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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 The count was drawn under § 3296 of the only be accomplished by the use of some for- Revised Statutes, which provides that: eign 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 provided by law, or conceals or aids in the [36] re-concealment of any spirits so removed, he shall be liable to a penalty of double the tax imposed on such distilled spirits so removed or concealed, and shall be fined not less than two hundred dollars nor more than five thou sand dollars, and imprisoned not less than three months nor more than three years."

valid.

The judgment of the Supreme Court of New Hampshire is reversed, and the case manded to that court for further proceedings not inconsistent with this opinion.

Mr. Justice Harlan and Mr. Justice Gray dissented.

GEORGE POUNDS, Plff. in Err.,

0.

UNITED STATES.

(See S. C. Reporter's ed. 35-38.) Indictment for concealing distilled separation of jury.

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, spirits—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."

1. An indictment in the language of U. S. Rev.
Stat. § 3296, charging the concealment of dis-
tilled 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.]

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:

"First. The said sixth count of the indictment fails to show that there was a warehouse provided by law to which the spirits alleged to have been concealed should have been removed.

"Second. That the jury separated before the Submitted May 6, 1898. Decided May 23, verdict of the jury was returned into court."

1898.

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 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:

"The grand jurors aforesaid, upon their

The overruling of this motion is assigned

as error.

Mr. J. A. W. Smith for plaintiff in error. Mr. James E. Boyd, Assistant Attorney General, for defendant in error.

Mr. Justice McKenna delivered the opinion of the court:

Section 3271 of the Revised Statutes provides that "every distiller shall provide, at his own expense, a warehouse, to be situated [37] on and to constitute a part of his distillery premises, and to be used only for the storage of distilled spirits of his own manufacture

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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 cisterns into casks of a designated capacity and the quantity of spirits marked thereon, "and shall be immediately removed into the distillery 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 ne 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.,

0.

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 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.

"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 should have been stored until the tax was paid. Undoubtedly, the statute was intended to punish a distiller who violated its provisions. It was also intended to punish any [38] one else who did, and the offense could be committed by a removal of spirits from the premises before storage in the distillery warehouse or by concealment of the spirits so removed. And it is this concealment which the indictment charges, and it sufficiently alleges the existence of a warehouse. It also

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.]

1898.

alleges that the tax had not been paid. The offense was purely statutory. In such case it is generally sufficient to charge the defendant with acts coming within the statutory description in the substantial words of the statute without any further expansion of the matter. United States v. Simmons, 96 U. S. 360 [24: 819]; United States v. Britton, 107 U. S. 655 [27:520].

One of the acts which is made an offense by § 3296 is the concealment of distilled spirits on which the tax has not been paid, removed to a place other than the distillery warehouse provided by law. The indictment charges in the language of the statute the performance of that act at a particular time and place. It was therefore sufficiently certain.

State of Maryland to review a judgment of
IN ERROR to the Court of Appeals of the
that court affirming the judgment of the
state trial court in favor of the defendant,
Franklin J. Morton, in an action brought by
Walter H. Harrison, plaintiff, to recover dam-
ages for breach of contract for the sale of
certain patent rights. Dismissed.
See same case below, 83 Md. 456.

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. A8 to jurisdiction in the United States Supreme Court where Federal question arises or where are drawn in question statutes, treaty, or Constitution,-sce notes to Martin v. Hua

ter, 4: 97; Matthews v. Zane, 2: 654; and Willlams v. Norris, 6: 571.

As to jurisdiction of United States Supreme Court to declare state law void as in conflict with state Constitution; to revise decrees of state courts as to construction of state laws -see notes to Jackson, Hart, v. Lamphire, 7: 679, and Commercial Bank v. Buckingham, 12:

As to the second ground of motion in arrest 169.

[35]

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 paid, 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 auvalid. thorized 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

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

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

GEORGE POUNDS, Piff. in Err.,

0.

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

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 returned, under agreement of counsel for both parties, in open court and in the presence of the defendant.

[No. 298.] Submitted May 6, 1898.

1898.

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:

"First. The said

ment fails to s
house provided
alleged to hav
been removed,
"Second. T
Decided May 23, verdict of t

The over
as error.

"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."

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:

Mr. J.
Mr. Ja

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.

Mr. J
ion of t
Secti
vides t
his own

on and

premise

"The grand jurors aforesaid, upon their of disti

count of the indic there was a w

which the cealed should

separated

returned
s motion

h for
rd, A
t in/

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.

Other sections provide that no distilled

will not review it.

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:

e conc le tax ther

y law

age of

ct ut

erefo

sco

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.

"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."

This court will not review a state judg ment, 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.]

1898.

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 co

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
ufficiently
It also
aid. The
ch case it
e defend-
statutory
is of the
on of the

charge

tence of
tax ha
ely sta
ufficient
3 comin

i the su
ut any

ted Sta

1; Unit
:520].
acts w

96 U. S.

rtton, 107

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WALTER H. HARRISON, Plff. in Err.,

D.

FRANKLIN J. MORTON.

(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.

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 offense by or where are drawn in question statutes, treaty, or Constitution,-sce notes to Martin v. Huailled spirits ter, 4:97; Matthews v. Zane, 2: 654; and Willid, removed lams 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 -see notes to Jackson, Hart, v. Lamphire, 7: 679, and Commercial Bank v. Buckingham, 12: 169.

Lain.
otion in arrest

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, et 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 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.

"Plaintiff's Second Prayer.

Second. That the signature of the defendant in error to the alleged agreement was procured by the fraud of the plaintiff in error. Third. That the signature of the defendant 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.

"The plaintif!, by his counsel, prays the court to rule that the defendant has offered no evidence legally sufficient to show that the contract set out in the declaration was pro

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.

"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 inter-
est 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 fur-
ther assignment of all his interest in his said
pending application and to the patent there-
on, whenever the same should thereafter be
granted; then, by virtue of said two assign-
ments, 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
to the defendant the assignment read in the
evidence and dated the 8th day of December,
1894, for the consideration therein mentioned,
and that subsequently, on or about the 22d
day of January, 1895, a patent was issued by
the United States in the name of said Henry
Campbell, for the invention described *ir said [42]
several assignments from said Campbell to
the plaintiff and from the plaintiff to the de-
fendant, then the defendant, by virtue of
said letters patent, acquired a valid title to
and became the owner of said patent, and said
assignment from the plaintiff to the defend-
ant, bearing date the Sth day of December,
1894, was supported by a good and sufficient
consideration, and the plaintiff is entitled to
recover upon the contracts set out in the dec-
laration, provided the court, sitting as a jury,
shall find that the said contract was signed

"Plaintiff's First Prayer.

"The plaintiff, by his counsel, prays the court to rule that if it shall find from the evidence that the contract between the plaintiff and defendant, dated December 8, 1894, and read in evidence, was signed and sealed by the plaintiff and defendant, and left in the possession of the defendant as a complete and operative instrument according to its terms, and that in accordance with said contract, shortly after the execution thereof, the plaintiff executed to the defendant the assignment read in evidence of his right to the invention therein mentioned, on which application for a patent was then pending, and that defendant afterwards employed and paid patent attorneys to procure for him the patent from the government of the United States and from the governments of other countries; and if the court shall further find that the said and sealed by the plaintiff to the defendant, application for a patent was allowed by the and was designed by them to be an operative government of the United States, and subse-instrument according to its terms; and proquently that letters patent for said invention vided further that at that time of the execu

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 patent.

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).

recover.

*" ("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.)

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:

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