UNITBD STATES V. H'OABTHY.
COXE, J. On Wednesday, March 1, 1882, the petitioner, havlllg been previously convicted of an assault with intent to kill, was sentenced by the supreme court of the District of Columbia to four years' imprisonment in the state prison at Auburn, New York. The execution of this sentence was, on the defendant's motion, postponed to give him an opportunity to appeal. Pending the stay, the court, on the third day of June, 1882, resumed its session, "pursuant to ,ad· journment," the same judge presiding, when the judgment of March 1st was set aside, and the same sentence again pronounced, except that the Erie county penitentiary was substituted for the state prison as the place of confinement. A discharge is demanded upon the ground that the court had no authority to enter the second judgment. It appears from the copy ·of the record submitted that the second sentence was passed, not, as is asserted in petitioner's brief, at a subsequent term, but on an adjourned day of the same term. There can be no doubt that the court has ample authority to set aside, modify, or amend its judg-, ments, orders, and decrees at the. term at which they are rendered; and the papers in this caso do not indicate that any act wascommitted which at all transcended the well-known powers of the court. The petitioner had not been imprisoned under the first sentence; its· opflration had been suspended upon his motion and for his benefit. No injury was done him by the change of penitentiaries and 'none of his rights were invaded. See Whart. Crim.Pi. & Pro (8th Ed.J918; Miller's Case, 9 Cow. 730; U. S.v.May, 2 McArthur, 512; Bank V. Withers, 6 Wheat. 106. It follows that the discharge must be refused and the prisonerremanded.
UNITED STATES V. McCARTHt.
(Circuit Court, 8. D. New York.
To a witn.as/! in refusing to testify on the, ground, that. his evidence ma.y mcrnnrnate him, reasonable ground must appear to the court', taapprehend some proceedings' against the witness uIJon a criminal oharge, and some danger to the witp.ess in answering.
2. SAME-REV. ST. § 860.
In the Un ited States courts, since the passage of the acto! Fe1jruary 1868, (section 860, Rev. St.,) preventing any such evidence! being used agliinst t'he witlIess .or his ,reasoQ of the fooneri rule having :c¢BSQd, the tu1a shonl.d nq.l0nger,be upheld, nOr the of thewitnes!l oli this ground be 'sustamed.. . .
Tile constit4tion.al iprovision far,ticle :5/ A.mendment) that" no persQn:s}talJ he compelled \11 any criminal actio/lto, he a app,lills only to evidehce in suits or proceedings instituted against..the witness hims,elf.
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On Certifica.te from United'States Commissione-l'.
Elihu Root, U. S. Atty., for plaintiff. George H. Foster, for defendant. .' BROWN, J. Upon a complaint against John H. McCarthy in criminal proceedings charging him with having committed the offense of perjury in a certain affidavit previously made by him in reference to the ownership of the vesselMary N. Hogan, in the course of an examination before Mr. Shields, United States commissioner, Henry A. Kearney was sworn as a witness in behalf Of the government, and upon being asked various questions in regard to his knowledge of and dealings with the accused, declined to answer on the ground that it might incriminate himself. The questions have been certified to this court, together with the whole record, for its direction. ,The Mary N. Hogan is now in theeustody of the marshal in. proceedings for her forfeiture in the district court for being fitted out in violation of the neutrality laws, under section 5283 of the Revised Statutes, and the accusedappeara as the claimant in that suit. The slmle section imposes a heavy punishment by fine and imprisonment upon all who aid or assist in aueh an'unlawful expedition. The witness, in answer to certain questions, hadatated that he acted ,as broker'in the purbut declined to answer for whom he acted as chase of the broker,and whether he made the bargain for the purchase.' It is not sufficient to excuse the witness from answering that he may in his own mind think his answer to the question might by possibilitylead to some criminal charge against him, or tend to convict him of it, ifmade. The court mU8t/beable to perceive that there is rea· sonable ground to apprehend danger to the witness from his being compelled to answer. Regina v. Boyes, 1 Best & S. 311; Whart. Ev. § 538. In this case there is no charge pending against the witness, nor is he threatened with any prosecution. He does not specify or indicate any offense of which hi!, answers may tend to incriminate him; and it is, thel'efore, mere surmise and possibility of some connection with the fitting out of the Mary N. Hogan, and that alone, which the court could go upon as excusing the witness from answering. Such a mere surmise is plainly insufficient, without anything more tangible to support it. In the Matter of Graham, 8 Ben. 419, qu.estions as remote as some of those in the l)resent oase were held privileged, because it appeared from the previous examination of witnesses that the witness was charged with participating in a gambling transaction, which, if true, exposed him to a oriminal proElecution aocording to the laws of the state .of New York. . As this objection, however, would probably be at once obviated upon are-examination of the witness by some sufficient statement, I may add that under section 860 of the Revised Stat\ltes I think the general privilege claimed can no longer be upheld. That section, in the language of the ()riginal act of February 25, 1868, (15 St. at Large, 37,) provides "that no answer or other pleading of any party, lLnd no discovery OJ; evidence obtained by means of any judiCIal pro-
coeding from any party or witness in this or any foreign country, shall be given in evidence, or in any manner used, against su,ch party or witness, or bis property or estate, in any court of the United States, or in any proceeding by or before any officer of the United States, in respect to any crime, or for the enforcement of any penalty or ure, by reason of any act or omission of such party or witness." The act is entitled "An act for the in certain cases of persons making disclosures as parties, or testifying as witnesses." The reason of the formElr rule exempting witnesses from giving compulsory testimony against themselves, was that their testimony might be used to convict them. The statute above quoted, in preventing all ,possible useo! testimony tJ:1us given, does away with the reason of the rule; and there is, therefore, no longer any ground for its application. The maxim, "Ce8sat ratio, ce8sat lex," would seem to apply in force. It has been so held in U. S. v. Brown, 1 Sawy. 581-586; U. S. v. Williams. 15 Int. Rev. Rec. 199 i In re Phillips, 2 Amer. Law T. 154. On behalf of t.he witness, it is claimed that he is stilI exempted from answeringdby the :fifth amendment of the constitution, which provides that "no person shall be compelled, in any criminal case, to be a witness against himself." The precise point, as well as the previous question, was considered and overruled ,in the court of appeals in this state in the case of People v. Kelly, 24 N. Y. 74. DENIO, J., in delivering the opinion of the court, says: ,
"If'a objects to a question on the ground that an answer would criminate himself, he must allege. in substance, that his answer, if repeated as his admission on his own trial, would tend to prove him guilty of a criminal offense. 'If the case is so sit\lated that a repetition of it ona prosecution agaInst him is impossible, as where it is forbIdden by a positive statute, I have seen no authority Which holds or intimates that the witness is priVileged. It is not within any reasonable construction of the language of the constitutional provision. The term' criminal case,' used in the clause, must be allowed some meaning, and none can be conceived other than a prosecution for a criminal offense. But it must be a prosecution against him, for what is forbidden is that he should be compelled to be a witness against himself. Now, if he be prosecuted criminally touching the matter about whioh he has testified upon the trial of another person, the statute makes it impossible that hiB testimony given on that occasion should be used by the prosecution on the trial. It cannot, therefore, be said that in such criminal ca.se he has been made a witness against himself, by force of any compulsion used towards him to procure, in the other case, testimony which cannot possibly be used in the criminal case against himself."
It is unnecessary to add anything to this exposition of the law. Section 860 of the Revised Statutes will be a complete protection against the use of any testimony which the witness may now in any other transaction or proceeding against him or his property. The witness' claim of privilege must, therefore, be disallowed, and he must be required to answer the questions. certified, and any ·others of a simila,r character.
HARTSHORN v. EAGLE SHADE ROLLER CO. and others.
(Oircutt Oourt,D. Massachusetts. October 11,1883.)
PATEKTS,J!'OR INVENTIONS-INVENTOR'S OATH ON ApPLICA'l'ION FOR PATRNT OU REIBSUE.
Objection being taken by tlle defendants that the oath of the plaintiff to his application for a reissue is Irregular and insufficient, in stating that the originallettel's patent are not "fully operative" instead of" inoperative," held, that the word" "inoperativeorinvalid,", in the statute aut}lOrizing reissues, mean inoperative or lDva.lid in or in part, and that consequently the words "not'fnlly inoperative" ,conform to the true inteptof the law, if the law requ:ire,d an oa;th, whrch it; does not. The statutory requirement qf an affidavit by,a,n applicant for anorigin/llpatent js directory merely; and, if it is irregular or omitted altogether,the pil.tent is not thereby vitiated, In the matter of reissues is !ilola.'Wtequil.'in'g the applicant to take any oath on tIle SUbject cof tM , :Reissue No. 2,756, dated August 27,1867, of letters patent No. 44,624, dated October 1l,1864,held void on account of failure to make application to amend within the required time. But such failure and long delay in the reissue of October al, 1876, of originaHetters patent No. 69,176, dated September 24, 1867, lield not void, on the gropnd that the circumstances of the delay in this case were such that it could n(Jt be accounted laches on the part of the plaintiff, and was one from which no innocent person could have Buffered.
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In Equity. .. .." S. D. Law and B. ThurBton;forcomplainants. O. SmitH andW. k Herrick, f6r'uefendant. Before LOWELL and· NELSON,·· J'J· · LOWELL-, J. The plaintiff owns two reissued patents;. one as in· vento!'; and one as assignee from the inventor, of improvements in shades for window cur.taitia. No. 2,756, which is callE;d the horn reissue; is dated August 27, 1867; the original was No. 44,624, dated October 1'1, 1864. The second, called the Campbell reissufl, was granted October 31, 1876; the original to William Campbell, No. 69,176, is dated September 24, 1867. The Rartshornreissue has been before the courts in the first and second circuits, and its validity does not appear to have been disputed.. It was construed and upheld, and infringements were suppressed. Hartshorn v. Tripp, 7 Blatch£. 120; Hartshorn v. Almy, 1 Holmel;>, 493. TheCampbeU reissue is proved to have been sustaip,ed tip the second circuit, in motions for injunction. Neverthe. the recent decisions of the supreme court will require us to examine the validity of the reissues. A preliminary objection is taken to both reissues that the oath of the inventor to his application for the reissue is irregular and insufficient. It is,in each case, that the original letters patent are not "fully operative, " whereas the defendant insists that it should be that they.are "inoperative," simply-that is, wholly inoperative. The statute authorizing reissues uses the worda "inoperative or invalid," but that means inoperative or invalid in whole or in part. We have never seen a case of reissue in which the original patent