'say that you are not satisfied of the defendant's guilt, you have a rea.sonable doubt; but if, after such impartial comparison and consideratiop of all the evidence, you can truthfully and candidly say that you havll a settled conviction of her 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. The facts of the case are for you to determine, and of the credibility of each and every witness you are the sale and exclusive judges. In determining the credibility to be given to witnesses examined,-who are to be weighed, not counted,it is your right to take into consideration their interest or feeling in the result of the proceeding', their appearance and deportment while being examined, the probability of the truth of their statements as compared with other testimony given, their opportunities of observation or knowledge of the matters to which they have testified, their friendly or unfriendly feelings towards the respective sides, and how far they may have been contradicted. While a person charged with crime may testify in his own behalf, he is under no obligation to do so, and his tililure to testify does not create any presumption against him. You should not, therefore, indulge in any presumption against the defendant for the reason that she did not testify as a witness in her own behalf. You are not to permit your minds to be diverted from the real issue in the case by any argument or arguments of counsel, or by any other consideration. So far as the arguments have any legitimate bearing upon the real issue, you should give them the consideration and weight to which you think them fairly entitled. Outside and beyond that, it is your duty to entirely disregard them. If, upon the whole evidence, you are satisfied beyond a reasonable doubt that, at the time aqd place charged in the indictment,. the court made an order· directing the marshal to remove the defendant from the court-room, and that the defendant Wu!:j aware of that fact, and, knowing it, willfully resisted, obstructed, or opposed the marshal in the execution of such order by any or all of the means set out in the indictment, it is your sworn duty to return a verdict of guilty as charged. Unless you are so satisfied, you should find her not guilty.
UNITED STATES t1. WARD. (Owcuit
8. D. CaUj'ornia. May 1,1890.)
lNDIANS--CSIMINAL OFFENSEB--I!ALF-BsEBD. The son of a negro father by an Indian mother is not an Indian, within the mean ing of Act Congo March 8, 1885, (23 St. at Large, 381\,) providing for the punishment
of Indians oommitting certain olfenses, as the ohild follows the oonditioll of the lather.
Indictment against Francisco Ward, alleged to be an Indian. Willoughby Oole, U. S. Atty.
- UNITED STA'fES V. WARD.
George!. Dennis, for defendant.
Ross, J. If the defendant is, as is alleged in the indictment, and as is claimed by the district attorney, an Indian, it is clear that he is not embraced by section 5345 of the Revised StatutP.s; for that section is one of the general laws of the United States in relation to crimes committed in places within their exclusive jurisdiction, from Which, by virtue of sections 2145 and 2146 of the Revised Statutes, crimes committed in the Indian country, by one Indian against the person or property of another Indian, were excluded. Ex parte Orow Dog, 109 U. S. 567-570, 3 Sup. Ct. Rep. 396. The first statute of the United States making Indians triable and punishable by the United States courts was the act of March 3, 1885, (23 St. at Large, 385,) which reads as follows: "That, immediately upon and after the date of 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, rape, assault with intent to kill, arson, burglary, and larceny, -within any territory of the United States, and either within or without an Indian reservation, shall be subject therefor to the.laws of such territory relating to said crimes, and shall be tried therefor in the same courts and in the same manner, and sball be subject to the same penalties, as are all other persons charged with the commisSion of said crimes, 'respectively, and the said courts are hereby given jnrisdiction in all such cases; and all such Indians committing any of the above crimes against the person or property of another Indian or other person within the boundaries of any state of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties, as. are all other persons committing any of the-above crimes within the exclusive jUrisdiction of the United States." Prior to this act, it had been the policy of the government to permit the Indians preserving their tribal relations to regulate and govern their O\vn internal and social concerns. But by this act congress made a ical change in the pre-existing policy, and thereby subjected the offenses therein defined to the jurisdiction of the United States tribunals. It is under and by virtue of that act that the indictment in the present case was found, and by which it must be governed. Manifestly, to bring a defendant within the provisions of the act, he must be an Indian; and it wastherefore necessary that the indictment should allege the defendant to be an Indian. Such allegation necessary, it is of course essential that the proof should correspond; for it is a cardinal rule in criminal procedure that every material averment of the indictment must be established by proof to justify a conviction. In the present case, it is a fact conceded by the respective counsel that the defendant's father was a full-blooded negro, and his mother a full-blooded Indian; that he was taken by his father, when very young, from the reservation where he was born to reside with the father in Los Angeles city, and he did so reside for a number of years, but has since returned to and lived on the reservation, 'where the offeuse in question is alleged to have been CODlmitted. And the question now raised is whether the defendant is an v.42F.no.6-21
Indian, within the meaning of the act, of Mlitrch 3, If his parentage was a matter about which there was conflicting evidence, or if the Jaotin .relation to it was not conceded, it would have to he passed upon by the jury, along with all the other facts of the case; but, being conceded, iUs, useless togo into the,circumstances ofthe alleged offense, if it be true.8s contended by counsel for defendant, that he is not an Indian, within'the meaning of the statute upon which the indictment is founded;' The statutes of the United States nowhere define an "Indian." As a matter of fact. the defendant is no more an Indian than he is a negrp, and ,110 more a negro than he is an Indian. In the case of U. S. v. Sanders, Hemp. the court held that the quantum of Indian blood in the veins did not determine the condition of the offspring of a unIon between a white. person and anlndian, but further held that the condition of the motherdid determine the .question; and the court referred to the common law as authority for the position that the conditi6n of ,the motller fixed the status of theoffspring. In the subsequent Cape of Ex parte 5 Dill. 403. the court said that the first point decided in the Sandet'iJ Oase was sustained by the common law. as also the last point, if applied to the offspring of a connection between a freemilD and a slave. But in& parte Reynolds the court pointed out that"By the common lawtl\is rule i.s reversed with regard tQ,the offspring of free, persons. Their offspring- follows the condition of the fll,ther, and the rule.partus sequitu1'pat1'em, prevailsin determining their status. 1 Bouv. Inst, p. 198, § 1)02; l ..udlam v. Barb. 486; 2 Bouv. Law Dict. Shanks v. Dupont, 3 Pet. 242·· This .is the universal maxim of the C9mmon law with l'egard to freemen'Tas old as the c()mmon law, or even as tb.e.Romancivillaw, and as well settled. as tIle rule, partusliequitu1' ventrem, - the one being a rule fixing the statu80f the other being a rule defining' the ownership of property; the one applicable to different political com-munitiesor states; whose citizens are in the enjoyment of thecivll rights possessed by people in a state of freedolll, the other defining the condition of the o1Ispring had1?een .tainted Py the bOndage of the mother. No other rules than the ones above enumerated ever did prevail in this or any other civilized country. In the caSe of LUdlam v. Ludlam, 31. Barb. 486, the court s8)"s: ·The universal maxim of the common law beingpartu.t sequitur patrem, it is sufficient for the application of this ductrine that the father should be a subject lawfully, and :without breacb of his allegiance beyond sea, no 1l).atter what may be the condition oftl/.e ID,other,' The law of nations, which. when to an condition of affairs in a country, a the common law of that country, declares the same rule. Vattel, in hia Law of Nations, (page 101,) says: ·.As the society cannot exist and perpetuate itself otherwise' than by the children of the citizens, these children naturally follow the condition of their fathers, and 'succeed to their rights. "'; * The country of theiather is therefore that of the children, and these bllCPme true citizens by their tacit consent.' Again, on page lOZ, Vat· 'By the law of natllre alone, children follow the conditilm of their and enter into all t11elr rights.' This law of nature, as far as it has become a part of the common law,in the absence of any positive enactment o'lfthe subject. must be the rule in this case." It results from theseviews.that'the defendant is not an Indian, within the meaning of the liltlltuteuponwhich the indictment is based; that
SCHOF1ELD fl. DUNLOP.
being so, the jury must 'l;>e directed· to return a vel7dict of not guilty upon .the conceded. fact in regard to the parentage ofd.efendant J without going into the circumstances of the alleged offense.
(Circuit Cowrt, E. D. PennB1/l'lIania. :May
PATENTS l!'OR INVENTIONs--NOTICE-INl'RINGEMBNT.
2. SAME-BURDEN OIl' PROOl!'.
Act Cong. Feb. 4, 1887, (Bt. U. S. 1886-87,0. 105,) relating to design patents, provides fllr the recovery of certain damages against persons who shall" apply the design secured by such letter's patents, or any colorable imitation thereof." Held that, though the act applies only to persons infringing with actual knOWledge of the patent, yet, where the design has been copied, it will be presumed that it was with knowledge of the patent, in the absence of proof that a notice was not attached to the patented article.
Hector T. Fentcm, for complainants. JOB. a. lJIraky, for defendants.
BUTLER, J. The suit is for infringing letters patent No. 18,996,"Design for Rugs." The patent, we think, is valid. This question is not free from doubt; but there is nothing in the proofs sufficient to repel the usual presumption in its favor. The infringement is reasonably clear. The dominant and characterizing features ·of the plaintiffs' and defendants' rugs are substantially identical. The plaintiffs are therefore entitled to an injunction. Are they entitled to damages, alBo? This is the only serious question presented. Section 4900 of the Revised Statutes provides: "It shall be the duty of all patentees, and their assigns and legal representatives, and of all persons making or vending any patented article for or Under them, to give sufficient notice to the public that the same is patented; either by fixing thereon the word·' patented, ' togetber with tbe day and year the patent was granted; or when, from the character of the article, tbis cannot be done, by fixing to it, or to the package wherein one or more of them is inclosed, a label containing the like notice; and in any suit for infringement, by the party failing so to mark, no damages shall be recovered by the plaintiff, except on proof that the defendant was duly noti lied of the infringement, and continued, after sucb notice; to make, use, or vend the article 80 patented."
The plaintiffs are within the section; they manufac.ture the rug. WhilEj,the evidence respecting this is meager, it is nevertheless sufficient. There is no proof that the word" patented" was affixed, nor that notice was given as required by the section. The word is found on the rug exhibited; but as this came from the plaintiffs' hands, without explanation of the time when, or circumstances under which, it was stamped, the fact is unimportant. The bill avers notice, in apparent conformity with the alternative provision of the section; and without explanation this might possibly be 'taken as an admission of neglect to mark, especially in the absence of contrary evidence. The notice is only required in case of such neglect, and can be of no advantage under other circumstances. With the explanation before us, however, the averment cannot be accorded this effect. It would be improper to refer it to the statute. An examination 'shows that similar averments of notice, or knowledge, found generally in injunction bills-no matter what the wrong complained of. Its office, doubtless, is to show aggravation, and enhance theclaim: to protection . . While the averment. is denied, the proofs are silent respecting it. If the issue is unimportant its introduction must be treated as surplusage. If it is regarded as raising the question whether the plaintiffs performed the duty of marking, on whom is the burden of proof? The form of the issue is,'immaterial. If the plaintiffs are entitled to a presumption of performapce, their averment will not, of course, shift the burden to them. If the defendants, their answElr is sufficient to raise the question, and admit the proof. Marking the goods, or notifying the infringer, is a prerequisite to the claim of The object of the section is reasonably plain. To mulct an infringer, who is ignorant of the patent, and without reasonable means of information, in damages ,is unjust. They frequ'ently exceed the profits realized from infringement, and operate as punishment. While,knowledge might be inferred, (and in the absence of this statute Would be,) from the pll'tel1t-office record ,,the. impl'ication would be weak; and WPen' applied to such a case wou,ld be unjust. In most instances infringers would be igOQrant of the patent. Congress ther;efore imposed on patentees the duty. of marking their manufactures, in the manner stated, and"mal1e compliance a condition of the right to recover damages, proof thllt the defendant was notified of the infringement, and. after such notice." Marking, or notice, is therefore the foundation of the right to damages. The one or the other must, consequently,be established, to justify recovery. If marking is omitted, and lloticerelied upon, the burlien is on the plaintiff. The section, as we have seen,,!!!) places it, in express terms. As marking is It condition of the righLtl:Hecover damages, it must, as before observed, be established, -either b,Y.:J?foof, or ilifetence. It is a little difficult to' understand why it shouldpelnferred. It is not like questions of novelty, invention, and thElpatent, which are held to be matters of defense. They because of presumptions arising from the patent, or becauseof.!>tatutory provision. . It ),S true that statutes of limitation must
be pleaded, generally, and that they bear some analogy to this section.
The ruling, however, which required this was arbitrary, applying at first to certain cases only, and was then rested on the ground that the debt is still due in conscience. and should be considered so in law, unless the statute is interposed. All such legislation was formerly unpopular, and begrudgingly administered, even by the courts. In the absence of contrary authority we would, therefore, feel inclined to hold the plaintiffs to proof. There is authority. however, which cannot be disregarded. Rubber 00. v. Goodyear. 9 Wall. 788, we think, involved the question. The plaintiff neither averred nor proved compliance with the section. Before the master, his claim to damages was opposed for this reason. The court overruled the objection on the ground that "the pleadings did not raise the question," and" that compliance with the statute was therefore admitted." The court says: "It is said that the bill contains no averment on this subject, and that the record equally barren of proof that any such notice was ever given to the defendant, except by the service of process, upon the filing of the bill. Hence it is insisted that the master should have commenced his account at that time,instead of the earlier period of the beginning of the infringement. His refusal to do so was made the subject of an exception. The answer of the defendant is as silent upon the subject as the bill of the complainants. No such issue was made by the pleadings. It was too late for the defendant to raise the point befure the master. They were concluded by their previous silence. and must be held to have waived it." From this ruling it is plain that the court treated the question as ter of dlifense, to be presented and proved by the defendant. While this conclusion might, possihly, have been more clearly expressed, the language and ruling will not bear any other construction. If the duty of presenting the question, and furnishing proof to establish perfor,mance, was on the plaintiff, his failure to raise it and furnish the proof wotilii not preclude the defendant's objection when made. It would have sufficient, in such case, to point (as the defendant did) to the the plaintiff had not laid the necessary foundation for his claim; itcouI<l not have been held that the defendant had waived his right to object'. It is only on the hypothesis that hI'; was bound to set up and prove compliance with the duty, that his silence on the subject could beheld to estop him. This case must, therefore, be regarded as deciding that the burden of proof. in such cases, is on the defendant; that in thaab,' sence of proof performance is to be inferred. In Goodyear v. Allyn, 6 Blatchf. 33. the question was not directly involved. The applicatiori was for a preliminary injunction. The court nevertheless considered it; and while what is said is but a dictum, it is the expression of an eminent judge (BLATCHFORD) and is entitled to weight. He says: "It was for the defendants to show a failure by the plaintiffs to mark, as required, the articles made or vended, and then the burden of proof would be on the plaintiffs to show that. before suit was brought, the defendants were notified that they were infringing the patent. " This language is unambiguous. Again, in Herring v. Gage, 15 Blatchf. 129, 130, Judge WALLACE says:
. '" '" ,the defendants, that able. .was Ile0t labeled or marked as tiQn 4900 of ,the Revised. Statutes. ,!,he statute has no application to a case like this. ",: '" '" If it'had, the defendants cannot avail themselves of the defense, becausetbeyhave not set it up in their answer," J__ Rubber Co. v. Goodyear. ,This,also, is It nevero
" The InterpretatioiJ. bfthe statute by the bar, as shown 111 practice, is
to I11uch Investigation has satisfied. us, that this inter'v.retation inconformity with the expressed in the cases men'tioned. , :From theenactmerit of the a,mtute down; the bar has proceeded ;uponthehypothesis t,b'at' the burden of averring and pr(}ving failure to 'mark 'isonthe defendant. No case hliS been found in which the plaintiff waS held to proof of' marking in the first instance. A decree must be, entered in the plaintiffs' favor for damages, as well as for 'an injunction. ',,' entitled to 'the benefit of the statute of February 4, 1887, (St. U.· , 8. 1886-87, c.105,) relating to design patents? This statute ,does not apply to all infringers. One who innocently infringes-in ignoranceofthe patent-is rnotwithin its provisions. It contemplates a :Willfnl8!ppropriation of the design. The words "apply the design seSuch lett61:s patent or any colorable imitation thereof," clearly 'imply 'knowledge of the design. It' could not be "applied" without $uch knowledge; and a different reading would render the words "or a colorable. imitation thereof," unmeaning. Other language employed leadsto the same conclusion. We entertain no doubt on this subject, and need not enlarg.eupon it. , A' cbniparison of the plaintiffs' and defendants' rugs justifies a belief that the latter was copied from the former. While the conclusion does not necessarily follow that they had knowledge of the patent, we must, for the reasons before stated, infer they had, in the absence of proof to the contrary. Presull1ing the rug to be marked we must hold him to Buch knowledge, under the circumstances. A will be entered accordingly.
NO'rB liT TEE COURT. Since' preparing the foregoing opInIon we flnd the prin. cipal point. dIscussed is considered briefly in Mr. Walker's excellent book on Patents, ..t section 4611, and the failure to mark patented articles treated as a defense. I have also since seen the case of. McComb v. Brodie, 1 Woods, 153, in which a different view was adopted. The question does not, however, appear to have been discussed in tWa
understanding of the question.
EDISON ELECTRIGLIGH'r 00. t1. PEBKIN$ ELEoi.'RIC LAHP
EDISON ELECTRIC LIGHT CO.
v. PERKINS ELECTRIC Nos. 655, 656:)
(Circuit Oourt, D. Oonnecticut. May 20, 1890.;
Rev. St. U. S. § 4887, provides that "every patent granted for an invention which has been previously pateDl,ed in a foreign country ehall be so limited as to expire at the same time with the foreign patent." Held, that, where a foreign statute, nnder which a foreign patent has heen in force at the time a United States patent for the same invention was appliea for and issued, and where by such statute the extension of the foreign patent was., in the absence of unfulfilled condi- . tions, a matter entirely of right, at the option of the patentee, on his payment of a required fee, and such fee has been accepted by the foreign government, and the patent extended, the United States patent does. not expire until the expiration of such extension, though the foreign patent, before the extension was granted, had lapsed by non-obsorvance or the happening ofa subsequentcondition prescribed by the statute.
INvENTIONS-DuRATION Oll' .RIGHT.
In Equity. Eugene H. Lewis, for plaintiff. E. D. Robbins and Edmund Wetmore, for SHIPMAN, J. These causes are in equity, .for alleged infringement oC letters patent. The questions now at issue arise upon the defendant's pleas, which the plaintiff has set down for argument. in equity in No. 655 avers that theJetters patent upon which The the suit is based were dated January 27, 1880; that a previous Canadian patent for the same invention was granted for the term of 15 years from its date; that said term has not expired; and that the same is in full force and The plea in that case alleges that the Canadian patent was . granted on November 17,1879; that said Canadian patent was originally granted for the term of five years, with the privilege of extending the same, after the expiration of the said period, upon the payment of a further fee; that it bore upon its face its lil,lbility to be terminated before the expiration of five years by the non-observance of two conditions subsequent, similar to those which are recited in Pohl v. Brewing Co., 10 Sup. Ct.. Rep. fj77; and that said two conditions were not fulfilled. Its actual attempted extension by the Canadian government is not denied. The plea further alleges that during said period of five years the Canadian patent expired by virtue of the expiration of a subsequent Swedish patent for the same invention, !J,nd that the Canadian patent was incapa;. ble, under tlle Jaw ofCanada , of extension beyond said original term of, five years; and that any attempt to extend the same by any officer of the Canadian government was void, and of no efl:ect. It is understood that the Swedish patent was issued after the date of the United States patent, and that the Canadian statute of 1872 in regard to the e;g:tension of pat.., ents by of fees, which is. recited in the Bate Case, is the statute' under which the Canadian patent was issued. In Bate Re.frigerating Co. v. Hammond, 129 S. 151,.9 Sup. Ct. Rep.'; 225; it was held that. . . ,