UNITED STATES V. WOOD.
the person to whom he passed the note could read. Said Lord CAMPBELL, C. J.: · We are all of opinion that the conviction was right. In many cases a person giving change would not look at the note; but being told it was a five-pound note, and asked- for change, would believe the statement of the party offering the note, and change it. Then if, giVing faith to the false representation, the change is given, the money is obtained by false pretenses.' " That is this case exactly. This defendant offered the prosecuting witness the Confederate note as money. He made him believe it was money, and got change from him upon that understanding, and thereby cheated and defrauded the prosecuting witness of the money. This offense may be prosecuted under the statute of the state, if the state authorities are inclined to pursue it; and we will turn over the defendant to the state authorities if they want him for that purpose.
(CircuU Court, D. Rhode
IsZand. January 17,1891.)
PERJURy-SUFFICIENCY OJ' INDICTMENT-PENSION CLAIM.
An indictment for perjury alleged that defendant, "in a case tben pending before tbe commissioner of pensions of the United States, being a special examiner into the merits of the pension claim of one Edwin Brackett," did falsely swear, etc. HeZd" that tbe indictment was sufficient, although it failed to allege that the B. mentioned was the same B. who in his pension claim alleged himself to have been a member of Company F, Second R. L Volunteers.
After stating facts which constituted perjury, it was not necessary that tbe indictment should charge, in terms, that defendant did commit perjury.
This was a motion in arrest of judgment after a verdict of guilty. The indictment was drawn under Rev. St. § 5392, and alleged that Robert Wood"In a case then pending before the commissioner of pensions of the United States, being a special examination into the merits of the pension claim ,of one Edwin Brackett, who claimed to be 'entitled to a pension from the United States by reason, among other things, of the loss of the thu mb of his ltlft hand, and of injuries to his face, incurred on or about the second day of April in the year of our Lord one thousand eight hunl1red and sixty-five, while in the service of the United States, * * * did knowingly, willfully, maliciously, corruptly, feloniously, and contrary to said oath. state and subscribe certain matters and things material to said inquiry int.o the merits of said pension claim of said Edwin Brackett, and did swear, amongst other things," -and so forth, setting out the alleged deposition, and falsifying the statements thereof, and concluding that the said statement "was false, and he, the said Robert Wood, then and there well knew the same to be false, all of which he, the said Robert Wood, then and there well knew, against ,the peace," etc. The prisoner moved in arrest-First, because the indictment-
-oath." And, 8eC(YTI,dly, because the indictment "did not specifically set forth that the defendant falsely and intentionally committed perjury in the premises." , Rathbrme'Gardner, Dist. Atty., for the United States. Ruga J. Carroll,. for defendant.
CARPENTER, J. I am of opinion that the indictment sufficiently describes the matter or case in respect to which the false affida.vit is charged. It is of course possible that there may be a person nallled Edwin Brackett -other than that person who in his petition for pension alleged himself to have heen a member of a certain company in a certain regiment; and it is quite possible, also, that these two persons may have been members Qf the same company. In ,either case, in the judgment in this case in bar of another prosecution, the prisoner here would effectually detEmd himselfby alleging and proving that the offense there alleged is the same offense for which he was formerly convicted. Nor do I think it necessary to the validity of the indictment that the grand jury should conclude by charging, in terms, that the prisoner committed perjury. It is sufficient to allege such actions as constitute perjury according to the provisions of the statute. The motion in arrest of judgment will therefore be denied and dismissed.
"Did not specify with sufficient certainty that. the Ed win. Brackett named therein was the Ed win Brackett who, as a late member of Company F, 2d R. I. Vois., made an application for a pension, and that his was the pension Case in which the defendant is charged with making, an untrue statement under
& parte J UGIRO.
(CCrcuCt Court, S. D. New York. January '1',1891.)
Under Rev. St. U. S. §§ 7118,764, allowing an appeal to the United States sUPreme covrt'in certain cases, and Sup. Ct. Rule 8, subd. 5, providittg that the appeal and citation. When issued more than SO days before the first day of the next term of the supreme court, must be made returnable on that day, the judge of the circuit court, wno is reqUired by Rev.l;)t. U. S. S 999. to sign such citation, cannot fix any earlier return-day.
Habeas Corpus·. RagerM. Sherman, for petitioner.
LACOMBE, Circuit Judge. The prayer of the peUtioner for a writ of habeas. to inquire into the cause of his Sing Sing prison, .inthis district, under conviction in the state l;:Ollrt in violation, as he alleges, of the constitution and statutes of the United States, having been denied, and order thereupon duly entered, he .now appeals there-
AMERICAN LINOLEUM MANUF'G CO.
NAIRN LINOLEUM CO.
from to the supreme court. Such an appeal, under sections 763 and 764 of the United States Revised Statutes, as amended by the act of March 3, 1885, is accorded to him as an absolute statutory right. The appeal and citation, when issued more than 30 days before the first day of the next term of the supreme court, must be returnable on the first day of said term. Sup. Ct. Rule 8, subd. 5. The judge of the circuit court, who, by section 999, Rev. St. U. S., is required to sign such citation, has no discretion to fix any earlier return-day. This is the second application to this court for a writ of habeas co'rpus by this petitioner under the same conviction, and two of the grounds upon which he base,s, bis present application-viz., the alleged fact that persons of his race and color were excluded, because of their race and color, from the list andpunelj and the alleged fact that proper counsel were not to him by the state court-existed when he made his former application. Whether this is the second or the twenty-second application, however, is immaterial. Under the statutes as they stand, it seems to be left for the petitioner alone to determine, not only how many times he will apply for the writ, and whether he will appeal from its denial, but also how often he will, by such appeal, invoke the operation of section 766, Rev. St. U. S., which provides that, until final judgment thereon, any proceeding against bis person under state authority shall be null and void. What the precise effect of the peculiar phraseology of the last-cited section may be, whether, pending such appeal, it operates as a stay, or merely as a warning that whoever, under state authority, may take any proceeding against the person of the petitioner does so at his peril, is not now before this court for decision. The only matters now presented on the appeal are its formal allowance, and the fixing of the return-day, as to both of which this court has no discretion.
NAIRN LINOLEUM Co.
(O£rcuit Court, D. New JersCy. December 22, 1890.)
On a suit for infringement of letters patent, where complainant calls an expert witness to point out resemblances between the patent and the allegrcd infringing device,und asks him to interpret the claims of the patent in so doing, he cannot be required too refrain from cobsidering the prior state of the art ill giving his tel>timOlly.
POR INFRINGEMENT-ExPERT TESTIMONY.
In .Equity. Objections to testimony before examiner. strike out. Walter D. Edmonds,for <4Qrnplainant. Edward N. DickertJ()1l, fur
LACQMBE, Circuit The question presented on these motions is briefly tl,1iJ:!; Whether, when a complainant calls an expert to explain