DISSENTING OPINION
Lenroot, Judge:I am compelled to dissent from the decision of the majority in this case, because I do not believe that the judgment of the court below is contrary to the weight of the evidence.
An examination of the sample in evidence discloses that it is a small, flimsy article of the cheapest possible construction, and from an inspection alone, together with its operation, I am compelled to conclude that it was never designed or intended for any other purpose than the amusement of children. In addition to this, the testimony of two witnesses for the Government is to the effect that merchandise represented by this sample is used only for the amusement of children. Three witnesses testified for the appellant, and their testimony is exceedingly weak as to any use of the merchandise other than for the amusement of children.
The lower court heard the testimony of the witnesses; it had the sample before it, and in my judgment there was ample evidence to sustain the judgment reached by it. To my mind, Congress never could have intended that an article like that here in question should be regarded as a phonograph within the meaning of that word as used in paragraph 1414 of the Tariff Act of 1922.