count in the indictment also fails to aver that the defendant willfully, and contrary to the oath taken 1?yhim, stated and testified to matters which he did not believe to be true. The demurrers to the indictment on the grounds stated "are well taken, and they are sustained.
UNITED STATES ". UPHAM
et al. l
(OtrcuU Oourt, S. D. Alabama. June 28, 1890.)
An indictment against a man by the initials of his Christian name only iB BUbjellt to plea in abatement, unless the grand jury add that his name is unknown to them otherwise than is set out.
At Law. On demurrer to plea in abatement to indictment for conlilpiracy. M. D. Wicker8ham, U. S. Atty. G. L. & H. T. Smith, for defendant. TOULMIN, J. An indictment which sets forth the defendant's Christian llame by initials only is subject to plea in abatement, unless it is alleged t1:1at the Christian name was unknown to the grand jury otherwise than as lail! in the As said by the court in the case of Gerrish v. State, in 53Ala. 476: "If the grand jury knew only the initials of defendant's first names, and could not bavefound out by reasonable diligence what these names were, it would have been legal for them to haye indicted him 3S '" '" '" [E. R. Upham,] using the initials as such, if they had added that his name was un· known to them otherWise than as set out. But this they have not done, and so t,he indictment is left sUlJject to the plea in abatement." See Gerrish v. State, 53 Ala. Washington v. State, 68 Ala. 85; 1 Bish. Crim. Proe. §§ 566, 676, 677, 680. Demurrer to the plea is overruled. Upon iSilue to the plea, which was then joined, it was admitted that the letters" E. R." used in the indictment were used as the initials of the true Christian name of E. R. Upham, and not as his baptismal name, whereupon the court instructed the jury to find the issue in favor ofthe defendant. Ger'l'iBh v. State, 8Upraj 1 Bish. Crim. Proc. § 677; Sm,'iJ,h v. State, 8 Ohio, 294.
by Peter J. Hamilton, Esq., of the Mobile bar.
UNITED. STATES 11. CLASSEN.
UNITED STATES 11. CLASSEN.
(Circuit Court, S. D. New York. July IS, 1890.)
CRncnUL LAW-NEW TRIAL-CONTINUANOB 011' MOTION.
A motion for a new ·trial in a criminal case may properly be postponed to a later term on defendant's application, because of the absence of his principal counsel, Where the defendant is in custody, and waives his right to apply to be released on bail.
At Law. Edward MitcheU, U. S. Dist. Atty. Benj. B. Foster, for defendant.
BENEDICT, J. In this case, application is made by the defendant to postpone the hearing of the motion in arrest of judgment, and for a new trial, until the October term, upon the ground that the counsel mainly responsible for the conduct of the defense at the trial is compelled to join his family in Europe, and will be unable to take part in the argument unless the same be postponed until the time of his return. The defendant is now imprisoned, and accompanies the application for a postponement with a waiver of any right to apply to be released from confinement on bail. The district attorney declines to consent to the postponement. It seems to me, however, that the desire of the aecused tobave the counsel mainly responsible for the conduct of his defense at the trial already had, take part in argument for a new trial, is reasonable; aud inasmuch as the accused is now confined in prison, and under his waiver must remain in confinement during the delay applied for, I am unable to see that the ends of justice will suffer by granting the application. The motion for a new trial, and in arrest of judgment, is therefore set down to be argued on the first day of the October term.
MACK 11. LEVY
(Circuit Court, S. D. New York. May 20, 1800.) 1.
PATENTS J'OB INVENTIONS-INFRINGEMENT-OPERA-GLASS HOLDER.
Letters patent No. 268,112, issued November 28,1882, to William Mack, for an improved opera-glass holder, consisting of a detachable handle made in telescopic sections, the end section being provided with a fastening device consisting of a piston hook and a notch on the end of the cylinder, brought tog'ether by a spring, are infringed by an opera-glass handle made in telescopic sections with a fastening device like the one in the patent operated by means of a screw. Letters patent No. 899,548, issued March 12,18891 to William Mack, for an improved opera-glass holder, having its upper end longltudinally forked 80 as to spring apart slightly, and thus f1.t tightly into a socket in the bar of the opera-glass, IS not infringed by a holder which aoes not have this longitudinally forked end, though it is otherwise similar to the patented device.