812
FEDERAL REPORTER.
counsel for the defense has been very able, and, indeed, the counsel for the United States has been very able; still, if you find that on the stand Von Werthern clearly falsified his evidence, it affects his case. The third d.efendant is Dr. Hire. He is charged with claiming $750. It is for you to say whether he was the physician of Capt. Springer in his last illness. When the government closed its case, there was an implication of his not being the physician, yet Springer's child testifies to having seen him there. The fact that only one prescription is produced as being made by him is testified to as not being strange, because he is a homeopathist. You must see whether he practiced any fraud in presenting his claim, or that he did present it only in connection with the others because he was required to present it in that way. If you find that his conduct about his own claim was such as to enable you to believe it might have been justly presented by itself, then, of course, you will consider that. The whole case of these three persons is with you·
UNITED STATES V. MARTIN.
(District (Jourt,
w: n. South (Jarolina. MArLs
September 23, 1886. I U. S.
1.
POST·OFFIOE-USING THE 548G-INDICTMENT.
WITH INTENT TO DEFRAUD-REV. ST.
§
The provisions of Rev. St. U. S. § 5480, to the effect that the indictment, etc., for sending or receiving letters through the mail with intent to defraud, may "severally charge offenses to the number of three when committed within the same six calendar months, » does not confine the government to the prosecution of three several acts alone. ·
2.
CRIMINAL LAW-AUTREFOIS CONVICT-REQUISITES OF THE PLEA.
In order to sustain a plea of autrefois acquit or convict, it must appear that the former on which the plea is based have been con· cluded. The pendency of a motIOn in arrest of judgment will defeat such a plea.
Indictment under Rev. St. U. S. § 5480, for using the mails for the furtherance of a fraudulent scheme and device. The section reads as follows: "Sec. 5480. If any person, having devised or to devise any scheme or artifice to defraud or be effected by either opening, or intending to open, correspondence or communication with any other person, whether resident within or outside of the United State:;, by means of the post-office establish. ll1tlnt of the United States, or by inciting such other person to open communication with the person so devising or intending, shall, in and for executing such scheme or artifice, or attempting so to do, place any letter or packet in any post-office of the United States, or takfl or receive any therefrom, such person, so misusing the post-office establishment, shall be punishable by a tIne of not more than five hundred dollars, and by imprisonment for not more than eighteen months, or by both such punishments. The indictment, in·
UNITED STATES
V.
MARTIN.
813
formation, or complaint may severally charge offenses to the number of three when committed within the same six calendar months; but the court thereupon shall give a single sentence. and shall proportion the punishment especially to the degree in which the abuse of the post-office establishment enters as an instrument into Buch fraudulent Bcheme and device." J. M. Bryan, for defendant.
Leroy F. youmans, Dist. Atty., for the United
SIMONTON, J. The defendant, under the name of William Henry, alias J. J. Smith, etc., had been indicted under section 5480 of the Revised Statutes, for depositing in the mail a letter 01' packet in furtherance of a fraudulent scheme or device, to he carried out by the use of the post·office department. The indictment contained three several charges, based on distinct acts. He was found guilty, and a motion in arrest of judgment was entered, which has not yet been heard. Before the verdict was rendered in that case, the defendant under the name of William Martin, alias, etc., was presented by the grand jury for violating the same section of the Revised Statutes. The indictment contains three distinct charges, wholly distinct from the charges in the first indictment; occurring, however, within the same six months in which these acts were alleged to have been committed. To this second indictment the defendant pleaded in bar his co:q.viction under the first indictment, and the district attorney demurred to the plea. In order to sustain a plea of autrefois acquit or of autrefois convict, it should appear that the former proceedings have been concluded. In the present caRe the motion in arrest of judgment is still pending. Non constat that the defendant will be convicted. Apart from this, I am of opinion that it was not the intention of ihis section of the Revised Statutes to confine the government to the prosecution of three several acts among transactions extending over six calendar months. Were this construction of the section to be maintained, a man may, within six calendar months, deposit in the mail, or receive from the mail, a thousand letters in furtherance of his fraudulent scheme, and yet the government must condone all but 1hree of these unlawful acts. Persons who deposit or receive letters for their fraudulent purposes necessarily remain but a short time in anyone place. When the nefarious design is detected, can it be that the officers of the government must examine into the proofs against him, select three instances occurring within the same six months, prosecute on them, and if, perchance, the prosecution should fail, the .offender shall go un whipped of justice? Besides this, the section forbids not the general use of the post· .office for the purpose of carrying out a fraudulent scheme or device; it forbids the putting into the mail Of a letter or packet, and ·the taking out of the mail a letter or packet, in furtherance of such scheme. Each letter so taken out, and each letter so put into, the mail, is a distinct and separate violation of the section.
814
The peculiar phraseology of this section, when compared with section 1024:, seems to sustain this view. Under section 1024,1 when there are two or more acts of the same class of crimes or offenses, all be joined in the same indictment; and, if several indictments are found, they must be consolidated, however numerous the acts may be. Bu.t in the section 5480 "the indictment may severally charge offenses to the number of three," and no more. The demurrer is sustained. Let the defendant plead over.
CONSOLIDATED MIDDLINGS PURIFIER Co. v. WOLF and others.' (Oircuit Oourt, E. D. Pennsylvania. October 8, 1886.)
PATENTS FOR INVENTIONS-INFRINGEMENT.
A patentee granting a license to manufacture and sell cannot file a bill upon the patent as for an infringement, upon the failure of the licen.;ee to pay the royalty, unless a condition of forfeiture be inserted in the agreement, but is left to his action for his royalty or rent.
2.. SAME-DAMAGES-PROFITS. An action merely for an account of profits and damages on a license can· not be maintained in equity. There must be some equitable ground of relief in addition to the mere demand for an account of that kind.
In Equity. H. R. Brown and R. Mason, for complainant. Charles Howsen and Henry Howsen, for defendants. Before BRADLEY and MoKENNAN, JJ. BRADLEY, J., (orally.) In the case of Consolidated Middlings Purifier Company against Wolf and others, we have come to the conclusion that the bill cannot be sustained. It is founded on an allegation of infringement of the patent, and not on a claim for royalty under the hcense granted under the patent. As a bill for infringement of the patent we think it cannot be sustained; that the license which was given authorized the defendants .to make and sell the middlings purifier machine, and reserved the royalty, to be paid on the manufacture and sale of the :machines. ,The manufacture and sale of machines would naturally, if not necessarily, OCCl1l' during the month, and, of course, the payment of the royalty at the end of the month was a subsequent matter, and not a condition precedent, and depended on agreement to pay at ISCC. 1024. When there are several charges against any person for the samc act or ·transaction, or for two 01' llIore or transactio1\s connected together, or for two or Illore acts' or transactions of the sallie class of crimes or offenses, which may be properly joined, instead of ha'iing several indictments the whole may be joined in one in: dictmentin separate counts j and, if two or more indictments are found in lIuch cases, lhe court may order {belli to be .consolidated. 2 Reported by C. B. Taylor. Esq., of the Philadelphia bar.