspector, who took it to the addressee, and, without delivering it, obtained permission to open it. He then returned to the post office, unsealed the letter, and took from it an express order for $2, a statement of account, and a letter from the sender of the money order. After making a copy of the letter, he placed it in the envelope with two marked $1 bills, and forwarded the money order and the statement to the addressee. The envelope containing the letter and bills having been duly sealed was returned to the dead pigeonhole, and a short time thereafter was embezzled by defendant. Held, that the letter at the time it was returned by the inspector to the dead pigeonhole had not ceased to be mail matter, and that defendant was therefore properly convicted of embezzling a letter containing inclosures, in violation of Rev. St. § 5467 [U. S. Comp. St. 1901, p. 3691].

[Ed. Note. For cases in point, see Cent. Dig. vol. 40, Post Office, § 61.] In Error to the Circuit Court of the United States for the Eastern District of New York.

On writ of error to the Circuit Court for the Eastern District of New York to review a judgment of conviction entered upon the verdict of a jury; the indictment charging the defendant (plaintiff in error) with having secreted, embezzled and destroyed a letter containing two silver certificates, each of the value of one dollar, in violation of the provisions of Rev. St. U. S. § 5467 [U. S. Comp. St. 1901, p. 3691].

W. L. Carey (Robert H. Roy, of counsel), for plaintiff in error. William J. Youngs (S. B. Strong, Asst. U. S. Atty., of counsel), for the United States.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

COXE, Circuit Judge. At the time in question the defendant was a clerk in the Brooklyn Post Office, at Station D. On the 27th of March, 1906, the attention of the superintendent was called to a misboxed letter, addressed to Cowperthwait & Co., Flatbush Avenue and Fulton Street. Brooklyn, which had been placed in a "dead" pigeon hole at the top of the case where defendant worked. The letter had been postmarked

and the stamp canceled. The superintendent removed the letter from the case and handed it to Inspector Leland in the main post office building at Brooklyn. Leland took the letter to Cowperthwait & Co. and obtained permission of the treasurer to open it; he then returned to the post office, unsealed the letter, took from it an express money order for $2, a statement of account and a letter from the sender of the money order. After making a copy of the letter he replaced it in the envelope with two marked one dollar bills. The money order and the statement of account he forwarded to Cowperthwait & Co.

In the afternoon the envelope, duly sealed, containing the letter and the two bills, was placed by the superintendent in the dead pigeonhole where he had found it. A short time afterward the defendant resumed work at the case, and, as the letter was neither in the pigeonhole nor in the outgoing mail, he was questioned regarding it. Although at first he denied any knowledge of the letter he produced from his pocket, in response to a demand from the inspector, the two marked bills and subsequently admitted having taken them.

Briefly stated these are the facts; there is no dispute regarding them. No testimony was offered by the defendant.

The sole question presented is one of law which may be epitomized as follows: Was the letter in question mail matter intended to be conveyed by mail?

The argument for the defendant proceeds, we think, upon a misconception of the facts. It is insisted that the inspector delivered the letter to Cowperthwait & Co. and that thereupon it ceased to be mail matter. It is also argued that the envelope which the superintendent. placed in the dead pigeonhole was not in a fit condition for mailing, for the reason that it had on it a canceled stamp and was not deposited in a place designed for matter intended to be carried by mail.

In short, the case is treated as if the first appearance of the letter was on the afternoon of the 27th when it was placed in the dead pigeonhole by the superintendent, Carroll. Here, we think, is the initial mistake which has tended to obscure the issue both in this court and in the court below. In our opinon the letter never was delivered to Cowperthwait & Co. and remained at all times in the custody and under the control of the post office officials. The inspector exhibited the letter to the treasurer of Cowperthwait & Co., but he did not deliver it to them. He obtained permission to open it and became their agent for that purpose; it was never out of his possession. It was still sealed when he returned to the post office and he opened it there. The letter did not lose its mailable character or the protection of the laws of the United States because a part of the contents of the envelope had been removed. The only individuals who could be injured by the action of the inspector in this regard were Cowperthwait & Co. and they had given their full consent. Even if we assume that the action of the officials was illegal, the letter was still lawfully in the post office; it did not become a defenceless outlaw to be plundered with impunity by those whose duty it was to guard it. In other words, the illegal act of the inspector and superintendent, admitting it to exist, is no defense to the defendant. But, as before stated, we think these officers acted within the scope of their authority and that the letter from

the moment it entered Station D until it was embezzled by the defendant was mail matter under the protection of the law. It was intended to be conveyed by mail and would have been delivered in due course had not the defendant first secreted it and then embezzled and destroyed everything but the money it contained.

If the contention of the defendant be correct, a letter delivered at the wrong address and remailed with the canceled stamp thereon could be stolen by a person employed in the postal service without fear of punishment under section 5467, Rev. St. [U. S. Comp. St. 1901, p. 3691]. So, too, if the postmaster at the request of the sender should, after mailing, open the envelope and take therefrom a paper placed therein by mistake, the letter, after being replaced in the mail pouch, would lose the protection of the statute. Furthermore, the above contention would make the use of test letters impossible when prepared with a canceled stamp in an office other than the suspected one and subsequently placed by the inspector within reach of the distrusted official.

We cannot believe that Congress intended the section in question to have so restricted an application. On the contrary, we think it applies to all matter which lawfully comes into the possession of the department regarding which the postal authorities are required by law to exercise some act of dominion or control.

The case was submitted to the jury upon a theory more favorable to the defendant than the facts warrant. The court, upon the supposition that the replacing of the letter in the pigeonhole was the first and only mailing to be considered, left it for the jury to say whether it was "intended to be conveyed and was in the course of transmission to Cowperthwait & Co.," stating that the jury might find this issue against the United States notwithstanding the presumption allowed by section 5168.

We are convinced that no reversible error was committed at the trial. Upon the interpretation most favorable to the defendant the testimony is much stronger for the Government than in many cases in which the Supreme Court has sustained convictions.

In Montgomery v. United States, 162 U. S. 410, 16 Sup. Ct. 797, 40 L. Ed. 1020, the court said:

"The letters put in evidence correspond, in address and contents, to the letters described in the indictment, and it made no difference, with respect to the duty of the carrier, whether the letters were genuine or decoys with a fictitious address."

See, also, Scott v. U. S., 172 U. S. 343, 19 Sup. Ct. 209, 43 L. Ed. 471; Goode v. U. S., 159 U. S. 663, 16 Sup. Ct. 136, 40 L. Ed. 297. The judgment is affirmed.

MENZE V. SCHMIDT.

(Circuit Court, D. New Jersey. May 27, 1907.)

PATENTS-INFRINGEMENTS-CITERNS.

The Menze patents, Nos. 603,699 and 642,472, for improvements in citherns (or zithers), must be strictly and narrowly construed in view of the prior art, and are both limited to an instrument having an offset or recess in its front in which a block provided with keys for sounding the strings is slidingly mounted; and neither are infringed by a construction in which such features are lacking.

In Equity. On final hearing.

Adolph L. Pincoffs (James L. Hopkins, of counsel), for complainant. Samuel G. Metcalf, for defendant.

CROSS, District Judge. This suit relates to letters patent Nos. 603,699 and 6-12,472, the former of which was issued to the complainant May 10, 1898, and the latter January 30, 1900. Both of them relate to new and useful improvements in citherns. The bill of complaint is in the usual form, alleges infringement, and prays for an injunction and other relief against the defendant. The defendant's expert has described a cithern, and as his description has been accepted by the counsel of the complainant, and adopted in his brief, it may be considered correct. It is as follows:

"The two patents in suit relate to alleged improvements upon so-called musical instruments, known as the cithern, the said two patents being so entitled. This cithern consists of a shallow box having a top, bottom and sides, over which metal strings are tightly stretched in the direction of the length of the wooden case. The case itself is provided at one end-its front -with pins around which, or to which, these strings are attached, directly In front of which is a metal bar, or bridge, over which the strings pass, and by which they are prevented from resting upon the upper portion of the case, known as the sounding board. At the other end there is a similar bridge, and a series of pegs, known as tuning pegs, one for each string, the function of such pegs being to permit of subjecting the strings to a greater or less strain. for the purpose of tuning the strings to different notes. So much of the instrument as described is very old, and in view of the fact that the strings are located in the same manner, and that the shape of the case is also similar to what is known as the German 'Zither.' the cithern has, for trade purposes, been known as the 'zither' in this country, although the method of stringing, tuning and playing is entirely different from the German

zither."

The first patent has four claims, the first three of which are involved, and are subjoined:

"1. The combination with a cithern having an offset formed in the top side of its front end, of a block slidingly mounted in said off set, which block is provided with keys for sounding the strings of the cithern, substantially as spec

ified.

“2. The combination with a cithern having an offset formed in the top side of its front end, of a block mounted to slide in said off set, spring-actuated keys operating in said block, spring-arms extending upward and rearward from the rear ends of said keys, and hammers carried by said spring-arms for striking the strings of the eithern, substantially as specified.

3. A eithern constructed with an offset in the top side of its front end. a block arranged to slide in said offset, parallel ears formed integral with and extending upward from said block, spring-actuated keys operating in the re