and the petiti:oner bad beenindjoted for that offense and convicted of an ltggravatedaesRult, he could not complain, as such a proceeding would protect him against any furthedrial;but, as the court at Muskogee has no jurisdictiooofassaults with intent to kill, it cannot put a person on trial for that bffense; nor can it igtl.ore the higher offense for the purpose of taking jurisdiction of the lesser one. ' Congress intended that theM;uskogee court should try parties only for lesser offensE!. In this case .the information shows that the offense is one of which the Muskogee co'urt, pas no jurisdiction. the allegations of the information in this case determine the jurisdiction. I am clear that, upon the statement in theinforruation, and the facts as stated by Mr. Walrond; the offense' is that of an assault with intent to kill. It is said th"t perhaps the petitioner shot at the legs or Bousted, and that hence U',Was only an aggravated assault. Might not death ensue fr.om such. A?d, i(sol is it not an assaul.t with intent.to kIll? It IS SQ, because the 111tE'nt anti purpose of the prIsoner was to 111flict such a wou,nd as that from it, and, when he did a wicked imd ,w!ltlton act like this, neither he nor the prosecuting attorney has any right to carve out, a lesser crime because, perchance, the assailed might hot died. .It is enough to know that dev,th might have followed., Is not the main artery of a man's leg aIm,ost as vital as the heart, 'It was not claimed for the prisoner, that he only intended a wound, or that he aliiled atany particular part of the legs. If he shot-at' Bousted's legs inll. rec.kless manner, is he then entitled to such an interpretation of his wicked conduct as that he 'only intended to wound Bousted" so as to cause suffering or little suffering, but not to such ,eitent aFl to endanger:;Iife? How are we to distinguish in such a be.tween what Wigllf have been great bodily harm and ,a slightinjury?If heactua11y shot at Boustedwith'8.,45 caliber pistol, without cause or excuse, then is he not held to have intended such resuits as might probably have ensued from the act? ;There can be no differenet} between an intent, coupled with an act, to inflict such a wound as would probably result in long suffering and final death, and an intention to shoot a man through the heart, coupled with ,the' act of firing. In such a (lase, if carving out a less offense is to be done, what line are we, to cal'veto? and where·sha:Il we end? Upon what principles, or by what, allthQrity, can it be that, because a man ehootsat another man's, legs he otlly intended to inflict a slight wound? The intent was clearly to wound. Could a man know·beforehand what sort of a wound he was going to inflict? The prisoner is presumed to know the nature of the weapon used, as well as the dangerous conse. quences' of the 1!Ise.· I am satisfied that the court at Muskogee had no jurisdiction to try the ·petitioner of the ·offense that he is really guilty, of, and he, is therefore entitled to:a discharge from arrest. I desire to say, in to all these cases. which' have been before me on haheas corpus,that I think the government has made 8. mistake. By this mistake these petitioners have been deprived. of their liberty; they have been harassed by a
00. 11. DEEJUNG.
trialj they have been put to the expense of employing Munsel; they have been east into prison; and, while their trials and convictions before· the court at Muskogee. cannot be pleaded in bar by them, I think, when .the grade of offenses are no higher than these they have committed, the humanities of the law would be subserved by discharging all of them from arrest, and that the government, because of its mistakes, proceed no further. The.writ is ordered to issue in this case.
(Circuit Oourt, W. D ·. Pennsylvanfa.
Letters patent for improvements in mowing-machines, granted to Ephraim Bmith,-one numbered 238,035, and dated October 5, and ;mother numbered 298,249, and dated May 6, 1884,-coD.strued, sustained, and heW. to be infringed. Following Manufacturling 00. v. Deerirtg,20 Fed. Rep. 795.
In Equity. , On 'f41aI hearing. For hearing on motion for preliminary injunction, seeao Fed. Rep. 795. , George Harding and Jilranei8 T. Ohamber8, for complainant. Wll8t Jc Bond, for respondents.
ACHEsON,J. The bill of complaint here charges the defendants with infringing two letters patent for improvements in mowing.machines. granted-to Ephraim Smitli,the plaintiffs' assignor,--one numbered - 233,035, and dated October 5,i L880, and the-other numbered 298-,249, and dnte<lMay 6, 1884. The-case was originally heard and considered by the> CO'Urt upon a motion for a preliminary injunction, which was allowed;: the views entertained by the court being set forth in an opinion reported in 20 Fed. Rep.795.· Nothing, I think, has been shown at final cause any departure from the conclusions expressed in thlit opinion, and little need be added to what was there said. 1. The distinguishing novelty of Smith's invention of 1880 is hisbalancing lever, pivoted to the movable hingEl-'bar, and connected at its.inner and longer end to a chain having a yielding support, and provided . with mechanism for adjusting the chain, whereby both. the outer: and inn:er:ends of the finger-bar. are. counterbalanced, so that the finger-bar shall rest very lightly on the ground and ride freely over obstructions. Innone· of-·the prior patents do 1 find Smith's invention as set forth in his seoond.and thirdclaims,..,,-the ones here infringed. The invention iss. meritorious one,and the owners of the patent should be protected agmllst!a-machine like the defendants',whioh embodies the substance -of"tbe:iniention, while differing· in some formal particulars. I oannot:C()DCur with the: defendants in,the .view thakthe - G,is1ln--elementof the by the second claim .of tho