The opinion
DISSENTING OPINION
Graham, P. J., and Garrett, J.,
dissenting:
We find ourselves unable to concur with the majority in this case. We are well aware, as was said in United States v. Bernard Judae & Co., 13 Ct. Cust. Appls. 306 , T. D. 41230, that the question of what constitutes a musical instrument is largely a matter of the taste and degree of education of the individual making the selection. However, there are certain instruments, which, by common understanding, in this day of the world, are known as musical instruments. Such are the violin, the piano, the harp, and many others which will readily occur to the mind. Included within the list are the well-known percussion instruments, such as the drum, the cymbals, and the triangle. Such instruments, capable of producing but a single tone, have, from time immemorial, been used in war and in peace to produce certain desired musical effects. Great composers have written parts for them in musical scores. If it were a matter of first impression as to some of these instruments, it might be doubted whether they should be classed as musical instruments. Centuries of use, however, have won them recognition as such.
*321 But because such things have been generally acknowledged to be musical instruments is no reason for advancing the theory that everything used in connection with the rendition of music is itself a musical instrument. The definition given by the majority is, in our opinion, too broad. It is: “A musical instrument may be said to be any sound-producing contrivance which, in this country, is chietly used in making music, or in connection with making music to give volume, tone, or effect to the same.” (The italics are ours.) Thus, we have a definition which includes rooster crows, cat and cuckoo calls, sheets of metal used for making sounds of thunder, mutes and tin hats for muting wind instruments, wooden blocks to represent the sound of the hoofs of horses, and a hundred other similar devices and contrivances which the ephemeral taste of the day encourages in that concatenation of jungle sounds known as “jazz.” We refer now not to things which have other uses, but to such musical accessories as are made and used only for that purpose. These are not musical instruments, but are accessories merely. They are usually operated by the trap drummer or by a trap operator. There ought to be a proper distinction made between a musical instrument and a mere temporary and incidental accessory.
We are of opinion the judgment of the United States Customs Court is right and should be affirmed.