IN RE CROSS.
I'll. re ALIANO. '
In re VARANA.
(CireuU Court, S. D. New York. September 8, 1890.)
An immigrant who has been convicted' in the country from which he came of an , assault with a deadly weapon, and has served the term of imprisonment imposed, is a convict, within the meaning of the act regulating immigration.
(DIstrlct COllrt, E. D. North Carou.na. June 2, 1890.)
EXTRADITION-oBJECTION TO TRIAL-WHEN TO BE TAKEN.
Where an indicted person, who has escaped to Canada, .and against whpm an extradition warrant has been issued, returns to this country voluntarily, under an agreement that he shall only be tried for the offense for which he has been indicted, and he is thereupon tried and convicted, the o.bjection that; the crime for which he was tried was not an extraditable offense must be raised at the trial in order to be available. An application for the release of such person on habeas corpus, because not tried for an offense, does not raise any question under the constitution, treaties, or laws of the United States.
2. SAME':-HABEAS CORPUS;':"JURJSDICTION 011' FEDERAL CoURT.
'fhe treaty oflS42, between the United States and Great Britain, which provided for the' extradition of persons charged with forgery, allows the extraditIon from Canada ofa fugitive who is charged with an act which was forgery by the laws of Great Britain in 1842.
At Law. Petition for habeas corpUB. W. B. Hunry, for petitioners. SEYMOUR, J. Charles E. Cross and Samuel C. White file their petition for a writ of habeas corpus. It thereby appears that they are confined in the county, work-house of Wake county under a judgment prOnounced bythe superior court of that county upon an indictment charging them with forgery ·. ' From the original judgment in their case an appeal
was taken to the supreme court of North Carolina, where it was affirmed, (7 S. E. Rep. 715,) and thence the pr6ceedings were carried by writ of error to the supreme court of the United States, upon the contention that the offense for which defendants, were indicted was cognizable only in the federal courts. 'rhe supreme court having affirmed the judgment of the Rep. 47,) supreme court ofNorth&rolina, (132U. the sentence of the state court is now being l;larried out against the is illegal and void, ,in violation ,ofihe _ treaty 'of -between the United $tatesand Great Britain.' The facts tlpon which it is contended that the treaty has been violated are as follows: In April, 1888, the prisoners, arrest, as they state, "sought and obtained an asylllmin the dominion of Canada," whither they were pursued by F. H. Busbee, Esq., the United States attorney for this district, acting in that capaoity, and also as I,or the state Carolinlt, lind; one C. D. These two carried with tbem all nece-sanry pll.pers for the extradition of defendants, and caused 'them to be arrested in Canada. While under arrest entered'iil.to a,n agreement to retprn to North Carolina, and the prOCeedings abandoned. The agreement IS in these
"TORONTO, ONTARIO, April 3, 1888. "In the MatteI' of the Extradition of Ohas. E. O,'OSS and Sam O. White. Representing the state of North Caroli na in the matter of adjustment pending against Chas. E. Cross and Sam C. White in the superior conrt of the county of Wake, and as United Stat.,s attorney for the eastern district of North Carolina, charged with tile prosecntion oiall offenses against the United States in said district, I stipulate and covenant to and with and White that, if they shall sul'render themselves to Charles D. Heattf, the person designated to rel'eive them under the extmdition by the prt'sident of the Unit.t'd laws, w,ithout any proceeding under . and shall, so far as they" aid. i'n the delivery to special of the State NaBusbee) of the money brought by. them to Canada, and shall retul'lvwith said Helu'tt'and posse to the statf't of North Carolina, there to be dealt Jaw, I will not institute, 'or pl'1'mit to be instituted. in the courts of rthe ;United Statel!' any indictment or prosecution for under the.na£io,nal 'banking'laws; and that'in llebaJr of the state there .shall- be,nopl'osecution: instituted llKalnst them,or,elther of them, other than those for which extradition is or w'it's ahout to be sought, to-wit: (1) An in<lictm.ent fqrforginga, promissqry nole for $6,250. (describing it;) (2) M note for $7,500, (describing il;)(3) an.indictm.e,ntJor forging, ii promissory, note for $5,800;' (deseri Ling it.) ; That said Cross and White shall be received upon like conditions as if they had been extradited upon these prosecutions, and none other. f" "C;E, CROSS. "SAM C. WHITE. "F. H. BUSBEE. U In all capllcities ." , .,' . : j ,
In purSUll.t1ceOt this defendants returned to the TJnited Stat,es,:and:w(ire tried for forgery, Rn'd The indi.ctment upon whiGh tMy'wel'e tried is annexed to this It was found, at Marph, terJIl,"1888, before extradition proceedibgij were begun, 'or the
IN BE CROSS.
agreement was substituted for them was, made; and cbarges tbe purporting to be defendants with forging a promissory note, intent to defraud, signed by D. H. Graves and W. H., Sanders, contrary to the form of the statute," ,etc. Petitioners aver that, under, the above-cited agreement, they were entitled to the same immunities that they would have been entitled to had thElybeen regularly extradited; and that had they been regularly extradited they could only have beell, tried for common"law forgery and uttering; no otherkind having been; contemplated llPQer the treaty of 1842. They aa,ythat they were in fact tried and convicted, of a statutory.forgery aud uttering differing from common-law forgerY,in proof and degree of punishment, and that there-, fore they havfjbee,n tried for a, different offense from that for which the)'! might have been extradited. I am of thl;' opinion tha,t it appear)\! from the petition itself that the party is not entitled to the writ. If that be so, the (:ourtought not to grant, as isnskedjan: order to show cause, but should· refuse to make any order other than a ,denial of the writ. Rev. St. § 755. I do not mean to sl,ty that a writ ,or order to show cause ought to be issued'in no where the court entertains an opinion adverse to: thepetitioner. The question may be one of sufficient novelty or importance to justify an argument or notice; but in the matter at bar there is nothing to justify further im:estigation. I will briefly assign several reasons, anyone of which is fatal t() the petitioners'right to the
If Cross. and White were ,put UpOn trial in violation of an agreement between the state's agent and selves, they should have taken the objection in ,theisuperior court of Wake in such a way as to. have enabled them to take it to the sup-reme court. when the record WIlS carried there by the writ of certiorari. They. not be allowed to take their case to the c,ourt of, last resort in this. way., 2. Petitionerswelie tried in strict conformity to the agreement they produce, upon an indictment pending when the extradition papers were taken out, founded on bneof the notes set out in their agreement with Mr. Busbee. If the indictment does not charge an extraditable offense. that objection was open to. them in Canada. They consented to come to North Carolina to be tried on this very indictment. 3. The'indictment sets forth facts wbichconstitute forgery at common law; but it is not conceived that that iflmaterial. Since the recent case of U. S.v. Rauscher, 119 U. S. 407,7 Sup. Ct. Rep. 234, it is settled that a defendant whohas been extradited has a :dp;ht to exemption' from trial for any other offense than that for which he hlis been surrendered. until he shall have had,. an opportunity to return to the country from which he had been taken. The treaty of 1842 provides for the delivery, mutually,: to and by the respective governments of the United States and Great Britain of all persons charged with the crimes ef murder,aseault with intent to murder, piracy, arson, robbery ,or forgery. Without doubt only such acts as were, in 1842, held in the two the treaty countries to constitute the offense specified. Forgery is not to be confined to forgery at common law, but includes all acts that were forgery
iniEngland aild the United States at the date of the treaty. If since that date a:ny state should have passed a statute giving the name of forgery to some act not so called beforej-as, for example, to orallaJse representations,-such false representations, although desigNated as forgery. would not' constitute an extraditable offense under the treaty. But these deferldantswere tried for an offense known in 1842 as" forgery" in all English speaking' countries. Forgery may be defined at common law to be the fraudulent, making or altering of a writing, to the pre,judice of anright." 4 Bl.Comm. 247. The punishment was fine and imprisonment; and forgery, at the time when the commentator wrote (1765) it, was by statute a'capital felony. The statute in force in Great Britain in 1842 was the act of 11 Geo. IV., and 1 Wm. IV. c. 66. Under this statute the forgery Of a promissory note, before a capital felony, was made a felony punishable by either transportation or penal imprisonment; so that neither is the mode of trial nor the punishment of the ofl'ense charged in the indictment in the case at bar different from what it Was either in North Carolina or in England in 1842. 4. No question arises under the constitution, treaties, or laws of the United States, and therefore the federal courts have no jurisdiction. The defendants were not extradited, and therefore could not have been tried in violatioll' of the treaty' of 1842. The case of Ker v. IUinois, 119 U. S. 436,7 Sup. Ct. Rep. 225, was a stronger one than this, for Ker, who had taken refuge in Peru, had, pending extradition proceedings, been ,kidnapped in that country, and carried to Illinois for trial. Nevertheless the supreme court held that no case arose under the treaties, laws, or constitution of the United States. Conceding, contrary to the fact, that the state authorities violated the contract between their agent and defendants, there would at most arise either a defense to be interposed by a plea of abatement to the prosecution in Wake county or an action for damages. neither of which matters are relevant to this proceeding. The conclusion reached, then, is that the defendants have nothing whatever to complain of,sinee they !lave been tried in strict conformity to their tlwn agreement; that, if they had ever any cause of objection to the trial in Wake, they lost it by failing to interpose in apt time a plea . to the jurisdiction of the case ; that no federal question exists, because the defendants were never extradited, but carne to North Carolina voluntarily; and, finally, that had the prisoners been extradited, and, had they in proper time interposed a plea in abatement on the grounds stated in their petition, the federal courts, although in such case they would have had jurisdiction of the question raised, would yet have been compelled to deny the writ of habeas corpus, because it would still ,have appeared in the petition and accompanying papers that defendlints were tried for an offense coming within the terms of the treaty of 1842, and for the very offense set forth in the extradition papers. The motion for a writ of habeas C01jJUS, and also the motion for an order to ahow cause, denied.
AURORA WATCH 00.
(Oircuit Court, N. D. lninoiB. July 81, 181lO.)
INFRINGEMENT OF PATENTS-ExTENT OF CLAIM.
10,631 for a "stem-winding watch
The first, third, fourth, fifth, and sixth claims of reissued letters patent No. " are for a device the dietinctive characteristic of which is that the winding and hand.setting engagements are not effected by the direct force of the push' and pull upon the stem·arbor, but are brought about by movement of the stem-arbor, which brings into action certain light sprmgs arranged to swing the yoke which carries the winding and setting train that has no positive connection with the stem-arbor. Helil, that these claims wer" infringed, by a device accomplishing the same result by means of an oscillating yoke carrying a winding and hands-setting train, adapted to be placed in winding and settin'g engagement by the endwise movement of the stem-arbor acting lin springs ill such a manller that the engagement is not forced by the direct push or pull upon the stem-arbor.
Patent No. 287,001 for a "watch pendant" covers a device in the stem to lock the arbor in, either the Winding or sett,ing position. Held. that the' manufacturer of watch movements only did not infringe this patent, though his movements were adapted to be used in any case fitted with the device covered,by the patent. S. SAME-NovJl:L'ry. The claim in reissued letters patent No. 10,631 for a "stem-winding watch," for a device whereby the shifts from the winding and hands-setting engagements to each other are not effected by the direct force of the push and pull upon the stem-arbor, but are brought about by longitudinal movements of the stem-arbor, which bring into action light springs arranged to swing the yoke which carries the winding and setting trains, is novelt though there are several prior patents which effect these shifts by meanS of the airect force of the push and pull upon the stem·arbor. . The claims of a patent must be so construed, if possible, as to uphold the patent, and though they may be brOad enough to 'include results as well as devices, yet, where the specHlcdevices are set out in the drawings and specifications, the claims should be construed as for the devices there shown. .
4. SAME-CONSTRUCTION OF CLAIMS.
. InEquity. Prindle &: RU88el and L. Hill, for complainants. Bond, Ada'11l8 &:Jones, for defendant.
BLODGETT, J. The bill in this case charges the defendant with the infringementof reissued letters patent No. 10,63], granted to complainants, as assignees of Duane H. Church, on the 4th day of August, 1885, for a "stem-winding watch,"-the original patent having been granted to Church, assignor, to the American Watch Company, July 3, 1883, and patent No. 287.001, granted October 23, 1883, to Caleb K. Colby fora "watch pendant." The improvement covered by the Ch'.lrch patent is applicable to the class of watches where the watch is wound and the hands set by means of the stem, and consists of an oscillating yoke, carrying upon.its under side, pivoted at or near its longitudinal center, a pinion, which is so set as to engage with smaller pinions carried at each endofthe yoke. This central wheel, or pinion, having beveled cogs,on the under side thereof, which engage with the beveled pinion, which is set in the line of the stem, and into which the inner end of the bor enters a short distance, by a square or octagonal opening, so that this beveled pinion can be rotated by the stem-arbor. BI rotating the stemarbor,motion is imparted to the central pinion of the yoke, whereby