,.FEDERAI,., REPOR'l'ER. , .The :us wast determined by
in LU. S. v. Ulrici, 12,Myers, Feq. Dec. § 2425.
It has alao)
cided by the supreinecourtof this state,after considering several cited cases. In Statev.CoZvin, 90 N. C. 7l7"M.r. Justice ASItESaid: . . "From an investigation of.the authorities upon the subject, our conclusion is that, to warrant .the conviction of lldefendant for such an offense, it is esshould have done some acts. intended, adapted. apsential that the proJtimating, and whichin the ordinat;y and likely courseof things. would result in the commission of a particular crime; and this mlist be averred in the indictment alJd proved.", See, also,State v. Brown, 95 N. 0;685. The evidence on .the trial of this was amply sufficient to warrant the verdict ofthe jury; but as the averments in the indictment are not tp.ade with the certainty required by well-settled rules of law the judgment must be arrested. It is so qrdered. .
(Dilb'let Court, E. D. Mi8souri; E. D. February 27, 1888.)
BANXS Al'm BANKING-NATIONAL BANKS-MAKING FALSE ENTRIES-ERASURES-
REV. ST. U. S. § 5209. The erasure of figures constituting'part of a number already written on an lLCcount·book of a national bank and the writing of different figures in place of those erased constitutes "making an entry," within the meaning of Rev. St. U. S. § 5209, making it a mis(1emeanor for an officer or clerk of a national bank to make, with intent to defraud, any false entry in any book, report. OX: statement of the bank..
On Demurrer.to the Indictment. ThomatlP. Bishaw, U. S. Dist. Atty., for the United States. C. H. Krum. for defendant. THAYER, J. The demurrer which has been interposed to the second, fourth, and sixth counts of the indictment raises the question whether the erasure of one or more .figures cOllstitutinga number already written .on the books of account of a national bank, and the writing of different figures in the place of .those erased, constitutes "making an entry," within the meaning of section 5209, Rev. St. U. S. That part of the section material io the present inquiry is as follows: "Every president, director, cashier, teller, clerk, or agent of any (national banking) association ... ... ... who makes any false entry in any book, report, or statement of the 'association, With intent in either case to injure or defraud the association, or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to. examine the affairs of any such association, ... ... ... shall be deemed guilty of a misdemeanor," etc. In three counts of the indictment under consideration, being counts Nos. 1, 8, and 5, the offense is charged generally in the words of the
statllte,-that is to say, the defendant is accused of having made a false entry on three several occasions in the "General Balance Book of the sociation," whereby the, Mtnal amount of cash on hand at the close of business on said .three days was largely exaggerated. In counts Nos. 2, 4, and 6, the defendant is accused of making false entries in the same book, anQ on the same days, as in .counts Nos. 1, 3, and 5;· but the the entries is particularly described, and as described manner of the false· entries consisted in the erasure of certain figures of numbers previollslywritten, and the substitution of different figures in their place. For example, it is alleged that the first two figures of the number (136,302) representing the amount of cash on hand on a given day were aoli the figures. 2 and 9 substituted, whereby the number became 296,802. It is obvious that the two sets of counts relate to the same transactions, there being only three false entries involved.in the six counts. Therefore,while the demurrer only professes to question counts 2,4, ·and 6, it really challenges the whole indictment; for if the erasure of figures and the substitution of others in their stead is not in effect "mak.ing an entry," within the meaning of section 5209, then, as no en, try has been made, no otfenae has been committed which is punishable undereitber count of the indictment. The C9ntention on behillf of the defendant is that the indictment merely charges an alteration· of an entry previously made which was correct when made, and that the statute has not made it an offense to alter an entry, even though. the books of the association are thereby falsified. As there are no adjudications applicable to the question at issue it must .bedecided by a fair interpretation of the phrase" make any false entry t" and also by a due consideration of the purpose of the statute, and the mischiefs intended to be guarded against. In section 5209 the reference to books of account, reports, and word "entry" is used stl/.tements. When used in such connection Webster defines the word as "the act of making or entering a record;" that is to say, the act of .I;ecord of a fact or transaction. But in section 5209 it is obviously used to denote the result of the act, rather than the act itself. It signifies that which is written, be it words or figures, and if that :which is so written misrepresents the fact or transaction which it was inteuded. to authenticate, then it is a false entry, within the meaning of the statute. When a person makes an entry in books of account, the act may involve, and oftentimes does i:pvolve, an alteration of an entry previously made; but the act does not lose its character on that account. An entry is Plade, notwithstanding the fact that a previous entry is altered. Adopting the definition before stated of the words" entry" and " false entry," it appears to me that a person makes a false entry, within the meaning of the statute, who erases one or more figures from a number already written in a book of account, and writes other figures in lieu thereof, so that the fact intended to be recorded isfalsified. I can see no substantial difference between erasing certain figures of a number, and writingdiffereJ;lt ones in their place, and making an entry every part of which is in the writer's handwriting. The act in question, as I conceive,'
may be Correctly termed either the alteration of an entry or the making of an entry. It may appropriately be said of such an act that an" entry has'been made" rather than "altered," because a new number is the result of the act, and for the reason that a new -record is ·created which bears ditrerent testimony as to the fact or transilCtion intended to be thenticated. If attention is paid to the purpose which underlies the law under which the indictment is framed, there is ample ground to base an inference that the construction above given is in aceordance with the legislative intent. The statute was obviously enacted to prevent balik officials and employes from concealing the actual financialconditiori of national banking associations, by means of a falsification. of any of the books of account or statements or reports which they are by law required to make; With this purpose in view, it cannot be supposed for a ment that the law was framed with a view of punishing persons who made original false entries, and, at the same time, of exempting from punishment those who falsified correct' entries previously made, by erasing figures and substituting different ones in their stead. I think it is too clear for argument that congress intended, at least, to punish such acts as are described in the second, fourth, and sixth counts of the indictment, .and I am furthermore of the opinion that, by'the prohibiting "the making· of any false :entry," and imposing a penalty for so doing, they have used language fully adequate to that purpose. For 'the purpose of showing that congress did not intend, by section 5209; '1.0 make it an offense to alter entries in the books of national banks, my attention was called, on the argument, to numeroUs sections of the Revised Statutes,whereby it has been made an offense against the United States to alter public books, documents, and instruments, such as court records, surveys, maps, patents, bonds, treasury notes, powers of attorney, money-orders, etc. An examination of each of those 5394, 5411, 5414,5415, 5416, 5418, and 5463-shows, however, that in every instance the word "alter" was aptly used;' in every instance there was an apparent necessity for the use of the word" alter," as it de... scribed an act not distinctly covered or embraced by any preceding word. But in the:section under consideration there was no apparent need of making use of any additional words or phrases. The section prohibits every officer or employe of a national bank from making "any false try in any book, report, or statement." The language so used was sufficiently comprehensive to forbid a falsification of the books of a national bank in any manner, whether it was accomplished by an original false entry or by changing an entry already made. In either event it would be necessary to write in the books,-to make an entry of some sort,-andif the words or figures so written falsified the fact or transaction intended to be authenticated, the act would necessarily be within the prohibition of the statute. As a further reason for sustaining the demurrer it was suggested that the acts described in the second, fourth, and sixth counts may have amounted to a forgery. I assume that by this counsel intended to say that if the act amounted to a forgery defendant cannot be punished un-
SEIBERT CYLINDER o:n:;cup CO. ". MICHIGAN LUBRICATOR CO.
although' the ad falls within the provisions of that der sectl\)n. With reference to such suggestion it is sufficient to say that if it be conceded that a falsification of the books ora national bank, committed under such circumstances as to amount to a forgery, could not be punished under section 5209, yet such concession cannot avail the defendant on demurrer, for the reason that the demurrer admits the facts pleaded in the indictment; and as the offense is there stated, it clearly did not amount to a forgery. In re Windsor, 6 Best & S. 522, 10 Cox, Crim. Cas. 118; State v. Young, 46 N. H. 266; 1 Bish. Crim. Law. § 586. I think the demurrer should be overruled, and it is so ordered.
SEIBERT CYLINDER OIL-CuP Co. 'V. MIOHIGAN LUBRICATOR Co. SAME ". GRACE
(Oircuit Oourt. B.IJ. Michigan. February 8,1888.)
PATENTS FOR INVENTION-APPLICATION FOR INJUNCTION-SUSTAINED PATENTEVIDENCE TO OVERTHOWPRESUMPTION OF VALIDITY.
Upon an application for a preliminary injunction in an action for infringement of a patent, the validity of which has· been sustained in three former suits, defendant, a witness and party in one of the former suits, corroborated by one other witness, testified that a machine with the one used by him was perfected and in use more than two years prior to the issuance of plaintiff's patent, but admitted that he did not apply for a patent for more than niue lears after perfecting his invention, and the evidence tended.to show that the invention as patented by him ditrered essentially from the one originally.Dsed. Heidi. that this testimony not having been introduced in the former suits, does not establish prior invention and use beyond a reasonable doubt, so as to overcome the presumption arising from the issuance of plaintiff's patent, supported by three adjudications in his favor.
In Equity. On motion to dissolve an injunctiiJri, and motion for junction. On motions for injunctions under the Gates "Sight-Feed Lubricator ent, No. 138,243, of April 29; 1873. An interference proceeding was had in the patent-office, in 1880, between Parshall and others, who are strangers to· these suits. The record in the interference proceeding was stipulated into the case of OilrOup Cb. v. Lubricator 00., 10 Fed. Rep. 677, in which the patent was sustained on final hearing. Subsequently, new defenses having arisen, a suit was commenced under this patent against William Burlingame, the agent of the Detroit Lubricator Co., and counter-suits were commenced,by the Detroit IJubricator Co., against the vendees of the complainant. The prior proceedings in the patentoffice and in the Phillips Ch8e were stipulated into this . Burlingame case. Parshall was again examined, and his alleged anticipation further in. quired into, This case was argued at length, and taken under advisement, and, having been held under advisement for seven m6nths, was settled, v.34F.no.1-3