66

V.

to regard the weight of the evidence as the defendant in error, a citizen of Nebrasevenly balanced. The jury have a right to ka, in the circuit court for the district of determine from the appearance of the wit- Nebraska, where there was judgment for nesses on the stand, their manner of testi- the defendant, which is brought here by fying, their apparent candor and fairness, writ of error on a constitutional question. their apparent intelligence or the lack of The land sought to be recovered was once intelligence, and from all of the other sur- the property of Ezra S. Whitney, through rounding circumstances appearing on the whom both parties claim title,—the plaintrial, which witness is the more worthy of tiff, through a deed of the land executed credit, and to give credit accordingly." and delivered by Whitney, on November 30,

But, so far as the plaintiffs were entitled 1898; the defendant, under a sale of the to this instruction, it was given to the land on execution in pursuance of a levy jury by instruction 14. A judge is not bound duly made on April 12, 1898. The defendto charge the jury in the exact words pro- ant’s paper title is therefore the earlier one posed to him by counsel. The form of ex- and must prevail if the sale upon execution pression may be his own. If he instructs was valid. The validity of this sale is the the jury correctly and in substance covers only question in the case. the relevant rules of law proposed to him The execution issued on a judgment in a by counsel, there is no error in refusing to criminal case, in which, by information, adopt the exact words of the request. Con- Whitney was charged with the embezzletinental Improv. Co. v. Stead, 95 U. S. 161, ment, while county treasurer of Harlan 24 L. ed. 403.

county, in the state of Nebraska, of $11,190 The judgment of the Supreme Court of of the public money in his possession by virNew Mexico is, therefore, affirmed.

tue of his office. Upon trial by jury Whitney was found guilty as charged and sentenced to imprisonment for a term of years, and to

“pay a fine in ve sum of $22,390,” which JAMES COFFEY, Piff. in Err., was double the amount of the embezzlement

found by the jury. On appeal the convicCOUNTY OF HARLAN.

tion was awrmed by the supreme court of Constitutional lawdue process of law in 73 N. W. 696. The sentence awarded was

Nebraska. Whitney v. State, 53 Neb. 287, criminal proceedings.

A public officer convicted of embez- that prescribed by $ 124 of the Nebraska zling public moneys, who has been afforded Criminal Code, which provides that a public full opportunity to present every defense officer who embezzles the public money permitted by the laws of the state, is not “shall be imprisoned in the penitentiary denied due process of law by the imposition, not less than one year nor more than twentyas a part of the sentence, pursuant to Neb. one years, according to the magnitude of Crim. Code g 124, entirely irrespective of the embezzlement, and also pay a fine equal the question whether restitution has been

to double the amount of money or other made, of a fine in double the amount of the embezzlement found by the jury, which, by property so embezzled as aforesaid, which the terms of that section, is to operate as fine shall operate as a judgment at law on

a a judgment against the estate of the con- all of the estate of the party so convicted vict.

and sentenced, and shall be enforced to col

lection by execution or other process for [No. 177.)

the use only of the party or parties whose

money or other funds, property, bonds, or Argued and submitted January 24, 1907, securities, assets or effects of any kind as Decided February 25, 1907.

aforesaid has been so

has been so embezzled.” Neb.

Comp. Stat. 1903, p. 1942.
IN
N ERROR to the Circuit Court of the

The proceedings which ended in the sale United States for the District of Ne-on execution under which the defendant braska to review a judgment for defendant claims title were in conformity with tue in an action of ejectment. Affirmed.

Constitution and laws of Nebraska, and the The facts are stated in the opinion. sheriff's deed vested title in the defendant. Messrs. C. C. Flansburg and R. O. Wil Everson v. State, 66 Neb. 154, 92 N. W. liams for plaintiff in error.

137. It is within the power of the state to Messrs. J. W. Deweese, W. A. Myers, and enact laws creating and defining crimes W. S. Morlan for defendant in error.

against its sovereignty, regulating the pro

cedure in the trial of those who are charged Mr. Justice Moody delivered the opinion with committing them, and prescribing the of the court:

character of the sentence which shall be The plaintiff in error, a citizen of Kan- awarded against those who have been found sas, brought an action of ejectment against guilty. In these respects the state is su

27 S. C.-20.

'

preme and its power absolute, and without rendered was repealed by a subsequent proany limits other than those prescribed by vision of the Constitution of the state; the Constitution of the United States. The Second, that it was unconstitutional in exercise of the power of the state in this inflicting a double punishment, in that the field cannot be drawn in question in this fine was added to imprisonment. court or elsewhere than in its own courts, In overruling these two contentions the except for the purpose of restraining it court described the statute as one giving within the limits thus established. One of a fixed sum "in the nature of liquidated the limitations upon the power of the state, damages ... to one who has suffered imposed by ine 14th Amendment, is that injury by the wrongful act of a public officer,” the state shall not deprive any person of and said: “We .. do not care to put life, liberty, or property without due proc. ourselves upon record as holding that the ess of law. The plaintiff contends that return of the property or the value of the the sentence awarded against Whitney vio-property which the thief has embezzled or lated this prohibition, in that Whitney had stolen, either voluntarily or by compulsory no opportunity to be heard upon and de- process, should be considered any part of fend against that part of the sentence which his punishment within the meaning of our imposed a fine and authorized a judgment Bill of Rights.” P. 158, N. W. p. 138. Seizagainst his estate for its collection. The ing hold of this language, the plaintiff in plaintiff therefore insists that the sale on error in this case argues that, by an interexecution of Whitney's land was bad, bepretation of the statute binding upon us, it cause the execution issued upon a judgment authorizes a mere civil judgment for damwhich was void. The short and conclusive | ages, against which the defendant has been answer to the whole contention is, that it denied the right to defend by showing that is not true in fact. Whitney was his civil liability for the embezzlement had given an opportunity to be heard and been discharged, and that therefore the to defend. The information charged him judgment was wanting in due process of with embezzling $11,190, the property law. But this argument misinterprets the of Harlan county. The trial was had upon decision of the supreme court of Nebraska this information and the jury returned a by giving to its language a meaning not exverdict in the following terms:

pressed or intended. “We, the jury, duly impaneled and sworn As part of the consequences of a convicin the above-entitled cause, do find the de- tion of the crime of embezzlement by a pubfendant guilty, as charged in the informa-lic officer, the law of Nebraska provides tuat tion, and we furtner find the sum

a fine double the amount embezzled shall be bezzled to be $11,190." Thereupon it be- inflicted, which shall operate as a judgment

| a came the duty of the court to impose a sen- against the estate of the convict. It is not tence of imprisonment of not less than one of the slightest importance whether this year nor more than twenty-one years, and fine is called a penalty, a punishment, or a of a fine that should be equal to double the civil judgment. Whatever it is called, it amount of the money embezzled. This was comes to the convict as the result of his done. The case was then appealed to the crime. The amount of the judgment is supreme court of Nebraska, argued by coun- fixed by the amount of the embezzlement, sel, and the conviction affirmed. It is sale and not by the amount remaining due on to say that Whitney was denied a hearing, account of the embezzlement, and the only or an opportunity for every defense permit- question left open to the accused is the fact ted to him by the laws of Nebraska. and amount of the embezzlement. It is

The plaintiff in error rests his contention provided that the judgment shall issue for upon some language used by the supreme double that amount, entirely irrespective of court of Nebraska in Everson v. State, ubi the question whether restitution has been supra. In that case Everson was convicted made in whole or in part. Upon the only of a trespass upon the land in dispute. He question, therefore, open to him, Whitney defended against the charge by claiming ti- had an opportunity to be heard, and, in tle through the deed from Whitney, under point of fact, was heard. Upon his appeal which, as Everson's grantee, the plaintiff in (53 Neb. 287, 73 N. W. 696) the amount of this case claims title. The state, on the the embezzlement was expressly affirmed by other hand, contended that the title was in the court (p. 303, N. W. p. 701), and the Harlan county by virtue of the sale on ex- claim that the restitution of the stolen propecution hereinbefore stated. Everson, as-erty relieves the offender from criminal liaserting, as the plaintiff here asserts, that bility was pronounced "a monstrous docthe execution sale passed no title, attacked trine,” and it was said: “Whether or not the judgment upon which it was issued Harlan county has been successful in colupon two grounds:

lecting or securing the payment of the monFirst, that the law under which it wasey which the defendant is charged with hav.

em

int

V.

ing embezzled is of no consequence in this Messrs. Melville Church and Joseph B. case.” Whitney had full opportunity to pre- Church for appellant. sent every defense allowed to him by the Messrs. H. P. Doolittle and E. Hilton Jacklaw of the state. The law itself was justi- son for appellee. fied by the plenary power of the state, and neither it nor its administration in this Mr. Justice Day delivered the opinion of case discloses any violation of a right se- the court: cured by the Constitution of the United This is an appeal from the court of apStates, and the judgment of the Circuit peals of the District of Columbia, affirming Court is therefore affirmed.

a decree of the supreme court of the District, dismissing the bill of the Computing Scale Company of America, appellant,

against the Automatic Scale Company, COMPUTING SCALE COMPANY OF based upon the alleged infringement of letAMERICA

ters patent No. 700,919, granted to the com

plainant as the assignee of the inventor, AUTOMATIC SCALE COMPANY.

Austin B. Hayden, said letters bearing date Patents - construction – narrowing claim- May 27, 1902, for an improvement in com. prior state of art.

puting scales. 1. The claims of the Hayden patent No.

The bill contained a prayer for an injunc700,919, for an improvement in a spring-bal- tion and accounting. The answer denied the ance computing scale, must be deemed to be patentability of the alleged invention of the limited to the specific means shown for trans- plaintiff, set up the alleged anticipating inlating the vertical movement of the runner vention of one Christopher, and denied ininto the rotary movement of the vertical fringement. inner computing cylinder, in view of the action of the Patent Office in requiring, as a shown in the accompanying illustrations

The alleged improvement of Hayden is means of saving the first claim, that such claim call for “a spring-supported, load- taken from the patent. [See next page.] bearing, and cylinder-revolving rod," and

To understand these drawings they are "connecting means between rod and comput- to be viewed in the light of the description ing cylinuer" to secure the rotary movement of the mechanism given by complainant's of the inner cylinder, in which action the expert, which has the approval of the exapplicant acquiesced, though "without preju- | pert of the defendant, and was accepted as dice to the claims which remain,” because correct in the court of appeals. This de“the allowed claims appear to cover the inscription, somewhat abridged, is as follows: vention as it would be constructed in practice," and in view of the state of the art,

“The two principal parts of the mecha'nwhich shows that the elements of the in- | ism are as follows: 1st, a vertically arvention, broadly considered, were previously ranged, nonrotating frame which comprises disclosed in horizontal machines, and that and includes a vertical cylindrical casing the idea of vertical construction was old. which incloses, conceals, and protects the Patents—infringement--nonuse of essential major portion of the operating portions of element.

the scale, and upon which are marked the 2. Infringement of the claims of the price indications which indicate the price Hayden patent 700,919, for an improvement in spring-balance computing scales, does not per pound at which the articles weighed are result from the use of a scale in which the to be sold. As clearly shown in the drawdownward movement of the load accom- ings this external casing or frame is proplishes the rotary movement of the inner vided with a vertically disposed sight opencomputing cylinder by other mechanism than ing through which the coacting mechanism the suspended rod with its spiral, which, is observable, and along one vertical edge of with its connection with the cylinder, is the this sight opening are arranged the numeressential element of the Hayden invention. als indicating the price per pound.

“The second of these principal parts is a [No. 175.]

second cylinder located within the casing, Argued January 23, 1907. Decided February this cylinder constituting a computing cyl25, 1907.

inder or chart drum upon which are placed

indications indicating the weight in pounds PPEAL from the Court of Appeals of the of the article weighed, and also having othA

District of Columbia to review a decree er indications indicating the price of an artiwhich affirmed a decree of the Supreme cle weighed corresponding to the weight and Court of that District dismissing a bill to to the price per pound. This chart drum or restrain the infringement of a patent. Af- computing cylinder extends vertically withfirmed. .

in the external casing and it is arranged to See same case below, 26 App. D. C. 238. rotate on a vertical axis within the external The facts are stated in the opinion. casing. This casing is appropriately con

nected to the spring balancing mechanism | weight of the load. In order to indicate the and to the scale pan so that when the spring weight this vertical movement of the springbalancing mechanism moves up and down on supported runner is converted or translated the placing or removing of a load on the into a rotary movement of the chart drum scale pan, the chart drum will be rotated in by suitable intervening mechanism. This one direction or the other within the exter- intervening mechanism consists of a spiral nal casing or frame.

groove of high pitch on the vertical rod and "As shown in Fig. 2, the weight and val- two rollers journaled in suitable bearings ue-indicating figures are placed in horizon carried by the rotatable chart drum, the beartal rows on the external surface or periphery ings of one of these rollers being spring of the rotatable chart drum of the compressed so that the rollers are held in yieldputing cylinder, the weight indications being contact with the spiral groove on the ing shown in a horizontal row at the bottom, rod. Consequently as the rod moves vertiand the price indications in horizontal rows cally the spiral groove thereof causes the above, there being as many of these hori-chart drum or computing cylinder to rotate of

on its vertical

there are "price per pound indicating figures --- Accordingly, the mechanism is such that

on the fixed external casing. These value the vertical movement of the runner is transindicating figures on the chart drum arelated into rotary movement of the chart computed at different rates corresponding drum, and the chart drum is rotated to an to the 'price per pound figures on the ex- extent proportional to the vertical moveternal casing. As indicated in figure 2 of ment of the runner." the drawings of the patent, there is sup- In his application, Hayden, having set posed to be a weight on the scale pan of 5 forth a description of his invention, dispounds, this weight being indicated on the claiming any intention to limit his invention weight scale, and it will be seen that in by the precise description of the specificasuch instance the various value indications tions, except as appears from his claims, on the chart drum opposite the 'price per sets forth eleven (11) claims, which he al. pound' indications on the fixed casing are, in leges as new and desires to secure by let. each illustrated instance, five times as great ters patent. as the corresponding 'price per pound' indi- The claims alleged to be infringed in this cations. The drawings illustrate only a por- case are numbered 1, 2, 6, 7, and 8. Numtion of the indicating figures on the chart bers 1 and 2 are practically alike, except drum, but it will be understood in practice that in No. 2 the spring-supported, loadthat this drum will be entirely covered on bearing, and cylinder-revolving rod is deits external surface with figures correspond. scribed as nonrotatably suspended. Claims ing to the weights multiplied by the figures 6, 7, and 8 have some trifling variations, indicating ‘price per pound on the nonrota. but, in the view we take of this case, they table external casing. Accordingly, when are sufficiently embodied in claim No. 6. ever the interior chart drum is turned a dis. We shall, therefore, consider, in arriving at tance corresponding to the load placed on a decision, claims 1 and 6. They are as folthe scale pan, the value of the load can be lows: read at once opposite the figures on the ex- “1. In a spring-balance computing scale, ternal casing which correspond to the price the combination of a suitably-supported verper pound of the article weighed.

tical nonrotatable casing provided with a "The various price indications on the chart price index, a vertical rotatable computing drum are visible through the sight opening cylinder journaled in said casing, provided in the external casing.

with cost computations, a spring-supported, “The mechanism whereby the chart drum load-bearing, and cylinder-revolving rod susis rotated a distance corresponding to the pended from said casing, and connecting weight of the load placed on the scale pan means between rod and computing cylinder, is as follows: The balancing mechanism is whereby, by longitudinal movement of the a spring balance comprising two springs rod, rotary movement is imparted to said which are suspended from a suitable portion cylinder, substantially as and for the purof the nonrotating frame of the scale. To pose set forth. the lower ends of these springs is attached a “6. In a spring balance, the combination crossbar in the middle of which depends a of a nonrotating frame providing an exrod, this crossbar and rod constituting the ternal casing and having means for supportrunner of the scale. (See Fig. 3.) The scale ing it from above, weighing springs secured pan is suspended from the lower end of this at their upper ends to rigid parts of said rod as illustrated in Figure 1. When a load frame, a vertically-movable runner which is is placed on the scale pan the vertical run- suspended from the lower ends of said ner moves vertically downward distending springs and is provided with depending the spring to an extent proportional to the I means to support the load, a chart drum