such prosecution before Baron WATER PARK, of Water Park, was held to be fatally variant from the declaration. Mr. Bishop statefl the rule as follows: "No allegation, whether necessary or unnecessary, which is descriptive of the identity of that which is legally essential to the charge in the indictment, can be rejected as surplusage." 1 Crim. Law,485. The allegation being that the letter was directed to· the treasurer of the Travellers' Insurance Company, and the letter showing that i,t was directed to the Traders' Insurance Company,furnishes as complete and unanswerable an offense against the rule as can be found. A charge of embezzlement of the property of the Central Railroad & Banking Company would be as well sustained by proof of theft from the Georgia Railroad & Banking Company. Upon both grounds, therefore, the prosecution must fail; and the court is strongly inclined to think, from all the circumstances surrounding the prosecution, that there is substantial justice in the result. Certain it is in accordance with the law which presumes the defendant innocent until he is proven to have violated the law in the manr.er charged in the indictment,and upon a fair trial, in which he has been deprived of none of the constitutional privileges or immunities of the citizen. The government being unable to proceed with its case, the jury is directed to find a verdict for the defendant.
JOHANNESEN, (two cases.)
(Oircuit Oourt, S. :!J. Georgia. B.
hmICTMlIlNT OR INFORMATION-I1!I1l'AMOU8 OFFENSB.
Wherl;lver, by the terms of the statute, the accused, upon conviction, may be confined In the state p'rlson or penitentiary, the charge Is "Infamous" 110 the meaning of the constltutlon, and the prosecution must be by or presentme.nt. The offenses of violating the Internal revenue laws, under Rev. St. U. S. §§ 8242. 8244. are punishable by a fine of not less than '1,000, nor more than $6,000, and imprisonment not less than six months, nor more than two Yllars. Rev. St. U. S. 5539, 5541,5542, provide that a sentence' of the United 8tatea courts to imprlsonment for a perIOd longer than one year. or to imprisonmelllt at hard labor, may be ordered to be executed in a state prison or penitentiary. lflld,that the punishment which may be imposed for these offenses is "infamous, " and the prosecution must be by indictment or presentment of the grand jury, and not by information
mTERNAL REVENUE-VIOLATION OF LAWS-PROSECUTION BY INFORMATION.
Criminal·Informations against Otto Johannesen for violation of Rev. St. U. S. §§2865, 3242, 3244. Demurrer to informations. Du Pcmt 'Guerry, for the United States. Denmark, Adams, for defendant. SPEER, J. Otto JohannesElD is prosecuted by information for a violation of section 2865 of the Revised Statutes. The punishment therefor
is anne not exceeding $5 j OOO, or imprisonment for any term not exceed.. ing two years, or both, in the discretion of the court. He is also ecuted. for a violation ofsections 3242 and 3244 of the' Revised Statutes; These are directed against breaches of the internal revenue laws. In the first count of the information last mentioned he is charged with ing on the business ofa wholesale liquor dealer. The punishment is a fine of "I!0t less than one thousand dollars, nor more than five thousand dollars, and imprisonment not less than six months, nor more than two years." In the last count he is charged with carrying on the ness of a retailliquor dealer. The pllnishmentis the same on both counts. To both informations the defendant demurs, upon the ground that in each of the thtee..chargeshe is accused of an "infamous crime," and can be proceeded against only by indictment or presentment ofthegrandjury. It is difficult to overestimate the importance and comprehensiveness of the question raised by this demurrer. It has been the steady practice,Qfthe officers Of the government in the courts of the United States to prosecute upon the information of the United States attorney a very large class of cases which j if tne demurrer is well grounded in law, can be prosecuted by indictment or presentment only. No doubt there are, pendirtg:at this time many of these cases, and many prisoners may how be confined upon sentences pronounced on such informations. These informations are chiefly used to prosecute violations ofthe internal revenue laws. All cases of distillation, carrying on the business of a retail or wholesale liquor dealer, manufacturIng stills, rectifying, removing distilled spirits on which the tax has not been paid, and in fact a large proportion of the crimes against the general government for the violation of internal revenue laws, are prosecuted in this manner. The supreme court of the United States, iri 'the case of Mackin v. U:S., 117 U. S. 34'8, 6 Sup. Ct. Rep. 777, have rendered an elaborate and exhaustive decision upon this question, and upon, that casethe defendant here relies. Theprosecution .was un 'cr section 5440 of the Revised Statutes. '1'he punishment presbribed waea penaHyof "not less than one thousand and not more than ten. th9usand d911ars," lmd"imprisonmentnot more than'two years.;;", :the drcuitcourt the judges were divided in opinion upon several ques:tions'oflaw, andamongthem thefollowing: "Whether the crime charged ;Was irifamous, the' meahing of the constitution ofthe' United States, and whether the defendant would be held to answer other than on the' presentment or indictment of the grand jury." These questions were certified t;h,e;snprintie cou,rt. ,Mr. .Justice GRAY, for the court; quotingthat clause of the fifth amendment to the constitution which dec1ares'lthat no person shall be beld to answer for a capital or otherwise infamous crime, unless on; a presentment or indictment of a grand jury,"proceedswith great clearness and force in the discussion of the question in which the liberty of the citizen and the weH,;,heing of the community is so vitally involved. He declares the "test" by which to determine whether ,the prosecution can be maintained by information "is whether the crime is oire:for which' the statuteS authorize the court to award an infamous punishment, not whetherth;e punishment ultimately /l;watdedis an infamous·
UNITEp STATES, fl. JOHANNESEN.
one. When the accused is in danger of being subjected to an infamous punishmel1t,ifconvicted, he has the right to insist that he shall not be put upon bis trial except on the accusation of the grand jury. No laration of congress is needed to secure, or competent to defeat, the stitutional safeguard. What punishment shall be considered as infamous may be affected by the changes of public opinion from one age to another; and for more than a century, imprisonment at hard labor in the state prison or penitentiary has;b,een considered an infamous punishment - in England ,and America.", Citing-Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct.&p.93p; and distinguishing Hurtado v. California, 110 U. So, 516,4 Sup. Ct.. :Rep. ,Ill; U.S. v. WaddeU, 112 U. S. .5 Sup. Ct. Rep. 35; Kurtzv. Moffitt, 115 U. S. 48'7,6 Sup. Ct. Rep. 148. Attention is then called in the decision to the express provisions of the acts of congress, (Rev. St. §§ 5539, 5541,5542,) by which it is provided that a sentence of the United States courts "to imprisonment for a period longer than one year, or a sentence imprisonment and confinement to hard labor," may be ordered to be executed in a state prison or penitentiary; and that the convict while thus lmprisoned is "subject to the same discipline and treatment as convicts'sentenced by the courts of the state." The court states that it has -not been found necessary to consider how far a convict from I) United States court can be put to work in a state penitentiarywhen not in terms sentenced to hard labor; for, to use the guage of the court, "we cannot ,doubt that at the present day imprisonn;ient in'.a l;ltate prison or penitentiary, with or without hard labor, is an infamous punishment. It is not only so considered in the general opinion of the people,but it has been recognized as. such in the legislation of the states anq territories, as well as of congress." This was the finding of a unanimous court. In Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. Rep. 781, the holding is reiterated, Mr. Justice MILJ.EH delivering the opinion, again, ofa.unanimQus.'co\lrt Thus we see how the liberalizing and humane tendencies of the law are advanced by the progressive steps of that illustrious tribunal. In Expal'teWil80n, 8upra, the holding was that acriine hl,trd labor in t4e state prison or penitentiary is infamous. Now, it is held that imprisonment in the state prison or penitentiary is ,,' It follows logiCally that since the defendant Johannesen can 'the"" test" established ,-namely , that the court might award an infamous punishment, because he may be imprisoned in a state prison or penitentiary., to the salIle discipline and treatmen,tas convicts sentenced by the courts of the state,-that he is entitled to the becefit,. provision that he may not be held to answer the presentqJent or ihdictmentby a grand jury. ling as is the proposi.tion to a people who have been habituated to cutipn!'l upon!,jnformation in <;lases: of this characterl the .practice Ihust cease, and hereafter the courts of the UnitedStntes will take no action the plas!, of cases w i rtl prisonment ill thestate, penitentiary Ill.' ',priso,u,may result, the presenhnent or indictment by now,the "law of land," as firmly of magna charta, qf w:hi9h
"To 'have produced ii,t<> have preserVed it, to have matured it, constitute the immortal claim of England upon the esteem of mankind." It should bell, sourte bf profound. congratulation to the patriotic and the law'-abiding that even the apparent necessity to proceed by information ill cases of thisclass has ,departed; that the people ora unified country are laboring peacefully in the rich fields 'of an advancing civilization; thl1tctil11e is rare; that the impartial and law-respecting investigations olthe wand juries;will bring to the bar of justice the willful lawbreaker, but will in all likelihood discountenance the sinister and malevolent informer who has used the powers of the government to purvey to his malice, or his greed for the perquisites of the witness for prosecution.
(Circuit Court. 8. J).Nt1IJJ York. June 26,1888.'
The sixth claim of letters patent No. 10,807. issued to Frederick A. Hubel. February 8.1887. for an improvement in machines for cutting off gelatine capsules, being the third reissue of No. 187.279, dated February 13, 1877. described as "the removable mould plate. bearing a series of capsule moulds. secured thereto at regular intervals. combined with and arranged to be held . by and withdrawn from the supporting frame when used for the purposes , ' set forth." is not an extension of the claim in the first reissue, No. 8,440. described as "the plate. R. C, in combination with a series of capsule moulds intervals. substantially as and for the purposes set secured thereto at forth, " the specificatlOns necessarily making a removable frame a part of the combination.
PATENTS POlt INVENTIONS-REISStJ'E-ENLAltGEMENT---MACHINES J:l'Olt TING GELATINE CAPSULES.,
. The said sixth claim is not anticipated by the machines made by Dundas Dick in 1865. described as having moulds connected with frames like window frames. moving up and down, which were attached to the machine. the moulds being brought, by means. of a circular motion, over knives fastened to a stationary circular railway, the frames not being removable in any proper sense of the word.
In Equity. On bill for an injunction to restrain the infringement of ·a patent. The first suit is by Frederick A. Hubel against James Waldie, committee of Dundas Dick, who was the owner of letters patent No. 305,867, issued to W. A. Tucker; September 30, 1884. Frederick H. Betta, for plaintiff. A. G. N. Vermilyea, for defendants. SHIPMAN, J ·. These two bills in equity are based upon the alleged infringement of letters patent No. 10,807, dated February 8, 1887, to Frederick A./Hubel, for an improvement in machines for cutting oft' gelatine capsules. The original patent, No. 187,279, was dated Feb-