198
F]1;D:ERAL REPORTER·
. comes entitled to a deed; Could" the vendor in such case, after receiving and retaining the purchas:e money, recover for the waste conur.itted while the contract was yet unperformed? Or could he, after parting with his entire interest in the land by accepting payment, yet maintain a suit previously begun; and reoover damages therein for such waste? If not, it is difficult to see how the government is entitled to recover in the case at bar. The only ground urged by the attorney for the United States in opposition to these views was the fact that the patent has not yet been issued, and, therefore, that the legal title has not become vested in the purchaser. But this contention,as we have seen, is not tenable, in view of the legal proposition laid down in cases that have been cited, that the government now holds the legal title merely in trust for the purchaser; whose right to a patent has become vested, and is equivalent, so far as the government is concerned, to a patent actually issued. Let judgment be entered on the verdict in favor of the defendants.
UNITED STATES 'lJ. PENDERGAST.
(Circuit Oourt, E.]). Mi8souri, E. D. April 11, 1887.) 1. EXPERT TESTIMONy-OPINIONS-WEIGHT.
Expert testimony should be received and acted upon with much caution. It is not entitled to the same weight as the testimony of persons who speak concerning matters within their personal observation. Statements of expert witnesses should be regarded as opinions merely, and such weight only them as they deserve, considering the experience which the experts have had in the matters about which they testify. There is no presumption of guilt against a defendant merely because he has not taken the stand as a witness in his own favor.
2. ACCUSED AS WITNESS-FAILURE TO TESTIFy-PRESUMPTION OF GUILT.
Indictment under section 5512, Rev. St. U. S. This was an indictment under that clause of section 5512, Rev. St. U. S., which provides that" if at a registration of voters for an election of representative or delegate in' congress * * * any officer of registration, * * * who has any duty to perform in relatiol1 to su'ch registration, * * * does any act url.wuth"''ized by law relating to or affecting such registration or election, or the .esult thereof, * * * shall be punishable," etc. Defendant was registration officer, duly appointed and qualified, for the Third ward of the city of St. Louis, Missouri, at the registratioll for thet'ongressional election held in the Ninth congressional district of MissQuri on November 2, 1886. The laws of Missouri applicable to registrations for elections held in the city of St. Louis, Missouri, required applicants for registration to appear before the registration officer of the wards wherein they resided, and give their true names and places of residence, which were to be entered in p book called a
UNITED S',l.'ATl!l8 fl. PENDERGAST.
199
"Book of Registration,» and furth.ennore to take an oath before the officer to the effect, among other things, that they had registered in no other election precinct, that they had given their true names, and lived at the places designated in the registration book, and had truly answered all questions propounded by the registration officer touching their registration. SeE's. I"aws Mo. 1883, pp. 38-41, §§ 2, 3, 6, 11. The "act unauthorized by law," charged in the indictment to have been committed by the defendant, consisted in writing the names of 33 persons in the registration book while it was in his. custody as an officer of registration. who had not applied to him to be registered, and who had not taken the oath required to be taken by the laws of Missouri by persons seeking registration. In behalf of. the prosecution there was testimony tending to show that several of the 33 names, alleged to have been written in the. registration book by the defendant, were names of fictitious persons;. that no such individuals resided at the places from which they purported to be registered. Four of the 33 persons whose names were alleged to have been written in the registration book by the defendant were produced by the prosecution, and testified that they did not apply to the defendant for registration. Two experts in handwriting were called. by the prosecution, who, on comparison of the 33 names in the registration book with defendant's signature to his oath of office as a officer, the opinion that 22 of the 33 names were wri;tten by the defendant. Other facts sufficiently appear in the court's charge to the jury. THAYER, J., (charging jury.) The statutes of the Uhited States in effect declare. it to be an offense punishable by fine and imprisonment if an officer of registration, at a registration had for an election for a representative in congress, knowingly does any act relating to or affecting such regi&tration, which act is unauthorized by the laws of the state where such registration is had, or by the laws of the United States. The registration laws of the state of Missouri applicable to the city of St. Louis, (Sess. Laws },{o. 1883, pp. 38, 39,) in substance provide that a person applying for registration to the recorder of voters, 01"to any deputy recorder, appointed for any given ward of the city, must appear before the registration officer, and take an oath to the effect that he has not registered elsewhere, that he has given his true name, and that he lives at the placel1e has designated on the registration list; and unless there is such appearance, and such information is given as to name and residence, and unless such oath is taken, the registration officer is not authorized to en.ter the voter's name on the registration book, or suffer it to be so entered by the voter himself, or by any other person. Such being the law of tlIe state, it follows, gentlemen, that if the defendant did the act. charged in this indictment,-that is to say, if .he wrote the names of persons in the registration book who did not .apply to be registered,-he did an act w4iGh was not only unauthorized. by the law of this state, but was an open -violation of such law, and in 110 doing he committed an .offense againl:itthe laws of the United States.
200
FEDERAL REPORTER.
The general question which you have to determine is whether the defendant, while acting as recorder of voters of the Third ward of this city, ' in September last, did knowingly and willfully enter on the-registration books in his custody the names of any of the persons meritioned in the indictment, when the persons themselves neither applied for registration n6r took the oath required of voters. If the evidence on the part of the government has satisfied you beyond any reasonable doubt that the defendant did so enter any or all of said names mentioned in the indictment on the registJ:ation book, then he should be found guilty. In this connection it is proper to add, gentlemen, that it makes no difference whether the names so entered on the registration books, without the appearance or request of the persons so registered, and without their taking the oath, were the names of real persons thenar theretofore residing in the Third ward, or whether they were the names of fictitious persons. In either event the offense was committed 'by writing the names of such persons on the list without their applying for registration or taking the oath required of voters, if the proof shows beyond a reasonable doubt that they were so written by the defendant. Furthermore, gentlemen, from the faci that the act charged is an unlawful act, if you findit to have been done knowingly and willfully, you may infer that it was done with an evil or criminal intent. Now, gentlemen, with regard to the testimony that has been offered, I shall only call your attention to certain portions of it. The prosecution have produced Tillman Puetz, William Wells, William Schwacheim, and O. M. Billmeyer, whose names appear on the registration book, and the same names also appear am:ong the names mentioned in the indictl,llent. These witnesses have sworn that they did not write their names in the registration book shown to you, or apply to the defendant for registration, or take the oath required of voters. Testimony has also been offered by the prosecution of the general purport that no such persons as John Rogers, Thomas Collins, and Albert Reil, whose names appear in the registration book, and in the indictment, resided at, or werekt.lOwn to the occupants of, the houses bearing the street numbers from which Rogers, Collins, and Reil appear to have been registered. It is for you, gentlemen, to determine in the first place what credence you will give to such testimony; and, in the event you believe the same, it will be for you to consider what inferences may be properly drawn from such facts. There is another class of testimony before you to which the court desires to allude briefly. It is what is generally known as expert testimony. Two witnesses have been produced, and in your presence they have compared 22 of the 33 names appearing on the registration book, being the same names mentioned in the indictment, with what purports to be the defendant's own signature to an oath of office contained in a book kept last fall in the office of the recorder of voters of this city. After such comparison these witnesses have expressed the opinion that the signature to the oath and the 22 names in the registration book were written by the same hand. Now, gentlemen, assuming that both of these witnesses are disinterested and unbiased, and otherwise credible,
UNITED STATES V. PENDERGAST.
201
the nature of that class of testimony is such that it should be received and acted upon by you with much caution. Testimony of that kind is not entitled ·to the same weight as the testimony of persons who speak concerning matteI'S within their personal observation, because these witnesses simply express opinions which they entertain, founded on the comparison made, and you should regard their statements in this matter as opinions merely. and give them such weight only as you think they deserve, considering the experience which the experts have had in making such comparisons. You are also entitled to look at the signatures yourselves, (as you have already done,) and form your own opinion, and draw your own conclusions on the subject from such comparison of the signatures as you may have yourselves made. On the part of the defendant two persons have been produced, (Joh\l F. P. Lynch and J. P. Willi,) both of whose names appear on the registration book, and also among the names mentioned· in the indit'tment as having been written on the list by the defendant, and both have testified that they appeared before the defendant, took the oath, .and themselves signed the registration lists. The names of these two persons,however, are not in the list of 22 names which the experts say are in defendant's handwriting. These are the only witnesses produced by the defendant. But I call your attention, gentlemen, in this connection, to the unvarying and very just rule of law, that every man is presumed to be innocent until he is proven to be guilty. Even if the defendant had not offered any evidence whatsoever, it would be your sworn duty to acquit him of the charge, unless the evidence for the prosecution satisfies you beyond a reasonable doubt of his guilt. This is the main question which you will have to consider in yourretirement,-whether the evidence on the part of the government, taken altogether, is of such conclusive character as to leave no room for a reasonable doubt of the defendant's guilt. If the evidence gives you such confident assurance of his guilt, return a verdict of guilty. On the other hand, if the testimony leaves you reasonably in doubt as to his guilt, (and you must determine the question fairly and without bias, on testimony you have heard in this court-room and in this case,) then you should return a verdict of acquittal. From the fact that defendant has not asked to testify in his own favor you cannot indulge in any presumptions against him. The law will not permit you to indulge in any presumptions against him merely because he has not taken the stand as a witness in his own favor. You can take the case.
the
·202
, FEDERAl, REPORTER·.
HANSON
v.
JACCARD JEWELRY
CO.
(Oircuit Court, E · .D. Missouri, E · .D. September 19. 1887.) 1. COPYRIGl;[T-COMPILATION Oll' WAR RECORDS.
A compilation from voluminous public documents. so arranged as to show readily the date and order of battles fought during the civil war, together with a list of casualties. may ,be copyrighted.
2.
SAME-ACTION FOR INFRINGEMENT-LEGAL TITLE SUFFICIENT TO Jl.IAINTAIN.
An action forthe infringement of a copyright may be maintained by the holder of the legal title thereof, though the beneficial ownership be in another. Application was made by the plaintiff for an order pendente lite, restraining the defendant from circulating a guide,book containing matter infringing upon the copyright of plaintiff. Held, that the question of the damage that might be .sustained by the defendant upon granting the order. as compared with that to the plaintiff by denying it. and the financial ability of the defendant to respond to any damages assessed against him, and the fact that there was no intent on thll psr.t ot the defendltnt to appropriate the property of the plaintUJ.and that it was done without the knowledge of the defendant byone employed to compile the work, are all considerations which it is proper for the court to weigh in determining the question of granting or denying the application.
8.
SAME-PRELIMINARY INJUNOTION-SITUATION OF PARTffiS TO BE CONSIDERED.
InEquity. , George P; Strong, forcomJ!lainant. Horatio D. Wood, for respondent. In the case of A. H. Hanson v. TheE. Jaccard Jewel1"!J has been made for an injunction pendente lite. From the mo;ving. papers on file it appears that A. H. Hanson, the general pasl3enger agent of the Illinois Central Railroad Company, in April last took out a copyright on a pamphlet entitled: "1861-1865. Battles for the Union,a.nd the Union Forces Engaged Therein, Together with a Record of As the title implies, the publication conta.ins a record of battles fougb,tduring the late war, arranged in chronological order, and of the Uni.onforces epgaged, together with a list of casualties. The materials for. the publication were collected and arranged by thomas F. Nelson, under employment of the Illinois Central Railroad Company, but it is probAble that in arranging the material he acted to some extent u,nder the direction of Hanson, .the general passenger agent of the road. The pamphlet on its cover contains a.picture of the commander in chief of the Grand Army of the Republic; it is dedicated to that or· ganization by the Illinois Central Railroad Company; it purports to be presented to the public with the "compliments of the Illinois Central Railroad ljompany;" and it contains a map of that company's railroad system, showing its connections, etc. From these and other facts it is obvious that the pamphlet in question was compiled and published at the instance and expense of the railroad company, and that it was designed by that company for gratuitous cil-· culation at and prior to the annual encampment of the Grand Army of
Co.,
THAYER, J.