UNITED STATES tI. HARTLEY.
(DiBtrf.ct Court, N. D. Mf88is8ippt,W. D. .Tune 111, 1890.)
Rev. St. U. s. § 5467, provides: "Any person employed in any department of the postal service who shall secrete, embezzle, or destroy any letter * * * which shall contain any note t bond, * * *, "-but provides no penalty after su()h clause. After a semicolon, it turtherprovides: "Any such person who shall steal or take away of the things aforesaid out of any letter, * * * shall be punished," etc. that, since there is no penalty attll.ched to the first clause, the section only eov4;lrs the offense described iii the second clause, of stealing or taking away.
FROM M..uLS-CONSTRtlCTION OF STATUTE.
Where an indictment under Buch section that defendant,"did secrete, embezzle, and destroy" certaillletters, etc., "withln the intent and of section 5467 ,Revised Statutes of> the United States, "the recital of such section Will be oonsldered surplusage, and the indictment, though not good under said section 5467, will be considered suftlcientunder section SSIlI, which provides that "any person employed in any department of the postal service who shall unlawfUlly detain, delay, or. open any letter, packet,' * * * or who .shall secrete, embezzle, or destroy any such letter, packet, * · · shaH be punlshed, " eoo. '
On Motion to Quash Indictment. Rev. St. U. S. § 5467, provides: "Any person employed in any department of the postal service who shal1aecrete, embezzle, or destroy any letter * * * which shall contain any note, bond, * * *; any such person who shall steal or take any of the things aforesaid out of any letter, * * * shall be punished," etc. Section 3891 provides: "Any person employed in any department of the postal service. who shall unlawfuilydetain, delay, or open any letter, packet, * * ·· or who shall secrete, embezzle, or destroy any such letter, packet,"'''' * shall be punished," etc. Henry a. N'Iles, U. S. Dist. Atty. Edward Mayes, for defendant.
HILI" J. The questions for decision now presented arise upon thE' defendant's motion to quash the indictment. The indictment charge, that the defendant, on the 17th day of June, 1887, within this district, did secrete, embezzle, and destroy certain letters intrusted to him, and which then and there came into his possession, and which were then and there intended to be conveyed by the mail, which said letters then and there contained articles of value within the intent and meaning of section 5467, Rev. St. U. S., a more particular description of which said letters and contents to the grand jurors were unknown; the said George A. Hartley then and there being a clerk in the post-office of the United States at Lyon, in said district, contrary to the form of the statute of the United States, and against the peace and dignity of the United States. The grounds of the motion to quash the indictment, as stated, are: (1) The indictment does not charge that the acts set forth were done feloniously. (2) That the indictment does not charge that the articles were taken out of the letters. (3) That the indictment does not sufficiently describe the contents of the letters. (4) Because that, as to the first count in the indictment, the charge therein contained is self-
FEDERAL REPORTER, vol. 42.
contradictory in this, that the averment is that the defendant did secrete, embezzle, and destroy the .articles therein contained. The offense charged is not a felony, but a misdemeanor. Hence the ground for the motion is not well taken. This ground for the motion would be well taken if the indictment were based on the latter clause of section 5467. There is a difference of opinion among the judges who have passed upon this question-First. By Judge PARDEE, of this circuit, in the case of U. S. v.Long, 10 Fed. Rep. 879, in which he holds that the first clause of section 5467, not having any penillty annexed to it, is inoperative.. Secondly. By Judge BROWN, of the eastern district of Michigan, in U. S. v. Atkinson, 34 Fed. Rep. 316, in which he holds that the penalty which was annexed to the first by section 279 of the act of June 8, 1872, which section was carried into the Revised Statutes, was by oversight omitted in the Revised Statutes, and may be supplied by implication. The third decision on this question was by Judge SIMONTON;ofthe South Carolina district, in U. S. v. Gruner, 35 Fed. Rep. 59, in which it is held that the only offense punishable under section 5467 is the "stealing or taking" by a postal employe of the articles enumerated in thlil.section from the mail intrusted to him,whieh mail has been embezzled,. secreted, or destroyed by him. In a case upon which there is a dift'tlrence of opinion Rmong the judges who have passed on the question, and in which there is some doubt as to the proper construction to be giv!:li\ to the statute, I think it safer to follow that given by the circuit judge of thjs circuit, and theref<Jre hold that, for the want of the penalty to the first clal1se, this indictment cannot be ulaintained as a violation of section 5467. But the charge made in the indictment is that the defendant was employed as a clerk in the post-office at Lyon; that the letters were in his custody as such clerk,-which charge is substantially the same offense as is described in section 3891, and creates the offense, although the letter,or man does not contain anything of value, and fixes the fine of not more than $500, or by imprisonment for not more than one year, or by both. The statement made in the indictment 5467 lllay be that the Jetters contained the articles mentioned in considered as surplusage, and when so considered the indictment is sufficient under section 3891; and for this reaSOn tbe motion to quash the indictment will be overruled, and the defendant held to answer the same as if it were an indictment under section 3891.
HOE V. CRANSTON.
D.ConneCUCut. June 28, 1890.)
PATENTS 1I'OR INVENTIONS-PATENTABILITy-INVENTION.
Letters patent No. 216,787, issued June 24, 1l!79, to George C. Gill for an Improvement in apparatus for stopping and reversing machinery. consisting of two pulleys on the driving shaft, one fast and one loose, a belt, with a fork and lever for shifting it, and a Vibrating frame, carrying a frictionally acting wheel, the shaft of which is,geared with the loose pulley, are not invalid for want of invention· Said patent is infringed bya device which ditrers from the patented machine only ill using a friction wheel instead of a cog-wheel in the gearing.
M. H., Phelp8, for complainants. Frederick E. Ta8ker and Donald G. Perkins, for defendant.
SHIPMAN, J. This is a bill in equity to restrain the defendant from the alleged infringement of letters patent No. 216,787, dated June 24, 1879, to George C. Gill, assignor to R. Hoe & Co., for an improvement in apparatus for stopping and reversing machinery. The apparatus is designed to be used mainly upon printing-presses, and to enable the operator to quickly stop and reverse the press if a sheet of paper has been improperly fed to it. The description of the improvement which is contained in the specification cannot be understood without constant reference to the drawings, and I therefore use, slightly abbreviated, the clear description which is contained in the testimony of the plaintiff's expert, Mr. Henry B. Renwick: '''.rhere are many machines which require to be reversed or have their wheels turned in opposite directions or stopped, while the motor shaft is always revolving in the same direction. The Gill invention performs this duty by the aid of only two pulleys on the driving shaft, and a single belt, capable of transferring the motion of the motor shaft to the driving shaft. On the driving shaft there are two pulleys. The one nearest to the frame of the printing-press is a fast pulley, kej'ed upon the shaft. The outer pulley on this driVing shaft is a loose pulley; 'that is, one free to revolve upon the shaft as a journal, or one which will permit the shaft to revolve in either direction ,while the pulley stands still. A belt connects the motor shaft with either pulley on the driVing shaft at the will of the attendant; thebelt being shifted by means ofa shifting 'lever, which carries a fork that embraces the belt. When the fork is shifted into its position nearest the frame of the printingpress, the lower part of the belt is on the fast pulley, and when this fork is in the position furthest from the machine the belt is shifted upon the loose pulley. In order to reverse the motion of the driving shaft, as the fast and loose pUlleys both revolve in the same direction under the operation of the motor shaft, it was necessary to make some connection between the loose pulley and the driVing shaft, so that the revolution of the loose pulleyshotdd drive the driving shaft in a direction opposite ,to that of the loose pulley and of the motor shaft. Mr. Gill devised means, combined WIth the pUlleys and shafts and belt" which will perform this duty. .On the left-hand side of the fast and loos6 ;pUlleys of the driving shaft there IS mounted what .the patent calls a · vibrating frame.' 'fhis frame carries a shaft which has at one end a f1:iction wheel or fdction gearing, and at the other end a cog-wheel, [this frie-