Desertion

absence without leave accompanied by the intention not return.

Defined by the Supreme Court in Trop v. Dulles, 356 U.S. 86 (1958).

Abandonment; the abandonment of a duty or of a person as to whom the deserter is charged with a duty; as desertion by a seaman, or a soldier, or by a husband of his wife. As a cause for divorce, is an unwarranted departure from the conjugal relation, intending not to return. The precise elements vary according to the statutes. In only one or two states is mere abstinence from sexual intercourse regarded as desertion. The voluntary separation of one of the married parties from the other, or the voluntary refusal to renew a suspended cohabitation, without justification either in the consent or the wrongful conduct of the other. 122 111. App. 225.

The act by which a person abandons and forsakes, without justification or unauthorized, a station or condition of public or social life, renouncing its responsibilities and evading its duties.

In matrimonial and divorce law. An actual abandonment or breaking off of matrimonial cohabitation, by either of the parties, and a renouncing or refusal of the duties and obligations of the relation, with an intent to abandon or forsake entirely and not to return to or resume marital relations, occurring without legal justification either in the consent or the wrongful conduct of the other party. State v. Baker, 112 La. 801, 36 South. 703; Bailey v, Bailey, 21 Grat. (Va.) 47; Ingersoll v. Ingersoll, 49 Pa. 250, 88 Am. Dec. 500; Droege v. Droege, 55 Mo. App. 482; Barnett v. Barnett, 27 Ind. App. 466, 61 N. E. 737; Williams v. Williams, 130 N. Y. 193, 29 N. E. 98, 14 L. R. A. 220, 27 Am. St Rep. 517; Magrath v. Magrath, 103 Mass. 579, 4 Am. Rep. 579; Cass v. Cass, 31 N. J. Eq. 626; Ogllvie v. Ogilvie, 37 Or. 171, 61 Pac. 627; Tirrell v. Tirrell, 72 Conn. 567, 45 Atl. 153, 47 I R. A. 750; State v. Weber, 48 Mo. App. 504.

In military law. An offense which consists in the abandonment of his post and duties by a person commissioned or enlisted in the army or navy, without leave and with the intention not to return. Hollingsworth v. Shaw, 19 Ohio St. 432, 2 Ain. Rep. 411; In re Sutherland (D. C.) 53 Fed. 551. There is a difference between desertion and simple "absence without leave;" in order to constitute the former, there must be an intention not to return to the service. Hanson v. South Scituate, 115 Mass. 336.

In maritime law. The act by which a seaman deserts and abandons a ship or vessel, in which he had engaged to perform a voyage, before the expiration of his time, and without leave. By desertion, in the maritime law, is meant, not a mere unauthorized absence from the ship without leave, but an unauthorized absence from the ship, with an intention not to return to her service, or, as it is often expressed, animo non revertendi; that is, with an intention to desert. Coffin v. Jenkins, 3 Story, 108, Fed. Cas. No. 2,948; The Union (In Ct) 20 Fed. 539; The Mary C. Conery (D. Ct) 9 Fed. 223; The George, 10 Fed. Cas. 204.

The act of leaving or forsaking a service or duty, as service on board ship, or service in the army; the act of forsaking a person with whom one is legally bound to live, or for whom one is legally bound to provide, as a wife or husband, v. Malicious abandonment; Malicious desertion.

^ A willful abandonment of an employment or duty, in violation of a legal or moral obligation.^ A soldier deserts his post, a sailor his ship, an apprentice his master, when they depart from the seiT*ice to which they are bound.without permission or contrary to orders. The word implies a separation which is not with the assent of the person deserted.* See Abandon, 2. 1. By a husband or wife — an intentional and wrongful cessation of matrimonial cohabitation." An actual abandonment of matrimonial cohabitation, with an intent to desert, w;illfully and maliciously persisted in, without cause. Mere separation is, then, not desertion.' A breach of matrimonial duty, composed of the actual breaking off of matrimonial cohabitation and of an intent to desert.^ Not merely a refusal of matrimonial intercourse, which would be a breach or Tiolation ' United States v. Le Baron, 4 Wall. 642, 6 ' 1 Greenl. Ev. §§ 56-66, cases; Whart. Ev. §§ 942, 945, 1004, 1040, cases. ' Glacier Mountain Silver Mining Co. v. Willis, 127 U. S. 480 (1888), Lamar, J. * L. de, apart; sefere, to join: to part from. * Lea V. Lea, 8 Allen, 419 (1864), Bigelow, C. J.; Ford V. Ford, 143 Mass. 580 (1887). « Benkert v. Benkert, 32 Cal. 470 (1867); Bennett v. Bennett, 43 Conn. 318 (1876). ' IngersoU i;. IngersoU, 49 Pa. 251 (1865); Bishop v. Bishop, 30 id. 412 (1868); Grove's Appeal, 37 id. 447 (1860); Mc Clurg's Appeal, 66 id. 356 (1870); Sower's Appeal, 89 id. 173 (1879). s Bailey n. Bailey, 21 Gratt. 47 (1871); Latham v. of a single duty only, but a cessation of cohabitation, a refusal to live together, which involves an abrogation of all the duties resulting from the marriage contract. • See Abandon, 3 (1); Necessaries. 1. 2. By a sailor or seaman — an unauthorized leaving or absence from the sliip with an intention not to return to her service. 2 A quitting of the ship and her service, not only without leave and against the duty of the party, but with an intent not again to return to the ship's duty.'' 3. By a soldier — absence and an intention not to return to the service.* A minor, over eighteen and under twenty-one, who en Usts in the army without the consent of his parent or fioiardian can commit the offense, and the military tribimals may try him therefor."^ 4. Of property, see Abandon, 1; Dereliction, 3. DESERVrNG. Denotes worth or merit, without regard to condition or circumstances.6 DESIGrN. 1. Aim, intent, purpose; object, end in view. In an indictment for having in one^s possession materials for counterfeiting, may refer to the purpose for which the materials were originally designed, and not to criminal intent in the defendant to use them.' See Intent; Malice; Will, 1. 2. Giving a visible form to a conception of the mind, — to an invention.' The acts of Congress which authorize patents for designs were intended to give encouragement to the decorative arts. They contemplate not so much utility as appearance. It is a new and original design for a manufacture, whether of metal or other material; a new and original design tor a bust, statue, baa relief, or composition in alto or basso relievo; a new or original impression or ornament to be placed on any article of manufacture; a new and original design for the printing of woolen, silk, cotton, or other fabric; a new and useful pattern, print, or picture, to be either worked into, or on, any article of manufacture; or a new and original shai>e or conflgiu-ation of any article of manufacture,— one or all of these the law has in view. And the thing invented or produced, for which ' Southvrick V. Southwick, 97 Mass. 338 (1867), Bigelow, C. J.; Magrath v. Magrath, 103 id. 679 (1870). "Coffin V. Jenkins, 3 Story, 113 (1841), Story, J. >Cloutman v. Tunison, 1 Sumn. 375 (1883), Story, J.; The Mary Conery, 9 F. R. 223 (1881); 3 Kent, 155. « Hanson v. South Scituate, 118 Mass. 343 (1874). » JJe Zimmerman, 30 F. E. 176 (1887). « Nichols V. Allen, 130 Mass. 218 (1881), cases, Gray, Chief Justice. ' Commonwealth v. Morse, 2 Mass. *131 (1806). a patent is given, is that which gives a peculiar or distinctive appearance to the manufacture, or article to which it may be applied, or to which it gives form. The law contemplates that giving new and original appearances to a manufactured article may enhance its salable value, enlarge the demand for it, and be a meritorious service to the public. It is the appear ance itself, no matter by what agency caused, that constitutes mainly, it not entirely, the contribution to the public which the law deems worthy of recompense, i The test of identity of design plainly must be sameness of appearance; and mere difference of lines in the drawing or sketch, a greater or smaller number of lines, or slight variances in configuration, if sut Bcient to change the effect upon the eye, will not destroy the substantial identity It is not essential that the appearance should be the same to the eye of an expert. If, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, it the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.* The differences in designs necessary to take away their identity are such appearances as would attract the attention of an ordinary observer, giving such attention as a purchaser of the articles, for the purposes for which they were intended and purchased, would usually give. There may be an infringement of a patented design without taking the whole of it, but in such cases the part taken must be a part covered by the patent. 2 Design patents stand on as high a plane as utility patents, and require as high a degree of the inventive or originative faculty. In patentable designs a person cannot be permitted to select an existing form, and simply put it to a new use, any more than he can be permitted to take a patent tor a mere double use of a machine; but the selection and adaptation of an existing form may amount to a patentable design, as the adaptation of an existing mechanical device may amount to a patentable invention. ^ See Painting; Patent, 2. An act of Congress approved February 4, 1887 (24 St. L. 337), provides — That hereafter, during the term of letters patent for a design, it shall be unlawful for any person other than the owner of said letters patent, without the license of such owner, to apply the design secured by such letters patent, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or to sell or expose for sale any article of manufacture to which such design or colorable imitation shall, without the license of the owner, have been applied, knowing that the same has been so 1 Gorham Company v. White, 14 Wall. 624-28 (1871), cases, Strong J.: Act 29 Aug. 1842; 5 St. L. 643. See Acts 8 July, 1870, and 18 June, 1874: K. S. §§ 4929-33. ! Dryfoosu Friedman, 18 F. R. 825 (I8S1), Wheeler, J. » Western Electric Manut. Co. u. Odell, 18 F. E. 321 (1883), Elodgett, J. For the rule as to damages for infringement, see Dobson v. Hartford Carpet Co., 114 applied. Any person violating the proviajons, or either of them, of this section, shall be liable in the amount of two hundred and fifty dollars; and in case the total profit made by him from the manufacture or sale, as aforesaid, of the article or articles to which the design, or colorable imitation thereor, has been applied, exceeds the sum of two hundred and fifty dollars, he shall be further liable for the excess of such profit over and above the sum of twohimdred and fifty dollars; and the full amount of such liability may be recovered by the owner of the letters patent, to his own use, in any circuit court of the United States having jurisdiction oi the parties, either by action at law or upon a bill in equity for an injunction to restrain such infringement. Sec. 2., Remedies by existing law shall not be impaired; but the owner shall not twice recover the profit made from the infringement.