this, a tor consideration by. the future legislatiol;l! ,:l)e,neededtp, enforce deWands by the census I, ,Of i,course, are not intended. to apply to the, pf,pongres," to EUl'swers to questions, propounded to ,14e ,oftlcerscol,railroaqs, telegraph, and insurance companies, Of ,a public: character, over the business methods of which ,th,ei power :may beaaserted. As to such corporations" the,publi$l good requires that :wholesome and strict supervision !ilhould" b e 'exercis!,!d,l8J1d aJItl1e information needep as the, l}nd contI;'ol should be produced when quired.; n1n,ivittW of the conclusion it is not necessary to objectioJ;lcs, urged to· the indictmept. The', will be sustained 'Ilpon the first propositiop considered, motion to. quash is allowed. ··
UNITED ST.A!1'ES' v. SYKES. (I1fsV;lct Court,W. D. NorthOarollna. October 7, 1893.)
OFFICE .q<D:OFFICEl,t-ApPOINTMENT--DEPUTY COLLECTOR.
A deputy collector is authorizeq., to .act as such when his commission has been signed and placed ,in the mall. an.d he Is notified thereof by , telegram., '
When a: person commits a misdemeanor under the Instructions of an, other, It Jl'!: only necess/(17I, 'in order to .impJlcate the latter, that his Inwith. ': ::s1:l'UctloDl'!, Rtl;!'je
D,JS"T,lJ,.l1,lll. P,SPIRITS-,,J],,,L.A,WE:UL. R,E,,l(OV,.u.-AIDING AND A,nETTI,NG. " 'The tacti 'that the statuM' makes the' lIJdlng and abetting of' In '('the'remotal of illicit spilflts il.! ilistinct' offense does not prevent a person "so;aiding':and abetting 'from being' as a principal In 'the re, In misdemeanors liable i\.S. prip.clpills., , ' '
'One W,J;IO, eertalnc8:Sks of whisky are without revenue "litafti)Js, obstrn'Cts' an 'otllcer',atteinptfngto seize the' same, in order that JI'opportunity :mt}y:beg!veP.tor another to escape therewlth,is guilty , :der tile, " ,i ,
',' ''the tUle,lPat'1\ GOAvlcHon be ):lad on, the :, '1;iistlmony of an, accomplice ,applies ,WhenwHnesselS Introduced by de'1rendant confess:themsel'V'es to be contederates In the crime. ' Rroof IIlelllll sales, of." whisky occur ,on, B tnan's premises ' "IlM about his a prlllllWlption of li.galnst, him,and plil'Ges the burden ,<in him)() Ilhow tpat the acts were With()ut bis)mowl,"edge'or approval;' he was powerless to prevent'them.,
6. ' S:NME";'; PttESUMPTIONS-"BURDBN'OF 'PROOF.
t.,La, ,w,"", Indi,ct,m.en,tOiL,.G,"elY;,,Jlkes for the l'emoving orsIjl1ritUQW'.)1.quors."yerdict of ·.£Jlement Manley and iA. Oovington, for the UJIltted States. lJatnes T. Morebead an Jas. E. B0yd" for "
for the part of
.UNITED ,STATES '1:. SYKES.
pretended. officers of the law acts and circumstances of high-handed violence very similar to the outrages of lynch law. Lynch law is abborrent to a court of justice, and should be discountenanced and opposed by all good citizens. Lynch law is defiance of law. The evidence in this case tends to show defiance of law on the part of the defendant. There is a state law that prohibits the sale of liquors within four miles of the State University, situated at Chapel Hill, and the evidence shows that the defendant had for a long period of time carried spirituous liquors within such. prohibited limilts, and persistently sold the same, contrary to law. If he had paid the special tax required of retailers, and obtained a license from the federal govermp.ent, he could not be prosecuted in this court for making sale under such. license, but he would be liable to prosecution in the state courts for violation of a law of the state, and his United States could not be availed of as a defense. The uncontroverted evidence in this case shows that in December last the prosecuting witness, George T. Winston, president of the State University, being informed that a quantity of spirituous liquors were about to be brought to Chapel Hill, applied to the collector of internal revenue in that district, residing at Raleigh, for a special comJP.is!'lion authorizing Merrit, as deputy COllector, to make seizure of sucl:l. spirituous liquors if they should be found in unstamped pack. ages. About six hours before the temporary detention and subse· quent seizure of such whisky the collector sent a telegram toPresi· dent Winston, informing him that the requested appQintment had been made, and a commission had been duly signed and placed in wall, to be transmitted to the deputy at Chapel Hill. The telegram·was shown to the deputy collector before he attempted to detain the whisky that was in the wagon in the street in of the residence of the defendant. No formal seizure was made at that time, as the l,'emonstrated, and made demand of the officer to show his commission and authority for detaining the wagon and, whisky. During this contention, John B. Sykes, the son of the defendant, who ,had. this wagon in charge, drove off the team rapidly, and probably }Yould have escaped if the wagon had llot come in contact with an express wagon in the street. About that time ]\lerrit received .his commission as deputy collector from the post office, and he at once made a seizure of the wagon and its contents. Itjm of opinton tbat the deputy collector had legal authority to detain the wagon and make seizure of the same and illicit packages of whisky. .As soon as his commission was signed and in .the post office for transmission by mail, and he was notified by he became deputy collector, with full authority to makef4e seizure. The actual receipt of the commission was not to his investiture of the office. H.e nO invasion of the premises of the defendant, wagon was in the public and he did not go into the house for the purpose of making. a personal arrest, as he had no such authority as deputy collector. I think he acted prudently in not, at that tillile, milking seizqre ()f the wagon, as he was not a well,known was notable to.show.l:;lis commission wheu9.emand was
made by'the defendant; but he could inno respect as a trespasser..·· When he sUbsequently made seizure he had his 'commission·in possession, which was visible" and conclusive eYidence of hisauthorltYto 13eize the wagon and its contents, including the two jugs'of WllfSKy carried off by defendant. Intl1eargument for the defense the active zeal of President Win· stonwasseverelycriticised. You have the right to pass upon the weight of his testimony, and give it snchcredit as you may deem proper;' and in doing so you must not be influenced by ,my opinion uponthe'subject. AfteI' giving you this' caution, I have the right to express tnY opinion as to his conduct in this prosecution. He is the president of the StateUniversity, and has under his charge and supervision a large number of boys and young men committed to his care by parents and guardians who expect him to guard such students against temptations that may lead them into intemperate and immoral habits. Tlle evidence shows that he has been very vigilant and diligent in this prosecution, and it was his imperative duty to be so. With the information which he possessed as to whisky being brougbt to Chapel Hill.for the purpose of sale, if he had failed to do everything within his power to preventthe violation protection 'of the moral of a state law expressly en,acted habits of students, he wOlild have shown himself to be unworthy of the high public trust conferred upon him. Indifference about such matters would have been culpable negligence, and failure. of effort ·to, prevent or remove such a dangerous nuisance after full knowledge of its existence would, in a moral point Of, view, have been criminal disregard of offiCial duty. His position' as president of the university shows public opinion as to his high chatacter;and his clearj intelligent, and candid testimony commendsitiJelf to your carefuJrco:b.sideration. I have given you my personal opinion, but you have the right togil"e such credit to his testimony as you may think that 'it deserves. All the testimony shows that there was in the wagon, when seized, three lO-gallon casks,.without the stamps affixed reqnired by law. It is conceded that John B. Sykes, the son,of the defendant, is guilty of the misdemeanor of removing said casks of spirits. In misdemeanors there are no accessories, either before or after the fact; all persons concerned ihthem being considered in law as principals. When the person who actually commits. the crime acts under the instructions of another, it is not necessary, in order to implicate the latter, that the instructions be proved to have been precisely followed; it will be.snfficient to show that they have been substantially complied with. If a person knows that a misdemeanor has been committed, and afterwards opposes the apP,rehension of the wrongdoer, or obstructs an officer of the law in the excution of his legal duty in relation thereto, or advises and aids the offender to make hi:g'escape, and carry off the subject'and evidence of the crime, he becomes guilty of the crime proved to have been previously committed. The counsel of the defendant requested me to instruct you that the defendant was not liable to conviction under this count in the in-
UNITED STATES V. SYKES.
dlctment, as the statute which makes the removal of illicit distilled spirits a criminal offense expressly makes the aiding or abetting of such removal a separate and distinct offense. The statute doeR make the aiding or abetting in the removal of distilled spirits, on which the proper tax has not been paid, a substantive and distinct criminal offense; but it does not do away with the well-settled and long-established rule of law making all participants in misdemeanors liable as principals, although a conviction or acquittal of one of these offenses could be pleaded in bar to a prosecution for the other. I will again state to you the principles of law which I think are applicable to this case: that in misdemeanors any p rson who advises, procures, aids, or abets in the commission of the offense, or who, having knowledge that such offense has been committed, in any way assists the wrongdoer in concealing his crime, or in making his escape from the officers of the law, is a principal; the general rule of law being that whatsoever participation in the transactions, either before or after the fact, would make the party an accessory in felony, will make him a principal in a misdemeanor, and he may be so charged in a bill of indictment. The evidence tends to show that John B. Sykes employed a horse and wagon belonging to his father, the defendant, in the removal of the unstamped packages of whisky; that they were carried, in the nighttime, to the gate of the yard of defendant; that the son knew that he was followed and watched by President Winston; that when the wagon was stopped at the gate the son went into the house, and had a conversation with the defendant; that both of them came out of the house into the street, where the wagon was; that the defendant opposed the detention and seizure by the officer; that while the officer was showing some papers to the defendant, John B. Sykes got in the wagon, and drove off rapidly, until he was stopped by coming in contact with the express wagon; and that defendant objected to seizure when made, and carried off the two jugs of whisky that were in the wagon, claiming them as his property. Now, gentlemen of the jury, if you are fully satisfied from all the facts and circumstances mentioned in the evidence that the defendant, by advice, instruction, or other assistance, aided his son in procuring and removing such illicit whisky, then you can properly return a verdict of guilty against the defendant. If you are fully satisfied from the evidence that after the whisky had been brought to the house of the defendant he knew that the casks of whisky were without stamps affixed, and he obstructed the officer of the law in the execution of his legal duty, in order that his son might have an opportunity of making escape with the wagon and its contents, then you can properly find a verdict of guilty on that view of the case. The defendant introduced as a witness his son, John B. Sykes, the principal actor in the illegal transaction, for the purpose of showing that he had given him instructions that only tax-paid whisky should be purchased from the distiller, and that it was to be put in prop stamped packages. The witness testified that part rly of the whisky in all the casks belonged to his father, who had given
h:imJ1D:$lir1'lctioil$,tb.p1Jrchase tax-paidiwhisky; that it was drawn by tJibe distillerfaioIill a stamped barrel, and that his father did not know that the whisky had been put in unstampedcasks. On cross-examination' it appeared that his testimony on' the examinationdn: ;ehief was' in iconfiictwithhisoral and written declarations and:oonfessions; which 'tended to show that he had acted in all respects under the advice and instructions of his father in the commission of the crime of removal of the whisky. .'l'he degre'> of credit which ought to be given to the testimony of an accomplice iss matter exClusively !Within the province of the jury, and they ma:y 'believe and act upon such evidence without any confirmation of hJs statementl!l, But it is the duty. of the judge to advise the jury to considersueh testimony with, ,great caution,and not regard it as worthy of credit without corroboration by other evidence material to theissu.es before them. In doing so the judge does not withdraw the 'caete from the jury by positive direction, but only advises them not to give entire credit to such unsupported testimony. These principles and rules ;of law are well settled in cases where accomplices are introduced as witnesses in the prosecution of defendantsl I differ ;in opinion fi'om the counsel of defendant, as I 1Jhinkthat the: same principles"and rules of law,' founded in expediency, reason, and justice, should be applied when a defendant introduces witnesses whocoIifess themselves to be confederates in the crillies alleged in cases on triall ,When a person is found in possession of, or is shown to be culpably connected with,spirituous liquors in packages of more than gallons' capacity, without the stamps required by law being affi.tiM, the bUl"denof proof is on him to show that such spirits arerifax-paid, and were put in unsuamped casks without his knowl· procurement, or oonnivance. : The law requires such packages to be properly stamped, and, if they are without such stamps thEdaw:,presumesthat they are illicit. A presumption of otie which a judged.rawsfrom the Jangnageor principles ot ::the law· and from partiwar facti or' evidence, unless or until tnettruth of such inferente is disproved. Such presumption derives its" force 'from the 18Jw, 'aind it should only be rebutted by clear and the contrary. I'advise you that the presumption of, law arlsingin 'thi$':ease should not be o-vercome by the unOO1'l'dboratedtestimOllY of: who confesses himself to have been the acMI' in the 'illegal tranSaction. . The second:cotlint that the defendant sold spirituous Iiquors wi1lllmit hnvihgpaidthe special tax required by'!law,and prooured Q.:lieense aUllhorizingsnch sale. There is nodirecte!VtderitJe of: lany specific$a:le defendant. He admitted to President Winston that he sold whisky, and expected tooontinl1e;tI'heTbusme!il&: Hts son.......his 'own· that he' had: often carl'ied of whisky to the house of defend3ln't!,'forhirn( .Other testirded .that they had sent persons withe house' of ·defendanrtrWith etnptybOttles"whichwere returned filled with whisky. One"witness testified, that he and other persons' were in' ithe: habit ,oft meeting at a: bl'acksmith shop," and mak-
UNITED S'rAT1i:S V. SYKES.
iag arrangements' (whieh he called "patching") to procure whisky, by sending to the house of defendant, which was near said shop; that such arrangements were made more than 25 times; that he saw the agents sent go into the yard of defendant, and one time into the house; that s.uch agents took the money contributed by way of patching, and went with empty bottles., which were returned filled with whisky. As. you listened carefully to the testimony, I will not further repeat its details. Presumptive and circums.tantial evidence is often as satisfactory proof as direct and positive tes.timony. Presumptions of fact depend on inferences. to be drawn by a jury in ascertaining one fact from the proved existence of another, without the aid of any rule of law. This process. of finding out the truth of matters. of fact in controversy in a trial at law belongs to the exclusive province of a jury. They may bE properly aided by the advice and instruction of the judge, but he should not control them by positive directions, as the whole matter should be left to their free and independent determination. Presumptions of fact have been class.ified by text writers and judi cial decisions as strong, probable, and slight. When a fact proved always accompanies a fact sought to be proved, it gives rise to strong presumption that may control a jury in their investigation. When the fact proved usually accompanies the fact sough: to be proved a probable presumption arises. Slight presumptions. which arise from the occasional connection of distinct facts, are generally dis.regarded by a jury. Presumptions of fact which the law recognizes must he immediate inferences from the facts proved. and must be such as sensible men, influenced by observation, experience, and reason, would draw from clearly established facts that usually accompany the matter at issue. The common law, eonstitutional and sl.:'ltute law make ample provision to secure a man's house from unauthorized invasion. He is also invested with the privileges, duties, and powers of a master in controlling his household; and the law presumes that he will not allow any illegal transaction to be carried on upon his premises which he has the power to prevent. There is also a presumption of fact, drawn from human experience, that illegal transactions cannot be habitually and for a long period carried on upon his premises without his knowledge and acquiescence. When it is proved that illegal transactions frequently occur upon his premises, the burden of proof is upon him; and if he desires to free himself from the responsibilities of such transactions he must show that such acts were done without his knowledge and approval, or he was powerless to prevent them. I have instructed you as to the questions of law involved in this case, and I have endeavored to advise you correctly as to the proper methods of investigating the issues of fact submitted to you for determination. If my opinions as to the questions of law involved are erroneous in the particular points presented in the exceptions made and noted by the counsel for defendant, such opin, ions can be reviewed and reversed in the supreme court; and I have allowed counsel time to prepare and tender their bill of ex·
ceptions for my signature. If you are satisfied from the testimony, beyond a reasonable doubt, that the defendant is guilty in the manner and form charged in the bill of indictment, you should render a verdict of "Guilty;" and if you are not so satisfied your verdict should be "Not guilty."
Verdict, "Guilty." JUNES v. BERGER et 1.
(CIrcuIt Court, D. Maryland. November 16, 1893.)
A simple assignment of "all right, title, and interest" in the invention secured by a patent does not include a right to damages for prior infrIn,gemen ts.
2. SAME-LlCE:<lSE BY PAROL.
A license to use a patent, not exclusive of others, need not ve recorded, and may be granted by parol; and a subsequent assignee of the patent takes title subject to such licenses, of which he must inform himself as best he may. In a suit for infringement by an assignpe of a patent a plea which sets up an oral license from the assignor will be strictly construed, and held insufficient if it fails to state the actual consideration for the or allege payment of accrued royalties, or an excuse for nonpayment.
In Equity. Suit by Joshua R. Jones, t.rading as the National Publishing Company, against Frederick Berger and others, for inc fringement of a patent. On objections to sufficiency of the plea. Plea overruled. A-ugustus B. Stroughton and H. E. Garsed, for complainant. H. T. Fenton, for respondents. MORRIS, District Judge. The plea avers that from the date of the patent, July 15,1890, to the date of making the parol license set up as a defense, to wit, April 27,1892, the defendant did not infringe; and that on April 27, 1892, .christian Jaeger, the then owner of the patent, for a good and sufficient consideration did' grant a parol license to the defendants fOT three years to use the patent for a royalty of 50 cents for each dozen of the patented articles; and that since the granting of the license to them the defendants have not used the invention otherwise than as authorized by the license. The first objection urged to the defendants' plea is that as to a portion of the period of the alleged infringement, to wit, from the date of the patent to April 27, 1892, the plea simply denies the fact of infringement. Such denial is.. proper only by answer, and is not proper by plea; but in this case the point seems immaterial, as by the complainant's title it appears that he is not entitled to sue fol' infringements prior to April 27, 1892. On that date the complainant acquired title from Christian Jaeger by an assignment which conveyed "all the right, title, and interest which Jaeger had in the said invention as secured to him by his letters patent and by the assign-
JONES ". BERGER.
ments thereot" This language is appropriate to the simple assignment of a patent right, and its meaning is satisfied by the transfer of the invention without transferring any right of action for past infringements. '1.'he rule is that to pass the right to sue for past in· fringement words must be used in the assignment which expressly transfer to the assignee the right of action. Moore v. Marsh, 7 Wall 515; Emenwn v. Hubbard, 34 Fed. Rep. 327; Walk. Pat. § 277; 2 Rob. Pat. §§ 781, 942. As the complainant's title discloses that he cannot maintain a suit for infringement plioI' to April 27, 1892, the first clause of the plea is not material. It is objected to the plea of a license that it is not sufficient in that it alleges "a good and sufficient consideration" without alleging what the consideration was, and that it alleges a license condi· tioned upon the payment of a royalty, and does- not allege that the royalty has been paid, or excuse its nonpayment. I think both these objections to the plea are good. There would seem to oe no doubt that a license to use a patent not exclusive of others need not be recorded, and may be by parol. Hamilton v. Kingsbury, 17 Blatchf. 264; Dalzell v. Manufacturing 00., 149 U. S. 315, 13 Ct. Rep. 886; Brooks v. Byam, 2 Story, 525; Walk. Pat. § 303; Rob. Pat. §§ 809, 817; Potter v. Holland, 4 Blatchf. 206. A subsequent assignee takes title to the patent subject to such licenses, of which he must inform himself as best he can at his own risk. Rob. Pat. § 817. But I think the objection that the plea does not state what the actnal consideration was, and does not allege that the defendants have paid the royalty, or state any excuse for nonpayment, is well taken. Strictness is required in a plea which sets up oral license made by the assib"llOr of the patent. It is an incumbrance upon the assignee's title of which he has no record notice, and there are Slpe· cial reasons why the plea shauld set out the facts wi'th particularity. When the license is dependent upon the payment of a royalty, the facts with regard to the payment should be averred, as, unless the defendant has complied with the terms of his license, his plea remedy. The complainant may does not defeat complainant's still be entitled to an injunction or other relief. 2 Rob. Pat. §§ 782, 822; 1 Daniell, Oh. PI'. 677. In the present case the citizenship of the pmijes gives this court jurisdiction, independently of the subject-matter; and the rnling in Hartell v. Tilghman, 99 U. S. 547, would not necessarily defeat all relief to complainant. For the reasons stated the plea is ruled bad.
01' CASES IN VOL.