V. UNITEDl STA.TES.
693
upon the material points in this case, which cannot be easily reconciled. The good characters of all the witnesses have been shown by the testimony of their acquaintances. In judging of the credibility ot the witnesses, you should consider the motives by which they are in. fluenced, and the manner in which they conducted themselves on the examination before you. You cannot decide the case upon the preponderance of testimony, as juries can do in civil cases. The pre· sumption of innocence which the law throws around a person on trial for crime remains with and protects him until the government, by the whole evidence, satisfies 8r jury, beyond 8r reasonable doubt, that he is guilty in the manner and form as charged in the indictment.
RALPH
v.
UNITED STATES.
(Oircuie Oourt, N. D.lUinoi8. December 5,1881.)
1.
CRIMEB-PERJURy-MATCH-STAMP BOND-AFFIDAVIT OF SURETY.
The affidavit required by the regulations of the treasury department 'to be made by a surety upon an ordinary match-stamp bond, to secure the payment due to the United States for internal revenue stamps to be delivered on credit to a manufacturer of matches, setting forth the pecuniary responsibility of the Burety, is an instrument authorized by law; and if statements made therein as to his pecuniary responsibility are false to his knowledge, the surety is guilty of perjury.
On Error to the District Court. Bisbee Ahrens, for plaintiff in error. J. B. Leake, Dist. Atty., for the United DRUMMOND, C. J., (orally.) Under the provisions of the internal revenue laws of the United States, one Phineas Ayer, in December, 1&78, procured a bond with sureties in the sum of $30,000, being an ordinary match-stamp bond, in the form then required by the commissioner of internal revenue, to secure the payment due to the United States for certain internal revenue stamps, to be delivered to Ayer on credit as a manufacturer of matches. As a necessary condition to the acceptance of this bond and of the sureties, the regulations of the treasury department required that an affidavit of the surety should he made before some officer qualified to administer an oath, signed by the surety, and setting forth his pecuniary responsibility. Such an affidavit was signed b;y the plaintiff in error and by his wife, Matilda S. Ralph in this case, before lit proper officer. The indictment charges that the plaintiff in error procured his wife to sign the affidavit, and that she committed perjury in signing it. Before th9
694
FEDERAL REPORTER.
district attorney approved the bond he examined the plaintiff in error and his wife particularly in regard to their property, real and personal. After the bond was executed and the affidavit was sworn to and signed, it was· approved by the district attorney of the United States, and was subsequently accepted by the proper officer of the treasury, and revenue stamps to a large amount were issued to Ayer. On the trial of the case before the district court the affidavit was offered in evidence, and objection was made on the ground that it was not an instrument required by law to be sworn to, and that therefore a false statement contained therein did not constitute perjury. This objection was overruled by the court, to which exception was taken. It was also shown that the plaintiff in error admitted that he was not pecuniarily responsible, but that his wife was responsible as suret.y, they both having signed the bond. There was evidence also offered tending to show that the statement set forth in the afndavit sworn to by the wife of the plaintiff in error was false as to the value of the real property therein described and as to the title thereto. The plaintiff in error admitted on the trial, by his counsel, that he procured his wife to sign the bond, and that he was responsible for whatever she had done, but denied that she bad committed perjury. The counsel of the plaintiff in error, addressing the court, said, in his presence and hearing, "The defendant consents that a verdict of guilty may be rendered by the jury," and the court thereupon said, "Does the defendant so consent?" No objection was made, and tbe plaintiff in error nodded his head in reply to the question of the court, and a verdict of guilty was then directed to be rendered by the jury, which was accordingly done iIi the presence and hearing of the plaintiff in error, without objection or; dissent by him. After the recording of the verdict, a motion was made by the plaintiff in error for a new trial, and several affidavits were filed in support thereof, the principal object of which was, apparently, to show that the declaration of the counsel that a verdict of guilty might be rendered wu.s unauthorized, and that there were several witnesses present whose testimony the plaintiff in error desired to introduce to show that the statements contained in the affidavit were true, and that his counsel was unwilling and declined to call the witnesses and introduce their testimony, relying upon the proposition that the affidavit was not an instrument authorized by law, and therefore perjury could not. be assigned upon it. It will be seen, therefore, that after the introduction of certain evidence, further evidence was waived, and an made by the counsel, in the presence and hearing of th&
RAIJPlJ!: V. UNITED STATES·
6.95
.plaintiff in error, of his guilt under the indictment, and a verdict of guilty by the jurywas rendered and recorded, would seem, with his consent, openly ,given in court. The motion for a new trial was addressed to the discretion of the court, and no error, therefote, for overruling it can be assigned. The district court had the best opportunity of ,judging of the effect of the affidavits which were filed in support of .the motion. 'It had heard the testimony of all the witnesses on the ttiitL It had observed the conduct and demeanor of in error during the trial. It was, therefore, better able to judge of the statements made in the affidavits than this court, and truth of the rule, which has boen established by the supreme court of the United States applies here, that the opinion of the court upon a motion for a new trial is So matter of -discretion a.nd not er:rar. It is claimed by the plaintiff in error that his rights were sacrificed by.' the 'action of . his counsel in the district court. Of that the district court wall. So ,eompetent. judge, and it is to be observed that the couns$ himself, who acted for the plaintiff in error in the di;stnet court, was not .hearq. ,and his affidavit was not taken, and therefore bie statement Of the. facts, and of the circumstan!Jes which operat"J upon.him, is not.·before us. He is lIaid to have upon So view which he took· of the law of the case which he thought conclusive, namely, that there was no statute which required an affidavit of the .ld:nd which is the subject of controversy in this case. If. tha.t were .so, then it was a misapprehension, we think, of the law which declares that certain officel's of the treasury department, as well asthesecretary himself, may make certain rules and regulations relating to the duties oftheir·several offices. There can be no doubt it was compe· here to be made by tent for a regulation of the kind in the proper officer of the treasury, namely, that.before a bond should be accepted, which might authorize the delivery, under the l{)ow then in force, of stamps on credit t() a manufacturer of ma,tches, an. affidavit should be made showing the responsibility of the sureties, and therefore this was an affidavit by law; and if the statements contained in it were false, and known to be so, by the person making them, then. up<:>n it perjury could be assigned t The judgm\:lnt and sentence of the district co.urt will be affirmed.
696
FEDERAL
ROYER
RUSSELL
& CO. November 26, 1881.,
(Circuit Oourt, N. D. Ohio, E. D.
LETTERS PATENT-DESTRUCTION OF MODEL-:MISTAKE IN DRAWlliG-MEASURB OF PROOF.
Where the original model which was filed in the patent-office has been destroyed, the fact that a mistake has been made in the drawings on file, on which the patent was issued, must be very clearly established before the court will allow them to be corrected. 2. SAME-GRAIN SEPARATORS.
Letters patent No. 167,570, granted September 7, 1875, to complainant, for an improvement in grain separators, are not infringed by the defendants' machine.
In Equity. Lucien Hill and Chas. M. Peck, for complainant. M. D. Leggett &; Co., for defendants. WELKER, D. J. This suit is brought by the complainant against the respondents upon letters patent No. 167,570, granted September 7, 1875, to complainant for an improvement in grain-separators. The bill charges infringement, and prays for an injunction and account. The answer denies. the alleged infringement, and denies that the claims were patentable in view of a large number of prior patents, to which it refers. Replication filed and heard on the evidence. In the complainant's patent the claim is stated as follows: "Having thus fully described my invention, what 1 claim as new and desire to secure by letters patent is"The revolving rake operating in combination with the straW-deflector, S, and shaker, H, substantially as set forth. "
This is the only claim relied upon by the complainant, and for the infringement of which this action is brought. The patent is a combination of old devices, which may be patentable where new and useful results are thereby produced. The revolving rake, the deflector, and the sha,ker are each separately old devices, and each had been used for many years before complainant's patent. It is important, in the first place, to what was the complainant's combination for which he received his patent. The original model filed in the patent-office has been destroyed, so that it could not be put in evidence for inspection. We have before us the drawings on file in the office-one copy put in evidence by the complainant and another copy by the respondents. In these drawings the position of the deflector in relation to the shaker or carrier seems to differ very much. In that of the respondents the deflector is shown