paragraph is made in the certificate of dissatisfaction in the second case. The board of general appraisers decided that the duty of 60 per cent. prescribed in paragraph 373 for "hemstitched and embroidered handkerchiefs" was the proper duty, and that decision was affirmed by the circuit court.

Since the argument of these cases, the question has been decided by the circuit court of appeals for the eighth circuit, in the case of Rice v. U. S., (decided January 27, 1893,) 53 Fed. Rep. 910, and we concur in the opinion of that court that a hemmed or hemstitched handkerchief, which is not also embroidered, is not dutiable under paragraph 373 or 371, but is subject to the duty of 50 per cent. ad valorem prescribed by the 349th paragraph of the

act.

It follows that the judgment in the first case should be reversed and remanded, with instructions that the duty be reliquidated under paragraph 349, and that in the second case the judgment should be affirmed, and it is so ordered.

In re PRIDGEON.

(Circuit Court, S. D. Ohio, E. D. July 7, 1893.)

No. 654.

CRIMINAL LAW-SENTENCE-EXCESSIVE PUNISHMENT-IMPRISONMENT DOES NOT INCLUDE HARD LABOR-HABEAS CORPUS.

The act of February 15, 1888, (25 Stat. 33,) which prohibits horse stealing in the Indian Territory, under penalty of fine or imprisonment, or both, does not warrant a sentence of imprisonment at hard labor, and a person under such a sentence is entitled to his discharge on habeas corpus. Application by Sidney S. Pridgeon for a writ of habeas corpus. Granted.

A. H. Johnson and E. C. Irvine, for applicant.

Henry Hooper, Asst. U. S. Atty., for respondent.

SAGE, District Judge. The applicant was indicted by the grand jury of the district court of the first judicial district within and for Logan county, Okl. T., and for the Indian country attached thereto for judicial purposes, sitting with the powers of a district court of the United States, at the September term, 1890, of said court, to wit, on the day of said term which fell on the 28th of November, 1890, for the larceny of one horse, three fillies, seven mares, and six colts, within that part of the Indian Territory attached to said Logan county for judicial purposes. The territory so attached included a described part of the Cherokee Outlet, and all the lands occupied by the Kansas, Tonkawa, Otoe, and Missouri tribes of Indians, together with part of the land occupied by the Osage Indians, and a portion of the Iowa and Kickapoo and Sac and Fox countries. He was tried, convicted, and sentenced by said court to be imprisoned in the penitentiary at Columbus, Ohio, at hard

labor, for the term of five years, and to pay the costs of prosecution. In pursuance of said sentence he was transported to the Ohio penitentiary, and has ever since been, and is now, a prisoner there. It is conceded that the only statute under which the court could have had jurisdiction is the act of February 15, 1888, (25 Stat. 33,) and volume 1, Supp. Rev. St. U. S. (2d Ed.) p. 578. That, statute provides "that any person hereafter convicted in the United States courts having jurisdiction over the Indian Territory or parts thereof, of stealing any horse, mare, gelding, filly, foal, ass, or mule, when said theft is committed in the Indian Territory, shall be punished by a fine of not more than $1,000, or by imprisonment not more than fifteen years or by both such fine and imprisonment at the discretion of the court.” That the court had jurisdiction under this act is not conceded by counsel for the petitioner. It is unnecessary, however, to enter upon the discussion of that question, because of the concession on behalf of the government,-which is undoubtedly correct, -that, unless the court had jurisdiction under that act, it had no jurisdiction at all. Assuming, therefore, for the purposes of this case, that the court had jurisdiction under that act, the application must be granted, for the reason that the sentence was imprisonment at hard labor for five years, and the act provides for "imprisonment, not more than fifteen years." The general rule as stated by Justice Field in Re Graham, 138 U. S. 462, 11 Sup. Ct. Rep. 363, is "that a judgment rendered by a court in a criminal case must conform strictly to the statute, and that any variation from its provisions, either in the character or the extent of punishment inflicted, renders the judgment absolutely void." Accordingly, it was held in Harman v. U. S., 50 Fed. Rep. 921, that where the penalty provided by a statute was imprisonment at hard labor, and the sentence was imprisonment, hard labor not being made part of the punishment, the sentence was void. See, also, Ex parte Karstendick, 93 U. S. 396; In re Mills, 135 U. S. 263, 10 Sup. Ct. Rep. 762; and In re Johnson, 46 Fed. Rep. 477.

The statement was made upon the hearing that the case of William Skagg, upon which an application, it was announced, is to be made, will present precisely the same state of facts, and this is conceded by the United States attorney. If so, the application will have to be granted in that case, also.

I have purposely avoided the consideration of other questions argued upon the hearing of the application, and confined myself to the discussion of the one which, in my opinion, is decisive.

UNITED STATES v. WILLIAMS.

District Court, E. D. South Carolina. July 7, 1893.)

POST OFFICE- BREAKING AND ENTERING TO COMMIT LARCENY - INDICTMENTBUILDING PARTLY USED FOR OTHER PURPOSES.

An indictment under Rev. St. § 5478, charging that defendant broke into a building used in part as a post office, "with intent to commit there

in larceny," and did then and there steal moneys belonging to the postoffice department of the United States, is sufficient without charging that the intent was to commit larceny in that part of the building used as a post office, and that the breaking and entering was into that part. U. S. v. Campbell, 16 Fed. Rep. 233, distinguished.

At Law. Indictment against Prioleau Williams for breaking into a building used in part as a post office, with intent to commit larceny therein. On demurrer to the indictment. Demurrer sus

tained.

George Von Kolnitz, for the motion.
E. F. Cochran, Asst. U. S. Atty.

SIMONTON, District Judge.

The defendant was indicted under'

section 5478, Rev. St., in these words:

"At a stated term of the district court of the United States for the eastern district of South Carolina, begun and holden at Charleston, within and for the district aforesaid, on the first Monday of July, in the year of our Lord one thousand eight hundred and ninety-three, the jurors of the United States of America within and for the district aforesaid, that is to say, upon their oaths respectfully do present that Prioleau Williams unlawfully and forcibly did break into a building used in part as the post office at Parlers, in the said county of Orangeburg, and in said state, with intent to commit therein larceny, and did then and there steal, take, and carry away moneys belonging to the post-office department of the United States, of the value of two dollars and sixty-nine cents, contrary to the act of congress in such case made and provided, and against the peace and dignity of the United States."

At the call of the case he interposed an objection to the indictment in the nature of a demurrer. His position is this: The indictment charges that the defendant forcibly broke into a building used in part as a post office, with intent to commit larceny therein; that, in order to give this court jurisdiction of this offense, the forcible breaking into must be in that part of the building used as a post office, and not in that part of the building not in such use; that by the terms of this indictment this does not appear, and that the word "therein" may mean any part of the building, only a part whereof is in use as a post office; that this makes the indictment fatally defective.

The indictment is in the words of the section, and, if the language in the section makes out the offense, the indictment must stand. This section is under a subdivision,-"Postal Crimes." The offense defined is "forcibly breaking into or attempting to break into any post office or building used in part as a post office, with intent to commit therein larceny," etc. Clearly, the word "therein," qualifying both members of the sentence, means "in the post office." The last part of the indictment fixes its meaning positively, so that the defendant is not unadvised of the charge against him, and is in no danger of surprise. The defendant quotes in support of his position the reasoning of Judge Deady in U. S. v. Campbell, 16 Fed. Rep. 233. The indictment before Judge Deady charged the defendant with breaking into a building used in part as a post office, with intent to commit larceny "in that building." It did not follow the

language of the statute, but made use of a word of much more wide signification than that used in the statute.

The demurrer is overruled.

UNITED STATES v. WONG DEP KEN.

(District Court, S. D. California. June 30, 1893.)

No. 437.

CHINESE-APPEAL FROM COMMISSIONER'S DECISION.

The right of appeal to a district court, given by Act Sept. 13, 1888, § 13, (25 Stat. 476,) to a Chinese person adjudged by a United States commissioner to be unlawfully in the United States, is not taken away by the "Geary Act" of May 5, 1892, § 3, (27 Stat. 25.)

Appeal from a Commissioner's Decision. On motion to dismiss. Denied.

A. B. Hotchkiss, Francis J. Thomas, and Thomas D. Riordan, for appellant.

George J. Denis, U. S. Atty.

ROSS, District Judge. This is a motion on behalf of the United States to dismiss an appeal taken by the defendant, a Chinese person, from an order made by a court commissioner for the district directing that he be imprisoned at hard labor in the state prison at San Quentin, and thereafter deported to China.

The proceedings before the commissioner were commenced by the filing with him of a verified complaint charging that after the passage of the act of congress entitled "An act to amend an act entitled 'An act to execute certain treaty stipulations relating to Chinese,'" approved May 6, 1882, (22 Stat. 58,) "one Ming Lee Tue did come into the United States from a foreign place, and, having come, has remained within the United States; that the said Ming Lee Tue has been found, and now is, unlawfully within the United States; and that at all the times herein mentioned the said Ming Lee Tue was and is a Chinese laborer."

Upon this complaint a warrant was issued by the commissioner, and the defendant, whose true name was found to be Wong Dep Ken, having been apprehended, an examination of the charge was had before the commissioner, who, from the evidence adduced, found him to be a Chinese person and a laborer by occupation, and who found and adjudged him to be unlawfully within the United States, and therefore ordered:

"First. That said Wong Dep Ken be imprisoned at hard labor for the period of two (2) days at the state's prison of the state of California, at San Quentin, in said state of California;

"Second. That thereafter said Wong Dep Ken be removed from the United States to China; and I order that said deportation of the said Wong Dep Ken be made from the port of San Francisco, within the limits of the northern district of California; and I further order that said Wong Dep Ken be, and he is hereby, committed to the United States marshal for the southern district of California for the purposes aforesaid."

The appeal is from this order, and is taken by virtue of the thirteenth section of the act of congress entitled "An act to prohibit the coming of Chinese laborers to the United States," approved September 13, 1888, (25 Stat. 476.)

In U. S. v. Gee Lee, 50 Fed. Rep. 271, 1 C. C. A. 516, it was decided by the circuit court of appeals for this circuit that such portions of the aforesaid act of September 13, 1888, as depended upon the ratification of a treaty then pending between the United States and the emperor of China, but which failed of ratification, never went into force, but that section 13 of the act was not so dependent, and did become a law. The same conclusion was reached in cases reported in 47 Fed. Rep. 433, (In re Mah Wong Gee,) and 878, (U. S. v. Chong Sam,) and in 55 Fed. Rep. 59, (U. S. v. Long Hop.) The portion of that section which is applicable to the present case reads as follows? "That any Chinese person, or person of Chinese descent, found unlawfully in the United States or its territories, may be arrested upon a warrant issued upon a complaint, under oath, filed by any party on behalf of the United States, by any justice, judge, or commissioner of any United States court, returnable before any justice, judge, or commissioner of a United States court or before any United States court, and when convicted, upon a hearing, and found and adjudged to be one not lawfully entitled to be or remain in the United States, such person shall be removed from the United States to the country whence he came. But any such Chinese person convicted before a commissioner of a United States court may, within ten days from such conviction, appeal to the judge of the district court for the district."

The circuit court of appeals, in U. S. v. Gee Lee, supra, further held that the phrase "district judge of the district," in section 13 of the act of September 13, 1888, is equivalent to the words "the district court for the district." It is not denied by the counsel for the government that section 13 of the act of September 13, 1888, became a law, or that the defendant's right of appeal exists, if it has not been taken away by subsequent inconsistent legislation. It is contended, however, that that result has been wrought by the third section of the act of congress entitled "An act to prohibit the coming of Chinese persons into the United States," approved May 5, 1892, known as the "Geary Act," Stat. 1891-92, p. 25. So far from this latter act repealing any of the provisions of any of the former acts on the subject, it starts out by enacting:

"That all laws now in force prohibiting and regulating the coming into this country of Chinese persons and persons of Chinese descent are hereby continued in force for a period of ten years from the passage of this act."

Its second section declares the country to which such person or persons, in the event of deportation, shall be sent.

The third section, which it is contended by the government's attorney repeals that portion of section 13 of the act of September 13, 1888, giving the right of appeal from the order of the commissioner, merely prescribes a rule of evidence. Its language is:

"That any Chinese person or person of Chinese descent arrested under the provisions of this act or the acts hereby extended shall be adjudged to be unlawfully within the United States, unless such person shall establish, by affirmative proof, to the satisfaction of such justice, judge, or commissioner his lawful right to remain in the United States."