UNITED STA'rES V. WHALEY
(OirOflitCou'l't, B. D. Calijomia.
Act Congo March 3, 1885, provides that "immediately upon and after the passage of this act all Indians committing against the person or property of another Indian or· other person any of the following crimes, namely, murder, manslaughter, " etc., shall be snbject to the same laws, and tried in the same courts, as are all other persons. Held, on indictment of Indians for the killing of another Indian, in obedience to tribal resolutions, that it was no defense that defendants never had notice of the statute.
Indictment of Bill Whaley ,Pancho Francisco, Salt Lake Pete, and Juan Chino, (lndians,) for murder. ;George J. Denis, for the United States. George W. Knox, for defendants. Ross, J. The deftmdants, who are Indians, are charged by the indictmentin this case with the murder of one JUl'n Baptista, also an Indian, :committed on the Tule River Iudianl'eservation, within the state of California,all of the parties at the time the usual tribal relations. When the case was called for trial the district attorney stated that. the proof would. be such that a verdict of guilty of murder could not beprocured,nor could he contend for it, and. therefore consented .thatthe. de,tendante be permitted to withdraw their' plea of not guilty, and enter·oneof gpiltyofmanslaughter, which they desired to do.. That was acpordingly done. To enable the court to give proper judgment, the oounsel for tbe, respective parties then agreed upon most of the facts of the case; and as to one Ot; two points, upon which they were not entirely witnel'lses were, by their joint request, heard. These proceedings developed this state of facts: The defendants were memberS' of an Indian tribe, domiciled upon the reservation named; and the deceased was .an Indian doctor, who, in the course of his treatment of the members .of thetribe, had been so unsuccessful as to induce the belief on the part ofits plembers he had, been systematically poisoning his patients. About 20 of their number had been treated by him, and under his treatment e:;tch of them had died, . Finally one Indian, Hunter Jim by name, who. was a favorite with the tribe, became, under the doctor's treatment, very sick. The members of the tribe held a council, and informed the doctor that if Hunter Jim died they would kill him. Jim did die. A cOUllcil was held, at which it was determined to kill the doctor, and the fOlU defendants were appointed to carry into effect that determination, which they did, upon tbe reseryati,oJ;l, the following 'morning, by shooting.biIP. . Ha<ithis homicide been committed prior to the passage ofthe act of congress ,of March 3, 1885, this court would have had no jurisdiction of theoffense,Jor the F:overnment Qf the United States had theretofore perthE! Indians. preserv.ing their tribal relations to regulate and govrelations. But by the act of 1885 conern their owh internal made a radical change in that policy, and therein enacted:
"That immediately upon and after the date of the passage of this act all In, dians committing agall;lst the perll0J;lr or. prqper,ty otanother Indian or other person any of the following crimeS, l1a.mely, murder, manslaughter, as· sault with intent to kill, arson, burglary, and :larceny, ,within any terrItory of the United States, and either within or without an Indian shall be ,subject .therefor to the of such tcrritoryre}ating to'said crimes, and shan .betriM therefor in tlle same courts, and in manner, and shaH be to the same penalties, as are all other persons charged with the commission of said crimes, respectively; and. the said courts are hereby given jurisdiction ioall such cases; and .all such Indians committing any of the above crimes against the person ()r property of another Indian or other person, within the boundaries 6f any state' of the United States, and within the limits reservation, shall be subject to tpe samelaws, tried in the same courts. and in the same manner, and subject to the same penalties, as are all otber persons any of the above crimes withi!1 the exclusive judsdidlioIi of the United States." 23 St. c. 841, p. 862, § 9, p. 885.
The case of these defendants falls within the last class of cases pro. vided for, by this law. The counsel for defendants oontend with much earnestness, that the law in question should not be held tinlpply to them, for the reaso11,' as it is claimed; that they had no notice or it. If that view should be adopted by the ,court, the plelt of guilty of manslaughter, entered by the defendants, cQuldnot be permitted to stand, for of course the court would not enter judgment in a case of which' it had no jurisdiction., .The validity of the act in both ofitsbranches was determined by the Bupremecourt in the case entitled U. S. v. Kagama,'H8 U. S. Cto'Rep. 1109. Its terms are plain, find clearly embrace 375, the offensefqrwhich defendants were indicted. Congress did not Me proper to provide that the law should not take effeot'l1ntil the Indiana should be,notified of its provisions, .but, 'otl'the contrary, enacted that immediately upon and after'the, date of the passage ofthe l1et all Indians committing,any of the offenses deScribed, within the designated places, shall be subject ,to the laws therein prescribed. Clearly the court ca!lnot hold the law Iinapplicable to any Indian who' comes within itsprovis.. ions·. While ithe offense'committed by the defel'ldantswould,: if com:mitted by a: white man,have ofooursebeell murdEn', may' be, in view of Indian ,n.ture, Icustomst.superstition, atid igIiorance, that. i.n the Circumstances attendmgthekilnng of the doctor there was wantmg the malicetbat is essential to constitute the crime ohnurder.· It'wa:s .that view :that prompted thedistrlct attorney to' say that he could not contend for a verdict ofgtiilty of murder, and toeonsellt to. the with. drawal of the plea of not guilty; and to the entry of apl'ea of of manshiughter. And since'jnstice should be tempered' with mercy, pethaps the court may be justified,' in'i'mposihgsehtence, in being by the same considerations, and in inflicting a punishment which, under ordinary circumstances, would'be'considered far too' lighi' forso atrddous of the court is that' the a.efen<iantsBill a-crime. Pancho EranClsco, Salt Lake Pete, and Juan Chmo,and eachofthem, be imprisoned in the State Prifson at San QuehtiIH'oi'the period 'of five . years from this d;;,te, and pay a fine of one dollar. :': ,;: ''
JOHNSONV.BROOKLYN& C. R. CO.
& C. R.,CO.
& H. P.
(Oircuit Oourt, E. D. Nfj/J) York. October 24,1888.)
PATENTS FOR INVENTIONS-INFRINGEMENT-ExpIRATION OF PATENT.
Aninjunction against the infringement of a patent for I'D invention consist· ing of a combination of known appliances, is not violated by using the com' bination after the expiration of the patent.
On motion to punish for contempt. Duncan, Curtis « Pa.ge, for complainant, cited:
Bimsetl v. Shaliol, 1l2 U.,S. 487. 5 Sup. Ct. Rep. 244; Suffolk 00. v. Hayden. 3 Rout v. Railway Go., 105 U. S. 189; Needham v. Oxlp-y, 8 Law T. (N. S.) 604; Frearson v. Loe. 9 Cli. Div. 48; Boring 00. v. Marble 00.,2 Fed. Uep.,356; Boring Co.v. 1 Fed. Hep. 870; Belting Co. v.Magowan. 27 Fed. Rep. Ill; Powder Co. v.Powder,Oo., 9 Fed. itep. 316: Goodyear v.Mullee. 5 Blatchf. 429; Hamilton v. Simons, 5 Biss. 7'l; Wells v. Rep.2p; Craig v. Fisher. 2 Sawy. 345; McKay v. Machine 00.,20 O. G. 372. 12 Fed. Rep. 615; Wetherill!. Zinc Co., 5 O. G. 460; Phillips v. City of Detroit. 16 O. G. 627; Wilson v. Simpson. 9 How. 109; Ohaffee v.Belting 00.,22 How. 217; Farrington v. Oom ·· 4 Fish. Pat. Cas. 216: Gotlfried v.Brewiug 00·· 8 Fed. Rep.
Prost« Q)e, for defendants, cited:
Reaper Co. v.Johnstm. 24 Fed. Rep. 739; Mershon,v. Furnace 00., Id. 741; Lord v. Machine 00.· Id. 801; Vulve 00. v. Val've 00 .· 26 Fed. Rep. 319: Safety- Valve Ooy. Gage Oq·· lI3 U. S.157! 5 Sup. Ct. ltep. 513; B01'lng 00. v. Sheldons, 2 Fed. Rep; 353: Telephone 00. v. Kitl5ell, 35 Fed. Rep. 523.
LACOMBE,;f patent (Newman, No. 117,198, July 1871) is for "the combination of an oscillatingplatfortn, arranged foroperationby the weight of the draught animals (of a horse car) with a (4oriS'.:ontally moving) switch." In the combination only was found novelty and ih"entiort sufficient to induce the court to sustain' the patent.", John'8fl1L v. Railroad. 00., 33 Fed. 'Rep. 499. Rocking or oscillating platforms generally, and as devices for automaiicswitches, were known to the art before the date of Newman1sinvention. Horizontally moving switches old. , It was only the inventor's "ingenIOus assembling of known were the case above cited,recognized as :appliances" whicbJudge patentable. lnithe case at bar the Use of several infringing machines in defendants' tracks being sh<;)wn, injunctions were granted the life of the patent.· Thereupon defendants ceased· the use of the patented combination, discbnnecting the oscillatinK tables from the switch-tongues, and employing men or boys to operate the switches. 'Some weeks, however, attertheexpiration of the patent, they substituted new switch'tongues fl)tthose in use wnenthe il1junctioll was granted, connected them with the oscillating tables, and are now ,using the of parts thusform.edi. Complainant contends that this isa violation of the ipjn.nption to puuish defendants ,ror oontem,pt.His,#J6tion is based upon the principle that an infringing article or machine made