Opinion of the Court.

[24 App. case may be reopened in the Patent Office for the introduction of this alleged newly discovered testimony, and also for the allowance of the filing of an amended preliminary statement by Richards. But what we have already said in regard to this newly discovered testimony must suffice to dispose of the motion to remand the case on that ground: and, as to the matter of the allowance of an amendment of the preliminary statement, it stands upon no different basis. Repeated and persistent efforts were made in the Patent Office, while the case was pending there, not before the testimony was taken, but after his testimony in chief had been concluded on behalf of Richards, for leave to him to amend his preliminary statement; but the motion was always denied. In the denial we do not see that there was any abuse of the discretion vested in the Commissioner; and we find no ground for the review of that discretion. Cross 7. Phillips, 14 App. D. C. 228.

On behalf of the appellee, Meissner, a motion has been made to expunge from the record all that relates therein to the appellant, John F. Clement, who failed to perfect his appeal, and who, as already stated, has dropped out of the case. This mo

tion we understand to have been agreed to by counsel on behalf of Richards: and, of course, under the circumstances, the case made by Clement cannot be considered in the determination of the controversy between Richards and Meissner.

This leads us to a consideration of the merits of the case: and upon this consideration we find no sufficient cause shown by the appellant to disturb the concurrent judgments of the three several tribunals of the Patent Office.

Richards, the appellant, is restricted by his preliminary stateinent, to "the early spring" of 1900 for his date of conception of the invention. This necessarily means not earlier at the utmost than March 1, 1900; and it may be that he should be allowed not even that date. Undoubtedly, if the exigencies of the controversy required it, he could not be given that date. All the tribunals of the Patent Office find that before that day Meissner had not only conceived the invention, but even reduced it to practice. And if this be the fact, Meissner's prior

ity is beyond question. That it is the fact we believe the testimony sufficiently shows.

Without entering at large into a consideration of the record for the establishment of Meissner's date of conception or date of reduction to practice, we find by testimony on his behalf that is unimpeached that before February 19, 1900, he had made sketches showing the invention, and that these sketches had been made from a complete tool before him at the time. This shows both conception and reduction to practice before that date. And this testimony, if there were no other in the case, would be sufficient for an award of priority in his favor.

The decision of the Commissioner of Patents awarding judgment of priority of invention in favor of the appellee, Meissner, is affirmed.

The clerk will certify this opinion and the proceedings in this court in the premises to the Commissioner of Patents according to law.

Affirmed.

A motion by the appellant for a rehearing was denied.

THE ECLIPSE BICYCLE CO. v. FARROW.*

No. 1434. Decided December 9, 1904.

PER CURIAM:

This cause being now before us for final disposition, and the decree appealed from being in accordance with the mandate of this court, said decree is affirmed, with costs, December 9, 1904.

*See S. C., 16 App. D. C. 468, 18 App. D. C. 101, and 23 App. D. C. 411.

Syllabus.

[24 App.

IN RE GASSENHEIMER.

CRIMINAL PROCEDURE; RULES OF COURT; CHANGE OF VENUE; APPELLATE PRACTICE; SPECIAL APPEALS.

1. Quære, Whether common-law rule 111 of the supreme court of the District of Columbia, providing that the common-law rules of that court shall apply to and govern the practice in the criminal branches of that court so far as applicable, makes sec. 4 of common-law rule 53 of that court, providing that on the setting aside of the verdict in any case the justice who presided may, of his own motion, or at the request of either party, transfer the case for retrial to another justice, applicable to criminal cases as well as civil; whether rule 53 is mandatory, and requires the transfer of the case upon the request of a party; and whether that rule has been superseded by sec. 67, D. C. Code, which provides for the transfer of causes by one justice of that court for trial by another, by mutual consent and arrangement between them, "except that a criminal case can only be certified for trial from one criminal court to another criminal court."

2. A change of venue at common law was to prevent a trial before a jury drawn from a community so infected with prejudice against the party applying for it that he might not expect a fair and impartial trial, and did not imply a change of the presiding judge. There seems to have been no rule of the common law permitting the transfer of a case for trial before another judge because of the alleged prejudice or bias of the judge before whom the cause was originally depending.

3. A special appeal from an interlocutory order in a criminal case will not be allowed by this court, except in a case of exigency. (Following Ainsworth v. United States, 1 App. D. C. 520.)

4. An appeal from an interlocutory order of the trial justice in a criminal case, applied for by the accused, denied, where the order was one overruling a motion under rule 53 of the lower court, to transfer the case to another justice of that court upon the ground of prejudice and bias displayed by the justice while presiding at a former trial, as evidenced by his manner in delivering an instruction to the jury, and where it appeared that the only other criminal court to which the case might have been transferred was presided over by a justice, who, having been prosecuting attorney when the indictment was found, was disqualified to hear the case.

5. The provinces of the judge and the jury are distinct and well defined, and any act of usurpation committed by the judge, as well as any error in law or procedure, may be excepted to and made the subject of review on appeal, where it can be corrected.

No. 203. Original. Submitted December 10, 1904. Opinion filed December 13, 1904.

HEARING on an application by the accused in a criminal prosecution for the allowance of a special appeal to this court from an interlocutory order of the Supreme Court of the District of Columbia. Denied.

The facts are sufficiently stated in the opinion.

Mr. Henry E. Davis for the application.

Mr. Morgan H. Beach, United States Attorney for the District of Columbia, and Mr. James S. Easby-Smith, Assistant United States Attorney, opposed.

Mr. Justice MORRIS delivered the opinion of the Court:

This is an application for a special appeal from an order of the justice of the supreme court of the District, presiding in special term for the trial of criminal cases, refusing to transfer the case for trial before some other justice of said court.

It appears that the applicant, Samuel Gassenheimer, had been brought to trial in said court on November 28, 1904, and that the jury had been discharged after failure to agree upon a verdict. The district attorney then gave notice that he would ask for another trial within a week. Later the case was set down for another trial on December 7, 1904. On that day the trial was postponed to enable the attorney for the defendant to attend upon the trial of a cause before one of the other justices.

December 9 the case was again called, when the defendant. moved the court to transfer the same for trial before another justice, under sec. 4 of common-law rule 53 of the said supreme

Opinion of the Court.

[24 App. court. He accompanied the motion with an affidavit, which, after reciting the general facts above stated, concluded with these words: "Throughout the trial aforesaid, and especially in delivering to the jury the last part of the instruction immediately preceding, the said justice manifested what I am constrained respectfully to characterize as marked and manifest feeling, prejudice, and bias against me." It is unimportant to copy the instruction quoted, and sufficient to say that it contains a statement of the law which the said justice deemed applicable to the evidence that had been introduced, and nothing more. No other act or thing done or said has been stated that would tend to show any feeling on the part of the trial justice. The general statement of the manner of the justice presents nothing tangible. The justice denied the motion, assigning his reasons therefor as follows:

"Section 67 of the Code provides that a criminal case can only be certified for trial from one criminal court to another criminal court.

"My opinion of the duty of a judge at common law upon the filing of such an affidavit as this is that it is to be governed by one of two considerations.

"If the judge suspects that he is prejudiced in a way that might possibly affect the rights of a party litigant, then he ought, in fairness, to transfer that cause to some other judge to be tried, if there be one who can try it in the jurisdiction.

"Secondly, if on the filing of an affidavit of this sort, although the judge be satisfied that he is not at all prejudiced in the case, yet if he believe that the affidavit is filed in good faith, and if there can be a transfer to another judge in the jurisdiction which will accommodate a reasonably early trial, that he cught, in fairness, to transfer the cause, if the nature of it is such as that he is called upon to pass, especially on any question of fact, to some other judge in order only to accommodate the result that the defendant may believe that he has had a fair trial.

"This affidavit is untrue in stating that the justice now speaking directed this cause to be set for trial on Wednesday.