That clerical errors of the kind apparent on the face of the wh91e reeordd6not'vitiate the indictment is determined in . Com. v. Hines, 101 Mass.. 33; Com. v. Stone, 3 Gray, 453; Corn. v. Mullen, 13 Allen, 551; v.TIiompson', 6 McLean, 56. In the case of State v. ,Davidson, 36 Tex'. 825, the facts are not fully stated. But if in point, it is against the current Of authorities where the matter'does not depend upon statutes. In U. S. v. McNeal, 1 Gal. 387, the error was in the body of the indictment. So in State v. Litch, 33 Vt. 67, the error was in the body of the indictment charging the offense to have been committed at an impossible time. These cases ,do not affect the question. We are satisfied that the error in the caption, where the whole record clearly shows it to bea mere clerical error, is not fatal, We also think the case is within the provisions of section 1025, Rev. St., which are that, Cl no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall trial,judgment,or other proceeding thereon be affected by reason of any defect or imperfection in matter of fonn only, which shall not tend to the prejudice of the defendant." If not within this statute it is difficult to petceive what useful purpose this section can serve. There is no defect- or im perfection that can, possibly, tend to the prejudice of the defendant. The motion to quash the indicio ment is ,
(Diatrlct Oourt, 8. D. OaZifornia. October 28,1887.)
POST-OFFICE-LARCENY :FROM: MAILs.
The second count in an indictment under Rev. St. U. S. § 5467, charged defendant, a clerlt in the Los post-office, with stealing therefrom a registered lettel' addressed to the IJC>stmaster at Santa Monica, and intended to be conveyed by mail, to him. ,The evidence tended to show that defendant received the letter, receipted for it. and in the presence of witnesses put it in the Santa Monica pouch, and locked it; that the pouch was received locked at the railway station, and carried safely, and delivered at Santa Monica locked; that, on opening it there, the card of notification was found, but not tbe letter, and that other persons had access to the Los Angeles post-office bllsides defendant. ,Held, that the jury, if they believed this evidence, must beli6ve beyond a reasonable doubt tht\t defendant removed the letter from the pouch before it left the Los Angeles post-office before they could tind him guilty. By reasonable doUbt is not meant a possible orimaginary doubt, but a doubt that is reasonable in :view of all the evidence adduced. '
CRIMINAL LAW-REASONABLE DOUBT.
,A conviction may be had on evidence alone, where all the circumstances distinctly point to the /tuilt of the accused, and al'e incapable of explanation upon any other reasonable hypothesis.
S:.um-CoNFESSIONS AND ADMISSIONS.
Oral declaratio,lls or admissions, claimed to Jiave been made by the accused, should be viewed with caution, and remarks made by him at the time of af-
UNITED STATES V. M'KENZIE.
restor s)1ould be fairly construed in view of all the facts and sur· roundiuA"l!. 'Theydo not preclude the jury from considering the other facts in the case.
Indictm,ent found under Rev. St. U. S. § 5467. J. Marion Brooks, Dist. Atty., for the United States. Stephen M. White, for defendant. Ross,J., (chctrging jury.) The statute under which the indictment against the defendant was found provides that" any person employed in any department of the postal service, who shall secrete, embezzle, or destroy any letter,packet, bag, or mail of letters intrusted to him, orwhich shall caDle his possessioll, and which was intended to be conveyed by maU, or carried or delivered by any mail carrier, mail messenger, route agent, letter carrier, or other person employed in any department of the IX>stal service, or forwarded through or delivered from any postoffice or branchpost-officeestllplished by authority of the general, and which shall contain any note, * * * any bank-note; * * * any such person who shall steal or take any of the things aforesaid out of any letter,packet, bag, or maHof letters which shall have come into his possession, either in the regular course oLhia official duties or in any other manner whatever, and provided the same shall not have been delivered to the party to whom it is directed'"-"7shall be punishable, by imprisonment at hard labor for not less than one year nor more than five years." The indictment contains three counts. The first, in effect, charges that defendant, on the 27th of May, 1887, emaddressed bezzled a certain registered letter containing $40 in to the postmaster at Santa Monica, and which was intrusted to defendant, as clerk in the Los Angeles post-office, to be sent by mail to Santa Monica; the second 'count, in effect, charges defendant with stealing, at the time stated, from the Los Angeles post-office, a certain hitter addressed to the postmaster at Santa Monica, and intended to be conveyed by mail to him; and the third count, in effect, charges defendant with stealing $40 in, bank-notes out of a certain registered letter with which he was intrusted, addressed to the postmaster at Santa Monica, and intended for transmission through ;the mail to the postmaster at that place. There is no evidence as to the contents of the letter spoken of in the evidence, nor does it otherwise answer the description contained in the first and third counts of the indictment; so that your verdict upon the first and third counts must be "not guilty." But there remains for you to consider the second count,-that charging defendant with stealing the letter ill question,-and you should give to that charge very careful consideration. There is no direct evidence that defendant stole the letter; that is to say, no one, so far as appears, saw him steal it. The government relies for a conviction upon ,circumstantialevidence. A conviction may be had upon such evidence, providedthe circumstances so distinctly point to the guilt of the as to leave no ,reasonable explanation consistent with the theory that he is innocent. In,oth&r words, the existe'nce of the inculpatory facts must
be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt. You cannot convict the defendant unless his guilt is established to your satisfaction, and beyond a reasonable doubt. Mere suspicion, or even strong suspicion, will not justify a conviction; and should the evidence, in your opinion, preponderate in favor of the government, yet this will not authorize a verdict against the defendant unless the proof is such as to convince you of his guilt beyond a reasonable doubt. But when it is said that you cannot find defendant guilty unless from all the evidence you believe him guilty beyond a reasonable doubt, it is not meant that you must be satisfied of his guilt beyond a possible doubt; for the human mind is so constituted that some possible or imaginary doubt may arise in regard to all evidence. A reasonable doubt is a doubt based on reason, an,d which is reasonable in view of all the evidence. If, after an impartial comparison and consideration of all the evidence, you can candidly and· truthfully say that JOu are not satisfied of the defendant's guilt, you have a reasonable doubt; but if, after such impartial comparison and consideration of all the evidence, you can truthfully and candidly say that you have a settled conviction of his guilt, such as you would be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt. To sustain a conviction the government must produce evidence clearly showillg that defendant is guilty. The defendant need not prove his innocence, but the government must prove his guilt; and the mere fact that there may have been sufficient evidenhe to justify the post-office officials in procuring his arrest will not justify his conviction. In the light of these geileral instructions it is your duty. gentlemen of the jury. to carefully weigh and consider all of the evidence in the case without sympathy for or prejudice against the defendant. That the letterin question was in the Los Angeles post-office on the 27th of May last for transmission in the usual course of mail, to the postmaster at Santa Monica, do'es not admit of doubt. Whether the letter was stolen from the post-office at Los Angeles, and whether the defendimt stole it, are the questions for you to determine. If you believe the testimony of the witnesses Morgan and Mrs. Finn, the letter could not have been stolen from the Santa Monica post-office. Both of these witnesses testified that, when the mail-pouch was received by them on the day in question, it was locked as usual, and in good order; and that, upon opening and examining it, the yellow card of notification was found, but there was no registered letter in it. If you believe that Mrs. Finn and Morgan, or either of them, stole the letter, that would end the case against the defendant, and your verdict should be" not guilty." But if you believe , their testimony to be true, you must pursue your inquiries further. The mail-pouch was required to be locked before it left the Los Angeles postoffice, and there was no one authorized to unlock it until it reached its destination, the post-office at Santa Monica. Giroux testified that he received the pouch on the 27th of May, as was his custom, at the railroad car in Santa Monica, and carried it to the postmaster there; that when ,
UNITED STATES f1. ·M'KENZm.
he received it it was locked, and in good order, and remained iO up to the he delivered it to the postmaster. The testimony of Mrs. Finn and of Morgan has already been referred to. If you find that the pouch was locked aud in good order when it reached Santa Monica, as well as when it left the Los Angeles post-office, you should notindulge any imaginary or possible doubts in regard to its being tampered with in its transmission from the one place to the other, in the absence of any testimony tending to show that it was so tampered with. 'the witness Taylor testified. that he delivered the letter in question to defendant on the 27th of May. and took his receipt for it, and that he saw defendant put the letter in the Santa Monica pouch; and several of the witnesses testified that defendaQt subsequently admitted that he did put the letter in that pouch; and two of them-Risley and Culver-testified that defendant admitted to them that he put the letter in the Santa Monica pouch, and locked it. Postmaster Green testified that on the day in question defendant was charged with the duty of locking the pouch. If he was, the tion oflaw, of course, to be rebutted, is that he performed his duty in that regard, and did lock it. But in respect to the oral admissions 0t: statements claimed to have been made by the defendant, I instruct you that such admissions should always be viewed with caution. The imperfection of the medium throngh which such admissions are tr/l,nsmitted should be considered. The infirmities of memory and the desire to detect an offender are subjects which it is proper to keep in view in weighing this character of testimony. Remarks made by the defendant at the time of arrest or afterwards, should be fairly construed in view all the facts and surroundings; and, if the defendant stated that the letter in question was taken either by him or at the Santa Monica post-office. it does not necessarily follow that his statement was correct; nor does that declaration, if made, preclude the jury from considering the evidence fdr the purpose of determining whether the loss of the letter may not be attributable to some other source. In doing so, however, you are not to indulge in mere speculation, but consider the evidence before you as reasonable men. If you find that defemlant put the letter in the Santa Monica pouch, but subsequently, and before the pouch was taken from the Los Angeles office, removed the letter from the pouch with intent to steal it, you should find him guilty under the second count of the indictment. But unless the facts and circumstances of the case convince you beyond a reasonable doubt that defendant did this, your verdict should be "not guilty" as to each of the counts. The defendant has testified in his own behalf, and you should give to his testimony such weight all you think it is fairly entitled to. You will also, in arriving at a verdict, consider all of the other evidence in the case, and give to the testimony tending to show that at the time in question other and third parties had access to the post-office at Los Angeles such weight as you think it should. receive.
HoY:r6t 0.1. v.
D. jfassachusstts. Julv
No.SOS,S74, ,issued to John'Hoyt. and dated August :12, 1884, for improvement in rag-engines for paper-making, the' main: ,Ulaturesof Which are a beater-roll mounted on, a horizontal shaft in one end of a vat, and a hori· zontal partition dividing the vat into upper 'and lower sections, the material being carried from the lower section between the knives of the beater-roll. and delivered over the top of the roll into the uPPllfsection. is not infringed by the pi\tllnt issued August 10, 1886, to John H. Horne, having an upright partition, which, in connection with the beater-roll, Wl!-S in use before the isBUe of the Hoyt patent. ',"
In Equity. :Bill to restrain infringement of patent. W. W. Swan and Anthony Pollok, for complainants ' Livermore &:Fish, for defendant.
COLT, J. 'l'his'bill charges dl'lfendant with infringementofletters patent Nq. 303,374, granted August 12, 1884, to John Hoyt, one of the complainants, for in rag-engines for The specification refers to the prior state of the art, and describes the invention as follows:
"This invention i'elates to engines for beating and similar fibrous materials into pulp for the manufacture of ,paper. In these machines, a beaterroll, set with knives around its periphery, is used, in combination with a bedplate, also set with knives; the said parts being placed in a tank or vessel in which a constant circulation of the material to be pulped is maintained. Heretofore ordinarily the material has been circulated horizontally around an upright partition termed a' mid-felJow,' and the beater-roll and bed-plate have been placed in the alley or channel between this · mid-fellow' and one side of tbe tank The beater-roll lifted the material over a sort of dam, (termed 8 · back-fall, ') and the material then flowed, by the action of graVity, around the · mid-fellow,' and entered again between the beater-roll and the bed-plate. It has been, however, proposed to dispense with the · mid-fellow,' and have the material returned under the and bed-plate. In either case, however, the circulating force is that of gravity, due to the piling up of the liquid or semi-liquid on the side of the back-fall opposite the beater-roll.. Consequently the flow is comparatively ,feeble, and it is necessary to use a large quantity of water in order to prevent the libre in suspension from depositing. In the present invention a much more rapid and vigorous circulation is maintained. The beater-roll is placed at one end of the vat, which is of a depth 8u1licient to contain it, and the other part of the vat.ia divided by a horizontal partition 01' division, which extends. from the beater,-ron neady tothe other end. Tb,e material to be pulped is. canied around by the beater-roll, and is delivered into the upper section above the partition. It flows over the partition, then passes down around the end of the same, and returns through the lower section of the vat to the beater-roll. The bed-plate ia placed at the bottom of the vat, under the beater-roll. The beater-roll not only draws in the material, creating a partial vacuum in the lower section of the vat, but delivers it into the upper section with considerable force, impelling it forward very rapidly."
BYAN ". HARD.
nis evident that one of the main improvements described in the Hoyt patent consists in using a horizontal partition which divides the vats into upper and lower sections, in place of the old upright or mid·fellow fartition. This also appears from the language of claims 1 and 2, are :now in controversy: "(1) The improvement in beating rags to pulp in a rag-engine having a beater-roll and knives, consisting in circulating the fibrous material and liquid in vertical planes. drawing the same between the knives at the bottom of the vat, carrying it around and over the roll, and delivering it into the uppersection of the vat, substantially as described. "(2) A rag-engine for paper-making, comprising the vat, the beater-roll on a horizontal shaft in one end of the vat, and the horizontal partition dividing the body of the vat into an upper and lower section or passage, the fibrous material and liquill being carried from the lower !lection between the knives, anddellvered over the top of the beater-roll into the upper or passage, substantially as described." :In defendant's machine, which is made under his patent dated August 10, 1886, there is found in substance the old upright partition,and notthe horizontal partition of the Hoyt invention. Consequently, in defendant's machine there are no upper a.nd lower sections, in the sense used in the Hoyt patent. The effect of the Hoyt structure, as set out in the first claim, is to circulate the fibrous material and liquid in vertical planes, but the result is quite different in the Horne machine. A careful examination of the Hoyt patent makes it clear that the defendant's machine does Dot infringe claims 1 and 2, one of the most essential elements found in these claims, and which constitutes in great part the real improvement of Hoyt, is absent from defendant's machine. Bill dismissed.·
HARD et ale
(Circuit (Jourt, N. D. N(f/J) York. August 18, 1888.)
PATBNTIl1l'OB lNvENTIONS-INFBINGEMENT-WOVEN-WmE BED·BoTTOM&.
Letters patent No. 241,321. granted to C. H. Dunks and J. B. Ryan, May 10, 1881, for an improvement in swing woven-wire bed-bottoms, whichconslsta
in attaching the woven-wire fabric to a swinging crosscbar suspended byheU. cal springs from the end rails of the bedstead, are void for want of novelty. being but the substitution of one well·known material for anthe other.
InEquity. , 'Action by James B. Ryan and another against Charles H. Hard and another, to restrain infringement of letters patent No. 241,321. Leonard B. Sutrotfor complainants. James B. Jenkina, for defendants.
TQ.is is an equity action, founded upon letters patent No. to O. H. Dunks and J. B. Ryan, May 10,1881, for an