Opinion of the Court.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

Counsel for plaintiff in error concedes that the bitters in question are proprietary preparations, and would be dutiable as such if there were no other governing clause; but contends that, as between the paragraph relating to proprietary preparations, and the paragraph relating to cordials, liqueurs, and other similar spirituous beverages, or bitters containing spirits, the latter should control; that the familiar rule that the more specific designation governs cannot be applied, because neither of the two paragraphs is more specific than the other; and that the beverage rate should be applied under the last clause of section 2499 of the Revised Statutes as amended in 1883, (22 Stat. 491,) providing that "if two or more rates of duty should be applicable to any imported article, it shall be classified for duty under the highest of such rates."

But we are of opinion that this contention cannot be sustained on the ground simply that Boonekamp bitters were a proprietary bitters, and also a bitters containing spirits. The proprietary paragraph has such enumerating force that a proprietary bitters, having a special character and value as such, protected by trade-mark and recommended as a remedy, although it contains spirits, as bitters generally do, cannot be treated as non-enumerated, or as so falling within two separate clauses as to involve the same result, unless that conclusion be compelled by other facts and circumstances disclosed in regard to it. The real inquiry here was whether the article, though confessedly dutiable as a proprietary preparation within the statute, was so similar to cordials, liqueurs, arrack, absinthe, kirschwasser, or ratafia as to be also susceptible of being assessed under the clause applicable to the latter. This was a question of fact, and we think properly left to the jury, if there was any evidence upon which a verdict for defendant in error could be justified. The question was, indeed, reduced to a very narrow compass, for it was admitted that absinthe was the only article named in the cordials' clause, to which

Opinion of the Court.

the government could claim that Boonekamp bitters bore substantial similarity, a concession based on the view that absinthe was the only "bitters" specified in the clause.

Absinthe, according to the Century Dictionary, is “the common name of a highly aromatic liqueur of an opalinegreen color and bitter taste," and is prepared by "steeping in alcohol or strong spirit bitter herbs," the chief of them being wormwood. It was not denied that it is bitter; that it is used as a beverage; and is not a proprietary preparation. It appeared that the wormwood "has a medicinal effect upon the human system as a tonic," and that the article contains anisette, a cordial. On the other hand, Boonekamp bitters is a proprietary preparation, recommended to the public as such, and is prepared according to a private formula, as a remedy for certain specific maladies. The label is duly registered at the Patent Office. There was evidence tending to show that it contains rhubarb, orange peel, turmeric, and an essential oil, probably oil of anise; that it is bitter; that it is not attractive as a beverage, and hardly used distinctively as such; and that while it is sold largely by liquor dealers, and used at bars, it is chiefly sold for use and used in water, wines, or spirits, as a bitter, and for its cathartic, as well as tonic, qualities. A bottle of the bitters was produced for the inspection and consideration of the jury. Both articles contain alcohol in about the same proportion.

We are unable to conclude otherwise than that there was evidence tending to show that Boonekamp bitters were not substantially similar to absinthe, and that there was, therefore, no ground for taking the case away from the jury. The verdict that there was no such similarity determined that these bitters were properly classified under the proprietary preparation clause and this excluded them from all other provisions. The rate of duty on the bottles was dependent on the rate of duty on the contents, and the determination as to the latter controlled.

Judgment affirmed.

Statement of the Case.

GOURKO v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS.

No. 972. Submitted November 17, 1893. - Decided April 16, 1894.

A person who has an angry altercation with another person, such as to lead him to believe that he may require the means of self-defence in case of another encounter, may be justified, in the eye of the law, in arming himself for self-defence; and if on meeting his adversary, on a subsequent occasion, he kills him, but not in necessary self-defence, his crime may be that of manslaughter or murder, as the circumstances, on the occasion of the killing, make it the one or the other.

If, looking alone at those circumstances, his crime be that of manslaughter, it is not converted into murder by reason of his having previously armed himself.

THE plaintiff in error, a white man and not an Indian, was charged by indictment in the Circuit Court of the United States for the Western District of Arkansas with the crime of having, on the first day of November, 1892, at the Choctaw Nation, in the Indian Territory, within the above District, feloniously, wilfully, and with malice aforethought killed and murdered one Peter Carbo. A verdict of guilty was returned, and, a motion for a new trial having been overruled, the defendant was adjudged to suffer death. The present writ of error brings up that judgment for review.

John Gourko and his brother Mike Gourko, and the deceased Peter Carbo, all of Polish nativity, were engaged as laborers at certain coal mines in the vicinity of the town of Alderson, Choctaw Nation, Indian Territory. Between Carbo and the Gourko brothers- the two latter being respectively about 19 and 17 years there was considerable ill feeling, growing out of a charge made by the former that the latter had clandestinely appropriated for their benefit money due for the taking out of several lots of coal that he claimed to have dug, and with the taking of which from the mines they had no connection. Although the Gourko brothers denied this charge, Carbo

Statement of the Case.

persisted in repeating it, and, according to the testimony of the younger Gourko, threatened to kill them both and "to shoot John like a dog." Carbo was about 40 or 45 years of age, weighed about 200 pounds, possessed extraordinary physical strength, and was regarded as a dangerous character. The defendant was in delicate health, weighed about 135 pounds, and was deemed a quiet, peaceable boy.

On the morning of November 1, 1892, - that being a holiday for the Polish laborers, there were quite a number of miners in the town of Alderson. About nine o'clock Carbo and the defendant were observed to be engaged in an angry conversation near the post office.

The postmistress at Alderson, describing what occurred, testified that Carbo would swear and call Gourko " names and make threats that he would hit him or something of the kind, and shook his fist right in his face." Being afraid that Carbo was "going to hurt the boy," she spoke to Mr. Anderson, who was working in the store, and said, "Pete is going to kill John, I am afraid.' The boy did not show any disposition to want to quarrel with him or want to fight; he would step back as much as two or three steps away, and Pete would follow him up and shake his fist in his face, and the boy went on; and as he came back I spoke to John the defendant, and asked him not to have any trouble there by the office, and he said he wasn't going to; he said 'I have just gone to get a marshal to come and have him arrested,' and he said, 'I will wait until the marshal comes home."

Another witness, John Silluski, also a Polander, gave this account of the meeting between the deceased and the defendant near the post office: "That day was a holiday, the first of the month of November, and on this holiday all Poles stay at home; I staid at home too. John Gourko was sick. He worked a couple of days, and staid at home three or four; I don't know how many. On that day I staid at home and he staid at home too. He felt bad on that day. About 9 o'clock or half-past 9 I go to the post office, and John Gourko too, and Pete Carbo was standing in front of the post office, and three other men were standing there, and he was talking to

Statement of the Case.

them, and I passed him and went inside of the post office. I heard John say, 'Pete, how many cars of coal do you say I stole from you?' and Pete say, 'I don't say you stole; you and your brother together work at that place, and I lost about six cars.' John wasn't mad that time. Pete said he stole about six cars. John left home that morning, he did; he wasn't well; he was sick, didn't work; he had chills and fever; was sick all the time. John said, 'You old sucker, I never stole no six cars of coal." Being asked what next happened, the witness stated that Carbo "cursed Gourko all the time," applying to him epithets of the most degrading kind, and which need not be here repeated. The witness further said: "And Pete said, 'You want to fight this morning. Come on here,' and John said, 'I don't want to fight; I am a sick man; I am going to arrest you; I don't feel well.' And he said, 'Come on and fight if you want to fight this morning,' and he said, 'I don't want to fight.' John looked behind the store for a policeman or something; he wanted to arrest him, I guess; I don't know."

It appears from the evidence that the killing occurred about twenty or thirty minutes after the difficulty at the post office, and near a saloon in which a billiard table was kept. The witness who gave the fullest account of the difficulty up to the time of the killing was Mr. Anderson. He testified, in substance, that he saw the beginning of the trouble in front of the post office, in which was the store where he worked. Being asked to state what occurred, he said: "Well, I was in the store there, and, as usual, around the post office there was a crowd gathered there for the mail, at distributing times, and other times men congregate around in front of the store and in the store, and this morning, which was the morning of the first of November, 1892, there was quite a crowd gathered right in front of the window and door of the store or post office, and it was not long until my attention was called to the loud talking out there by the postmistress. The man

who was doing the loud talking was Peter Carbo, the man who was killed. He appeared at that time to be angry, and was talking pretty loud when I first saw him. I heard him