UNITED STATES '0. JONES.
725
ant is entitled to the benefit of that doubt, and you should acquit him. But, if you are satisfied from tpe evidence that he is shown to have committed this crime, I charge you you ought to find him guilty. There are two counts in this indictment. You can, if you think p!'oper, under the rules I have given you in charge, find the defendant guilty on both, or on one count; or, if you think proper, you can find the defendant not guilty. If you find the_defendant guilty on both t;ounts, you will say by your verdict: "We, the jury, find the defendant guilty as charged." If you find him guilty on the first count, say so by your verdict, or on the second count. If you find the defendant not guilty, you will say by your verdict: "We, the jury, find the defendant not guilty. " As you believe from the evidence. so you must find. The prisoner was convicted.
UNITED STATES '0··JoNES·
. (Uircuit (Jourt. S. D. Georgia, W.D.
June 29, 1887.)
1.
ROBBING·'fHE MAIL-INDICTMENT-OWNERSHIP OF LETTER.
Where the valuable contents of a letter are to be the property of the person to whom it was addressed, and it appears In proof thavthey were intended by the sender for that person, and the proof further shows that the letter had left the mailing office, and was in the custody of the postal officers, at the time it was stolen, held, that the ownership of the letter and contents was properly laid. Where it is made to appear by plea in abatement that one of the grand ju· rors who returned the indictment had served on a jury which had rendered a verdict of guilty against the prisoner for the same offense, on a former trial. the plea will be sustained, and the indictment dismissed. Neither by common law nor by our constitution will a conviction upon It void proceeding or indictment, when the penalty has not been inflicted, operate as a bar to It subsequent indictment for the same offense. l
2.
INDICTMENT-OBJECTION To-MEMBERSmp OF GRAND JURY.
8.
CRIMINAL PRACTICE-FOUMER JEOPAUDy-VOID CONYICTION.
4.
SAME-INCONSISTENT CLAIMS.
The prisoner having sued for and obtained a decision of the circuit court that the indictment was. void, will not, on a second trial, be heard to urge that decision as error in order to escape its effect, on the plea of former jeopardy.
(Syllabu8 by tM (Jourt.)
Indictment for the Mails. Dupont Guerry, U. S. Atty., for prosecution. Hill « Harris and Dessau « Bartlett, for defendant. 1 When defendant obtains a new trial, he places himself in the same position as though he had not been tried, and a conviction on such first trial is no bar to a subsequent conviction. Johnson v. State, (Ala.) 2 South. Rep. 466, and note; Robinson v. State, (Tex.) 4 S. W. Rep. 904, and note.
726
FtDERAL REPORTER.
SPEER, J. The defendant, On llirraignment, filed: a and a plea in abatement to the indictment. The demurrer averred that the allegation of. Qwnership of thest01en property, to-wit, a check payable to Walker, and indorsed in blank by hini, and mailed to S.T. Coleman & Co., to pay a debt due to thatfirm from Williams & Co. ,with the further averment that the check was the property of S. T. Coleman & Co., was fatally defective; the defendant insisting that it is a necessary conclusion of law from all the averments, taken together, that the check was not the property of S. T. Coleman & Co., but was the property of the sender. There can be no doubt that it is essential to the indictment that there must be a faithful description of the article alleged to be stolen, (1 Whart. Crim. Law, § 934,) and the description must be proved as laid, (2 Whart. Orim. Law,§ 1829; U. S. v. Martin, 2 McLean, 256.) It may be considered as settled that property sent by the mail may be laid in the sender. U. S. v. Burroughs, 3 McLean, 405; 1 Whart. Crim. Law, § 946. It is insisted, too, that if payment is sought to be made by sending money or other articles of vallie through the mail, it is done at the sender's risk, unless done by direction, either express or implied; citingCode Ga. § 2866; Abb. Trial Ev.803,§ 10; Bank v. McManigle, 8 Amer. Rep. 236; 2 Daniel, Neg. Inst. § 1474. I do notthirik that these authorities afford fair analogies for the det{jrmination of the sufficiency of the description in an indictment for larceny. It may be true that to send money through the post is at the risk of the sender, in the absence of ltuthorization to use the mails; bllt, unquestionably, the party to whom itisaddtessed, after it has left the mailing office, has a qualified interest in the letter, and a title to the valuable contents, upon which he could maintain trover against a third party unlawfully obtaining its posreported in 29 .Fed. Rep. 503, session. In the case of U. S.v. and subsequently in 9 Crim.Law Mag. 325, this court, in charging the jury, said that when the ownership of a registered letter and its to whom the proof shows it was contents is alleged to be in directed, and the proof shows that when it was stQlen the sender had de:,. posited itwith the postmaster, taking his receipt therefor, and it had, by due comse of mail, left the xnailing o$ce,that itS custody by the , post-office department was for the benefit of the to whom it addressed, that it was his property, the sender had no control over it, and there is no variance. There can be no difficUlty in the application of the principle of this decision to an unregistered letter. The necessities of trade and commerce require that the courts should give a cal application to the rules of pleading in cases arising under the methods of modern times. An immense mass of technical. cobwebs has been by the libswept away by that gradual reform which eral tendencies of the . coutts in passing upon the sufficiency bf indictments, and in repeated recommendations to congress, that profound lawyer and distinguished advocate, the Honorable Benjamin Harris Brew-: ster general of the U nited States, urged the importa.nce of legislation which would further aid the courts in dispensing with the
UNITED STATES V. JONES.
727
useless and damaging technicalities which tend so much to defeat the ends of justice. It caimot be denied that this indictment fairly advised the defendant of the crime of which he is charged. Besides, the regulations of the post-office department make the postal authorities the trustee for the person to whom the letter is addresaed, and the construction of the executive department charged with the execution of a public duty is entitled to great weight, and ought not to be overturned, unless clearly erroneous. U. S. v. Philbrkk, 120 U. S. 52,7 Sup. Ct. Rep. 413. The demurrer, therefore, is overruled. The defendant then presented his plea in abatement. This recites the fact that on the grand jury who found the indictment there was a juror who was a member of the special jury which at a previous term returned a verdict of guilty against the prisoner for the same offense, which verdict has since been set aside; and the plea further recited that the defendant had no opportunity to challenge such grand juror. These facts being admitted by the district attorney, it was ordered by the court that the plea in abatement be sustained, and the indictment dismissed. Thereupon the prisoner was instantly arraigned upon a .secQnd indictment, fouud at this term, in the precise terms of the indictment disposed of. To this indictment the prisoner renewed pro f01"ffll1, the demurrer, which was made to the first indictment, and the court overruled the same on the grounds before stated. Thereupon the prisoner a plea of autrefois crrntrict, and fOl'mer jeopardy. annexing a copy of the indictment in the district court of the United States for this district and division, and the verdict :and sentence thereon, whereby it appeared the defendant was sentenced to five years' imprisonment in the Albany county penitentiary, in the state of New York, and that he had suffered six months' iIn prisonmentthereurider. When this plea was tendered, the district attorney, calling attention to the fact that there was a motion for a new trial and arrest of Judgment, and an order overruling the' same in the district court, a; writ of error to the circuit court, and ajudgment of the circuit court setting aside 'the verdict, arid quashing the indictment, and declaring it should "go for. naught," insisted that the record attached to the plea as an exhibit was not complete. After argument, the court held that is not Cbmpetent for the prisoner to extract a portion of the ;record, and exhibit it to the plea of former conviction, but that the entire record must be produced. The prisoner then amended his plea, setting out, . as an additional exhibit thereto, the record of·the motion for new trial and arrest of judgment, the order granting the writ of error, the writ, and the judgment of the circuit court setting aside the verdict, and quashing the indictment, and ordering the discharge of the prisoner. To this plea, as amended, the district attorney demurred. He insists since the circuit court,the Hon. DON A. circuit judge, presiding,;held the indictment to be defective, and that the triltl should go for naught, that the entire proceeding was a nullity, and, as a consequence, the prisoner had never been in jeopardy. The prisoner's counsel frankly concede that the great mass of authority fully supports the contention of government's counsel, but they also insist that the au-
728
FEDERAL REPORTER.
thorities should not be regarded by this court, which they say should decide that the prisoner is in jeopardy when he has actually been tried, no matter whether the indictment is valid or not. No authority is cited in support of this proposition, but references are made to Mr. Bishop's work on Criminal Law, (volume 1, §§ 980-982.) An attentive consideration of these paragraphs does not afford the court any warrant for the adoption of the views of the prisoner's counsel. Section 1021 of the same work would seem to distinctly negative all that thA prisoner's counsel has said. When the indictment is in form so defective that, supposing the defendant be found guilty by the jury, he will still be entitled to have any judgment which may be entered of record against him reversed, he is not in jeopardy, and, if acquitted, is liable to be tried on a new and valid indictment. The author, in support of this proposition, cites many precedents, extending from Hale's Pleas of the Crown to the most recent declarations of courts upon this subject. State v. Gill, 33 Ark>129, 1 Crim. Law Mag. 665;' Hosier v: State, ld. 124. When a defendant has been convicted, an appeal taken, and a new trial awarded, the case dismissed, and a second bill of indictment found, a plea of former jeopardy will not avail. Simco v. State, (Tex. App.) 2 Crim. Law Mag. 26 et seq. This is true when the judgment is arrested for apparent defects. State v. Sherburne, 58 N. H. 535; Smith v. (hm., (Pa.) 5 Crim. Law Mag. 615. The supreme court of Mississippi, in the. case of Kohlheimer v. State, 39 Miss. 548, 77 Amer. Dec. 689,an exceedingly wellreasoned case, announces this conclusion: "It seems to be clear, there. fore, upon principle as well as authority, that neither at common law nor by our constitution will an acquittal or conviction, when the penalty has not been inflicted, upon a void proceeding or indictment, operate as a bar to a subsequent indictment for the same offense." Here the penalty has been only partially inflicted. The observations of counsel, which have the effect of intimations that the decision of the circuit court de;claring the indictment fatally defective was erroneous, will receive no attention at this time. The district court held the original indictment holding was carried before his honor Judge good. By writ of error PARDEE, in the circuit court, who reversed the decision of the district . court, and held the indictment bad, and the prisoner will lIOt now be , heard to criticise a judgment which he then insisted should be granted. It is res adjudicata, for the purposes of this case. While counsel may go to greatlength in defel1se of one charged with crime, they cannot be heard to· blow hot and cold upon the same issue, in the same record. Having sued for and obtained the decision reversing the district judge, they must stand by that decision, with all of its consequences. That decision holding that the indictment was defective, and should go for naught, it follows that the defendant has never been in jeopardy, and must stand his trial now. The demurrer to the plea is therefore sustained.-
AMERICAN BELL TELEPHONE AKERICAN
00. fl.
GLOBE TELEPHONE
00.
729
BEI;L TELEPHONE Co.
fl.
GLOBE TELEPHONE CO. and others.
(Circuit Oom, 8. D. N6tJJ York. July 19, 1887.)
PATENTS FOR INVENTIONs-!NPRINGEHENT-Acrs WARRANTING INJUNCTIONBELL TELEPHONE.
Letters patent No. 174,465 were granted March 7,1876, to Alexander Graham Bell. for certain improvements in telegraphy, the tlfth claim of which, relating to the transmission of speech by electricity, became entitled, by judicial construction. to a broad interpretation in favor of the inventor. Prior to 18B5 the Globe Telephone Company was incorporated under the laws of New York, the object of its formation being to manufacture. sell, license, and lease telegraphic; telephonic, and electric instruments, and supplies therefor, and ·to acquire and dispose of patents, I?atent-rights, lind inventions relating thereto, The company acqurred certam patents. which were shown to be in-. fringements upon the Bell patent, and put up in their otlice sample instruments of an infringing character. They also, by advertisements. invited the public to purchase their instruments. and become licensees of their patents and claims. No instruments. however, were ever actually made or used, except experimentally, and none were ever sold. Held, that the acts of the com· pany were sutlicientto warrant a decree restraining infringement. The experilJlents and invention of one Antonio Meucci, relating to the transmission of speech by an electrical apparatus, for which invention a caveat was filed in the United States patent-otlice. December 28, 1871, renewed in December. 1882, and again in December. 1883, do !lot contain any such elements of an electric IIpeaking telephone as would give the same priority over or in. terfere with the said Bell patent.
8. SAME-INVENTION OF MEUCCI"';PIuORITY.
E. N. DickerB<mand J. J. Storraw, for complainant. D. Humphries and S. R. Beckwith, for defendants. WALLACE, J. The complainant has filed this bill to restrain infringement of the patent gran,ted by the United States to Alexander Graham Bell, dated March 7, 1876,'No. 174,465, for improvements in telegraphy. Infringement is also alleged of the United States patent to Bell, No. 186,787, dated January 30, 1877, for improvements in electric telephony; but the proofs have not been addressed to the question of the infringement of this patent, and it is practically out of the case. The fifth claim of the first patent has been judicially construed in two cases by the circuit court for the district of Massachusetts, and in both of these cases it was substantially held that Bell was the discoverer of the new art of transmitting speech by electricity, and that the claim should receive the broadest interpretation to secure to the inventor, not the abstract right of sending soundll by telegraph without regard to means, but all means and processes described which are essential to the application of the principle. A'1l1.erican Bell, Telephone Co. v. Dolbear, 15 Fed. Rep. 448; Same v. Spencer,8 Fed. Rep. 509. This court, in American Bell Telephone Co. v. Molecular Telephone Co., followed the construction thus pl)iced upon the claim. 23 Blatchf. 253, 82 Fed. Rep. 214. The proofs for the complainant show that the apparatus, which it is alleged has been used and offered for sale by the defendants, embodie&