UNl'fED STATES V. GOUJON.
773
so general, and may be applied to such a variety of acts, that the
particular ).dndof fraud meant, anel intended to be proven, ought to be averred. The defect in the third count is that the kind of fraud is not averred, The grand jurors say the acts constituting it are unknown to thein, and in attempting to describe the general nature of the fraud they merely describe a is, the obtaining of a certificate of citizenship,-which result may have been brought about without practicing any fraud or deceit. 4. The fourth count of the indictment is also framed under sections 5425 and 5427 of the Revised Statutes, and is for" counseling and ad- . the commission of the same felony described in the third count. No substantial defect in this count has been pointed out. In this count, the fraud by which the certificate of citizenship obtained and accepted by Etnst John, the principal offender, was procured, is clearly stated. It is aEeged that the fraud consisted in making a false statement to the court that granted the cettificate, and what that false statement was is. properly averred. A similar averment in count No.3 would have. made that count tenable. The result is th.qt the demurrer is overruled as· to counts 1 and 4, but is sustained as to count No.3, and the same is quashed. 5. Under late rulings in the federal courts, it seems that the offense defined in section 5395 is a felony, hence counts under that section are properly joined with count::; under sections 5425 and 5427. U. S. v. Johannesen, 35 Fed Rep. 411.
U"ITED STATES V. GOUJON.
(District Court, S. D. California.
August 26, 1889.)
CRIMINAL LAW-SENTEKCE-COMMUTATION FOR GOOD BEHAVIOR.
Congo March 3, 1875, providp.s that a United States prisoner confined in execution of any sentence in a prison of any state or territory. which has no system of commntation for its own prisoncrs. shall have a deduction of five days in each month in which no charge of misconduct shall be snstained against him. Hev. fo't. U. S. iiM4. provides that in other cases such prisoner shall be entitled to the same credits applicable to other prisoners. He/d. that as act Cal.. amended March 14, 1881. provides for commntation for snch prisoners only as are confined in the state-prisons for terms of one year and over. a United States prisoner sent to the county jail for six months is entitled to no credits for good behavior.
At Law. Application for release from J. JlaT'ion Brooks, for petitioner. .A. TV. Hutton, U. S. Atty. Ross, J. The petitioner, who was on the 4th day of March, 1889, sentenced to be imprisoned in the county jailor' Los Angeles county for the period of six months, and to pay a fine of $1'\00, upon conviction of
774
FEJ)EUoAL UoEPORTER.
vol. 39.
the crime pi smuggling cigars the United States, claims, by reason of his good behavior during his imprisonment, to be entitled to a credit of five days for each month of his term, and therefore to be now entitled to be The prpvisions of the United.States statutes bearing on the subject are contained in the act of congress of March 3,1875, (1 Supp. Re\;. St. 184,) and in section 5544 oithe Statutes, the first of which reads as follows: . who have been 01' shall ttl' convicted of any offense .the laws of the United Stlltes, ilnd confined in execution of the jUdgupon such conviction, in anj' prison or penitentiary of any state or territory, which haSIlO system of commutation for its own prisoners, shall l1ave a deduction from their se\l"eral terms of sentence of five days in each and:every calendar month during which no charge of misconduct shall been sustained against eaep-severally, who shall be discharged at the expiration of his term of sentence less the lime so deducted, and a certificate of the warden or keeper of sllchpris9n or penitentiary of such deduction shall be entered on the warrant of commitment." . "All
Section 5544 reads: "In other cases, all prisoners now or hereafter confined)n the jails or penitentia·rip.s of any state, for ·offenses against the United States, shall be entitled to the same rule of credits for good behavior applicable. to other prisoners in the same j ail or penitentiary." ·
These provisions are perfectly plain and admit of but one construction. By its express terms the deductions provided for by the act of 1875 can be allowed only to prisoners confined in a state or territory having no system of commutation for its own prisoners; and, as the state of California has such system, it necessarily results that the deductions provided for by that act do not apply to the case of the petitioner, The cases of offenders against the laws of the United States, confined in execution of a judgment or sentence upon conviction in a prison of any state or territory having a system of commutation for its own prisoners, are provided for by section 5544· of the Revised Statutes, above quoted, which gives to the prisoner confined in such state or territory for an offense against the United States the same rule of credits for good behavior which by the law of the state or territory where the imprisonment is had is applicable to other prisoners in the sume prison. The system of commutation provided by the statute of California (act Cal. 1880, as amended . March 14, 1881) has no application to county jails, or to prisoners confined therein; and, in respect to prisoners confined in a state-prison, no credit is allowed when the term of imprisonment is less than one year. In re Terry, 37 Fed. Rep. 649; U. S. v. Sohroeder, 14 Blatchf. 345. Writ denied, and petition dismissed.
VliiTED STATEs V. BRAUN.
UNITED STATES V. BRAUN. SAME t'. SOHY.
Court. E. D. j/is8ouri, E. D.
September 2, 1889.)
TRADE-MARK-COUNTEHFEITING-INDICnIENT. A certificate of registration of a trade-mark is merely prima facie evidence that the applicant is the owner of a valid trade-mArk; and indictments. under act Congo Aug. 14, 1876, 1. to punish counterfeiting of registered trademarks. which allege that a certain word has been admitted to registration as a trade-mark, without averring facts showing that the alleged owners ac· quired an exclusive property therein, are bad. At Law. On demurrer to indictment.
George D. Reynolds, U. S. Atty. John M. Holmes and Kerr & [{err, for defendants. THAYER, J. These are indictments under section 1 of the act of August 14, 1876, to punish counterfeiting of trade-marks that have been in accordance with the laws of the United States. The section is as follows: "Be it enacted that every person who shall, with intent to defraud, deal in or sell * * * any goous of substantially the same descriptive properties as those referred to in the registration of any trade-nHtrk, pursuant to the statutes of the United States, to which. or to the package in which, the same are put up, is fraudulently affixed said trade-mark, or any colorable imitation thereof, calculated to decei ve the public, knowing the same to be counterfeit or not the genuine goods referred to in said registration, shall, on conviction thereof, be punished," etc. Vide 1 Supp. Rev. St. U. S. 241. The law was evidently designed to punish those who, with fraudulent intent, pirate a valid trade-mark which has been duly registered by the commissioner of patents. If a person, by any means, secures the of a mark, symbol, word, or device, claiming it to be a trademark, which, according to the rules of the common law, is not a valid trade-mark, another person who affixes the same mark, symbol, or device to his own goods, and sells them, cannot be punished under the penal statute above quoted. Registration does not create a trade-mark; nor is it conclusive proof that the person procuring registration has a v!1lid trade-mark. Property in a trade-mark can only be acquired by the adoption of some mark, symbol, sign, or word susceptible cf being used as a trade·mark, and by the actual application of the same to goods, wares, or merchandise of a certain rIass. so that it serves to indicate the origin or ownership of the particular commodity. Congress, by the act of 'March 3, 1881, (1 Supp. Rev. St. U. S. 606,) has merely provided for the registration of a certain class of trade-marks used in commerce with foreign nations or Indian tribes, when, according to common-law tests, a right to use the mark, symbol, or word as a trade-mark is established to the satisfaction of the commissioner of patents. Admission to registration under the act of March 3, 1881, is merely an ad-