were registered in different precincts of that part of the country. This placard gave thename of one William Johnson as registered in the cinct next to the Third ward of Portsmouth. It was contended by sal that this showing of the placard, supported by a' challenge from side the.room, constituted, under some peculiar provision of the Code of Virginia, a criminal complaint against William H. Johnson, and fied his arrest and abduction from the polls. If that were so, the jails of Virginia on election days would be filled with Johnsons, Browns, Smiths, Joneses, Marshalls, Washingtons, Jeffersons, and Madisons. If that were so, it would be incumbent on all of us who bear names like those of persons in other precincts to march to the jails to be locked up on election days, instead of repairing to the polls to exercise the highest right of freemen. And I could not help feeling that the intelligence of the jury and the court were not much flattered by the urging of such a pretension upon them. No, gentlemen, there can be no legal arrest of a voter on election day for any cause relating to his suffraj1;e. In the temple of the republic the place on which citizens stand in casting their votes is sacred ground, and the is an altar before which their persons and liberty are inviolable. In this case, I leave out of consideration all other evidence and all other features except the one which gives it importance,-the arrest of a voter at the polls in the manner shown in this case. It is charged that the Cendant at the bar, by force, unlawfully prevented the voter, William H. Johnson., from freely exercising his right of suffrage, and the evidence is that this force was exercised by, ordering the voter's arrest at the polls, and his abduction from the voting place. I charge you, gentlemen, that .this arrest and abduction were unlawful, and turn the case over to you.
UNITED STATES V. WIGHT.
DlBtrict Oourt, E. D. MicMgan. March' 10, 1889
FROM: MAILS-REV. ST. U. S. § 5467. The two clauses of Rev. St. U. S. 5467, describe two separate And distinct offenses, viz.: .(1) Secreting. embezzling, or destroying a valuable letter; and. (2) stealinl!.' the contents of such letter. These two clauses should be read diBjunctively.
It is not necessary, in an indictment under the :first clause for secreting' and embezzling, to that the letter had not been delivered to the party to whom it was directed; nor. under the second clause, for stealing the contents, to allege.that the letter was intended to be conveyed by mail or mail carrier.
8.S.uiE'-:LETT1lJRS D1lJPOS1TED IN LETTER-Box.
It is sufficient evidence that letters are "intended to be carried by a letter carrier" that they are deposited in pillar-boxes to be carried to the poat-office. although it be intended to interceptthem after they have pasaed through the handa of a.suspected employe. . .
4. SAlIlE-,-DECOY LETTER. . It is no defense an indictment of a post-office employe fOt" embezzlement that the letter embezzled was a "decoy," addressed to a fictitious person or place, and was never intended to be delivered. nor that it was made up so as to attract attention, and indicate that it contained money. (SyUaou8 oy the Oourt.)
Indictment for embezzlement from the mails. On motion in arrest of judgment, and for a new trial. in the post-office Defendant, Charles H. Wight, who was an at Detroit, was convicted, under Rev. St. U. S. § 5467, of embezzling certain valuable letters, and also of stealing their contents. The first, third, and fifth counts charged him with embezzling certain letters containing money, which came into his possession in the regular course of his official duties, and were intended to be carried by letter carrier; but there was no averment in either count that the letter had not been delivered to the party to whom it was addressed. The second, fourth, and seventh counts charged him with stealing the contents of the same letters before they had been delivered to the party to whom they were directed; but there were no averments in either of these last counts that the letter was intended to be conveyed by mail, or carried or delivered by any mail carrier, etc. In support of the motion in arrest of judgment it was urged that the indictment was fatally defective, and in sup.. port of the motion for a new trial that it appeared that the letters were decoys, and were addressed to fictitious persons, and to post-offices, streets, or buildings which had no existence,'with the design that they should be intercepted after they had passed through defendant's hands, and before they left the post-office at Detroit. Charles T. Wilkin8, Asst. Dist. Atty· H. M. Duffield, for defendant. Before BROWN and JACKSON, JJ. BROWN, J. The circuit judge and myself had occasion not long since to hold that section 5467 covered the offense of secreting and embezzling valuable letters, as well as stealing their contents. U. S. v. Atkin8on, 34 Fed. Rep. 316. A similar ruling bad been made by Judge BENEDICT in , U·.8. v. Pelletrea:u, 14 Blatchf. 126, although thiBcase escaped our attention at the time. It is intimated in both opinions, however, that the word "and" might be implied to connect the two clauses of the statute, and thus remove every possible doubt as to its construction. Perhaps it would have been well to have substituted "or" for "and," and thus removed any doubt as to the disjunctive nature of the two clauses, since the twenty-first section of the crimes act of March, 1825, from which this act was originally taken, uses that conjunction to connect the two clauses, instead of the other. The authority of these cases is not disputed, but it is insisted that the two clauses of the section should be read conjunctively, ·and the proviso "that the same shall not have been delivered to the party to whom it is directed" shall apply to both dauses. The case of U. S. v· TaylOr, 1
UNITED STATES 11. WIGHT.
ment, or its contents of larceny, under this section, I can only say that 9 out of 10 convictions of post-office employes in this district for the past 30 years have been secured by means of decoys; that a large majority of the cases reported in the books were hased upon decoys; and that dozens of men throughout the country are undergoing punishment for interference with this class of correspondence. Such a general consensus of opinion on the part of courts is certainly a strong argument in favor of its soundness, and since the decision of Mr. Justice NELSON in the case of U. S. v. Cottingham, 2 Blatchf. 470, and that of Mr. Justice CURTIS in U. S. v. Foye, 1 Curt. 364, we had not supposed it to be a matter of doubt. Even in the opinion of Judge DILLON in U. S. v. Whittier, 5 DiU. 35, and in that of Mr. Justice HARLAN in U. S. v. Matthew8, 35 Fed. Rep. 890, there is an explicit recognition of the propriety of making use of decoy letters for the purpose of detecting frauds upon the post-office department. There is nothing inconsistent with this in the English case of Reg. v. Gardner, 1 Car. & K. 628; or in Rathbone'8 Ca8e, Car. & M. 220. Indeed, in Reg. v. Newey, 1 Car. & K. 630, note, and in Reg. v. Poynton, 9 Cox, Crim. Cas. 249, thete is a recognition of the fulness of test letters; and in Reg. v. Young, 1 Denison, Cr. Cas. 198,the court held unanimously that a decoy letter with a fictitious address, posted only to test the honesty of the prisoner; was within the statute. On principle there is a clear distinction. between artifices used. to detect persons suspected of being engaged in criminal practices and means/used to tempt them to adopt such practices. Thus it would be clearly iInproper to put counterfeit money in the hands ofa suspected person, that another may go and induce him to pas!! it or sell it in order to lay the foundation ofa complaint; but it has never. been doubted that a detective may purchase counterfeit money of a suspected. person for the purpose of ascertaining whether he has it in possessien. An excellentdiscpssion of the subject and collocation of authorities by Mr. Wharton will be found in a note to Bate8 v. U. S., 10 Fed. Rep. 97. Defendant's main reliance in this case, however, is upon the fact that the letters were addressed to a fictitious person. and to a post-office. street, or number (varying in each case) .which did not exist, with the design that they should be intercepted if they passed safely through his hands. These letters were all deposited in the regular boxes in different parts of the city, and were intended to be carried by le,tter oarder to the post-office at Detroit, within the literalism of the statute. It is then 6nly by importing into the act words which are not found there, viz., that they must be intended to be carried to "their place of destination," that the letters are taken out of the language of the statute. We know of no authority which holds directly that a letter must be intended to be carried through the mail to the person to whom it is addressed. On the contrary, it was expressly held by Mr. Justice CURTIS in U.S. ¥. Faye, 1 Curt. 364, that the purpose of the writer not to have the letter go to its apparent destination did not affect its character, or prevent it from being a letter intended to be transmittedhy post, or take: it out of of the ,aud in,Reg. v·. Young) 1. Denisou, Cr. Cas.
198, it was also held that it made Iio difference that the letter contained a fictitious address. Any letter which is not written bonafide for the' purpose of communicating intelligence to the person whose name is upon the envelope is to a certain extent a fictitious letter, and it seems to us to make little difference whether the address be to an existent or nonexistent person. All the cases cited by the counsel for defendant are tinguishable from this in the fact that the letter was laid upon the table of. the suspected person with the design of being immediately intercepted, and the evidence excluded the idea that it was intended to be carried a rod by mail or carrier; in short, it was not within the words of the statute. Thus in U. S. v. Rapp, 30 Fed. Rep. 818, the package was placed directly in the "nixes" basket, of which defendant had charge. "It was," says the court, "to beforn open where it was placed." Defendant took it out of the basket,and embezzled it, and it was held not to be intended to be conveyed by mail; but the learned judge expressly declined to say that a decoy letter,when regularly mailed, might not be the subject of The same practice was pursued in Reg. v. Rathbone, Caf. & M. 220, and in Queen v. Shepherd, 25 Law J. M. Cas. 52, and in both cases it was held not to be a post letter upon that ground; while in Reg. v. Young, 1 Denison, Cr. Cas. 198, the letter was mailed in the ordinary way, and the conviction was sustained. In the case of U. S. v. Denicke, 35 Fed. Rep. 407, it is broadly decided that a decoy letter with a fictitious address is not within the statute, but in this part oUhe opinion we find ourselvAs unable to concur. It surely will not be contended that a letter aCCidentally misdirected to a person or post-office that did not exist could not be the subject of.embezzlementj and we· are unable to perceive why a decoy letter, intentiol1ally misdirected for the purpose of its reaching the hands of the defendant, stands upon any different principle, if it be once conceded that the statute applies to decoys. There are undoubtedly certain intimations made by Mr. Justice HARJ.AN in U. S. v. Matthews, 35 Fed. Rep. 891, adverse to the views here· expressed, butthe case itself differs from the one under discussion in the point already alluded to, viz., that the letter was never regularly mailed or intended to be carried, but was thrown upon the dumping table, from which it was transferred to the backing or cancelingtahle, where defendant ·was working, and at which the embezzlement took place. It is true that he says: "A letter intended to be conveyed by mail is one which 'is intrusted to, or comes into the possession of, some postal employe, to be transmitted by means of the mail oOr mail agencies of' the 'United States to the person to whom, under whatever name it is addressed; ot, which is the same thing, to some person authorized to 'receive it from 'the mail before or after it.has reached the particular place to which it is directedj":and he holds "that it cannot be that a letter is intended to be COt1v(iyed by mail,within the meaning of the statute, when the postal authorities, acting. in co-operation with the SE1l1der, intend; after thelette1" is put in the mail, to restime possession of it themselves, or t<> peTmitthe sender to do so before it reaches the hands of any carri8r,me13senger, or Gtherpostalemploye for delivery to
the proper person." Notwithstanding this language, we do not think the learned means to say that a letter which is designed to be intercllpted by the post-office authorities before it reaches its place of dessince he quotes and distinguishes the tination is not within the case of U. S. v. Faye, 1 Curt. 364, in which Mr. Justice CURTIS held expressly that.the purpose of the writer not to have the letter go to its apparent destination did not affect its character, or take it out of the protection of the statute. "If," says Mr. Justice HARI,AN, "it had'ltppeared in that case that the letter was not intended to be conveyed by postat all, it is obvious that he would have held that no conviction could be had;" and that is evidently the gist of his decision in the Case of Matthews. Like all the cases previously cited, it is readily distinguishable from the one under consideration in the important and essential fact that the letter was never intended to be conveyed at all. We regard the words to be conveyed by mail" or carrier as simply descriptive of the , character of the letter as' mailable matter, and are satisfied by evidence · that the letter was so conveyed before or after it reached the hands of the · defendant. A single consideration remains to be discussed. ·Did the inspector'exceed his authority in putting the money into the envelope insuch a way as to apprise defendant that the letter probably contained an article of value? In the note to Bates v. U. S., 10 Fed. Rep. 97, to which alluSIon hag already been m:ade, it is said that, if an employe be suspected -of stealing money, "1 may mark money, and have it exposed in Buch a way as to attract his attention; and if he steal it,and if he subsequently be presented for larceny, he cannot defend on the ground that a trap was laiti for him,"-and a number of authorities are cited in Qupportof the proposition. Defendant relies in this connection upon the case ofBaun· -ders v. People, 38 Mich. 218. No such point, however, was decided in this case; but two judges expreesed the opinion that the' conduct of a · policeman in leaving the court-room door unlocked, so that the prisoner could get certain. papers that he desired, was indefensible.' This opinion, however, is in direct conflict with that of Rex v. Egginwn, 2 Bos. & P..508; Reg. v. Lawrance, 4 Cox, Crim. Cas. 438; Reg. v. JohnsGn, Car. & M. 218; and withReg.v. Willia'm8, 1 Car. & K. 195. We think that no obstacle should be thrown in the 'Way of the detection of crime that does not amount to a practical inducement or solicitation to commit it. The true doctrine in respect to laroeny is thus stated by Chitty, (3 Crim.Law,925:) If the owner, in order to detect a number of men in the act of stealing, directs a servant to appear to encourage the design, , .and leads them on until the offense: iscotDplete, so long, as he did not induce the original intent, but only provided for its discovery afterit was formed, the criminality of the thieves will not be destroyed. 4 Bl. <Jomm. 230, note; 2 Whart. Crim. Law, § 1859; 1 Crim.Law, § 344; Alexander v. State, 12 Tex. 540. Both motions are overruled.
FEDERAL REPORTER, vol. 38.
t1. RAND-AVERY SUPPLY
(Oz'rcuit (Jourt, D. Ma88achu86tta. February 5, 1889.)
PATENTS FOR INVENTIONS-INFRINGEMENT-PRELIMINARY INJUNCTION.
In It suit for the infringement of a patent, a preliminary injunction will be denied where the court is doubtful on the question of infringement, and preliminary injunctions in other cases for the infringement of the same patent have been denied.
In Equity. On motions for preliminary injunctions. Suits by Henry G. Thompson and others against the Rand-Avery Supply Company, and by same complainants against L. P. Coffin, for the infringement of letters patent No. 136,340, February 25, 1873, to Samuel W. Shorey, for an. improvement in machines for forming stapleseams in leather. For a description of the invention, see Thomp8on v. Gilder8leeve, 34 Fed. Rep. 43. J. E. Maynadier, for complainants. H. D. Don,nilly, for defendants. COLT, J. In order to grant the motion for a preliminary injunction now prayed for I must be satisfied that the defendant uses the inclined or retreating anvil, n, which il'l one of the elements of the third claim of the Shorey patent, or its equivalent. Upon an examination of the papers , before me, I have considerable doubt whether defendant's rest or supporter, which hall no incline or bevel, can be .said to be the equivalent of the inclined anvil, 'fl., or whether the defendant can fairly be said to .' use the combination of devices, or the equiva!entscontained in the third claim of the Shorey patent. Judge BLODGETT, in the case of these plaintiffs against the E. P. Donnell Manufacturing Company" where the same question arose, refused an injunction; and after the opinion of Judge WH;EELER in the case against the American Bank-Note Co., 35 Fed. Rep. 203, he still refused to modify his opinion. It further appears that Judge SHlRAS of the district of Minnesota denied similar motions in severaJcases brought by these complainants against different defendants.! In view of the dOll bt in my mind on the question of infringement, I think I ought to follow the rulings of Judge BLODGETT and Judge SmRAS and deny the motion. Motion denied. The same order may be entered in the case of the complainants against L. P. Coffin·
. Not reported.