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The count was drawn under § 3296 of the Revised Statutes, which provides that:

not be limited to pink in its choice of colors. oaths aforesaid, do further present, that, at The legislative fancy or taste would be bound-the time and place and within the jurisdicless. It might equally as well provide that tion aforesaid, the said George Pounds unlaw. it should be colored blue or red or black. fully did conceal and aid in the concealment Nor do we see that it would be limited to the of distilled spirits on which the tax had not use of coloring matter. It might, instead of been paid, which said spirits had been rethat, provide that the article should only be moved to a place other than the distillery sold if mixed with some other article which, warehouse provided by law, contrary to the while not deleterious to health, would never- form of the statute in such case made and theless give out a most offensive smell. If provided, and against the peace and dignity the legislature have the power to direct that of the United States." the article shall be colored pink, which can only be accomplished by the use of some foreign substance that will have that effect, we "Whenever any person removes, or aids or do not know upon what principle it should be abets in the removal of, any distilled spirits confined to discoloration, or why a provision on which the tax has not been paiu, to a place for an offensive odor would not be just as other than the distillery warehouse provided valid as one prescribing the particular color. by law, or conceals, or aids in the concealThe truth is, however, as we have above stat-ment of, any spirits so removed, or removes, ed, the statute in its necessary effect is pro- or aids or abets in the removal of, any dishibitory, and therefore upon the principle tilled spirits from any distillery warehouse, recognized in the Pennsylvania cases it is in- or other warehouse for distilled spirits authorized by law, in any manner other than is The judgment of the Supreme Court of provided by law, or conceals or aids in the [36] New Hampshire is reversed, and the case re-concealment of any spirits so removed, he manded to that court for further proceedings shall be liable to a penalty of double the tax not inconsistent with this opinion. imposed on such distilled spirits so removed or concealed, and shall be fined not less than

valid.

Mr. Justice Harlan and Mr. Justice two hundred dollars nor more than five thou Gray dissented.

GEORGE POUNDS, Plff. in Err.,

0.

UNITED STATES.

(See S. C. Reporter's ed. 35-38.)

Indictment for concealing distilled spirits separation of jury.

1. An indictment in the language of U. S. Rev. Stat. § 3296, charging the concealment of distilled spirits on which the tax had not been paid, which had been removed to a place

other than the distillery warehouse provided

by law, is sufficiently certain and sufficiently
alleges the existence of a warehouse provided
for such spirits.

2. A claim that a jury separated before the
verdict was returned is Ineffectual, where
that fact does not appear on the record, but it
does appear that a sealed verdict was re-
turned, under agreement of counsel for both
parties, in open court and in the presence of
the defendant.

[No. 298.]

Submitted May 6, 1898. 1898.

sand dollars, and imprisoned not less than three months nor more than three years."

After the verdict, and before the judgment, the plaintiff in error filed his motion in arrest of judgment, as follows:

"Now comes the defendant after the rendition of the verdict of the jury finding him guilty as charged in the sixth count of the indictment and before judgment and sentence, and moves the court to arrest the judgment in this case, upon the ground that the sixth count of the indictment is too vague and uncertain to authorize a judgment and sentence against the defendant."

Afterwards an amended motion in arrest of judgment was filed, as follows:

"By leave of the court first had and obtained the defendant amends his motion in arrest of judgment by adding the following grounds: th count of the indic there was a w which the s cealed should

"First. The said
ment fails to s
house provided
alleged to hay
been removed,
"Second. T

Decided May 23, verdict of th
The ove

as error.

IN ERROR to the District Court of the
United States for the Northern District of
Alabama to review a judgment convicting
George Pounds for concealing distilled spirits General,
on which the tax had not been paid.
Affirmed.

Statement by Mr. Justice McKenna:
The indictment under which the defendant
(plaintiff in error) was tried contained fifteen
counts. He was convicted on the sixth count,
which read as follows:

separated Feturned i

s motion

Mr. J.
Mr. Ja

h for rd, A

t in /

Mr. J ion of t

Secti vides t his own

on and
premise

"The grand jurors aforesaid, upon their of disti

until the tax thereon shall have been paid;
and such warehouse, when approved
by the Commissioner of Internal Revenue,
on report of the collector, is hereby declared
to be a bonded warehouse of the United
States, to be known as a distillery warehouse,
and shall be under the direction and control
of the collector of the district, and in charge
of an internal revenue storekeeper, assigned
thereto by the Commissioner."

Section 3287 provides that all distilled
spirits shall be drawn from the receiving cis-
terns into casks of a designated capacity and
the quantity of spirits marked thereon, "and
shall be immediately removed into the distil-
lery warehouse," and stamps designating the
quantity of spirits shall be applied thereto.

of judgment, it is enough to say that there is nothing in the record to show that the jury separated before the verdict was returned into court, but the record does show that a sealed verdict was returned by e jury by agreement of counsel for both parties in open court and in the presence of the defendant. This verdict was rightly received and recorded. Commonwealth v. Carrington, 116 Mass. 37.

The judgment is affirmed.

WALTER H. HARRISON, Plff. in Err.,

D.

FRANKLIN J. MORTON.

will not review it.

Other sections provide that no distilled spirits upon which the tax has been paid Review of state judgment-when this court shall be stored or allowed to remain on any distillery premises, and such spirits found in a cask containing 5 gallons or more without having the stamp required by law shall be forfeited.

To secure the enforcement of this provision, §3296 was enacted.

Plaintiff in error says:

(See S. C. Reporter's ed. 38-47.)

1. To give this court jurisdiction to review a state judgment, a Federal question must have been presented to the state court and decided adversely to the party claiming the Federal right, or it must appear that the judgment could not have been rendered without deciding such question.

2.

This court will not review a state judgment, although a Federal question was decided adversely to the plaintiff in error, if another question, not Federal, was also raised and decided against him, the decision of which is sufficient to sustain the judgment. [No. 245.]

"It seems clear that section 3296 of the Revised Statutes intended to provide a punishment for a distiller who had complied with the various provisions of chapter four of the Revised Statutes, and had provided a warehouse as required by section 3271, and then concealed or aided in the concealment of distilled spirits which had been removed, the tax not having been paid, to a place other than the distillery warehouse so provided." And it hence claimed that the indictment is Argued May 2, 3, 1898. Decided May 23, too uncertain to sustain the judgment, because it does not inform the defendant that a warehouse was provided in which the spirits which he is charged to have concealed State of Maryland to review a judgment of IN ERROR to the Court of Appeals of the

should have been stored until the tax was

to p

sion

[38] on

1898.

paid. Undoubtedly, the statute was intended that court aflirming the judgment
of the
distiller who violated its provi-Franklin J. Morton, in an action brought by
state trial court in favor of the defendant,
also intended to punish any Walter H. Harrison, plaintiff, to recover dam-
d, and the offense could be
removal of spirits from the ages for breach of contract for the sale of
storage in the distillery ware-
certain patent rights. Dismissed.
cealment of the spirits so re-
See same case below, 83 Md. 456.
is this
ment which
charge
sufficiently

co

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It also aid. The ch case it e defendstatutory ls of the on of the

96 U. S. utton, 107

Statement by Mr. Justice McKenna: This suit was brought by the plaintiff in error Harrison against the defendant in error on the 8th of February, 1895, in the Baltimore city court, to recover the sum of $300,000 damages for the breach of a contract under seal for the sale of certain patent rights.

Under the alleged contract the plaintiff in error sold, and the defendant in error bought

NOTE. As to jurisdiction in the United States Supreme Court where Federal question arises or where are drawn in question statutes, treaty, offense by or Constitution,-sce notes to Martin v. Huailled spirits ter, 4:97; Matthews v. Zane, 2: 654; and Willid, removed iams v. Norris, 6:571.

warehouse As to jurisdiction of United States Supreme t charges in Court to declare state law void as in conflict performance with state Constitution; to revise decrees of e and place. state courts as to construction of state laws

Lain.

otion in arrest

-see notes to Jackson, Hart, v. Lamphire, 7: 679, and Commercial Bank v. Buckingham, 12: 169.

and agreed to pay for, a certain machine, were granted, bearing date January 22, 1895, method, and device for making barrels and as read in evidence, and that the plaintiff, at kegs, and all his right, title, and interest in the time of the execution of said agreement certain pending letters patent therefor, when with the plaintiff, had no knowledge or noissued, at and for the price of $300,000, tice of the agreement between Henry Campwhereof $100,000 were to be paid in cash bell and the Campbell Barrel Company offered within ten days after the issuing of letters in evidence, then the plaintiff is entitled to patent, and the remaining $200,000 were to recover. be paid in the full-paid, nonassessable shares of a corporation, to be incorporated and organized by the defendant in error Morton under the laws of Maryland, with a capital stock of $500,000.

The pleas were:

First. Non est factum.

*" ("And that there is no evidence that the [41] plaintiff had any knowledge or notice of said agreement between said Campbell and said Campbell Barrel Company.') (Rejected as fered, but granted as modified by omitting the words in italics.)

"Plaintiff's Second Prayer.

Second. That the signature of the defend- "The plaintiff, by his counsel, prays the ant in error to the alleged agreement was pro- court to rule that the defendant has offered cured by the fraud of the plaintiff in error. no evidence legally sufficient to show that the Third. That the signature of the defend- contract set out in the declaration was proant in error was procured by the undue influ-cured by the plaintiff from the defendant by ence of the plaintiff in error. fraud or by undue influence. (Conceded.) "Plaintiff's Third Prayer.

And also three supplemental pleas on equitable grounds:

1st. That there was no consideration for the alleged agreement.

2d. That at the date of the alleged agree[40]ment Harrison was not the owner of and had no valid title to the machine, method, and device mentioned in the declaration.

3d. That at the time of the alleged assignment of the patent Harrison was not the owner of and had not a valid title to the said pat

ent.

The defendant also filed a plea of set-off, and upon demand for a bill of particulars of such set-off filed a bill of particulars, amounting to thirty-one thousand, seven hundred and ninety-one dollars and fifty-two cents ($31,791.52).

Replications were duly filed and issues joined on all of them.

The case was tried before the judge without a jury.

At the trial the parties asked the court to rule on certain propositions contained in what the record calls "prayers." They were as follows, with the action of the court expressed thereon:

"The plaintiff, by his counsel, prays the court to rule that the defendant has offered no evidence legally sufficient to show that there was no consideration for the agreement set out in the declaration. (Rejected.)

"Plaintiff's Fourth Prayer.

"The plaintiff prays the court to rule that if the court shall find that on the 11th day of September, 1894, Henry Campbell made to the plaintiff the assignment of one-half interest in his then pending application to the United States Patent Office for a patent for the invention in said assignment mentioned, and subsequently, on or about the 26th of November, 1894, made to the plaintiff a further assignment of all his interest in his said pending application and to the patent thereon, whenever the same should thereafter be granted; then, by virtue of said two assignments, the plaintiff acquired an inchoate title to said invention and to the patent thereon, when the same should thereafter be granted, which title it was competent for the plaintiff to sell, assign, anu dispose of; and if the court shall further find that on or about the 10th day of December, 1894. the plaintiff executed "Plaintiff's First Prayer. to the defendant the assignment read in the "The plaintiff, by his counsel, prays the evidence and dated the 8th day of December, court to rule that if it shall find from the evi- 1894, for the consideration therein mentioned, dence that the contract between the plaintiff and that subsequently, on or about the 22d and defendant, dated December 8, 1894, and day of January, 1895, a patent was issued by read in evidence, was signed and sealed by the United States in the name of said Henry the plaintiff and defendant, and left in the Campbell, for the invention described *ir said [42] possession of the defendant as a complete and several assignments from said Campbell to operative instrument according to its terms, the plaintiff and from the plaintiff to the deand that in accordance with said contract, fendant, then the defendant, by virtue of shortly after the execution thereof, the plain- said letters patent, acquired a valid title to tiff executed to the defendant the assignment and became the owner of said patent, and said read in evidence of his right to the invention assignment from the plaintiff to the defendtherein mentioned, on which application for ant, bearing date the 8th day of December, a patent was then pending, and that defend-1894, was supported by a good and sufficient ant afterwards employed and paid patent at- consideration, and the plaintiff is entitled to torneys to procure for him the patent from recover upon the contracts set out in the decthe government of the United States and from the governments of other countries; and if the court shall further find that the said application for a patent was allowed by the government of the United States, and subsequently that letters patent for said invention

laration, provided the court, sitting as a jury,
shall find that the said contract was signed
and sealed by the plaintiff to the defendant,
and was designed by them to be an operative
instrument according to its terms; and pro-
vided further that at that time of the execu

tion of said contract, the plaintiff had no embrace rulings on testimony, on the knowledge or notice of the agreement between prayers, and the following: Henry Campbell and the Campbell Barrel Company, Dearing date the day of January, 1892, and offered in evidence by the defendant, and that there is no evidence legally sufficient to show that the plaintiff had any such knowledge or notice of said agreement. (Rejected.)

"1. It was error to decide that under the laws of the United States the assignments from Henry Campbell to Walter H. Harrison, dated the 11th day of September, a. d. 1894, and the 26th day of November, 1894, respectively, purporting to convey to the said Harrison the 'entire right, title, and interest in and to the application for patent-serial "That the agreement of January, 1892, be- number, 522,266 and the patent right contween Henry Campbell and the Campbell Bar- tained therein and covered thereby,' operated rel Company, offered in evidence by the de- to convey to the plaintiff Harrison merely fendant, is no defense to this action, if the the equitable title in and to said invention court shall find that by the true construction and the patent rights covered by said appliof said agreement the invention and device cation.

"Fifth Prayer.

described in the contract set out in the dec- "2. It was error to decide that the said aslaration is not embraced within said agree-signments were not drawn as the laws re- [44] ment. (Granted.)" quired and hence did not convey the legal title to the invention in question."

And the defendant offered the following

two prayers:

"Defendant's First Prayer. "The defendant asks the court to rule as matter of law that upon the pleadings of the case the burden is upon the plaintiff to prove the delivery of the sealed instrument sued on, and if the court, sitting as a jury, finds that the paper sued on never was delivered, the verdict must be for the defendant. (Granted.)

"Defendant's Second Prayer.

The opinion of the supreme court of Maryland is quite long, necessarily so, as it passes upon all the points which were raised by plaintiffs. The parts of it which concern the case are as follows:

"We think there can be no doubt that the

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defendant's two prayers were properly granted. By the first the court declared as matter of law that upon the pleadings the burden was upon the plaintiff to prove the delivery of the sealed instrument sued on, "If the court, sitting as a jury, shall find and that if the court, sitting as a jury, that when the paper sued on was presented should find that said paper never was de[43] by the plaintiff to the defendant *for the lat-livered, the verdict must be for the defendter's signature, with the request that he ant. The second prayer recites the evidence would sign it, the defendant declined so to more at length, but asserts the same propodo, as the terms of such papers did not corre-sition of law which appears to be well settled spond with any agreement made or talked of in this state. Edelin v. Sanders, 8 Md. 129. between the plaintiff and defendant, and that We discover no inconsistency between the thereupon it was agreed between them that two prayers. The plaintiff specially exthe papers in duplicate should be signed by cepted to the second on the ground that there the defendant, and both kept in his posses- was no evidence in the cause legally sufficient sion, and should not be of any force, and to prove the facts therein set forth. It is should belong to the defendant until he clear, however, that the testimony of the chose to put them in force, and that in pur-witnesses Morton and Coale support the facts suance of this agreement they were then set forth in this prayer, and we have already signed by the defendant, and always after-held it to be competent and admissible under wards kept in his possession until produced at the trial of this cause, on notice, and that at no time after the signing of said papers did the defendant ever exercise his option of putting into force, but, on the contrary, subsequently thereto, exercised his option by declining to recognize them as in force, then the verdict shall be for the defendant. (Granted.)"

The trial judge rendered a general verdict for the defendant, on which judgment was entered for $35,091.65, with interest and costs.

An appeal having been taken to the court of appeals of Maryland by the plaintiff Harrison, the judgment of the court below was affirmed by the said court of appeals on the 17th of June, 1896, for $39,091.65, with interest from the 13th of December, 1894, until paid, and costs.

On September 21, 1896, a writ of error to review this judgment was issued to the court of appeals of Maryland.

There are nine assignments of error. 171 U. S. U. S., BOOK 43.

They

the issue made by the plea of non est factum. "We will now consider the prayers of the plaintiff. He offered five, the second having been conceded and the fifth granted.

"The controlling proposition in this part of the case is that contended for by the plaintiff in his first, third, and fourth prayers, namely, that there is no legally sufficient evidence in the case to show that he had any knowledge or notice of the agreement between the inventor, Campbell, and the Campbell Barrel Company.

"The correctness of this contention of the plaintiff depends first, upon the legal effect of the assignments from Campbell to the plaintiff, and, secondly, upon the effect of the contract of Campbell with the Campbell Barrel Company-that is to say, whether said company thereby assigned to said company an equitable title to his invention prior in date to the title he claims to have assigned to [45] the defendant, which latter title the plaintiff claims to be an absolute legal title, and the defendant's contention, on the contrary, is

65

Mr. Justice McKenna delivered the opin

that it is a mere equitable title, subsequent
in date and therefore inferior to the title of ion of the court:
the barrel company. The plaintiff claims It is manifest that the pleadings of the par-
title through two assignments from Camp-ties presented for decision other questions be-
bell, each being for one-half interest in a cer- sides Federal ones, and which could be, inde-
tain application filed in the Patent Office of pendent of the Federal ones, determinative
the United States, at Washington, D. C., of the controversy. Assuming, therefore,
which application is for letters patent cover-that a Federal question was involved, it does
ing the invention of a machine for forming
and making barrels and kegs.

not appear but that the decision was given on the contention of the defendant that the "It will befound upon an examination of agreement never became operative for want these instruments that they do not contain a of delivery. This contention was clearly prerequest to the Commissioner of Patents to sented by defendant's prayers, and they conissue letters patent to the plaintiff. Not-tained the only rulings urged upon the court withstanding they were recorded in the Pat- in that way, that is, in the nature of instrucent Office, letters patent were issued in the tions. They were given and the verdict was name of Henry Campbell, the inventor, and generally for the defendant. It is therefore the defendant contends that the legal effect natural to presume that the verdict was renof such an assignment, in which the inventordered on account of them and on the ground fails to embody a request to the Commis- urged by them. The ruling of the court sioner of Patents to issue letters to the as-granting them was sustained by the supreme signee, is to convey to such assignee only an court of the state. It affirmed the ruling as equitable title. It is conceded that by one correct in law and as supported by competent of the rules of the Patent Office the Commis-testimony. The supreme court, it is true, sioner will not and cannot issue the letters passed on other grounds, passed on the one patent to an assignee, unless specially re- which it is claimed involved a Federal ques- [47] quested so to do by the terms of the assign- tion, and decided it adversely to plaintiff. ment. One of the witnesses refers to this But the rule in such cases has been repeatedly rule in his testimony. The patent having declared by this court. It is not necessary to been issued to Campbell instead of to the de-review the decisions. That has been done by fendant, the witness thus explains: I ascertained that the probable reason why it (the patent) had not been issued to Mr. Morton was this: The original assignment from Mr. Campbell to Mr. Harrison did not contain the request which the rules of the Patent Office required in order that the patent should be issued in the name of the assignee.' Rule 26, Rules of Practice in the United States Patent Office, page 9. Revised April 1, 1892."

After considering authorities, the opinion

decides that

Mr. Justice Shiras in Eustis v. Bolles, 150 Ů.
S. 361 [37:1111]. It is sufficient to announce
the rule pronounced in the case:

"It is settled law that, to give this court jurisdiction of a writ of error to a state court it must appear affirmatively, not only that a Federal question was presented for decision by the state court, but that its decision was necessary to the determination of the cause, and that it was actually decided adversely to the party claiming a right under the Federal laws or Constitution, or that the judgment as rendered could not have been given without deciding it. Murdock v Memphis, 87 U. "If, therefore, the Campbell Barrel ComS. 20 Wall. 590 [22: 429]; Cook County v. pany acquired an equitable title to the pat-Calumet & Chicago Canal & D. Co. 138 Ŭ. S. ent, as it undoubtedly did, under its contract 635 [34:1110]. It is likewise settled law with the inventor, before the assignment of that, where the record discloses that if a the equity to the defendant, the latter took question has been raised and decided adversesubject to the equitable title in the said com-ly to a party claiming the benefit of a propany, and the first, third and fourth prayers [46] of the plaintiff were properly refused, for they all asked the court to say that there was no legally sufficient evidence to show that the plaintiff had knowledge or notice of the agreement between the plaintiff and the barrel company, but, as we have seen, knowledge and notice will be imputed to him, as Ch. J. Gibson said in Chew v. Barnet, supra [11 Serg. & R. 389], 'whether he had notice or not,' holding as he did only an equitable title."

The opinion concludes as follows: "Finding no error in the rulings of the learned judge below, the judgment will be affirmed."

Messrs. William Pinkney Whyte, Frederic D. McKenney, and Samuel F. Phillips for plaintiff in error.

Messrs. Bernard Carter and Edgar H. Gans for defendant in error.

vision of the Constitution or laws of the
United States, another question, not Federal,
has been also raised, and decided against
such party, and the decision of the latter
question is sufficient, notwithstanding the
Federal question, to sustain the judgment,
this court will not review the judgment."
See also Wade v. Lauder, 165 U. S. 624
[41:851].

The writ of error must therefore be dis-
missed.

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