730 foreign country, give hfs' views of the case, even to so high an official as the solicitor of the treasury, especially if he were advised that it was the basis of judicial action, by his associate sought to make those the papers in the cause, without notice to judge, and that, too, one of the parties who mightbe aJJectedby the opinion, and on the request of parties who, hcwever interested in the questions at issue, are For I have not yet been able to see how the yet strangers to the United States are interested in this litigation, and must look upon the acts of the officials who are making this request as entirely unofficial and voluntary. If this case is appealable under the law, every facility will be afforded the defendant to exercise thatnght. If it is not appealable, I have no right to delay the decision of the case, already long delayed, merely because the questionsJIlvolved may be interesting or imCourts sit to do justice man and manjnot to decide mootquestions of law. To impose upon a suitor the long delay of an appeal when an appeal does not lie, is it,self an injustice. I cannot make Qne litiganrs case the means of questions for other cases. They must be settled, ,as they arise. " I caiiIlot await ,the result of comIllunica·· tions to the circuitjudge, but will enter judgment for the plaintiff.
UNITED STATES'll. FAULKNER.
(DiBtrict 1.
N.D.
Texa8. April 28. 188B.}
The defenc:Iant's admission at thetrialof having committed the acts charged, the oommissiOll of which by one legally responsible amounts to a crime, re' quires a verdict'of guilty, unless the evidence of defendant's mental condition at the tilneof the commission of such acts raises a reasonable doubt that he knew what he was doing, and ,knew that it was wrong to do it, in which case .,he must be acquitted. 1 '
INsANl'1'y-RESPONSmILITY FOR CRIHE-BuRDENOF PROOF.
liJ.8AHE....,DEGREE OF MENTAL UNSOUNIlNESS.
While mental unsoundness to render one irresponsible need not be furious, , nor manifested alike on all subjects, it must be such, on the particular subject out of which the acts charged as an offense are claimed to have as to 'render him Incapable by reason thereof to discern the wrong of committing 'lluch acts, and it must be shown that they resulted from. such unsoulldness. 1 ,Theopinion of a physician as to defendant's mental c()ndition, based in pan made to him by defendant or others prior to the trial, can· not be, considered by the jury. ·
8.:B.unn-EVIDENCE-OPINION.
Two iudictmentsfor mailing obscellematterconsolidated and tried;together. ' Defendant admitted the commission of the acts charged in both JOn the Bubject of insanity as a defense 1;0 crime, the mental unsoundnesB which will relieve from responsibility, and upon whom rests the burden of proof, see State v,. Reidell. (Del.) 1,4 At!. Re,p, 550.... and note; Rather v," State, (Tex;) 9 S. W. Rep. 69; State v. Trout. (Iowa,) 88 N. W. .tI.ep. 405, and cases cited in note; Williams State, (Ark.) 9 S. Rep. 5. See, also,' the elaborate notes to Guiteau'B Case. 10 Fed. Rep. 161, cited in the opinion. " "
UNITf!;I>8TATEs 't1:FAULKNEB.
731
indictmente, 'and the o"6S6ene nature of the'letters· but claimed that by reasOn 'of masturbation, to which he was addicted, he had be_ COllie mentally irresponsible. Verdict of guilty, and motion for new trial overruled, and defendant sentenced to pay $2,000. Cha.rles B. Pearre, U. S. Atty., for the Government. Herting &- Kdky and W. 8. Baker, for defendant· MCCORMICK,
J., (cluzrging jury.) The defendanbis charged with having
.
deposited in the United States post-office, for the purpose of mailing and delivery to the persons addressed, certain unmailable matter, described in the different counts in'the indictments consolidated in this case, knowing the unmailable character of said Diatter. The defendant, through the able' counsel representing him on this trial, in open court, and to save time and the necessity of proof of the matters admitted, has admitted that he (the defendant) wrote the letterS described in the different counts, and charged to' be· unmailable matter; that he knew the contents thereof j and that he deposited each of said letters in the post-office of the United States, for the purpose of mailing and delivery; and that said letters are unmailable matter, as charged ip said indictments. And the effect and purpose of these admissions are to support all the charges in the indictments, and require at your hands a verdict of guilty on said charges, unless the proof ofi'eredin this case as to the mental condition of the defendant at the time he wrote said letters, and deposited them in the mail, raises in your minds a reasonable doubt as to his legal responsibility for his said acts. If not legally responsible, he cannot be adjudged guilty. And as, in the absence of the defendant's admissions, he would be presumed to be innocent until the contrary was shown beyond a reasonable doubt, so now, although the law presumes him to be legally responsible, and, as I have told you, this presumption and his admissions would, in the absence of proof as to his mental condition, authorize and require his conviction, still. this proof being made as to his mental condition, you are required to consider it; and if upon the consideration of the whole proof you are not only satisfied that' he did the acts charged, (which are fully admitted,) but are also satisfied beyond a reasonable doubt that at the time he did the acts charged he was legally responsible, you should convict him on all the counts in the indictments; but otherwise you should acquit him on all of said counts. It is not claimed that he is furiously insane, or that he has lost his mind entirl(ly. or become idiotic. The-defense attempted to be made by the proof is that, as a result of secret vice, his mind has become so diseased as to render him incompetent or una ble to discern the wrong in these acts done by him, or to resist the impulse to do them. It is not every species or degree of unsoundness of mind that makes the man irresponsible. It need not be furious, or be martifested alike on all subjects, but it must be such, on the particulatsubject out of which the acts charged as an offense are elaiu1ed to h&\'e sprung, as to render him incapable, by reason of said mental unsoundness, to discern the wrong of committing said acts; and it must be shown that said acts;resulted from said unsoundness of mind.
732
FEDERAL REPORTER.
"A jury is not'warrantedininferring that a man is insane from the mere fact of his committing a crime, or from the enormity of the crime, or from the mere apparent absence of adequate motive for it; for the law assumes that there is a bad it is prompted by malice,-if nothing else appears." Guiteau's Case, 10 Fed. Rep. 168. To enable you to exercise a safe judgment on the question of the defendant's responsibility at the time, of the commission of these acts, you have beeri permitted to hear proof as to his habits apd conduct for a number of years before that time, and as to his health and physical condition both before and subsequent to the commission of said acts. Ordinarily, witnesses are not permitted to give their opinions to the jury, . but mllst state only facts within their knowledge, and leave the jury to draw their own c.onclusions (under proper instructions) from the facts. On questions ofmental disease the jury are given the benefit of the professionalopinions of skilled witnesses, who have peculiar knowledge of diseases, and of their effect on the faculties of the mind, and of symptoms indicating the preseDce and species and degree of mental disorders. And five physicians have been admitted to give you their opinions on these questions in this case, based upo.n the proof as to the condition and conduct of the defendant. The physician Dr. Brown, whose opinions were excluded because he showed he had based his opinion on the family history, with which he was himself wholly unacquainted until called to see him after his arrest, testified as to his examination of the defendant, and as to his physical condition at that time, and that much of his testimony you are to consider; but his opinions based in part at least on the representations made to him by the defendant or others prior to this trial,or any trial in this case, you cannot consider. And, as was well said to you by the counsel both for the government and the defense, these opinions of the physicians are only a part of the proof; and, while you are to consider this part of the proof as every other part of it carefully, the opinions of these witnesses do not control you; you do not and caDnot surrender your right to pass upon the whole proof yourselves, nor can you avoid the duty of judging for yourselves on this question of the responsibility of the defendant on the whole proof. And here,as always, you are required to judge of the weight of the testimony, and find your conclusion of guilt or not from your own view of the whole proof, under the instructions given you. During the.progress of this trial it has been my office to decide what of the testimony offered it was proper for you to consider; and by the whole testimony in the case is meant only such as I have admitted to go to the jury, and have not withdrawn from your consideration. It was my office to decide what testimony, if true, tended to prove the issues here submitted. It is your province exclusively to decide whether any given part of the testimony is true, and how far it is true,and what it does prove, as well as to decide what the whole te&timony proves. It is also my office to sum up the testimony, whenever and as far as I may deem it necessary or proper; but this does not. exclude or relieve you from bearing in mind every part of the testimony that your own recol-
UNITED STATES t7. FAULKNER.
733
lection retains, nor does any view of the weight or value of the testimony which my summary may seem to imply in any manner bind you, or qualify your right and duty to judge for yourselves of the value of the testimony which has been admitted. The testimony tends to show that up to the commission of the acts charged in the indictments the defendant bore a good character as a moral man.' There is no evidence tending to show that up to the commission· of these acts anyone save his wife and one other witness knew or suspected that he ever indulged in self-pollution. One witness testifies to conduct of the defendant several years ago (before his marriage, as I understood the witness) in the Pickwick Hotel, in Fort Worth, which may tend to prove such indulgence upon that occasion. And his wife testifies to having seen the defendant indulge in this abuse while in bed with her; but she did not say when it was, or how often she so saw him. Dr. King, who treated the defendant several years ago, testified to finding him affected with nervous prostration, such as might result from fever, and such as did not, at that time, suggest to this witness that it was caused by the indulgence of secret vice. Mrs. Mettz testified to three different occasions when she had seen the defendant exhibit strange conduct and appearance, the time" and circumstances of which you will recall. A number of other witnesses testified to peculiarities in the defendant's general manner for several years, and some of them to particular occaJ:;ions when his conduct or language was peculiar, giving the particulars in which it struck them as peculiar. It is undisputed that for some time, perhaps for several years, he has been a salesman and book-keeper in his brother's store in East Waco, in which also others were engaged; and continued so connected with said business ,up to his arrest; and that during the time that these letters were being written and dispatched his brother was absent in California. It is shown that the first letter was dispatched about the 18th of December last; that it directed how its receipt and acceptance should be acknowledged. It has been shown how his directions were observed, and his action thereon, and the course of the correspondence for about a month, in which he wrote and mailed the four letters embraced in the first indictment; and that prior to that time he wrote and mailed the letter to another young lady, as charged in the second indictment. Upon this proof the physicians, testifying as experts, express opinions various in some respects. Four of them agree that unsoundness of mind is shown, and three of them seem to express the opinion that this unsoundness was of such a character and degree as to cause him to commit the acts, and to disable him from discerning the wrong of doing them. Two express this opinion without any reserve; one with more caution; while two of the physicians express the decided opinion that the defendant's mind was not so unsound as to, disable him from discerning that his conduct was wrong. You will recall the particular language and manner of each of these five "experts;" witnesses whose testimony, as I have told you, is not to take the place of. your own judgment, but is to be used by you for what you think it is worth,· in forming your own conclusion as to the mental con-
734 .dition of the defendant at the timeS he waS writing and depositing in the mail these five letters. . These letters have not been read. I do not know their contents, except so far as counsel have referred to them in their arguments to you. :It being admitted that they 'are 'of the character charged in the indictments, it was not necessary that I should know their contents; but they are offered to you not only to show that they are unmailable matter, (which is admitted,) but also as acts of the defendant tending to show 'liis mental condition at the time they were written and mailed, and it will be your duty toacqtiaint yourselves fully with their contents, and carefully to consider them in connection with all the other proof in the ease. It may be that the defendant experienced a depraved pleasure in the writing of these letters; that during their writing, and upon depositing them in the mail, he may have experienced that degree of immoderate sexual excitement which one ofthe physicians described as orgasm, and still have had mind enough to know that it was wrong, and will enough to withhold from the act of putting them in the mail if he had believed he would be detected in it. You must judge if he had. "These instructions given you import, in substance, that the true test of criminalresponsibility, where the defense of insanitjis interposed, is whether the accused had sufficient use of his reason to understand the nature of the act with which he is charged, and to understand that it was wrong for him to commit it; that if this was the fact he is criminally responsible for it, whatever peculiarities may be shown about him in other respects; whereas, if his reason was so defective, in consequence of mental disorder, generally supposed to be caused by brain disease, that· he could not understand what he was doing, or that what he was doing was wrong, he ought to be treated as an irresponsible person." Guiteau', OaBe, 10 Fed. Rep. 168. Upon the whole case, therefore, if you are I!atisfied beyond a reasonable doubt that,at the time these letters were written and put in the post-office by the defendant, he knew what he was doing, and knew it was wrong to do it, you should render a of guilty as charged in each count in the two indictments. If you are not so satisfied, you should return a verdict of not guilty.
AMERICAN BELL TEL.
Co. et al.
V. AMERICAN CusHMAN TEL.
Co. It ale DEVIOB.
COif-cuit OOU'l't, N. D. illinois. JUly Sl, 1888.) P.A.TENT8 FOR INvENTIONS-WHO ENTITLED
It appearing that Dr. Cushman did. with the aid of others, in 1851, construcl a deVlcecoJitaining magnetic coils. substantially identical in principle. conItructi()n. and working with the Bell telephone. through which he transmitted articulate sounds short distances, but that the translDission was faint. the words difficult to hear. and the attempts to talk through it often failures; that the proof of its operation at a distance greater than the ordinary acoustic
AMERICAN BELL TEL. CO. fJ. UfERICAN CUSHMAN TEL. CO.
735
teleplion(l would carry depended on the uncorrobOrated 'testimony of Dr. that the device was set up in Racine. Wis., in a public place, where anyone could 'use it, but that it attracted no attention, nor' did it suggest to anyone its practical value; that in 1854 and 1855 attempts were made to improve it, success; that it was exhibited in 1867 to several wealthy and intelhgentmen with a .view to patent and render it available, but the experimentswere unsatisfactory; that the device was given to an electrician to experiment with and patent; but he died, and the device cannot now be fouod; that nocont.emporaneous newspaper accounts appear of these experiments; and that it was not until after Dr. C. had seen the Bell telephone operate ana become familiar with it. that he claimed that he was the first Inventor; 'held, that what was done by Dr. C. JJlust be treated as an abandoned experiment.
C.,
InEquity. Bill to restrain infringement ofletters patent, and for an accounting. We/lt Bond,'for complainants. O. D. F. Smith and J. L. High, for defendants. BIflDGET'l, J. This is a bill in equity to restrain the alJeged infringe-ment of two letters patent granted to Alexander Graham first being No. 174,465, dated March 7, 1876. for an "improvement in telegthe second being No. 186,787, dated January 30, 1877, raphy;" for an "improvement in electric telegraphy,"-of which patents the complainantsare now owners, and no question is made as to their title thereto. Infringement is charged of the fifth claim of the 1876 patent, JLnd of the third, fifth, sixth, seventh, and eighth claims of the 1877 patent. These are the same paterits, and the same claims in each patent, involved in the II Telephone Casea. "1 decided by the supreme court at the last term, where the validity of the patents and of these claims was fully discussed and sustained. The defendants in this case do not deny the granting of the complainant's patents now in question, nor deny com" plainant's title· thereto, nor the fact that their telephones infringe the claims in question, but base their defense solely upon the allegation that Bell WaBllot the first inventor of the speaking telephone covered by these two patents, but insist that the defendant S. D. Cushman in fact invented and put into practical usa an electro-magnetic telephone at Ra-. cine, Wis., in the·year 1851, which transmitted articulate speech, and was put into practical use for that purpose during the year 1851, and that such use was continued for several years after such invention. Cushman, as appears from the proof, is now about 70 years old. In his early manhood he studied, and afterwards for a short time practiced, medicine; 'but in 1848, or about that time, he became interested in telegraphy, and abandoned his profession, and has since· followed the occupations of telegraph operator, constructor of telegraph lines,manufacturer of lightning-rods, and manufacturer and patentee of divers devices, mainly, if not all,pertaiuing to the application and control of the eleotriccurrent. His own account of the alleged invention of the telephone by himself is that; in the spring of 1851, he was engaged in constructing a telegraph line from Racine westward to Beloit and other towns,
'DolbelU' Y. T.phQlleCo., 8 Sup. Ct. :Rep. 718.
736
and his attention had also been attracted to a device called a "lightning arrester," intended to prevent the atmosphelic electricity from passing {)ver the telegraph wires and ,injuring the relay wires and other working apparatus of the telegraph office; and in order to indicate the presence {)f the atmospheric electricity upon the wires of the telegraph line, and thereby test the value and efficiency of this" lightning arrester," he constructed an apparatus consisting of an electric horseshoe magnet, with a permanent magnet placed between the legs, and connected at the bend with the electro-magnet, and these magnets, so arranged with relation to -each other, were placed in a wooden box, with the wires leading outelectric coils, and with the open ends of the magnets exwardly from tenning upward; and to the under side of the cover of the b()"v J directly ,over the ends of the magnets, was attached a thin piece of sheet-iron, so located that when the magnets were heavily charged with the electric (}urrent this sheet-iron plate would be drawn down in contact with the end {)f the f"sananent magnet, and there held until released by hand. Two boxes or sets of this apparatus were made, one of which was placed un-der a bridge in a swamp some distance west of Racine, one of the wires from the magnets being connected with the telegraph wire passing the vicinity of the bridge, with the other wire serving as a ground wire, and the other box was placed in the office of the telegraph company in Radne, and one wire from the magnets connected with the telegraph wire in the office, and the other with the ground. And soon after these magnet boxes were so placed,'he discovered that he could hear in the office the peeping of frogs, or sounds like the peeping of frogs, in the swamp; and after the discovery of this fact, experiment, as he says, showed that the sounds of rapping on the lid of the box in the swamp could be beard in the office, or rapping upon the lid of the box in the office could be heard at the box in the swamp, so that messages or communicationa oCould be interchanged between the two boxes by rapping, so as to indioCate the Morse alphabet; and, as is claimed, some further experiments resulted in transmitting articulate words from one box to the other. He also states that, soon after the discovery of these phenomena, he, with the of his brother, W. P. Cushman, and one B. T. Blodgett, conijtructed four boxes substantially like those he had used to test the lightning arresters on the telegraph line; that is, each box contained two coil -electro-magnets, the lower ends of which were connected by a bar of soft iron between these electro-magnets, and connected with the soft iron crosspiece was placed a permanent steel magnet, the upper ends of all these magnets being in the same plane and reaching nearly to the under side of the cover of the box. A small hole was made in the cover of the box directly over the upper end of the permanent magnet, and attached by one ,end only to the under side of this box cover, and in close proximity to the upper ends of the magnets, was 'a plate of thin sheet-iron, so located as to be interposed between the permanent magnet and the hole in the lid of the box. The wires from these electro-magnets extended to the {)utside of the boxes, so as to connect them with a transmitting wire and tbe ground wire. These boxes were fastened upon two boards, one box
AMERICAN BELL TEL. 00. 11. AMERICAN CUSHMAN TEL. CO.
7'07
upon each ena of the boards. With these boxes, he says, they (that is, himself, W. P; Cushman, and B. T. Blodgett) made experiments upon the telegraph wires on the line west of Racine, and succeeded in obtaining the transmission of articulate speech so as to be understood fora distance offrolli half a mile to three miles. Afterwards, and during the summer of 1851, a wire was put up extending from the telegra"ph office in Racine to Thomas 'Vright's carpenter's shop, a distapce of about 300 feet, and one of these boxes conneeted to each end of this wire, and, as is claimed, arti0ulate words were transmitted through these boxes between the shop and the rear room of the telegraph office; the method of using the boxes being to speak into the hole in the cover through a funnel of stiff paper, or tin, so as to vibrate the sheet-metal plate which he called the "vibrator," which was located over the tops of the magnets; and while this wire was in use between the telegraph office and Wright's shop some experiments were made by one Oren White with "vibrators" of different form and material, to, if possible, secure the transmission of louder sounds through the boxes. After a while the end of this wire, which had terminated in the telegraph office, seems to have been changed from the telegraph office to the watch repair shop of Oren White, which was located in Howland's book-store, about the same distance from Wright's shop as the telegraph office, and it is claimed that this wire and boxes continued to be used to transmit conversation, seeminglywholly to gratify the curiosity of whoever wished to use them, for many months after they were thus put in position. !tis· further claimed that in the summer of 1853 W. P. Cushman lived on a farm about six miles west of Racine, and Blodgett had II shop in some part of the city of Racine, and as a telegraph line from Racine passed dose to W. P. Cushman's house, one of these "talking boxes," as they were called, was placed in one of the rooms of Dr. Cushman's house and another in shop, and a third in a building near the dwelling-house of Cushman on his farm, and these boxes were connected with the wire of the telegraph line, and that these boxes were used when the telegraph line was not in use for telegraphic purposes during the summer of 1853 to talk between Dr. Cushman's house and W. P. Cushman's house,and between Blodgett's shop and the two Cushman houses; that intelligible orders or requests by articulate words were sent from the farm through these boxes to Dr. Cushman's house forthe purchase ofgroceries and family supplies, for the repair of farm implements, and the interchange of the usual social and family inquiries; that in th6' summer of 1854 Dr. Cushman, Oren White, and others were engaged in the manufacture of wire cahle for lightning-rods. in the city of Racine, and had a rope-walk for such manufacture, the extremities of which were several hundred feet apart, and these talking boxes were used to transmit orders by articulate words from one end of this rope-walk to the other. It is also claimed that further experiments were made with these boxes some time in 1855, by Josiah B. Cushman, a nephew of Dr. Cushman, and some changes made in the vibrator, so that better resuIts were obtained; and that these talking boxes continued to be used v.35F.110.10-47
738
F,EJ)mu:L REPORTER.
in two rope-walks, one in the south part and the other in the north part of Racine, where this wire lightning-rod cable was made; that in the fall of 1857 Dr. Cushman removed from Racine, and some part of his goods were shipped to New Lisbon, Ohio, which were two of these "talking boxes;" that he went into the lightning-rod business in land,Ohio,.where he remained a few years, and thence removed to South there he moved to New Lisbon, in 1865, and Bend, Ind., and from 1865 to 1867 he was engaged in inventing, perfecting, and putting into practical use a system of electric fire-alarm apparatus in different cities, among which were Cleveland and Detroit. In 1867, or about that year, Dr. Cushman states that he metJ. G. Chamberlain, Ira A. Chase, andsClme other persons, who had capital for which they were seeking investment, and whom the doctor was desirous of interesting in bis fire-alarm business, and other business connected with the development of his patents; and among other things he suggested the utilization of his "talking boxes" as part of the apparatus of his' fire-alarm system. With .a view to such utilization, thl'J doctor had the old boxes, which had been sent with his goods from Racine to New Lisbon in 1857, paired, and made an exhibition of their capacity to transmit articulate speech to Chamberlain, Chase, and others, in Leetonia, Ohio. The suIt of this exhibition was not such as to satisfy Mr. Chamberlain and . the other persons who witnessed it that these were adaptable to use in any way which could be made profitable, and none of them took any interest in the device. Not far from the time of this exhibition at tonia,Dr. Cushman gave some lectures on the subject of electricity at Malvern, Ohio, and there exhibited these boxes, and, as it is stated, ar;' ticulate words were transmitted through them. The testimony further shows that soon after this exhibition at Leetonia several companies or corporations were formed for .the purpose of manufacturing and putting into use the fire-alarm apparatus; and other patented devices in which Dr. Cushman was interestep, or which he had invented, and the ness of these companies ,finally ooncentrated at Cleveland, Ohio,-Dr. Cushman going there to reside, and taking the boxes with him; and soon after that he put the boxes into the hands of George B. Hicks, an electrician of well known abmty and experience, to experiment with and improve upon them, if he should be able to do so, with the understanding that, if he succeeded .inmaking the desired improvements, Hicks was to patent the apparatus, and own one-half the patent. Hioks died in May, 1873, withoutbaving reported to Dr. Cushman or the companies any improvements in these talking boxes, and so far as .known he made none, and the boxes were neverreturned to the doctor, nor received by him,and, as the proof shows,they have never been able to find them in the hands of those representing the Hicks estate or elsewhere. Some time in 1879, after Dr. Cushman had seen the Bell telephone operate, and became familiar with its mode of operation by using and experimenting with it, he began to give out and intimate by articles in papers and in interviews with reporters of the. press that he was the first inventor of the device covered by the Bell telephone patents, and has
00.
r;:AMERIcA:N" CU!:lHMAN TEL. CO.
s'ince·thht time,: with orless detail astb 'pai'tidulars, self to be the first inventor, alldnow the defendant company, which bears Dr. Cushman's name, and in which he is presumably largelyinrelies upon the proof it has adduced in this case of the doctor's invention to invalidate the Bell patent. The questions presented are purely questions of fact. If Dr. Cushman did actually produce and put in use, to the full extent claimed by him, the apparatus constructed as he describes his apparatus, so as to transmit articulate speech to a distance by means of an electric current, then I think there should be no doubt that such fact should defeat the Bell patents, as the apparatus described by Cushman is conceded to be substa.ntially identical in principle,construction, mode of operation, and result, with the Bell devices. It is conceded that in order to defeat a patent by proof of prior knowledge and use of the device covered by the patent, such proof must be soclear and satisfactory as to leave no room for reasonable doubt. Washburn v.Gould, 3 Story, 122; Wood v. MiU Co., 4 Fish. Pat. Cas. 550; Coffin v. Ogden, 18 Wall. 120; Manufacturing Co. v. Haish, 10 Biss. 65; Telephcme Co. v. Telephone Co., 22 Blatchf. 531, 22 Fed. Rep. 309; Cantrell v. WaUick, 117 U. S. 689, 6 Sup. Ct. Rep. 970. It i8not my purpose to go into a complete analysis of the voluminous proofs in this case. It is sufficient to say that there is no proofin the record, save from Dr. Cushman himself, of the construction and use of the first apparatus described by him through which he heard, in the office at Racine, the peeping of frogs in a swamp several miles away, and which, as he says, led up to the experiments by which he, with the assistance of his brother, W. P. Cushman, and B. T. Blodgett, made the operative telephones of 1851. The evidence in this case is quite convincing that such an apparatus as he describes his lightning tester to have been would not transmit the peeping of frogs or articulate speech, as the glass plate which he says covered the top would have entirely excluded the sounds from the magnets. Both W. P. Cushman and B. T. Blodgett, who, it is claimed, aided in the construction of the four talking boxes in the summer of 1851, are dead, and the only witnesses, aside from Dr. Cushman himself, who testify to the operation of these boxes prior to their being put into the short line terminating at Wright's shops, are workmen said to have been employed in putting up the telegraph line from Racine westward; and, waiving all inference from the proof in the case that the memories of these witnesses have been trained by artful suggestions from persons interested to manufacture testimony in this case, I think there is nothing shown by their testimony to have been accomplished by' these experiments which could not be attributed to the action of a device operating as an acoustic' telephone, or the 'ordinary relay telegraph instrument then in use to transmit signals by clicks. That some kind of experiments were made in the presence of these witnesses is probably true, as I cannot believe that these men would intentionally swear falsely upon the subject; but I do seriously doubt whether they witnessed at that time all the results to which they now testify. After theseexperimentsupon the line, we have the liue from the back room of the 'Racine
740
telegraph office, and from Oren White's watch repair shop to Wright's carpenter's shop, and the experiments there. That such a wire was run from one or both of these places to Wright's shop I cannot doubt, from the testimony adduced in that regard; and I think it possible that some words may have been transmitted from one end to the other of this wire; but this result can easily be accounted for by the action of the device as a simple acoustic telephone, as the line ran direct from one point to the other, and the distance was only about 300 feet; and the same may be said of the exhibitions made at Searle's tavern, which are referred to in the proof. The next alleged use is that of the wires between Dr. Cush· man's house in Racine, and the farm of W. P. Cushman, six miles away. The proof as to this use rests upon the evidence of Dr. Cushman alone, as I do not think the attempted corroboration of his testimony by Josiah B. Cushman's testimony is reliable. The practical use of these talking boxes in the factories where the lightning-rod cable was made in 1854 and 18.55 does not show results which may not have been obtained by the acoustic telephone, or these boxes and wires operating upon the acoustic principle alone; and the proof shows that before the boxes were used they could hear the man at the extreme end, 500 feet away, talking to himself, and the fact of so hearing suggested the use of the talking boxes for signal purposes. The USE;lS of the old boxes sent from Racine in 1857 to New Lisbon, Ohio, at Leetonia, Malvern, and New Lisbon, show about the same results obtained in these experiments or exhibitions as were shown in the same boxes at Racine. It dues not appear that the boxes had been in any degree improved in their structure, or mode of operation changed, from the time the boxes left Racine. It is true, they were repaired by one Burns, but no new feature seems to have been introduced into them; and after such repair an exhibition of their talking capacity was made in the presence of Mr. Ohamberlain at New Lisbon, and no words could be heard through them. My conclusion from a careful reading and consideration of this mass of testimony is that Dr Oushman did make, with the aid ofW. P. Cushman and B. T. Blodgett, in Racine, during the summer of 1851, a de. vice containing magnetic coils, throngh which spoken words could be and were transmitted at short distances. That the transmission was faint, and the words difficult to hear, and the attempt to talk through them was often a total failure; and occasionally, when all conditions were favorable, at most only a partial or meager success was obtained. That these boxes were open for experiment between White's shop and Wright's carpenter's shop, by the curious, and anyone was at liberty to use them, but were so imperfect and unsatisfactory in their operation as to attract no special attention, and suggested to no one who used or heard of them their value for any practical use or purpose. That in 1854 or 1855 Josiah Cushman and Joseph B. Cushman made attempts to improve these boxes by changing the shape and material of the vibrators, and that these boxes with the improved or new vibrators were Pl.J.t into the wire-rope factories. but no substaptial improvement was made in them; and that the boxes sent to .New Lisbonin 1857 worked no better than those con-
AMERICAN BELL TEL. CO. tl. AMERICAN CUSHMAN TEL. CO.
741
structed with the aid of W. P. Cushman and Blodgett in the summer of 1851. These two boxes sent to New Lisbon Dr. Cushman had repaired in 1867, and exhibited them at,New Lisbon, at Malvern, and at Leetonia; the exhibition at Leetonia being made for the substantial purpose of attracting the attention of intelligent men like Chamberlain, Chase, and the other persons who had met there to witness this exhibition, with the purpose that, if there was any promise of utility in the device, it should be patented, and made available with the other patents of Dr. Cushman, in which these persons were, or expected to become, interested; and yet the performance was not such as to suggest to any of these persons who witnessed the experiment with the device, either at Leetonia or at other places where Dr. Cushman exhibited it, as to attract attention, or suggest to anyone its practical utility. It must be remembered that this exhibition at Leetonia, and the others testified to, in Ohio, were made after the close of the late civil war, when money was plenty, and specu" lation rife, and it can hardly be deemed probable that, if the performances of this device had been such as are described to have been realized by Dr. Cushman on the six-mile line in 1853 and 1854, that some one would not have seen its value, or its possibilities for improvement, and have been willing to take sufficient interest in it, and aid Dr. Oushman in securing apatent upon it and developing it for use. All persons who are old enough to remember the condition of the art of telegraphy in 1851 will bear in mind that at that time messages were sent by means of the dots and dashes of the Morse alphabet impressed upon a strip of soft paper as it unwound from a reel; for at the alleged date of this invention operators who were guided solely by the sounds of the click of the tele-graphic instruments were at least rare, if not unknown; and in this condition of the art of telegraphy it seems to me that the discovery of a d&' vice by which spoken words could be transmitted through the aid of the electric current must have attracted general attention, if the performance bad been such as to even promise success. That the Cushman boxes of 1851,1853,1854,1855, and 1867, even ifthey operated upon the principle now embodied in the Bell telephone, as covered by thesepaterits; were rude and imperfect structures, contajning, at most, only the ecy of possible future usefulness, is abundantly shown by the proof from the experiments made with the reproduced boxes here in proof, although I'cannot divest myself of the conviction that these reproduced boxes are much more perfect in their organization than any of the original boxes made and experimented with there and elsewhere, as these reproduced boxes were made by men who have for years past been engaged in the manufacture of perfect telephones Recording to the present highest state of the art, and such manufacturer could hardly make as rude instrulllents as must have been made by Dr. Cushman, W. P. Cushman, and Blodgett, in 1851 and the succeeding years. Dr. Cushman WR!!' a telegraph operator and electrician, and a somewhat multifarious inventor and patentee in the field of electrical art, and must have had some of that sanguine terpperaII\ent and imaginative mind which characterizes the invent<;>ri lind his ca,reer, as disclosed by the proof, shows him to have been:
· . FEDEJUL REPORTER.
'3- sagacic;lUs8:nd in ma:ny reepectscapable business man, and I can hardly conGE)iveH.possible that, if,he had succeeded in sending articulate fqr a. distance of six miles by his 'device, so as to utilize it for errands and social p1J.rposes, he would not have realized that it was even then, in its then state of development. of sufficient valu,e to be covered by a patent, as he was then doing with his other inventions. I do not intend to be understood as intimating that Dr. Cushman, and Joseph Cushman, and Josiah B. Cushman, who are the principal witnesses for the purpose of supporting the defense in this case, hnve deliberately and willfully committed per:iury in their testimony. The impression made upon my mind is that Dr. Cushman was very ileal', in 1851, to the discovery and invention which Bell made in 1876, or perhaps a few months earlier; and when he, in 1877 and later, became familiar with the construction of the Bell telephone, and saw by how little he had Illissed the same great result in 1851, his imagination, made perhaps morbidly active by seeing how much of fame and profit he had missed, has clothed what he did in those past years with a light reflected from the success of others, and his statements of what he did then have unconsciously colored the testimony of many of those he has called to support hjm. Nor do I care to comment upon the many inconsistencies, as shown by the proof, in the statements and conduct of Dr. Cushman since he began to put forward his claims to this invention. nor to the contradictions, of his testimony in some material particulars, which are found in the record. At the time of the exhibition of his talking boxes in Racine, from 1851 to 1855 or 1856, Racine was a city, as shown by the public archives, of from five to eight thousand inhabitants, presumably with the usual proportion of intelligent, capable, and farseeing men which characterized the then growing towns and cities of the north-west, and it seems to me incomprehensibly strange that these boxes could have been on public exhibition for a year or more at one of the book-stores of the city, where all were at liberty to use and experiment with theIll, and have attracted so little attention as they seem to have done, if they could and did transmit articulate speech. The city had at that time, as the proof shows, one, ,and presumably more than one, newspaper, and yet no paragraph alluding or calling attention to this marvel of modern science has been found in the files of such paper or papers, and yet we have the significant fact that several, if not all, of Dr. Cushman's other inventions were the subject of paragraphs in one of the current newspapers of the city. I have no doubt from the proof that the machines made by Dr. Cushman, W. P. Cushman,and B. 'I'. Blodgett, in 1851, were, in all practical respects,as good as any that were made afterwards by Dr. Cushman, or those who assisted him. Oren White tried to improve them, and afterwards Josiah B. Cushman made an effort in the same direction, but they were so imperfect in their operation as to offer no promise to any one of their future possibilities. 'rhese considerations compel me to the conclusion that all the testimony, when taken together. falls far short of establishing beyond reasonable doubt the fact that Dr. Cushman in 1851 invented the telephone;
HOWARD V. ST. PAUl, :PLOW-WORKS.
743
that what was done by him must and should be treated as, at best, only an abandoned experiment. l do not think the testimony, when fairly considered, shows that Dr. Cushman produced at Racine or elsewhere, prior to the invention of Bell, Ii practical operative telephone of any kind. He gave the world nothing. What he did, if he did anything but make an acoustic telephone, was suffered to die in the embryo or germ before any valuable or useful fruition. I do not, from the proof, believe that the machines made by him during these experimental years were so far perfected as to be of any practical value, or to even suggest that they might be so improved as to become valuable and useful. If a word could be occasionally transmitted through them, the result seems only to have excited curious wonder among the youth, and did not challenge the attention of practical men, as did the first exhibitions of the Bell device. When the Bell telephone was brought to the attention of the public, its value and possible utilities were grasped at once. It was accepted as a great· invention, by the general public, as soon 8·S its operation was feen; and I can See no reason why the public would not as readily have comprehended its and value in 1851, as in 1876, had the machine been so far developed as to give substantial promise of what Bell accomplished. It may also, I think, be pertinently asked why some of these witnesses, besides Dr. Cushman, who have testified to t4e performance of these talking boxes, did not at once, on the publication of Bell's invention, come forward and deny his claim as the original inventor of the telephone, and call public attention to the fact that Dr. Cushman had made the invention more than a quarter of a century earlier; but none of these witnesses seem to have recalled the wonders they had seen and heard in 1851 until their memories had been refreshed and prompted .by Dr. Cushman. A decree may therefore be prepared for an injunction and accounting, according to the prayer of the bill.
HOWARD
et al.
'D.
ST.
PAUL PLOW-WORKS
et ale
.Oirouit Court, D.Minneaota. August 10, 1888.} 1. PATENTS FOR INVENTIONS-NOVELTY-HARROWS.
9.
BAME-IN1I'IDNGEMENT.