Opinion of the Court.

signed by all three of its members, it is said that if the importation was simply one of gunstocks, without the gun-barrels required to make a complete fire-arm, and the case rested there, the articles could not be regarded as completed guns, so as to be dutiable under paragraph 170; that the testimony of Daly disclosed the facts that the firm of Schoverling, Daly & Gales had imported the gunstocks in question, and had made an agreement with another firm by which the latter were to order the barrels, with the mutual expectation that the stocks and barrels, after arriving at New York, were to be put together so as to make complete guns; that Schoverling was a member of both firms thus colluding together; that such a mode of evading the payment of duties could not be tolerated; and that the decision of the collector was affirmed.

On the 6th of January, 1891, the importers, under § 15 of the act of June 10, 1890, applied to the Circuit Court of the United States for the Southern District of New York, for a review of the questions of law and fact involved in such decision of the board of general appraisers, by filing in the office of the clerk of said court a statement of the errors of law and fact complained of, which were that the duty had been assessed on the articles at $1.50 each and 35 per cent ad valorem, while it should have been assessed under paragraph 215 at 45 per cent ad valorem, only. On the filing of the application, the Circuit Court made an order that the board of general appraisers return to the court the record and the evidence, with a certified statement of the facts involved and their decision thereon.

any other firm that they were to order the barrels of these guns? A. Yes; we have. Q. With the expectation on your part that they were to be put together here? A. Yes, sir. Q. Have those other importations been received by the other firms? A. A good many of them, I guess, are in bond. Q. What firms did you have an understanding of this nature with? A. With A. Schoverling. Q. Is he a partner in your house? A. Yes, sir; he is a partner in the firm of Schoverling, Daly & Gales, and also runs a separate business. Mr. TICHENOR: Q. Do you think the trade generally adopted this plan? A. I think they all have received goods in the same way. We have imported those stocks with the intention of putting them with the other parts imported by these other parties.

Opinion of the Court.

On the 22d of January, 1891, the board of general appraisers filed in the court their return, embodying the protest of November 15, 1890, the assistant appraiser's report of November 28, 1890, the collector's communication of December 16, 1890, the testimony of Daly, and the opinion and decision of the board. The case was argued before the Circuit Court, held by Judge Lacombe, which entered an order, on March 20, 1891, reversing and setting aside the decision of the collector and that of the board of general appraisers, and adjudging that the merchandise should have been classified and assessed with duty at the rate of 45 per cent ad valorem, under paragraph 215 of the act, as "manufactures, articles, or wares, not specially enumerated or provided for in this act, composed

in part of iron or steel." The opinion of the Circuit Court is reported in 45 Fed. Rep. 349. It stated that there was no evidence that the articles were ever assembled or brought together with the gun-barrels on the other side; that there was no finding to that effect by the appraisers; that if there were such a finding of fact, the court would be constrained to reverse it, because there was no evidence in the record to support it; that, for all that appeared, the gunstocks might have been bought from one manufacturer and the gun-barrels from another; that the tariff act laid a duty upon "sporting, breech-loading shotguns," and laid a separate and different duty upon the parts of which such shotguns were composed, as manufactures in whole or in part of metal; that it could be fairly assumed that Congress, by that terminology, meant to allow importers who chose to do so, to bring in fragments of a combination article by different shipments, and then to employ domestic labor in putting them together; that it might have been intended to induce importers to employ to that extent the labor of this country, instead of having the article. combined abroad; that, under the language of the statute, there was nothing in the shipment in question except gun stocks mounted, articles which were properly described in the act only by the phrase "manufactures composed wholly or in part of metal;" and that, therefore, they should pay that duty and no other.

Opinion of the Court.

On March 20, 1891, the Attorney General of the United States, under § 15, of the act of June 10, 1890, applied to the Circuit Court for the allowance of an appeal to this court from the decision and judgment of the Circuit Court. On the same day, the application was granted, the appeal was allowed, and it has here been heard.

We are of opinion that the judgment of the Circuit Court must be affirmed. The contention on the part of the United States is that the transaction, as conducted, was a fraud upon the statute. But the question was solely as to the gunstocks. Sampson v. Peaslee, 20 How. 571. There is not in the statute, in paragraph 170, or elsewhere, any imposition of duty on parts of breech-loading shotguns, except the provision in paragraph 215. There is no duty otherwise imposed on materials for such guns.

In the act of October 1, 1890, in paragraph 154, a duty is imposed on "axles, or parts thereof;" in paragraph 165, on "penknives or pocketknives of all kinds, or parts thereof;" in paragraph 185, on "wheels, or parts thereof," and "tires, or parts thereof;" and in paragraph 210, on chronometers" and parts thereof."

In the present case, the intent of the importers to put the gunstocks with barrels separately imported, so as to make here completed guns for sale, cannot affect the rate of duty on the gunstocks as a separate importation. Merritt v. Welsh, 104 U. S. 694.

In Robertson v. Gerdan, 132 U. S. 454, the statute had imposed a duty on musical instruments, and had not imposed the same duty on parts of musical instruments; and it was held that pieces of ivory for the keys of pianos or organs, to be used exclusively for such musical instruments, and made on purpose for such instruments, were not dutiable as musical instruments, but were liable to a less duty, as manufactures of ivory.

We do not think the decision in Falk v. Robertson, 137 U. S. 225, applies to the present case. It nowhere appears that these gunstocks had formed part of completed guns in Europe, nor was the question of the importation of the barrels

VOL. CXLVI-6

Syllabus.

for the guns involved. In the present case, the dutiable classification of the gunstocks imported must be ascertained by an examination of them in the condition in which they are imported. Worthington v. Robbins, 139 U. S. 337.

Reference is made by the counsel for the United States to the provision of § 2 of the act of January 29, 1795, (1 Stat. 411,) which reads as follows: "Where any article is, by any law of the United States, made subject to the payment of duties, the parts thereof, when imported separately, shall be subject to the payment of the same rate of duties," as not having been repealed. In 1 Stat. 411, opposite the act is the word "[Obsolete.]" That provision is not embodied in the Revised Statutes, and we think it was limited to the case of duties then imposed by law, and did not apply to duties imposed by subsequent tariff acts. Tariff acts passed subsequently to the act of 1795 have provided that the duties theretofore imposed by law on imported merchandise should cease and determine. If the provision of the act of 1795 had been still in force when the tariff act of 1890 was enacted, it would have been wholly unnecessary in the latter act to impose a duty on parts of articles, as well as on the articles themselves, in cases where it was deemed proper to impose such duty upon parts.

This appeal was prosecuted as against the firm, but this defect may be cured by amendment, and the motion to that effect is granted. Estis v. Trabue, 128 U. S. 225.

Judgment affirmed.

CROSS v. BURKE.

APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF

COLUMBIA.

No. 1105. Argued November 1, 1892. - Decided November 14, 1892.

This court has no jurisdiction over judgments of the Supreme Court of the District of Columbia on habeas corpus.

The statutes on this subject reviewed.

Opinion of the Court.

Wales v. Whitney, 114 U. S. 564, qualified and explained.

This court does not consider itself bound by expressions touching its jurisdiction found in an opinion in a case in which there was no contest on that point.

WILLIAM D. CROSS was found guilty for the second time upon an indictment for murder in the Supreme Court of the District of Columbia holding a criminal term and sentenced to death, the time of his execution being fixed for January 22, 1892. He prosecuted an appeal to the court in general term, which, on January 12, 1892, finding no error in the record, affirmed the judgment rendered at the criminal term, and on January 21, 1892, a writ of error from this court was allowed by the Chief Justice of the Supreme Court of the District, citation was signed and served, and the time for filing the record enlarged. On the same day the execution of the sentence of death was postponed until the 10th of June, 1892, by order entered by the court in general term.

That writ of error was dismissed May 16, 1892, Cross v. United States, 145 U. S. 571. May 28, 1892, Cross filed his petition in the Supreme Court of the District of Columbia for a writ of habeas corpus, which petition was heard in the first instance by that court in general term. The application was denied June 4, 1892, and the petition dismissed, 20 Wash. Law Rep. 389. On June 8, 1892, the court in general term allowed an appeal to this court.

Mr. C. M. Smith and Mr. Joseph Shillington for appellant. Mr. Solicitor General for appellee.

MR. CHIEF JUSTICE FULLER delivered the opinion of the

court.

It was not denied in the Supreme Court of the District that the time and place of execution are not parts of a sentence of death unless made so by statute. Holden v. Minnesota, 137 U. S. 483, 495; Schwab v. Berggren, 143 U. S. 442, 451. But it was insisted that in the District of Columbia the time has been made a part of the sentence by section 845 of