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The refusal of a defendant to plead to a criminal Information will : not defeat the ,IL ,cour,t. " · I

'." II: :'1 . 'j,i; ,,0;.;.; ; .'< L, . In such c4,se t)le entrr, of a plea of not gui)ty,under the directiou. 'of the court;:is'arhei-e niaiter bhorin. J atliI'kthoJ:htst6,rio inote1ilian ' i ')ordering, the, trial ito:ptoc8'ed 'all ifJsucb ''W8PG ititere&' '., i: jr ']'

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":' . ,11)b,e 1,',itldiCted,"l iJ;J. , ant, ,stands mut/!. IS faIrly: to be ,construed to Include anmformatJon,. i ' 1'1 ':,j, .,: ,> /,.,,,, ,if',db I ." "l¥ejtJd'i\\e ligaillat B persorl16ng,tged'ill'anil'IekUl solely fromtb8fact tbat,ha ,wile engaged, in such buslness,does1nbt ll, jtpPr;from the, ,trial o,fi , such persoq the exercise of such unlawful calling.

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5,' TESTIMONY!' i "Where

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a 'witrtess, oihermse ;unlmpeachea;' stances ca)culatlld ,to .create Ili 8'trGngbias, what itS . inqr¢ibJe, 4lstjD;J.9J1.Y,W i npt ,p,ecesllarily to1?11 . .-Il lJ';l":; ,1, : I; '(',.II

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f'Abrarft 'J.'l?ittenlioe!er, for r ",;) . ': .. ' ."" :'i13iATCHFORD, C. J. convicted. oiffa. him by :the St.l1tes criminal information' il;Uorne'y, prosectitirig for' nnited under sebtion of the Stathtes, t6runlawfully and depdsiting in the ofthe'Unit.ea States, and'lsending'to be thereby, g,'ciraula:Fcioncerning On being arraignEld',;on the illformation: the defendant 's"tQo(I :mute, and theci:mrt directsd a plea 'afnot guilty to be enterea fot hini,i1ndWwh.s entered. An bbjection of the defihl'dant's !tnd said counsel to, such action was overruled' by the excepted' to said ruVnlf'and to sai4 direction. The defendant noW' moves air atrest of judgment on the 'aboVe It is providecfby 1032 of'the Revised'Sta.t: utes as follows: v.7,no.2-13

Witiiarn P.Fiero,

194
"When any person indicted for any offence against LJ.J.C United States, upon his!Waignment stands mute, or re'Whether capital or fuses to answer theret'O; it:shtll'be tlle/dUty bftlili court to enter the plea of not guilty on his behalf, in the same manner as jf he had pleaded not guilty thereto.A.ndl w1X(\n the'pai'typlesds nbtiuilty'j'o't< such plea is entered as aforesaid, the cause shall be deemed at iss:lJ.e, and shall, with'' .. Rut fur,ther form .9r ceremony, qeti:IMby 8. jury.i' !l.!-.'-' r: < J';;':;; .',-;

This section is based"on "tll'6 'act 'of' April '30, 1790, § 30, 3,,' 14,( st at i§4, (ld. 777.) The act of ,179:0, related<:to,,amindictment for,:tl'eason, or one for any offence made capitaJ, by that, act, and: authorized' the 'tothe::ffial'of person 'standing lriu'te, as court teilitellto an < ::Ji.:" ,,' .. , _ ',,! ; ,:","! JiL, indictment for any offence not capital, and gave a auany offenoe,and:wltsin the tenms of·sMti0n 11082\:ofthe Revised Statutes.' The is"tidt'1'6und in any of ·, ... ·,1 the statutes. .'" . .' _: .Jt.. . ,for the :no jurisdiction to try: him, because he ·was .triedollan informahliid 1 no p<lwereithel' to tion and· stoodt:iltlt'e,and enter a plea of not guilty for him, or to proceed to hier trial

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statute alone can be looked tp 1los the /?ou,rqe of .authority; by meptioning.. an indiqtwep.t ,it 'eicluded'an infonflation;tbat the word "indictll).ent" .cannot, be construed to one of a . ' :.' . so tha,t no person w,b,9 chooses to: refuse to plead to a Cfiroin:;tl"in!ormatiqn ;uppn , Provisions. of are :referred to an info;rmation as well a:r,t iindictIPept in thes!t1Ile enMtment, and from this it is lLS ,an: indictmel1t is' 4I the information eo nomi"1-e, th.e,ease of a mn,te on an inforr»ation isnot provided fof. Statutes: all,crtPles cognizable the oft4e,U:tllted is the circuit The offence in the present case is one whicp can be prost
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crtted, crimihalinformation. §2,of the con: stittition provides that ,"the trial of all cakes jury';":and a,mendments to the consthution provides that:"'iI;i'all crimi:: to .aspeedy; rial prosecutions 'the accUsed shall enjoy the and public trial by an imp'artial' jury of the state and wherein the crime shall have been V'mted States have a right to: prosecute ,the defendant for the alleged, by a criminal inforttllition: instead of an indictriient, 'iL: vMw they have the' right to try him:flYr to punish hini if he is convicted. He has a right t6 betned by a jury, and by an impartial jury,: and to ;have the benefit: of the' other' safeguards provided by the constitution and the laws. 'But he has no right, to defeat atrial by, saying 'that he wifl not plead to the information. The court has poweHo try a person who refuses to plead t6 an inf6rma'tioq, or who wilfully stands niute when on'it, withoritenterlng for him a plea of not gUilty, and has a right to proceed in such trial as if there were' arilea of not gUilty; even though no· statute of thetJnited States specifically prsscribes mode of procedure in the case of an information. ' It would have this power under the constitutional and statutory provisions before referred to, in the case of an indihtment,even if there were no statutory provision in regard to standing on an informaintite on an indictment. So it has like tion, without any such provision in regard to an information. The question arose in regard to an indictment in the cir..' ctiit court of theUriited Statedorthe district of Maryland;' in 1818, in U. S. v. Hare, 2 ;Wheeler's' Cr. Cas. 283, before Mr. Justice Duvall and Judge: Houston. The defenaa:iIts were indicted under secti(iD. 19 of the act of April 30, 1810,' (2 St. at Large, for robbing a maif-carrier. The isbment .was death/ On being arraigned they stood mute. The act of 1790 was the ionly statute on the subject. 'The offence was one not made capital by tlrat act. ' It was contended for the defeIlda':nkth'at the'coint had :M power to enter a plea of not guilty for them, or 'to try them. . It was urged that the court must ascertain by a whether thJ

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FEPERAL

Dei or ex malitia,;, thl;tt it were from the visitatioI;l, of God" the cour{,qould proceed ·to tria,las if ,there, were ,a, not guilty; and that, it 'we:J;e that thE) was ex fnalitia, and the offence, werer a there be no trial, nQ a'trif\l, because the' .n9fj;9f the .1ljg1;J.est degree, lItS; treason, or of tp.e,}qwest The )was, thorbyjeHli.u;el;l.,t,couns'el, offhe held had llQ' of its,power to proceed to the trial of the aocused j that in ,of .the iProvisiops; of the constitution that the trial of e4913,pP in G/tses of sh,all be"by jUrY, and thatevery perl;lpn shallha.ye./l fairan,d impartial ,triri,l by jjury, All. ,a, P.tinlinal p,rosecutioll'j au'd ip view of given to t1wcircuit cc,mr,t of allcrhnes /lnd authqrity .of the Stat,es, thE) accus.ed could a,ot, hy, 1J,I;ly trial by jurY ; that the of implied COllvietipil, and that trial by a jmy, in, ,.provide,4 ' byJaw, thl;\.tthe principle l?trictconstructil)ll,of a, pellal statl,],te could not it, t() !?es'o prevent ,a. altogether,. The,c,o,9-rt the.,tlii,ifJ to as,if the plea weJ.:.e not "guilty.; '; with,reasoll, al?4 only criminallalV' In the pres(;lnt, case t,heplea of not guiltyLo be e,ntered, andthat'was dQue. , This a matter of form, l!-l}d was uO prejudic,eto Fhe defendant" and amounted to no mote tpan the trial to proceed aE1. if sqch plea were entered. Irrespective of, the foregoing views, the wor,d "indicted," in section'1032, is fairly to be construl'ld to,5nclude an tion. An information generally in nothing frqm !'til indictmeutitl its form and substance, except that it is filed by the properlaw of the government, ex officio, withol1t the il}t13rvention or approvaLl?fa grand iw:y. 2 Story on Const.. (4th Ed.)§ 1186. In The Queen V.Steel, L. It 2Q. B. Div. 31, 40, Lord Coleridge, criminal informa.
muteness

of

UNITED'STATES V.

BORGER.

a

'.

tionis It cause 6r'; matter, in mEl,re form from indictment, . qlteen's .the inforrttation instead of the jurors but, to';al1 intents apd one being as nlucl;1 matter as thg '!", ':" . , In Bdilerj'V. I(azdrnazoo'p:,iblishing Co'. 40 Midh: it tinder a justification iii, a sllit(br:'a:'libel there isnb variance be.tweenait\ that a has: befltl'indi6te'd, arid pfoqf'that lie 'h,as convicted hia jUstIce's court'dh a criIrliiial iiifotmatiOn. ' .·., 'i k6tibIi,fot i a'nJwtrial is 'made dn thegrolmd l 6falleged ertorsat the triaL .One jiu:or, He testitfed tWit he coM<i' notaas positively",hether'he was'la'membet' of the S6bi'ety for the I".. .' J"" " Suppression 9f Vice. He continued; . .

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," don't think I was ever proposed. , I know Anthony COmstock re6tiy, slightly. t have met him athiso'ffice in Nassau street, intliis city, and went there to him 'in regard: to some bUsinass, of, the, soa.tetr, J ,have not / contributed, to the societyrecently, bl,l,LI Ju!.VQ" pez:baps, withintwo years given inoney to it. It was ,not withm, a llaps within' two years, I contributed this money. I the s6Ciety is engaged in prosecUting men in 'the lottery I have 'seen in durlngthe ,last ye,aror tW(,l'j, I know Co¢stoeik il!!: agent ofthesociety t?which I lthialj:. I could nnd verdict fairly' the if it Sh9Uld ,on the trial that'ihe defen'dal1i was engitged in the business of selihlg lottery tickets: r dHrik 1 could give the testhnonyof the defenaaIllt,prop.er weight:iHt ,was a ql1es, tion . 8\SO gi;vli'Y?.e testimony of'the defendant proper weight, if it, bepame il. question of hiin'aM Mr. Oomstock, it was engaged in seIling: lottery tickets. I don't know that I shoU;ld glvll thetegti.m<1I1::ror more should that of the defendant, he being proved to be engaged in the lottery business. When 1 say I don"t know, r" that 't should give the evidence of the man I supposed was 1k!IIing J tlie truth more "lV'eight than the one'r thought was not. think thE! fact, that the, epgaged'in the lott.ery business me in giving his testi!p..ony}?sg weight. than that of'Mr. Comstock iflt wa.s a question of veracity between them, because I " would not like his' bu'siness."

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The defendant's counsel thereupon challenged the juror favor. The challenge was overruled, and thedefendant's counsel' excepted'. 'It is contend.ed for the defendant that 'challenge should have been sustained; that while a prejudice

198
A' " . ) '.'

,

REPORTER',J

against d,isqpl:\.lifya . ' , .,ft:C?w1 \being a .juror, person J" , 'Jj", J the present ease ,a prejudice agaInst ,the p,ersonon tpal, and the juror was ,Ppt' Hnpartial ; and that the evidence no't'onJy a ag;tinsttl;1e lotte,rs business, but by'reasonof his being a prejudice against' the engaged in that busi,ness;, .This is ,an Every goo,d citizen, fit ajuror, has necessarily; and qqght; to a arid aV,r<tjlldice peJ.:son who is engaged ina bqsiness,pl'Qhibited by law, as is I" the selling of lottery by the law of the .etate of New Y9rk, such selling made a crime, .. 666, §29,) such prejudice arisiJ;J.g .s.olely from the facf of his being engaged in such business, is no more thl;l.na,prejudice against the crime inv()lved in being engaged in s.uch business. If it were to be regarded as a prejudice. against the person, n() jury could ever be 9btained to try a person indicted for any crime. This case falls, within the principle Df the case of U. S. v. Noelke, 1 FED. REP. 426, decided by this court. The juror showed himself to be competent. All that he said'was that, if f1 question of veracity arose between the testimonyof the defendu,nt and that of Mr. Comstock, he thought that the fact that the defendant was engaged in' the lottery business would ihfhierice him in giving the testimoniof the defen<lant less weight than that of Mr. Comstook. Although a question arose as to whether the jury would believe the' testimony of the defendant, no question arose between the defendant ap.d Mr. Comstock 'on the trial. It did not appear that the defendant was a member of the society referred to. He had not contributed any money to it for over a year. The case is not within"the dicta in Oommonwealth v. Eagan, 4 Gray, UL The court did not err in refusing to direct a verdict for the defendant.. The question was one for the jury,' and was pt13sented to the jury in a proper manner by the court. There \Vas no exception to the charge. It is contended that the jllliY ,were bound to believe the testimony of the defendant, it being uncontradicted. . In The Helen R.,Oooper, 7 Blatch£. 378, it was. said by Judge Woodruff that where a witness, otherwise unimpeached,
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PATENT-RE·IssUE-PURPOSE TO GOVER INFRINC\ING ,DEVICE, , , Where the purp6se of a is to CbVCl' an alleged infringing

device bytlW use, of· a, general term, the new claim will be closely scr,utinized; but; 'if. the term is intelligible; be made so by ex, pert' evidence, it will nO,t be fatal to the pate,nt, it may be used in a--new sense:" . ,,

2. SAME-lNVENTOR-,PR.ESUMPTION AS '\'0 STA'J:E, OF

"t:; :It':isalegaipresumption' interested in upholding .il,tor'defelltlng& paientwere ffuBy!iilqilairitoo';1vlth tIle state of the art -u ,}Vhlln lout, ,is assumed :to-:have bor" froln the prst invented or by the other., '
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,'" WBere' th'e 'cdmlJin'Btibh of hrYrizontal fingers, and' and the " ,eoIb:biristion of fI,,"UeaMingers pollitivelyati<2\o!hM to: 3adkS, -Were; old; ,i the .c,,!Wlainant ctaiIW! JtO'f'A?fJnt<J1, fingers ,positively attachedrto jacks, the formula of knQwn subs,titutes wi)l not apply. :
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meoliah:ism, for 160ms'" 'the ll¢4d#t(lll'e rll ,a.re :actuated by lwriWtri.tal,recipl'o. ,eating bars engagi,ng with hopked levers, held, not d,edevice', in :which 'they are actuated by a 'piv'(htJto' a finger lrorin'ebted with them, aiId engaging #lth hlJri·
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Gallsttn Browne, for complainant.

and B. ,F., ,Th#-rston, f9r"defendants, , parties to this suit hold, pawnts.fo;rthe harness mechaniSm pf That,of,the complaipant. was granted to him ill ip:18U, No,. ,5,'/;18,; and that of ,the defendants, No. 37,760, was issued to Lucius J. Knowles in 1863. In the revers raise and depress the threads of the warp by means of the heddles, are, themselves, moved backward and forward by reciprocating bars placed at right angles to the heddle levers, and engag;levers, Which are" pivoted to the ing with them heddle levers, and provided with hooks at each end. A pattern chain determines which end of the small levar shall engage with the bar, and, consequently, which way the heddle lever shall be moved., In the defendants' machine, asthey now use it, each heddle lever is provided with a rod which is pivoted to it" and is connected by a crank-pin with a toothed w'heel; and this wheel is pivoted to an arm, or "flpger" as

201
it 'is d!tlledby the c0tl!plainant's Thistotlthed ,\"hee1, With its abns, .l'ie's'between' two , toothed cyHHders, sittr'atedat' some it,ana brOlightup to eilgage with the upper cylin'der15y the when a protuberance in the pattern the iO'rise, and,' t J obstacle is' passeu; it' backbjfits own weight to engage .'withthe, othtli;' The' "the t6.Htt';; ing lttldtheir, bf ¥& · 'i>ireb'ltS lat:
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ity;and todo'sa dIe) a 'spur' is. added to Which is the pattertt;' df oflron, wHihh is contltcit 'j:HftterJj;" In the defetidants'looni,as' patented,tlte l centraJ wheelstoad its finger, like a flower'on,its stalk, and waspus'hed: bn.ckwa:rd and forward'to meet the rotating cyliriders',iHstead' df up'and down, as'D.6\V; and therefore the wheelitselfhad 'no' tendency to fall back when the pressure 01 pattern w,asreleasl3tl. Thiflmovemerit was effected; by making the stem,ornnger, heavier on the side of the pattern' 'than it was 011 tIle' other badk the wheel. side, 80 tbait it fell backby grnviti tind The defendarits" loom, as usli.d, then, 'differs from the patent in this: that it is set up sidewise. no but'this seems to bean falls by itsdltn weight, and the'finger is no longer m'ade hEllh'y and one-sidell: ' " ' ThE; plairttiff, in his levers "jac'ks-,"'an'dclaimsthe combination of fiilgers positively connected with ja{!ks iIi; such 'a Wa;y'!fhlifthe jMks wiilbe pUilhed up by ana ,*i1l be'br6iigbtbitdk wholly, or 'in part; by the of tHis posit,ively:"aUahhed finger.' The reason for iirsi8tiiig' lQn the positive conm!ctii>ti betWMtt jack 'and :finger isth'at initne' merly patented; but now opeidoth'e public, ia:
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202

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zontalfinger which not , D\lcted wi,th, ith,y, a p41 Or slot, ;tlqt assist it "to fa,ll. rn,thltt l,(jom jack,was verYIIJ-lfoh heavier than the finger, $Q that. tlle aid of" the lattl'lr h,ave Qeenof ,no benefit. ' " '." ', , Tilere is no question about tpe pushing up :the,clainl is for fingeJ;, Or some circumstances, the It that the deeffect, stjfHy and use oft4e, 100m and finger fallsinmltl1<neoW»Y,· as iu The defendants' theiJ;ceutraI· wheeltJ?d ,{Jou'p\lptiJ;lg with the rotating cylinders, lj.re or ;th;at QJ1 0ue l?id6P,r 'pnger;,tpat the, of the its wp arms, 0011 extensible ltnd ,y,ontractibie W,fl.s , "," " in . I.;,., J _.. , patent of'1863,and tl).eir property, which, they m.aYflet ho#z()ntally, if th'ey choose, in vie",qf the sta,te t,he .fingElr, iUt a a!ld tpd to, .. ' 1;'h,ey furtb,er was re-isf\Qed in order. to,tUljqiu. the use, loom, that tpe vague alld genElraJworq. !pundil1 t4e 0l'igiqal, wa:s; tp cou-ee,a.l, Of slur,.over[, the great betWl'len th·. t,Wo mec,balilisms. 1"" ,:T' . :I ;'1,: 1 in, his re-issue is: nf>t deI\.ieq.; and, undertpe. dec:.i.sionsof the sl1P.fe1lle ,l:1ourt, tliis calls for of (;laiJ:P,sJ tp sHr.e 'c a1;l pe, made SO hy i¥ f!lrtal ,to, the" patent, be I ¥! tllJlir· §o bhfl' plaiIlti.ff:s hooked'

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inventea Q means al1knownmechaD1sm af that sort. 1 WII1 assume thIs to be its true thl'l intent Qfth{3 p1aill:tiff. ,', 'LrY{ , ,'" I,: "':t ','; .. 'f /"'''1+ " ," . . .. The question, 'ttfter all, will be' whetlier.' the asinfril1getsof'hisinventioJi. If he his claim is' 'If be dl,nnot', i is too broad. " " " ' ' ." ,,:". What ih(plaintiff's inyentiqn was; 80 far as these clairilB are concern'Eid,'itnot displited. " He ad,ded a slot to horizontal fi:ngerof the ,Greenhalgh loom, which adapted lliB Iight.balance(f to opetate liketne heavy: tachIllen,t of, Greenh,algh, which, like the defendi:mts' vibrating alia rod or rods, ,was pivoted side. ,," ' It is' a law that all iri' a st1tte ofthell art wbep. they took out tqell patent, or when they uiacbhie. ... · . ,: " . presuniptionj,8 founded 'upon'; ,Tbis' t {.': ."'" ,,1·, ' " .
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to hav'e

from invented and used by that other. S() (ar ,Iffl. the positive connection between the' ftnger was first used by the defendants; but the horizontal position of the finger was not first used by tIHf plaintiff. The only change made by the defendants in their actual from their patented machine is iJt.-thiB h()r1zontal was not the This of the formula of "known substitutes." That doctrine, first annOthieed by'M.t. Jrtstice Cliffoi-d, is nam'! cOllljDw.ation, how.ever:smaU and easy; if it oopateMableatltHiMltytreat as an infringEitnElnt anything' of his invention,,obtained by 'f,el,l·known. pan or ingredient another equally known and fullyun,der: stood,by,pezsoflsskiUed. in the MHo be6A1changeOible in'similar cOn1biMticiris' for the' partorihgredillrit wHich it, repfabes. It is a doctrine of very application; as aformula,

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always is ,:p,la.intiff ,

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