JONES 11. UNITED STATES.
set. forth the legal ingredients of the offense of larceny or stealing, under the
law. Third. The bill of indictment is fatally defective in not charging to whom the check or order belonged, or who had the custody or control of the same, and for all that is alleged in said indictment the check may have been the property of and belonged to the defendant. Fourth. The said bill of indictment does not set out in hree verba the check or paper charged to have been taken."
The court overruled said motion on each and all the grounds, to which decision overruling the same on each and all the grounds the defendant there and then excepted. The matters relied on in this court are (1) that the check mentioned in the indictment was a check drawn to order, and not indorsed, and therefore had no value; (2) variance between the check described in the indictment and the one offered on the trial to prove the indictment; (3) that the indictment is insufficient because the offense of larceny is not fully and aptly charged. 1. A reference to the statute shows that "any letter of credit, note, bond, warrant, draft, bill, promissory note, covenant, contract, or 'agreement whatsoever, for 9r relating to the payment of money," or "any receipt, acquittance, or discharge of or from any debt," etc., may be the article stolen or taken out of a letter in violation of a statute. As a thing stolen or taken out of a letter in violation of a statute may have no value, it seems clear that in an indictment under the statute, if the thing within the statute be described, no value need be alleged, nor proved if alleged. The draft described in the indictment was an agreement relating to the payment of money, and within the statute. 2. In the indictment there is no attempt to set out the check stolen and taken out of a letter in exact words and figures, but a substantive description of the check, to.wit, of the drawer, drawee, payee, amount, date, and number, is given. The check offered on the trial answers fully to the description in the indictment. A fuller description of the check might, perhaps, have been given by adding the indorsements thereon, if any there were; but it is conceded that it was not necessary to set out the check in hac verba. It seems that a sufficient description was given to identify the check, to inform the accused of what he was charged with stealing and taking, and to protect the accused from being again put in jeopardy for the same taking. 3. The indictment being in the words of the statute, the question is whether those words of themselves fully, directly, and expressly, without uncertainty, or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished. See U. S. v. Carll, 105 U. S. 611. The offense intended to be punished by the statute is the violation of the sanctity of the mails by one sworn to protect them, and it is to be committed by stealing or taking out of the mail any of the things described in the statute, aiming at an of. fense similar in character to, and having the ingredients of, the com· v.27F.no.5-29
mon·law offense of larceny. True, it is an aggravated larceny, because committed by bne in a place of trust, but still it is larceny. To constitute the offense of larceny, according to all definitions, there must be at least a wrongful taking of the property of another, with a. felonious intent. Neither of these elements is found in the words of the statute. The thing to be stolen or taken out, so far as the words of the statute go, need not be the property of anyone, nor is any intent, wrongful, fraudulent, felonious, or otherwise, referred to in the statute, unless it is to be found in the word "steal." The words of the statute, therefore, do not specifically set forth all the elements necessary to constitute the offense intended to be punished, and there. fore an indictment which merely follows the words of the statute is insufficient. See U. S. v. Carll, supra, and cases there cited. In the presebt case, as the indictment does not lay the thing alleged to have been stolen as the property of anyone, nor allege any wrongful in. tent, it is not good and sufficient. From this it follows that the judgment of the district court was ere roneous, and should be reversed, and a. judgment to that effect will be entered.
V. SUPERIOR NAIL
Co. and others.1
(Oircuit Oourt, N. D. Blinou.
PATENTS FOR INVENTIONS-CONSTRUCTION OF CLAIMS.
In view of the state of the prior art as disclosed by older patents, and of the patentee's acceptance of restricted claims after the rejection of broad ones, patent No. 92,355, of July 16, 1869, to T. H. Fuller, assignee of A. M. Polsev, for an improved manufacture of horse-nails. must be strictly construed, and confined to the making of nails by punching or cutting from hotrolled ribbed bars of metal a headed blank, and the subsequent cold rolling, as an entire process.
2. SAME. This patent cannot be made to cover the process of the older art of hot rolling the blanks from rods, and finishing the nails by cold rolling. 3. SAME. This patent may possibly be sustained when limited to the special proceSlJ of producing blanks from a ribbed strip of metal, and finishing them by cold rolling.
This patent as thus construed not infringed by defendant's method, which consisted in forging blanks from hot rods, slightly rolling them while cold to straighten and smooth them, and then shearing them to give the shank the required taper.
5. SAME-ApPLICATION-WHAT CONSIDERED DATE OF, WHEN SUBSTITUTED SPEC-
Where, in an application for a patent, a substituted specification was filed, which was so different from the original as to cover a different invention, held, that the application must be considered as filed as of the date of such substituted specification.
IFICATION IS FILED.
by Charles C. Linthicum, Esq., of the Chicago bar.