IN RE HAYNES.

767

their face that they are pUblic recorda. They are for the most part, if not all, printed forms, which have been filled up in the using of them by writing, and altogether indicate their character as public papers, or at least as having had some connection with the internal revenue office. But this indication or information the more intelligent junk dealers had also when they baled them for ,the paper mill, and, if so be it they knew they were records, they are as guilty as these defendants. But this fact so urgently insisted upon by the district attorney is delusive. The government or its officials may throwaway papers, abandon them, send them to the junk-dealer, or otherwise emancipate them from the category of records, as well as other people; and if its officials so deal with the records, and so keep them, that they appear to be abandoned, that fact may be sufficient to justify others in treating them as abandoned in relation to character as recorda. Or, to state it in an6the;l"way, because a paper bears on its face indications of oncehaving heen a public record; or that possibly or probably it such a record, it cannot be fairly implied as a fact that it always contmues to be .so wherever, or under whatever circumstances, it may be found by onechargad with an intention to destroy it as a record. For example, if the clerk of this court should throw a paper into his wllste basket, and one should take it away, and destroy it, it could hardly be implied, without more, that there was an intention to destroy a record as such. On the whole, no court should sustain a verdict implying that specific intent, the circumstances of this case; and, in the perfomlance of a duty the court owes to the defendants in that behalf, it is proper to direct a verdict of not guilty at your hands, and it will be so entered, by Y0tlr consent. So ordered.

In

fe HAYNES,

Petitioner.

l0irrlUit OOWl't, D. Ma,88aehUlJett8. March 9, 1887.)

1.

.

POST·OFFlCE-USDlG MAIL TO DEFRAUD-INDICTMENT-HABEAS CoRi'US.

Defendant was indicted for using the mails to defraud, under two indictments; One indictment charged two, and the other three. offenses. and the whole .offenses occurred within a period of six months. Being found guilty under both indictments, the court sentenced him to six months' imprisonment under eac)1 conviction, the-terms to run concurrently. On a petition for habea8oo'l'pUlJ, held that, under Rev. St. U. S. § 5480, which provides that "the indictment may severally charge offenses to the number. of three, committed within the same six months, but the court thereupon shall give a single sentence, " even Rssuming that a conviction could only be had for three offenses in each six months, one of the indictments. with the conviction under it, was valid, and the defendant was not entitled to the writ.

2.

CRIMlN.AL PRACTICE-INl>ICTMENT-REMITTING TO CIRCUIT COURT.

Und'erRllv. St. U. S.§1OS7. the district court has no authority to remit pendingindictments to the circuit court after verdict; and, where it does the circuit cou,t does not obtain jurisdiction, and an order in arrest of judgment issued by the circuit court. in such circumstances. is void.

FEDERAL. REPORTER. .

8.um--.l'URISDICTION. . 'As the circuit court, as the court of last resort, has decided in respect to the.se..indictments, at t.h.e Jl.etitio.ner's request, that the d.istrictcourt had n.o under Rev. St. lil037, to remit the indictments to the circuit court, ,after conviction, that decision is the law of this case. U. 8.v,. Haynes, 26 .Fed., Rep. 851. The orders of remission must, therefore, be regarded as nuli mies, and as neither taking away the jurisdiction of the djstdct CQurt, or conany on the ,circuit court over these indictments. 'The district court . had, therefore, jurisdiction to proceed with the indictments, and sentence the petitioner, notwithstanding the orders of remission.. NlllLSON, J. 4. SAMlll,-DISTIlITCT OFFlllNSlllS. .. As there is nothing in the record of the district court to show that the offenses charged in the two indictments and proved at the trial were committed within the same six calenditr months, the petitioner was lawfully sentenced . on both.indictments. If the sentences had been to take effect one after the instead of together, they would still have been justi:lied, so far as anythmg appears;to the contrary on the record. NELSOllT, J. ' 5. SAME':":"CONDUCT OF TRIAL. . The trial of the two indictments together, with or without 'all order of con· solidatiQn, ullder Rev. St. § 1024, did not make them one charging a single offense, and tlierefore subjecting the petitioner to only one sen· tence on: both. NELSON, J . . ,

Petition for Writs of HabeasOorpU8 and Certiorari. _. . 8ee U.S.v. Haynes, 26 Fed. Rep. S57, and Same. VI Same, 2'9 Fed. Rep. 691. Harrison Dunham, for petitioner. Owen A. Galvin, Asst. Dist. Atty., for.the United 8ta,tes. Before COLT and NELSON, JJ. . At the September term, 1884, of the distriqt court, two inwere found against the petitioner under section 5480, Rev. St., for sending letters through the mail in execution of a scheme to defraud. One indictment charges two offenses; and the other, three. These indictments were tried together in the district court, September 24, 1884, and the petitioner was found guilty on each. On October 14, 1884, the indictments were remitted to the circuit court on motion of the district attorney. Section 1037, Rev. St. Motions in arrest of judgment were heard in the circuit cOUi'tby Judge W1!:BB, and overruled. Thereupon the defendant forfeited his bail, and left the country. In February, 1885, the circuit court granted him. leave to file a new motion in arrest, on furnishing new bail. for his appearance in the circuit court. The main ground ·of this motion was that the' district court had no power to remit indictments, under section 1037, to the circuit court after verdict, imd that consequently the circuit court had no jurisdiction in these cases. This point was held to be well taken ill U. S. v. Haynes, 26 Fed. Rep. 857, and an entry was made on the docket of the circuit court sustaining the motion in arrest. On. January 6, 1887, (29 Fed. Rep. 691,) the district court vacated the order of remission to the circuit court, and the circuit court directed that the papers be returned to the district court. The district. court afterwards ordered a warrant to issue, and the petitioner was brought before that court, and sentenced to six months' imprisonment, and a fine of one dollar on each indictment. each six months to terminate and take effect at the same time on each indictment.
COLT, :J.

IN RE HAYKES.

769

Upon this state offacts the questionarises, on' this- petition, whether the proceedings of the district court are void for want of jurisdiction or other cause. Any mere error in point of law carl.only pe reviewed by the ordinary methods of appeal or writ of error. To eptitle the petitioner to a discharge upon a writ. corpus, the prooeedings in the district court nlust be found to be v.oid.· Ex parte ParlcB l 93 U. S. 18,21. Section 5480, under which tbelle indictments were found, provides as follows: "'rha indictment, information, or may severally charge offenses to the number of three, when committed within the same six calendar months; but the court thereupon shall give a single tence," etc. . It is said that two indictments were found against the petitioner,charging five di$tinct offenses, one indictment two, and the other three; that the statute prescribes that three offenses within the same six months are the utmost defendant shall be held to answer; and that, therefore, the indictments are v.oi,d. It is further said that the two indictmentswereconsolidated, before trial under section 1024, Rev. St., and that consequently the petitioner was tried upon one indic.tment charging. fiye offenses,connnitted within the same six calendar months. The mere fact, however, of the finding of two indictments charging more than three offenses within the same six months would not make both void. It may be the governnient might have been obliged to elect which indictment it' would go to trial upon, and to elfter a noUepr08equi as to the other, but, because one indictment might be bad, it would not make both so. The indictments were tried together, but they were never in fact consolidated. The record s.how8 a verdict of guilty was returned Ola each indictmenti The petitioner was not held to. answer and found guilty on a dictment, charging five offenses, within the same six calendar months. He was held to answer, convicted,.and sentenced on one indictrnent.charging two offenses, and ona second indictment charging three distinct offenses, and the most that Clln be said is that the second indictment, conviction, and sentence are illegal. So far as relates to the first indictment, · the petitioner was lawfully convicted and sentenced, and, at least until the expiration of that sentence, he has no right to a discharge on writ of habeaB CQrpus. Nor, as to this indictment, can it be said that the petitioner is deprived of his liberty without due process of law, or that he has been twice punished for the same offense, or twice put in jeopardy for the same offense. In passing sent 'llce, the court ordered the time of the second sentence to expire with the first, and it is difficult, therefore, to see what injury has caused to the defendant by this second sentence, except, perhaps, as to the one-dollar fine which was 11:1so imposed. If the terms of the two sentences had not run concurrently, but successively, and the petitioner had served out his sentence on the first indictment, and this application was made while he was' serving out a sentence upon the second indictment, the case would be different, and many of . the arguments now urged in behalf of the petitioner might be pressed with much force. v.30F.no.10-49

fro

FEDERAL REPORTER.

The caseo!' U. S. v. Palte1'smi,29 Fed. Rep. 775, (just decided by Mr. Justice BRADT.EY,) is not applicable to the one before us. There the court a sentence of imprisonment for five years on each indictment;the terms not to run concurrently, without specifying upon which indict'lllent either of said terms jsto be undergone. One term of five years had been served, and Mr. Justice 'BRADLEY held the judgment or sentence uncertain, and that it must be construed as meaning that the ternlsran concurrently, anddis<Jbal'gedthe prisoner. Another gl'oundreHed upon by the petitioner is that a final disposition was made of these indictments in the circuit court, and that, therefore, the district court had no power to pass sentence. The circuit court held in' U. S. v; Haynes, 26 Fed. Rep. 857 , that,a(ter conviction in the district court, these indictments c<iuld not be lawfully remitted to the circdurtundet the statute" .By this decision, which must be considered,' the law governing thisperitioh, the circuit court had no jurisdiction OVer thesecascs, and consequently its acts were null and void, except M to thedisn'iissal of tbe cases; , Tbo mere fact thalt'an order was entered inadyertently that tbemotiornri arrest of judgment be sustained cannot avail tbepetitioner, because the<court had no power in the premises except that of dismissal for want of jurisdiction. Where a court has no jurisdiction, its judgments ordets are nullities. They are not voidable, but void, and they constitute no justification. Elliott v. Peirsol, 1 Pet',B33; 340i Griffith v. Pra?Ji.er, 8 Cranch, 9; Mail 00, v. Flanders, 12 Wall. 130; : ' It having been held that this (\ourt had no jurisdiction over tbese indictments, it was proper to'rettirn them to the district court, and for the districteourt to proceed· alid pasIJ sentence. Petition dismissed.
NE'LSbN, J; I concur in the decision of the circuit judge that this petition be denied, for, somewhat f!om those giVen by the learned Judge.· .A hIstory of the case prIOr to the re-arrest oftM petitioner will'befound in U. S. v. H(JIJj'M8, 29 Fed. Rep. 691. 1. The petitioner now cbntendsthat the district court had no jurisdiction to sentence him.; It certainlyhao. jurisdiction oftbe indictments orIginally. It also had jurisdiction to give the sentences, unless its jurisdiction Was taken away by the orders of remission.' But the circuit courtnas deeided, at' the petitiooor's request, that the district court had no authoritytbmakethe orders of remission. U.S. v. Haynes, 26 Fed. Rep. 857.' . This decision was n\ade by that court as a court of last resort, as it was held by a single judge, and it is only when held by two judges' thata'qtiestibn of la'\v arising in a criminal case can be certified from the CirdtiH cOUl'tio thesupretne court: u'nder'seqtion 651, upon a , division'of opillionofthe judges.' The orders of remission were therefore , nullities, and' neither took' away-the Jurisdiction of the district court, nor confetied any ,i:>'nthe circuit c6urt. Whether tbatdecision was correct as a general proposition of law, is wholly immaterial. It was the judgment of the court of last resort in this case, and was binding on the dis-

IN RE HAYNES.

171

trict court. This rule of law was adopted and applied to this case at the request of the petitioner. Good or bad, it was the law of his own <lhoosing, and he must now abide by it. It is too late for him to ask this court or the district court to hold that these indictments were in fact and law remitted to the circuit court, and thus to oust the jurisdiction of the district court to prooeed with them. After listening to the ingeniousargument of the learned counsel for the petitioner, I see no reason to change the views which I expressed upon this branch of the case in U. S. v. Haynes, 29 Fed. Rep. 691. It would be a disgrace to the administration of the criminal law in the courts of the United States if a convicted criminal should be permitted to escape punishment by playing off one against the other in this absurd way, the jurisdictions of two courts, both of which have complete jurisdiction of the offense charged. 2. There is nothing in the record of the district court to show that the petitioner waS not lawfully sentenced on both indictments. If the sentences had been to take effect one after the other, instead of together, they would still have been justified, so. far as anything appears· to the contrary on the record, which is all that is now before this court upon which to determine the validity of the proceedings in the district court. The statute does not mean, as I understand its language, that ail offender is liable only for offenses committed within· the six calendar months immediately preceding the finding of the indictment, or within any other preceding six calendar months. The petitioner might have been lawfully tried and. convicted on separate indictments, for as many distinct punishable violations of the statute, committed within different periods of six calendar months, as that space of time is contained in the whole period of the stl:l,tute of limitations; and might have been lawfully sentenced to a term of imprisonment on each indictment separately, the sentences to take effect together, or one after the other, as the court in pronouncing the judgments should direct. See In re Snow, 120 U. S. 274, 7 Sup. Ct. Rep. 556. 'rhis section is obscure and somewhat difficult to interpret, but it cannot possibly admit of any. construction more favorable to the petitioner than this. Perhaps the true interpretation is one much less favorable. One of the indictments against the petitioner charged three offenses, and the other two. He was tried on both indictments, and a separate verdict ofguilty given on each, without objection or exception coming from him. This shows conclusively that the evidence produced by the government at the trial proved the offenses charged in the two indictments to have been committed within different periods of six calendar months. Otherwise the petitioner should have requested the court to instruct the jury to return but a single verdict; or, as two were returned, he should have moved the court to set one or both of them aside. This does not appear to have been done, and it must be presumed that both verdicts were justified by the evidence before the jury. The trial of the two indictments together, with or without an order of consolidation under section 1024, did not make them one indictment charging a single offense, and therefore subjecting the petitioner to only one on both. The presumption is that the jury were properly in-

772

FEBERAL,REPORTEn.

structed, and that both verdicts were properly rendered. If the court below refused upon 'request to give instructions appropriate to the case before' it, the petitioner's remedy was by bill of exceptions and writ of ettor. 'The case, in niy judgtnent,is within the principle of Ex parte Bigelow, 113 U. S. 328, 5 Sup. Ct. Rep. 542, and Ex parte Harding, 120 U. S. 782, 7 Sup. Ct. Rep. 780,and not within of In re Snaw, BUpr<Ji; See, also, Ex parte WilsOn, 114 U. S. 417, 5 Sup. Ct. Rep. 935. The case cannot be retried :upon habeas corpUfJ.
, I

LIST PUB.

Co. v.

KELLER;

(Circuit Court,

s;n. New

!. . .

York. April 12, 1887.)

1.

The la,w of copyright onlyreQ.lJires a, subsequent compiler of a directory to do for pimsel.f that which the firstfompUer has done. Whel'ethe oommercial value of two society directories depends upon the judgment Qf the allthors in the selection of names of persons of a certain social standing, each directory is original to the extent that the selection is originaL""
' ."

3. SAME-ORIGINAL SELECTION.

Where the compiler of such directory uses a previolls directory of the same character, to, save himself the trouble ofm,aking all independent selection of , 'the persons listed, though only to a \'ery limited extent, he infringes the first '" compHer's'copyright. " 4. SAME; , Tl:1e.;lltter compiler may the first qompiler's book for the pllrpose of verifyin,g, the orthography of the names, or the correctness of the aqdresses, of the persons ",i' ' ,
6. SAlIm-EVIDBNOE-<:JOMMON' ERRORS. ,:) ,

8. SAME-PnUoY.

the cOlppilation ,CIf, two !\i-milar books,a. close resemblance is the necessarY' consequence of tbe llae, of common materials, the existence, of the same,errorl!ln the two publicatioI1sis a presumption'of piracy that can only , be ove1"tt>tneby clear eVidence to, the contrary. The injunction to the infringement of one directory by another is limited to the. extent to which ihev are identical.
" ..

,

6.

SAME-,-!NJUNCTlON"

In Bill for injunction to restrain infringement of complainant's copyright. Wallace MacFwrland, for complainant. Edrnund i 'Wetm,ore, for defendant.
WALLACE, J. The parties are the proprietors and publishers of rival "society"directories, which purport to give the names and addresses of those persons in New York city who are supposed to be people of fashion. Tpe pomplainant asserts that its copyrighted directory, "The List,)l byr:the defendant's directory, the "Social Register," and has made a mptidn fora preliminary injunction. The question in the case is whether the defendant, in compiling:his directory, has done so by his own'origind>labor, or whether, in order to spare himself time and