catedupOn legal or sufficient evidence. Johnsrm v. Towsley, 13 WaD. 72; Steel v.Smelting, etc., 00.,106 U.S. 451, 1 Sup. Ct. Rep. 389; Bald-winv. Sta/rk,l,Q7 U. S.465, 2 Sup. Ct. 473. For the reasons above given I that the defendant is not in fact one of the class of persons not lawfully entitled to ,remain in the United States; That" having been permitted by a collector of customs to land, after a temporary absence from the United States, without fraud on his part, the defendal1t <litnnotbe lItwfully sent out of the United States because of a mere error of a collector in not exacting legal evidence of the facts as to. his identity and the nature of his business. In'my opinion, the la,w .does not authorize, but forbids, the execution of the warrant issued by the commissioner in thill case. It is the judgment of this court, therefore, that the order and jndgment of the commissioner be reversed. The United States attorney having signified a desire to have my decision reviewed by the courto! appeals for this circuit I will not discharge the defendant! but will admit him to bail, upon a recognizance with sureties,conditioned for his appearance at the next term of this court, and to abide the final determination of this case after the decision of the ap· pellate cQurt.
UNITED, STATES V. SPRAGUE
(DiBtrtct Oourt, E. D. Wisconsin. November Term, 1889.)
UNITED ST,ATES BONDS-FRAUDULENT IMITATIONS.
Under Rev. St. U. S. § 5430. denouncing a punishment against,l;lDy one having in j;losse$'sion "any obligation or other security" after the similitude any obligation issue!lby United States with intent to sell or otherwise use the same, it is no offense to 8Q have in possession a bond issued bya mining company. and resembling a United 'States" bond, but not pnrporting to be executed by any J?arty whatever. The walltof. .e"ecution is not merely a fact Which the jnry may consider in determining al!tfl degree of similitude, but is a complete SAME. 'To constitute the offense it is not necessary' that the instrument shonld purport to be an obligation of the Unite(i States, or bel\r such a likeness thereto as to deceive experts or' cautious men. It is sufficient if it is calculated to deceive a sensibleand unsuspecting man of ordinary observation and care, dealinll: with a man t01;le hpnest.
At Indictment of James D. Sprague and others for having in possessionJraridulentimitations of United States bonds. Heard on motion for, trial. Motion granted. G. W. Hazelton, Dist. Atty., for the United States. N. S, Murphey, for defendants.
DYER, J. The defendants have been convicted, under section 5430 of the Revised Statutes, of the offense of' having in their possession an obligation engraved and printed after the similitude of an obligation issued under the authorityofthe United States, with intent to sell or oth-
UNITED STATES fl. SPRAGUE.
erwise use the same. A motion for a new trial has been argued, and is now to be decided. It wassbown on the trial by the testimony of a·bank expert that the instrument which the defendants had in their possession and attempted to exchange for .money, resembles in color, style of printing and engraving, and in general appearance, a 5-20 government bond. The same witness testified that in form and size it differs from a genuine government bond, and, in fact, examination of the instrument shows that it purports to be,; nllt an obligation of the United States, but an obligaSilver Mining Company ,of Denver, Colo., by tion of the which that company acknowledges itself to be indebted to the bearer in the sum of $1,000, payable at the American Exchange National Bank, in the city of New York,March 1, 1890, with interest at 7 per cent. On the fa.ce of tbe instrument is printe!! in large gilt letters the word "gold," and interest couppns, payable semi-annually, are annexed. At the foot of tbe bond a,nd of each coupon are priuted the words" Pres't" and" Sec'y," with spaees left before each of those words for signatures; but no signatures are written or printed in the spaces thus leftJor the purpose, so that on the face of the paper it to be an unexecuted instrument. On the trial the court held that to constitute the .offense declared in the statute referred to, it was not essential that the fraudulent or fictitious obligation should in terms purport to be an obligation of the United States. And following the ruling, as here prod,ueed in manuscript, of Judge CALDWELL, of the eastern district of Arkansas, in U. S. v. Wilson, understood to be unreported, the court charged the jury that. "To constitute an offense under the statute it is not necessary that the similiturle between the false and the true security should be such as to deceive experts, bank officers. or cautious men. It is sufficient if the alleged frauduJ.ent bot;ld be,ars sllch a likeness or resemblance to one of the genuine bonds of the Vnited States astqbe calculated to deceive an honest. l3ensible, and tinsuspe9ting man of oriHnary observation and care, dealing with a man sup. posed' to be honest. If it does. then the similitude required by law to make out the offense exists. " . The court further the jury that, where the similitude is of the charaotercstated, the offense is not disproved by showing that the alleged fraudulellt.bond bears no signature, or that careful examination discloses that it dq,esnot.purport to be a bond of the United States, but that, on the it purports to be a bond issued by some mining company. There was cll)arly no error in holding that to constitute the offense it is not essential that the fraudulent bond or instrument should on its face ,purport to be an obligation of the United States.. The language of the in.section 5430, upon which the indictment is based, is that every person "who has in his possession or custody, except under authority from the secretary of .the treasury or other proper officer, any obligation or, other security e1lgraved and printed after the similitude of any issu.ed under the authority of the United obligatioll Pr other Statell,'VitR intelJt to selLor otperwise use the same," shall be punished, . of this statute evidently was to make it unlawful -for
any person to have inMs' pbs!6ssion without propel' authority, and with intent to sell or otherwise use the same, any obligation' or 'security. whether purporting 'to be but not in fact issued uilder the authority of the United States; or purpurting to be or in fact·nia'de or issued by any individual or any publio or private oorporation, 'engraved ano printed of the United after the similitude ofa genuine obligation or States. No other construction of the statute is consistent with its language and evidel1tmeaning.The serious question involved is:' Must not the instrument claimed' to be made after the similitude of a government obligation or security be in faot, or purport to be, an executed obligationor security, to make a case within the statute? Of course, the .defendants cannot be proseouted in this court on the ground,that they are confidence;mel1, or that they have attempted to perpelratea fraud. Their prosecution must proceed wholly under this statute, and their oon:"'iction must test wholly upon proof of the charge that they unlawfully the similitude of an obhad in their pbssessionan obligation made ligation of the United States. As we have seen, the words ofthe statute ate that every person who has in his possession "any obligation or other security," etc. The wordS "obligation or other security," as here used, seem clearly to imply an executed instrument, or at least one which on its' face purports to be executed by somebody. In the oase in hand the false or bogus bond bears no signatures whatever. It is a mere blank, so far as signatur.as or execution are concerned. Can it then be said to be an obligation or security, or to be even a pretended obligation or security? True, it is a paper made after the similitude of a United States bond,but it is unexecuted, unsigned by anybody. In that regard, as just observed, it is a blank, and there is not on its faoe even a pretense of execution by any person or corporation. The statute was aimed at the issue or execution, whether real or pretended, of obligations or securities made after the similitude of the obligations or securities of the United States; and I amoonstrained to believe that what is meant by the language of the section referred to is an instrument that is either in fact executed, or purports to be executed, by somebody; otherwise it is not .and does not purport to be an obligation. Very foreible argoment was made by the learned district attorney that the instrument in question, though bearing no signature, may be as effectually used for the purposes of deception and fraud as in case it purported to be executed or signed. This may be so, but, after all, the oourt C'.Rnnot supply omissions in the statute, but must accept and construe the statute as we find it; and if the case in hand does not com,e within the letter apd meaning of the statute, it is the duty of the oourt so to decide. The instrument in evidence is not an obligation or other security. and does not purport to be such, because it was never executed or signed by anybody, and therefore it is not such an instrument as the statute covers. In that respect it is no more than a blank piece of paper. It was also argued by the district attorney that the fact that the instrument in evidence was not signed or executed should be treated by the court as merely a fact entering into
USITED STATES V. SPRAGUE.·
the principal question of similitude to be submitted to the jury; and, as the jury have found that the alleged. similitude exists notwithstanding the absence of such signatures as would make the instrument either an actual or pretended obligation, the court cannot disturb the verdict. In other words, the contention is that the non-execution of the instrumentor paper is merely a .fact bearing upon the question of similitude'; and that It is the province of the jury alone to say in the light of all the facts w'Qether the alleged similitude exists or not. This was the view to. which the court was inclined when the question first arose, and in support of the proposition thus stated, counsel have cited U. S. v.Morrow,4 Wash. 0.0.733. That however, only holds that in a case of 'forged coins the question of resemblance or similitude is one for the jury, and this no one willdisJ:lute. But when a statute, as in the present case, declareg: in effect that the false instrument must·· be an obligation or security, it cannot be that because the question of similitude is one for the jury, the court is not to determine whether the casetnade is within tbestatute. Whether the instrument is an obliga(ion,or not is a question as to its legal effe<;t. That is a question for theconrt, and, if it is apparent that the alleged fraudulent tion or security is not an obligation or security at all, within the meaning of the statute, it must follow that the conviction cannot be suS:tained, although the jury have determined that the paper in evidence, in its body amd general form and style, is made after the similitude of a United States bond. The case of People v. Ah Sam, 41 Oa1.645, was rererredto on the argument, but it is inapplicable to the case at bar. In that case the defendant· was indicted for having in his possession blank and unfinished bank.bills in the form and similitude of a bill for the payment of money, with intent to fill up and complete the stnne;andthe statute under which the indictment was found declared it ;tobe 'an! offense to have in possession blanks having the form or similitude of bills for the payment of money, etc. On the whole, my opinion is that the conviction of the defendants cannot be sustained. They undoubtedly attempted to commit a gross fraud, but the statutor;r offense of which this court has jurisdiction is not established. The difficulty' in. the way of maintaining a conviction is attributable to a defect in the statute, and that defect congress alone can remedy. Motion for new trial granted.
MILLNER '11. VOSS
W£rouU Court, W. D. Virglnta. June, 1889.)'
patent No. 9,108,issued to Jackson C. Millner tor a tobacco curer, consisting of a combination of, two fire-places of different sizes on each·side of a chimney, .leading heaters, WhiC;ll traverse the buUdin,lJ to a common fiue, connecting with a central heater, which serves as a return fiue, connected with the chimney, are void as· being a mere combination of old parts; which have IOJ1.g bl;len used in the same manner.
In Equity. f;luit by Jackson C.' Millner against H. F ·. oss & Co. for infriQgemeJlt of a patent. Bill dismis.sed. T, S, Flournoy and M. M.. Tredway, for plaintiff. R. W. Peatross, for defendants.
BOND,:. J. This is a bill in .equity, filed by the complainant, charging the defendants with ofletters patent No.'9,108, granted him for improvement in tobacco-curing furnaces. The prayeroftbe bill is for an injunction and general relief. The defendants, by.theiranswer, deny, among other things, the novelty and utility of the plaintiff's socaUed invention, and also. that they have infringed. The plaintiff, in the specification describing his invention, alleges that the ,object of it is to effect theJnore thorough and uniform curing of tobacco, and that the novelty of 'it consists in the construction and arrangement of its parts. The furnace described in the specifications consists of two fire-places of different sizes on each side of a chimney, out of each of whiah,issues:a fiue, which traverses the fioor of the house in which thetQbacco is hung to be cured, and then enteni a fiue which. runs at right anglest6 it; which fiue is commoJl to all thefiues issuing from the the center of this common fiue is another fiue, whioh also traverseS the fioorofthe <:uringhouse, reversel> back,tothechirnney,serving to convey the smoke to the chimney, while it also serves as a heater. ,Each of these fiues, with the exception of the common fiue, has a damper or valve to regulate the heat, and 'on the fiues from the. furnaces:lire adjusted pans to hold wat.at and .furnish moisture during the procesS,; .' The claim of the patent is, in a tobacco-curing apparatus, a gang of furnaces; each, having heating surfaces, and all connecting with a common flue combined with a return fiue, which also serves as a heater, and connects the common flue with an escape pipe or chimney, as herein specified. (1) The combination in a tobacco curer of two sets of furnaces of different capacities, leading through suitable heaters to a common fiue, conneCting with. a central heater, which serves as a return fiue, connected with a chimney located at the furnace end of the drier, as specified, and for the purposes set forth. (2) In a tobacco curer, the combination of the furnace, A, A, B, return heater, B, and chimdirect heaters, B, B, B, B, ney, C, located at the furnace end of the curer, are the valves or cutoffs, a, at a, at substantially as and for the purposes set forth.