fense, the vital question was as to the effect to be given to the fact that he armed himself with a deadly weapon after the angry meeting with Carbo in the vicinity of the post office. If he armed himself for the purpose of pursuing his adversary, or with the intention of putting himself in the way of his adversary, so as to obtain an opportunity to kill him, then he was guilty of murder. But if, in view of what had occurred near the post office, the defendant had reasonable grounds to believe, and in fact believed, that the deceased intended to take his life, or to inflict upon him great bodily harm, and, so believing, armed himself solely for necessary self-defense in the event of his being pursued and attacked, and if the circumstances on the occasion of the mecting at or near the saloon were such as by themselves made a case of manslaughter, then the defendant arming himself, after the difficulty near the post office, did not, in itself, have the effect to convert his crime into that of murder.

"Stated in another form: Although the defendant may not have been justified on the occasion and in the particular circumstances of the difficulty at the billiard saloon in believing that the taking of his adversary's life was then and there necessary to save his own life, or to protect himself from serious bodily harm, nevertheless the jury were not authorized to find him guilty of murder because of his having deliberately armed himself, provided he rightfully armed himself for purposes simply of self-defense, and if, independently of the fact of arming himself, the case, tested by what occurred on the occasion of the killing, was one of manslaughter only. The court, in effect, said, or the jury may not unreasonably have understood the judge as declaring, that preparation by arming, although for self-defense only, could not be followed, in any case, by manslaughter, if the killing, after such arming, was not in fact in necessary self-defense. Such we understand to be the meaning of the charge. In our opinion, the court erred in so charging the jury. If the accused was justified in the eye of the law in arming himself for self-defense. and if, without seeking, but on meeting, his adversary, on a subsequent occasion, he killed him, not in necessary "self-defense, then his crime was that of manslaughter or murder, as the circumstances on the occasion of the killing made it the one or the other. If guilty of manslaughter, looking alone at those circumstances, he could not be found guilty of murder by reason of his having previously armed himself solely for self-defense."

We think there was also error in that portion of the charge wherein the court instructed the jury as to the effect which they should give to the evidence on the subject of previ ous threats uttered against the defendant by Hermes and his sons. The learned judge seems to have regarded such evidence not merely as not extenuating or excusing the

act of the defendant, but as evidence from which the jury might infer special spite, special ill will, on the part of the defendant. The language of the learned judge was as follows:

"Previous threats fill a certain place in every case where they are brought out in the evidence. If at the time of the killing the party is doing nothing which indicates a deadly design, or a design to do great bodily mischief,-if he is doing nothing, I say, of that kind,-then previous threats cannot be considered by the jury. If they are satis fied from the law and the testimony that the deceased was not doing anything that amounted to a deadly attack, or there is no question in their minds as to what the attitude of the deceased was, previous threats cannot be considered by them; they cannot enter into their consideration of the case by the way of justifying any act that resulted in the death of Charles Hermes from the act of defendant; they cannot be considered, I say, because you cannot kill a man because of previous threats. You cannot weigh in the balance a human life against a threat. There is no right of that kind in law. Threats are only admitted as illustrative of another condition that exists in the case. If the party, at the time of killing, who is killed, is doing that which indicates a purpose to do great bodily harm, to kill, or is about to do it, so near doing it, and goes so far, that it can be seen from the nature of the act what his purpose is, then, for the purpose of enabling you to more clearly see the situ-, ation of the parties, you can take into consideration the threats made by him. But if' there is an absence in the case of that which indicates a deadly design, a design to do great bodily harm, really or apparently, threats cannot be considered in connection with the asserted right of a defendant that he can avail himself of the right of self-defense. You cannot do that. But if threats are made, and there is an absence from the case of the conditions I have given you where you can use them as evidence, you can only use them and consider them for the purpose of showing the existence of special spite or ill will or animosity on the part of the defendant."

And again:

"If this defendant killed this party, Charles Hermes, because the old man, the father of Charles Hermes, had threatened him with violence, or threatened to have something done to him because of his belief that he had done something with his hogs, or killed them, and made threats, that is no defense, that is no mitigation, but that is evidence of malice aforethought; it is evidence of premeditation; it is evidence of deliberation of a deliberately formed de sign to kill, because of special spite, because of a grudge, because of ill will, be cause of animosity that existed upon the part of this defendant towards these people in the field."

While it is no doubt true that previous threats will not, in all circumstances, justify, or perhaps even extenuate, the act of the party threatened in killing the person who uttered the threats, yet it by no means follows that such threats, signifying ill will and hostility on the part of the deceased, can be used by the jury as indicating a similar state of feeling on the part of the defendant. Such an instruction was not only misleading in itself, but it was erroneous in the present case, for the further reason that it omitted all reference to the alleged conduct of the deceased at the time of the killing, which went to show an intention then and there to carry out the previous threats.

The instructions which have thus far been the subject of our criticism were mainly applicable to the contention that the defendant acted in self-defense, but they also must have been understood by the jury as extending to the other proposition that the defendant's act constituted the crime of manslaughter, and not of murder. The charge shows that the instructions of the learned judge on these two distinct defenses were so blended as to warrant the jury in believing that such instructions were applicable to both grounds of defense.

Whether this be a just view or not, there were distinct instructions given as to the contention that the act of killing in this case was manslaughter, and not murder, which we think cannot be sustained. A portion of such instructions was as follows:

"Now, I have been requested to charge you upon the subject of manslaughter. Manslaughter is defined by the law of the United States to be the wrongful killing of a human being, done willfully, and in the absence of malice aforethought. There must be out of the case that which shows the existence of this distinguishing trait of murder, to find the existence of a state of case that authorizes a mitigation of the offense from murder to manslaughter. It is an unlawful and willful killing, but a killing in such a way as that the conduct of the deceased. Hermes, in this case, at the time he was killed, was not of a character to authorize him to shoot, but that the defendant could so far have the benefit of that conduct provocative in its nature as that he could ask you to mitigate his crime, if crime exists here. from murder to manslaughter. Let us see what is meant by that. It cannot grow out of any base conception of fear. It cannot grow out of a state of case where there is a killing because of threats previously made, because of that which evidences special spite or ill will, for, if the killing is done on that ground, and if it is shown by the threats, and the previous preparation of the defendant, or the fact of his arming himself, and going back to the field where they were at work, and while there he shot Charles Hermes to death, it cannot be evidence of that condition; but at the time of the killing

there must have been that in the conduct of Charles Hermes in the shape of acts done by him that were so far provocative as to then and there inflame the mind of the deceased [defendant] to authorize you to say that it, was so inflamed,-in such an inflamed condition that the defendant did not act with. premeditation; that he did not act from a previously formed design to kill, but that the purpose to kill sprang into existence upon the impulse of the moment because of the provocative conduct of Charles Hermes at the time of the killing,-that would be a state of manslaughter. * • The law says that the previous selection, preparation, and subsequent use of a deadly weapon shows that there was a purpose to kill contemplated before that affray existed; and whenever that exists, when it is done unlawfully and improperly, so that there is no law of self-defense in it, the fact that they may have been in an actual affray with hands or fists would not reduce the grade of the crime to manslaughter."

The error here is in the assumption that the act of the defendant in arming himself showed a purpose to kill formed before the actual affray. This was the same error that we found in the instructions regarding the right of self-defense, and brings the case within the case of Gourko v. U. S., previously cited, and the language of which we need not repeat.

These views call for a reversal of the judg. ment, and it is therefore unnecessary to consider the assignments that allege errors in the selection of the jury.

The judgment is reversed, and the cause remanded for a new trial.

(155 U. S. 240?

MUSER et al. v. MAGONE, Collector.
(December 3, 1894.)
No. 37.

CUSTOMS DUTIES-APPRAISEMENT-MARKET VALUE. 1. Under Rev. St. § 2006, providing for an appraisement of the actual market value of imported goods, in the country from which they are imported, as the basis on which an ad valorem duty shall be assessed, which appraisement shall be final (section 2930), and Act March 3, 1883, § 9, providing that if, on the appraisal, it shall appear that the actual market value cannot be ascertained to the satisfaction of the appraiser, it shall be lawful to appraise the goods by ascertaining the cost of the material, and the expense of manufacturing and preparing and putting up the goods for shipment, the determination of appraisers that the market value can be ascertained to their satisfaction, which will be assumed from their finding such value. is conclusive.

2. The market value of imported goods for purpose of assessing customs duties is to be determined by the general market value of goods of the same description, without reference to the fact that the goods cost the particular importer a less amount because of special advantages which he had.

3. The evidence of the decision of appraisers is their official returns, and, if they acted without fraud and within their powers, their

decision cannot be impeached by requiring them to disclose the reason for their conclusions, or by evidence of statements made by them.

41 Fed. 879, affirmed.

In Error to the Circuit Court of the United States for the Southern District of New Jork.

"This was an action brought by Frederick W. Muser, Richard Muser, and Curt Muser, composing the firm of Muser Bros., against the collector of the port of New York, to recover duties alleged to have been illegally exacted of them on certain importations of cotton embroideries, manufactured at St. Gall, Switzerland, where they had a branch house. Their course of business there was as follows: The cloth on which the embroideries were stitched was purchased in he gray state by plaintiffs at Manchester, and received in their warehouse in St. Gall. It was then sent out to various parties at St. Gall who had stitching machines, and stitched the goods according to patterns or designs furnished by plaintiffs, which designs had either been purchased by them in Paris or made in their St. Gall establishment by designers employed by them. The goods, when stitched, were returned to the warehouse, and, having been examined by plaintiffs' employés to see if they were properly done, were sent out again to a bleacher to be bleached. When bleached, they were brought back, re-examined, cut into strips of suitable size for the American market, ticketed, boxed, and shipped. To carry on this business in St. Gall, plaintiffs rented a building, employed a staff of assistants, paid insurance, and kept a certain amount of capital invested.

Finished embroideries were not kept in stock for sale at St. Gall in 1887, the date of these importations. The goods were usually ordered from samples submitted by the manufacturers or by so-called "commissionnaires." The commissionnaires, as a rule, submitted samples to the purchasers, bought the cloth, and turned it over to the manufacturer to make up. Their charge for their own services, according to plaintiffs, was 3 per cent., besides all expenses. According to other testimony, the commissionnaire would require an advance of the necessary capital to do the trade with, and also all the cash discounts, amounting to another 3 per cent. If he were asked to employ his own capital and make his own designs, his charge would vary. It might be less than 10 per cent., or it might be more, but 10 per cent. would not be any more than a fair profit. It was within the knowledge of one of the merchant appraisers that one of the largest manufacturers in St. Gall was coming to New York to do business for 10 per cent. profit.

Plaintiffs' goods were invoiced at their actual gross cost, omitting any cash discount, any charge for designing, any interest and risk on capital, any allowance for salaries or other office expenses at St. Gall. They

added 3 per cent. to the invoice price, "to make market value"; but they claimed upon the trial that this addition was not voluntary, but was made to avoid the advance of duty provided by statute in cases where the appraised value exceeds the entered value by 10 per cent. This 3 per cent. was not more than enough to cover the expense of designing alone, and interest and risk on capital was sometimes itself rated at 8 per cent.

It appeared that, for many years prior to 1887, St. Gall embroideries had been appraised in the same way as in that year; but, the question of undervaluation being raised, they had been advanced from 10 to 40 per cent. In the fall of 1885 the treasury department appointed a commission to investigate the matter, which met at the public stores in New York City. Merchants interested in the cotton embroidery trade also had a meeting, arrived at certain recommendations, and appointed a committee to present them to the commission and see them carried out. A member of Muser Bros. was one of this committee. The conviction was expressed in the resolutions of the meeting that the counting of the stitches was "the only proper way for arriving at a correct valuation of cotton embroideries, Oriental and Egyptian laces"; and "that it be recommended that the appraiser, in appraising cotton embroideries, Oriental and Egyptian laces, should appraise them by counting the stitches and valuing them at the rate at which they are quoted by the U. S. consul on the day of shipment, adding to this the cost of the cloth, and adding to this ten per cent., to be called manufacturer's profit, then the cost of bleaching, finishing, and putting up." Subsequently, and after conference with the general appraiser and the commission, the committee agreed that the 10 per cent. should "be added to the cost of the goods in a finished condition, including the cost of the bleaching, finishing," and putting up." It was also recommended that "the minimum rates for stitching adopted by the manufacturers' union at St. Gall should be the basis of the appraisement; but, if the price of the stitching should be advanced, the invoice should be in accordance therewith." One of the plaintiffs signed the committee's communication to the commission and the subsequent agreement, but on the same day sent to the commission a written protest, stating that he doubted the authority for the exaction of the 10 per cent. on the cost of the price for cloth and stitching, but had no doubt at all as to the illegality of the exaction on the charges incurred for bleaching and finishing.

As to one of the importations in question here, an advance of 7 per cent. was made by direction of the merchant appraiser, but the reason therefor did not appear, and no reappraisement was called for or had. As to the other importations, the appraiser

raised the entered value about 9 per cent. The plaintiffs demanded a reappraisement, upon which the merchant appraiser in one case approved the entry. In the other cases the merchant appraisers recommended an advance of 6 per cent. The general appraiser made the advance about 10 per cent., and the collector decided in favor of the general appraiser.

Plaintiffs protested "against the standard of value adopted by the appraising officers, and of their appraised value as returned by them and approved by" the collector, upon various grounds, in substance: Because the standard dutiable value of the merchandise established by the collector included, "besides the actual market value or wholesale price, commissions and charges nondutiable under section 7, Act March 3, 1883"; because the goods should have been appraised at their actual market value or wholesale price in the gray, adding to sch value the cost for laundrying and finishing them, and no more, as provided by section 2906 of the Revised Statutes and section 7 of the act of March 3, 1883, whereas there had been illegally included "a further amount to cover the incidental charges incurred in the purchase and preparation of said goods for shipment, such charges or incidental expenses being for designs furnished the manufacturer, salary of the buyer, and clerk hire, rent of buyer's office, and rooms for putting up and packing for shipment, interest on money credits for the purchase of the goods and for a profit or commission in excess of such aggregate cost, or one or more of such charges," which charges or items of costs were nondutiable under section 7; because the goods were dutiable "at no more than the cost or value of the materials composing such merchandise, together with the expense of manufacturing, preparing, and putting up such merchandise for shipment, as provided in section 9, Act March 3, 1883"; "that the standard marketable condition of embroideries is in the gray; that the wholesale current market prices for regular goods bought in the regular manner is usually quoted in the gray, according to the number of stitches contained in a given pattern; such price, plus the market value of the muslin upon which the stitching is done, constitutes their marketable value in their wholesale marketable condition; to this value is to be added the expenses for laundrying and finishing, to make dutiable value under existing laws, and no more."

By section 2902 of the Revised Statutes, it was made "the duty of the appraisers of the United States, by all reasonable ways and means, to ascertain, estimate, and appraise the true and actual market value and wholesale price * * of merchandise, at the time of exportation, and in the principal markets of the country whence the same has been imported into the United States"; and, by section 2904, the

day of actual shipment is made the day as of which the duty is to be estimated.

Section 2906 provided:

"When an ad valorem rate of duty is imposed on any imported merchandise, or when the duty imposed shall be regulated by, or directed to be estimated or based upon, the value of the square yard, or of any specified, quartity or parcel of such merchandise, the collector • shall cause the actual market value, or wholesale price thereof, at the period of the exportation to the United States, in the principal markets of the country from which the same has been imported, to be appraised, and such appraised value shall be considered the value upon which duty shall be assessed."

By section 2907, in determining the dutiable value, there was to be added to the market value "the cost of transportation, shipment, and trans-shipment, with all the expenses included, from the place of manufacture * * to the vessel in which shipment is made to the United States; the value of the sack, box, or covering of any kind in which such merchandise is contained; commission at the usual rates, but in no case less than two and a half per centum; and brokerage export duty, and all other actual or usual charges for putting up, preparing, and packing for transportation or shipment. All charges of a general character incurred in the purchase of a general invoice shall be distributed pro rata among all parts of such invoice."

Section 2908 provided that all additions made to the entered value of merchandise for charges should be regarded as part of the actual value of such merchandise, and, if such addition exceeded by 10 per cent. the value declared, in addition to the duties, 20 per cent. duty should be collected.

Section 2930 read thus:

"If the importer, owner, agent, or consignee, of any merchandise shall be dissatisfied with the appraisement, and shall have complied with the foregoing requisitions, he may forthwith give notice to the collector, in writing, of such dissatisfaction; on the receipt of which the collector shall select one discreet and experienced merchant to be associated with one of the general appraisers wherever practicable, or two discreet and experienced merchants, citizens of the United States, familiar with the character and value of the goods in question, to examine and appraise the same, agreeably to the foregoing provisions; and if they shall disagree, the collector shall decide between them; and the appraisement thus determined shall be final and be deemed to be the true value, and the, duties shall be levied thereon accordingly." * Sections 2907 and 2908 were repealed by the seventh section of the act of March 3, 1883, which further declared:

"And hereafter none of the charges imposed by said sections or any other provisions of existing law shall be estimated in ascer

taining the value of goods to be imported, nor shall the value of the usual and necessary sacks, crates, boxes, or covering, of any kind be estimated as part of their value in determining the amount of duties for which they are liable." 22 Stat. 523, c. 121, § 7.

The ninth section of this act was as follows:

"Sec. 9. If upon the appraisal of imported goods, wares, and merchandise, it shall appear that the true and actual market value and wholesale price thereof, as provided by law, cannot be ascertained to the satisfaction of the appraiser, whether because such goods, wares, and merchandise be consigned for sale by the manufacturer abroad to his agent in the United States, or for any other reason, it shall then be lawful to appraise the same by ascertaining the cost or value of the materials composing such merchandise, at the time and place of manufacture, together with the expense of manufacturing, preparing, and putting up such merchandise for shipment, and in no case shall the value of such goods, wares, and merchandise be appraised at less than the total cost or value thus ascertained." 22 Stat. 525.

The action was tried before Judge Lacombe and a jury, and a verdict directed in favor of the collector. Judgment having been entered upon the verdict given in accordance with such direction, this writ of error was sued out. The opinion of the circuit judge is reported in 41 Fed. 879.

Edwin B. Smith and Charles Curie, for plaintiffs in error. Asst. Atty. Gen. Whitney, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

The conclusiveness of the valuation of imported merchandise made by the designated officials, in the absence of fraud, is too thoroughly settled to admit of further discussion. Hilton v. Merritt, 110 U. S. 97, 3 Sup. Ct. 548; Auffmordt v. Hedden, 137 U. S. 310, 11 Sup. Ct. 103; Passavant v. U. S., 148 U. S. 214, 13 Sup. Ct. 572. In Auffmordt v. Hedden it was said: "The government has the right to prescribe the conditions, attending the importation of goods, upon which it will permit the collector to be sued. One of those conditions is that the appraisal shall be regarded as final. The provi

sion as to the finality of the appraisement is virtually a rule of evidence to be observed in the trial of the suit brought against the collector."

Yet, though the valuation is final, and not subject to review and change and reconstruction by the verdict of a jury, it is open to attack for want of power to make it, as where the appraisers are disqualified from acting, or have not examined the goods, or illegal items have been added independent of the value. The principle applied in such cases is analogous to that by which proceedings of

a judicial nature are held invalid because of the absence of some strictly jurisdictional fact or facts essential to their validity.

But in the language of Mr. Justice Blatchford in Auffmordt v. Hedden: "This case doee not present any question like that of substituting a new merchant appraiser for one already selected, as in Greely v. Thompson, 10 How. 225; nor is it a case where the appraiser did not see the original packages, as in Greely v. Burgess, 18 How. 413; nor a case where it was offered to show that the merchant appraiser was not a person having the qualification prescribed by the statute, as in Oelbermann v. Merritt, 123 U. S. 356, S Sup. Ct. 151, and in Mustin v. Cadwalader, 123 U. S. 369, 8 Sup. Ct. 158; nor a case where it was contended that the appraisers did not open, examine, and appraise the packages designated by the collector, as in Oelbermann v. Merritt; nor a case where to the admitted market value of an importation there was added such additional value as was equal to a reduction made in the valuation of the cases containing the goods, as in Badger v. Cusimano, 130 U. S. 39, 9 Sup. Ct. 431. Those were instances of errors outside of the valuation itself and outside of the appraisement prescribed by the statute."

The protest in this case had no relation to want of qualification or to insufficiency of examination, but was directed to the alleged illegality of the valuation, whether the method pursued was to ascertain "the true and actual market value and wholesale price," under section 2902 of the Revised Statutes, or the value on the basis of cost of production, under section 9 of the act of March 3, 1883, because, as alleged, one of the constituent elements of the value as found was illegally included.

The circuit court held that the action of the appraisers was a finding of market value, and that conclusion was clearly right. The certificates of the appraisers were in the usual form,-that "the actual market value or wholesale price of the said goods at the period of the exportation thereof to the United States, in the principal markets of the country from which the same were imported into the United States," was as stated; and it appeared in terms therefrom that the advances by the original appraiser and by the importers were "to make market value," though the importers contend their advance was made to avoid the imposition of additional duties.

We must assume that the conclusion of the appraisers was that the market value could be ascertained to their satisfaction, and such determination is binding. Stairs v. Peasiee, 18 How. 521.

The circuit judge was of opinion that section 9 of the act of March 3, 1883, applied to cases where goods are made abroad, but are sold only in this country, and that the section did not apply to these goods, which were, in effect, purchased at St. Gall at an ascertain

$248