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the plow, although preceding the tractor, is in reality being pulled by it. It is very important that the draft connections be made loose. With rigid connections, the pitching and rolling motion of the tractor is imparted to the plow, which not only strains the parts, but results in an uneven path. A loose connection obviates these objections and also makes it possible to turn the plow through sidewise pushing or pulling by the tractor applied directly near the forward end of the plow."

"The drawbar is provided at its center with a shackle 15, which makes a loose connection with the tail 16 of the tractor. The tractive power of the tractor is thus applied to the plow and its frame along the center line, and, being applied at the rear, the nose is free to ride up and down a sufficient amount to insure easy operation without loss of control. In order to prevent undesirable side play while still retaining the flexibility so important for the successful operation of the plow, the drawbar is provided with two chains 17, which are connected at their forward ends with a draft equalizer 18 pivotally mounted on the tail of the tractor. The draft connection between the tractor and the plow, although permitting ample freedom of motion, is sufficiently rigid to insure proper forward motion of the plow at all times.

"The turning of the plow is effected through the forward uprights 8 on the sled and the chafing blocks 11 on the tractor. There is sufficient play between the parts so that when the tractor is operated to turn, say to the right, the right-hand chafing block contacts with the right-hand uprights 8, and simply pushes the plow around."

In the horse-propelled snowplows prior to the advent of the tractor, the plow with a rearward extending frame inclosing horses, was hitched to the horses by doubletree and swingletree attached to the rear bar of the frame, giving the flexible hitch. Two examples of horse-drawn plows, in which the nose is carried by the rearwardly extending frame which receives the horses as the motive means, are shown in patents 1,006,307, issued October 17, 1911, J. Spahn, inventor, and patent 925,717 (1909), McFarland, in

ventor.

These patents were not before the examiner in passing upon the Sargent application for patent. Each of these patent shows a snowplow comprising the combination of a nose or plow proper, a rearwardly extending frame secured thereto and designed to receive a horse or horses, a drawbar at the

rear of the frame, a flexible draft connection between the drawbar and the horses; the draft connection being the usual doubletree and swingletree where there are two horses. In each of these also the plow was guided at least partially by means of the weight of the horses being turned to right or left against the frame inclosure. In each of these instances the rearwardly extending frame supporting the nose was supported and proceeded upon runners attached to the frame. In the Spahn structure, provision is made for the use of six horses. The rear bar of the frame is removable to permit the team of horses to be driven into the frame. The rear bar is closed and locked, and the horses are hitched to it by the usual hitch employed in horse-drawn vehicles, namely, where two horses are employed, the usual doubletrees and swingletrees, the frame being attached to the rear bar. The team-receiving inclosure is divided into one or two shafts, accordingly as two or three horses are employed, to provide separate spaces for the horses; the ends of the shafts being secured in the front and rear bars of the frame respectively.

It is stated in Spahn's patent record: "When the shafts are thus inserted into the forward and rear crosspieces 26 and 18, the crosspiece 18 is set down into the depression 17 (Fig. 11) and secured by the pins 19 which provide a strong, rigid construction and three horses are accommodated in the spaces 27, 28, and 29, as shown in Figs. 1 and 3."

This construction would allow the plow to be guided to the right or left by the thrust of the horses being guided to the right or left and throwing their weight against the shafts and sidewalls of the frame, and manifestly this was the way by which the plow was to be guided. There was provided a supplemental guiding means in a steering point, which would assist in directing the plow where assistance was necessary. But it is designed that the rudder be locked when the plow is in action. Provision is made for locking it in either of three positions, in the center or either side, but it is clearly intended that during the actual working the point shall be locked, and it was manifestly the intention of the inventor that the main turning and guiding of the plow should be done by the horses, although to some extent they would be assisted by the steering point.

It is obvious that whatever the rudder to this plow might contribute, it could have been dispensed with if a caterpillar tractor were substituted for the horses in the frame.

21 F.(2d) 686

The McFarland snowplow is a similar structure, designed to be propelled by a single horse. It comprises a rectangular frame, having side members and a rear bar, which is pivoted so that it can be swung aside to admit the horse. The side members are provided with runners, and the plow nose is carried on arms pivoted to the side members of the frame. A rack and pinion construction is mounted on the front of the frame to adjust the arms carrying the plow. The horse is hitched to the rear cross member of the plow by the usual swingletree. The rear structure carrying the rear runners may be turned to guide the plow. It is obvious that the plow could be steered in the usual way in steering horse-drawn vehicles, provided with shafts by turning the horse with reins.

Here the structure is provided with steering means at the rear. It is manifest that this would not be necessary provided a tractor were used in place of the horses.

The McFarland and Spahn plows funetion in exactly the same way that the Sargent plow functions. Manifestly either of them would be improved by using a tractor instead of a horse to propel them. The evidence discloses that both the McFarland and Spahn plows could be operated by mechanical tractors in the same way that Sargent's plow operates, without substantial change. Mr. St. John, an expert witness for the appellees, testified, referring to the McFarland patent:

"It would, of course, be entirely possible to substitute a tractor for a horse in this plow, driving the tractor in between the side members of the plow, as shown in Fig. 9, and, in case of a horsedriven plow, the force of the horse's body moving sideways would be sufficient to guide the plow to left or right." Referring to the Spahn plow, he said:

"In this case, as in the case of the McFarland device, and more especially in this case, where the side boards of the plow are high enough, the shoulders and hips of a horse could make contact with the side frame and move this plow to the right or left with or without the assistance of the pilot in front. It would also admit of a tractor of the Best type above referred to, co-operating with these side boards, with or without any interposed rub plate."

Sargent has merely substituted a tractor for a horse, without any but minor changes in the plow and without any change in the tractor. As the tractor belts with their serrated edges project laterally beyond the sides of the tractor body, they would rub against the frame of the plow. To prevent this, Sar

21 F. (2d)-44

gent has provided spacing blocks or rub irons to project beyond the traction belts and engage the plow frame. This provision was obviously necessary and would occur to any competent mechanic in substituting a tractor in the place of the horse. The flexible hitch is present and in both the Spahn and McFarland structure. It is obvious that, since the plow and the tractor independently rest upon the roadway, there should be a flexible connection, and it is perfectly obvious that a rigid connection between the tractor and the plow would be unworkable, and no one would think of making such a connection. The evidence shows that it is common practice to flexibly connect tractors to vehicles and other mechanism propelled by them. Sargent employs the usual link and clevis for this connection. The provision of means near the forward end of the frame designed to make contact with the tractor was also an obvious necessity which any one would have observed. It is manifest and shown by the evidence that it would not require any special construction of the frame for this purpose.

We do not believe that there was any invention in putting contact blocks on the tractor to form contact with the plow frame. The testimony shows that such wear plates and spacing blocks are common in the various arts. The evidence discloses that Sargent was not the first to employ the tractor in connection with a snowplow, but, even had he been so, it would not have entitled him to a monopoly of such use. The tractor is a draft device far more powerful than a horse, and was available in the industrial art only a short while before its adaptability was seen and appreciated, and it was put to use in many ways upon the farm, upon the road, and otherwise. It was inevitable, that it would be applied to this use as well as to the many other similar uses to which it has been put. Its advantage as a motive means is no different in the snowplow than in its many other applications. The credit is to be given to its inventor for its advantages in this respect and not to those who may first put it to an application for which it is obviously intended, or to which it is obviously adaptable.

Sargent is no more entitled to a monopoly on its use in connection with the snowplow than are the others who have taken advantage of its obvious adaptability to apply it to the many uses in which it is now employed. To permit Sargent to take advantage of the genius of the inventor of the caterpillar tractor and monopolize one of its obvious uses would be to rob the inventor.

"It is not invention to produce a device which a skilled mechanic, upon suggestion of what was required, would produce; especially so when he is aided in the work of construction by devices and appliances in practical use pregnant with suggestions of larger and better use." Tiemann v. Kraatz (C. C. A.) 85 F. 437, 439.

Sargent has undoubtedly improved, as did the appellees, upon the old devices, by inserting therein the tractor, but that was suggested by the devices and appliances then in practical use.

Decree affirmed.

CREEL v. UNITED STATES.

Circuit Court of Appeals, Eighth Circuit. September 9, 1927.

No. 7638.

1. Indictment and information147-Question of duplicity may be raised by demurrer. The question of duplicity may properly be raised by demurrer.

2. Indictment and information 125(31) Information charging both "selling" and "furnishing" of liquor in one count held bad for

duplicity (National Prohibition Act [27 USCA §§ 12, 46]).

Under National Prohibition Act, tit. 2, § 3 (27 USCA § 12), illegal "selling" and "furnishing" of liquor are distinct offenses for which different penalties are prescribed by title 2,8 29 (27 USCA § 46), and an indictment or information which charges both offenses in a single count is bad for duplicity.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Furnish; Sell.]

3. Indictment and information 119-Words charging distinct offense cannot be rejected as surplusage,

Words in an indictment or information adequately charging a distinct offense cannot be rejected as surplusage.

4. Indictment and information202(8)Conviction on duplicitous information cannot be aided by verdict, where offenses are subject to different punishment.

Judgment of conviction on a duplicitous information cannot be aided by verdict where the offenses are subject to different punishment.

5. Criminal law 1186(4)-Duplicity in information is not mere technical defect to be dis

regarded under statute (Judicial Code, § 269, as amended [28 USCA § 391]; 18 USCA $

556).

Duplicity in an information is not a mere technical defect to be disregarded under Rev. St. § 1025 (18 USCA $ 556), and Judicial Code, $269, as amended by Act Feb. 26, 1919 (28 USCA$ 391 [Comp. St. § 1246]).

In Error to the District Court of the United States for the Eastern District of Oklahoma; Robert L. Williams, Judge.

Criminal prosecution by the United States against T. J. Creel. Judgment of conviction, and defendant brings error. Reversed.

T. H. Davidson, of Muskogee, Okl., for plaintiff in error.

Frank Lee, U. S. Atty., of Muskogee, Okl., (W. F. Rampendahl, Asst. U. S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and MILLER, District Judge.

BOOTH, Circuit Judge. This is a writ of error to a judgment convicting plaintiff in error, hereafter called defendant, of viplation of the National Prohibition Act, U. S. C. tit. 27 (27 USCA).

a

The information contained two counts. Each charged that defendant "did unlawfully sell and furnish to quantity of intoxicating liquor," etc. Defendant demurred to each count of the information on various grounds, among them that of duplicity. The demurrer was overruled. At the close of the government's case, and again at the close of all the evidence, defendant moved for a directed verdict, on the ground that the evidence was insufficient to support a verdict of guilty. The motions were overruled. Defendant was found guilty.

There are a number of assignments of error, but the only question which we find it necessary to discuss is whether the information was duplicitous.

[1] Duplicity is the joining in one count of two or more distinct offenses. The question of duplicity may properly be raised by demurrer. Lemon v. United States, 164 F. 953 (С. С. А. 8); John Gund Brewing Co. v. United States, 204 F. 17 (C. C. A. 8); Wright v. United States, 227 F. 855 (C. C. A. 8); United States v. L. & N. R. Co. (D. C.) 165 F. 936.

[2] It is the contention of defendant that in each count of the information two distinct offenses were joined, viz.: The sale of intoxicating liquor and the furnishing of intoxicating liquor. Turning to the National Prohibition Act, it is found that section 3, tit. 2 (U. S. C. tit. 27, § 12 [27 USCA $ 12]), reads as follows:

"No person shall on or after the date when the Eighteenth Amendment to the Con

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21 F.(2d) 690

stitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish, or possess any intoxicating liquor except as authorized in this act."

It is clear that there are a number of distinct offenses here enumerated. This has been at various times meticulously pointed out. Albrecht v. United States, 273 U. S. 1, 47 S. Ct. 250, 71 L. Ed. 505; Berry v. United States, 18 F. (2d) 276 (C. C. A. 8).

Punishment for the various offenses is provided in section 29, tit. 2 (U. S. C. tit. 27, § 46 [27 USCA § 46]). That section reads, so far as here material, as follows:

"Any person who manufactures or sells liquor in violation of this chapter shall for a first offense be fined not more than $1,000, or imprisoned not exceeding six months, and for a second or subsequent offense shall be fined not less than $200 nor more than $2,000 and be imprisoned not less than one month nor more than five years.

"Any person

who

violates any of the provisions of this chapter, for which offense a special penalty is not prescribed, shall be fined for a first offense not more than $500; for a second offense not less than $100 nor more than $1,000, or be imprisoned not more than ninety days; for any subsequent offense he shall be fined not less than $500 and be imprisoned not less than three months nor more than two years." It is apparent from these provisions that the punishment for the offense of selling is different from the punishment for the offense of furnishing. It is also clear that Congress, by providing different punishments for selling and for furnishing, emphasized the distinctness of the two offenses.

The case at bar does not fall within that class of cases in which a statute prohibits the doing of a thing in any one of several modes, and in which consequently each of the modes may be alleged in the same count without duplicity resulting. Examples of such cases are Crain v. United States, 162 U. S. 625, 16 S. Ct. 952, 40 L. Ed. 1097; Egan v. United States, 52 App. D. C. 384, 287 F. 958; Wright v. United States, supra.

In the instant case the allegations do not set forth different modes of committing the same offense, but they set forth the commission of two different offenses. It is, of

course, possible to furnish without selling; and it is also possible, though not so frequent, to sell without furnishing. [3] It is suggested that the word "furnish" may be disregarded as surplusage. We do not think this can be done. Words adequately charging a distinct offense cannot be rejected as surplusage. If they could, the vice of duplicity in criminal pleading could be practiced with impunity. The language of the information adequately charges two distinct offenses. If the words "and furnish" are stricken out, there remains an adequate charge of sale. If the words "sell and" are stricken out, there remains an adequate charge of furnishing. Leaving the language as it is, there are adequate charges of both sale and furnishing. The rule is stated in 31 C. J. 774, § 334 as follows: Where separate offenses are sufficiently charged, none of them can be rejected as surplusage in order to support the charge as of another." See United States v. Patty (D. С.) 2 F. 664. And, even if an amendment to the information were possible before the trial, no amendment was made or prayed for. (4) Furthermore, there can be no aider by verdict where the offenses are subject to different punishment. 31 C. J. 879, § 551; Ammerman v. United States, 216 F. 326 (C. C. A. 8); John Gund Brewing Co. v. United States, supra; People v. Wright, 9 Wend. (N. Y.) 193; Reed v. People, 1 Parker Cr. R. (N. Y.) 481.

"

[5] Nor can we assent to the contention that the duplicity was a mere technical defect, to be disregarded under section 1025, Revised Statutes (U. S. C. tit. 18, § 556 [18 USCA § 556]), and section 269, Judicial Code, as amended (U. S. C. tit. 28, § 391 [28 USCA § 391; Comp. St. § 1246]). The defect was one of substance, and not within the purview of either of those statutes.

We are constrained to hold, therefore, that there was a joinder of distinct offenses in each of the counts of the information, and that the demurrer should have been sustained on that ground. John Gund Brewing Co. v. United States, supra; Ammerman v. United States, supra; United States v. Smith (D. C.) 152 F. 542; United States v. Cleveland (D. C.) 281 F. 249; United States v. Dembowski (D. C.) 252 F. 894. Judgment reversed.

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Appellate court may affirm or reverse on issues not passed on by trial court.

3. Appeal and error 1202-Mandate on reversal of decree for complainant held not to authorize reconsideration of issues; "further proceedings."

Direction of "further proceedings" in the mandate of an appellate court, after reversal of a decree for complainant, mean only entry of decree conforming to the decision of the appellate court and dismissing the bill, and does not authorize reconsideration of issues decided, or admission of new evidence.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Further Proceeding.]

On motion by complainant for rehearing.

Denied.

For former opinion, see 285 F. 73. William R. Rummler and Walter F. Boye, both of Chicago, Ill., Cyrus W. Rice, of Grand Rapids, Mich., and Edward R. Bosley, of Buffalo, N. Y., for plaintiff.

Drury W. Cooper, of New York City, and J. William Ellis, of Buffalo, N. Y., for defendant.

HAZEL, District Judge. [1] On this application, plaintiff asks for a rehearing on an issue of equitable estoppel, or, in the substantial wording of the brief, to set the case down for further proceedings and to present additional evidence to negative prior uses. The motion is based mainly on the ground that the plea of equitable estoppel was not specifically passed upon or decided either by this court or the Circuit Court of Appeals, which reversed the decree of this court and commanded that such further proceedings be had in said case in accordance with its decision, as, according to right and justice, ought to be had, 290 F.

625.

This court had ruled (285 F. 73) that the Grosvenor process patent in controversy (No. 1,186,477) was valid and infringed. The issue raised by the supplemented bill, of the

privity of defendant with the prior Rockford Bookcase Company action, decided in the Northern District of Illinois, was barely suggested in the brief submitted by plaintiff in this court, and, indeed, was not "now relied upon"; it being explained that depositions had been taken regarding newly discovered prior uses, and that plaintiff preferred that the merits thereof be considered and passed upon.

The Circuit Court of Appeals deemed the evidence relating to prior uses sufficient, and sustained the defense of noninfringement without, in its opinion, referring to the alleged plea of estoppel by privity with the Rockford adjudication. In the petition for rehearing présented by plaintiff to the appellate court, one of the points made related to the alleged estoppel, and reference had also been made thereto in the original brief. The said issue was also presented by petition for rehearing by a licensee. In its decision, denying the rehearing, the court said: "We have examined the petition for rehearing and are not disposed to entertain it in substance." Subsequently application was made to the Supreme Court for certiorari, and, in the brief there submitted, it was again urged that the defendant was in privity with the Rockford Bookcase Company, and accordingly was equitably estopped to deny the validity of the patent in suit. In the circumstances, defendant's contention that plaintiff has not been deprived of its day in court is not without substance. It is unnecessary, however, for me to decide this question. By its mandate, the Circuit Court of Appeals has placed an imperative duty upon this court, viz. to carry out its judgment. It does not direct a new trial or further proceedings nothing is left open by interpretation or implication, for further action by this court, either with relation to the question of estoppel, or taking or copsidering additional evidence as to prior uses. It is not discretionary to do so, and this court is constrained to rule that, since the question of estoppel was presented and argued to the appellate tribunal, this court is devoid of power to do anything other than what is required to be done by the mandate.

In Sibbald v. United States, 12 Pet. 488, 9 L. Ed. 1167, the Supreme Court has established the principle applicable to the duty devolving upon the inferior court to render specific judgment. In that case the learned court said:

"No principle is better settled, or of more universal application, than that no court can reverse or annul its own final decrees

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