After the docketing of the appeal in this court by the filing of the transcript of the record, the appellee suggested the diminution of the record, and asked and was allowed the writ of certiorari to the Commissioner of Patents requiring him to transmit to the court the parts of the record set forth in the appellee's petition. The Commissioner made return to the writ, accompanying his return with copies of the papers sought to be incorporated in the record. The further material facts are set forth in the opinion of the Court.

James H. Griffin for the appellant.

E. T. Fenwick for the appellee.

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

This is an appeal from a decision of the Commissioner of Patents canceling the registration of a trademark, "Upper Hudson," for rye flour, registered by Van Alstyne & Company, January 14, 1913.

This registration was made under the ten-year clause of the trademark act. The Boutwell Milling & Grain Company had previously registered the mark on January 9, 1906. Van Alstyne & Company were flour dealers in New York city, members of the produce exchange, and seem to have originated the mark "Upper Hudson." This flour was manufactured by O. Boutwell & Son at Troy, and the trademark "Upper Hudson" with the name of Van Alstyne & Company was applied to the barrels after receipt in New York.

After some years Van Alstyne & Company sent the stencil marked "Upper Hudson" to O. Boutwell & Son to put the mark on the barrels and also their own name in place of Van Alstyne & Company. They sold flour so marked to a number of eastern dealers for a number of years continuing down to the present time.

By contract Van Alstyne & Company handled the flour in

New York city and vicinity, but finally an agreement was made with them to purchase the flour outright. This contract was not fully complied with by Van Alstyne & Company, and in 1905 the Boutwell Milling & Grain Company, successors to O. Boutwell & Son, began to ship flour with this mark to other dealers in New York city. This was known to Van Alstyne & Company, and in 1906, the Boutwell Milling & Grain Company registered the mark in their own name. Van Alstyne & Company were informed of this, and reported an infringement by a New York dealer, and the Boutwell Milling & Grain Company had the latter ended by negotiation with the infringer.

Thus it appears that the trademark was used by the Boutwell Milling & Grain Company for a number of years as their own with the knowledge of Van Alstyne & Company.

The Examiner of Interferences granted the decree of cancelation on the ground that the mark had been abandoned by Van Alstyne & Company, and the use of it by the Boutwell Milling & Grain Company acquiesced in.

The Commissioner affirmed this decision without passing upon the question of abandonment or acquiescence, but affirmed it on the ground that there had not been exclusive use by Van Alstyne & Company for the ten years prior to registration made necessary by the trademark act.

Passing by the question of first use of the mark on account of its nontechnical character, and also the question of abandonment and acquiescence, we agree with the Commissioner that Van Alstyne & Company had not the exclusive use of the trademark for the ten years prior to the registration made necessary by the act. See Duluth Superior Mill. Co. v. Koper, 37 App. D. C. 115.

The decision is right and is affirmed.

This decision will be certified by the Clerk to the Commissioner of Patents as required by law. The papers embraced in the return to the writ of certiorari being unnecessary to the decision of the cause, the costs of the writ and the printing thereof are ordered taxed against the appellee. Affirmed.

D. C.]

Syllabus.

RONEY v. UNITED STATES.

CRIMINAL LAW; EVIDENCE; LEADING QUESTIONS; TRIAL; MISCONDUCT OF COUNSEL; BURDEN OF PROOF.

1. In a prosecution for having had carnal knowledge of a child of tender years, questions asked the child on direct examination by the prosecutor as to what she meant by one of her statements, and whether she said or did anything at the time of the occurrence, are not subject to an objection by the accused that they are leading, as they tend to elicit, and not suggest, the facts.

2. The fact that a child of whom the accused is charged with having had carnal knowledge made complaint to her mother two nights and a day after the occurrence is competent evidence for the prosecution when testified to by the mother, who does not testify to the particulars of the complaint; and it is also competent for the mother to testify in such a case as to the physical condition of the child and of her clothing.

3. Where, in a prosecution for having had carnal knowledge of a child, the counsel for the accused objected to a statement made by the prosecutor in his argument to the jury, to the effect that before there could be a finding of not guilty, the jury must account for the condition of the child's clothing and for certain physical conditions present in the child as testified to by witnesses, whereupon the trial court suggested that the prosecutor was not talking about any change of the burden under the law which compels the government to prove everything that makes up the crime beyond a reasonable doubt, but was merely drawing inferences from the evidence, which he had the right to do, it was held that no error had been committed.

4. Where, in a carnal knowledge prosecution in which the verdict might have been not guilty, guilty as indicted, or not guilty as indicted, but guilty of attempt to have carnal knowledge, the foreman of the jury responding to the question of the clerk as to what the verdict of the jury was, replied, "Guilty," whereupon the clerk said, "Guilty as indicted," and the court thereupon ordered the jury to retire and reconsider the verdict, the result being a verdict of "guilty under the first count," which charged carnal knowledge, it was held that the remark of the clerk had not prejudiced the accused; and

Statement of the Case.

[43 App.

also the fact that the clerk had not polled the jury was not error, in the absence of a request by the accused to have the jury polled. 5. Section 953 of the Rev. Stat., as amended by the act of Congress of June 5, 1900 (31 Stat. at L. 270, chap. 717, Comp. Stat. 1913, sec. 1590), providing that in the case of the death of the presiding judge, any judge of the same court may sign a bill of exceptions, if the evidence in the case has been taken stenographically, or judge is satisfied by any other means that he can allow a true bill of exceptions, is in force in this District, not being inconsistent with any legislation locally applicable. (Citing Johnson v. United States, 38 App. D. C. 347.)

No. 2765. Submitted April 26, 1915.

if the

Decided May 10, 1915.

HEARING on an appeal by the accused from a judgment of conviction of the Supreme Court of the District of Columbia on an indictment of the accused for having had carnal knowedge of an infant.

Affirmed.

The COURT in the opinion stated the facts as follows:

Appellant, Hugh W. Roney, was convicted in the supreme court of the District under an indictment charging him with having carnally known Marian V. Hagan, a girl of twelve years. At the time of the occurrence he was "a full grown man" and lived upon a houseboat. Marian Hagan and Hazel Knauss, one year older than Marian, were in the vicinity. Appellant recognizing Marian, whom he had met once before, invited the girls aboard his boat. The evidence tended to show that he finally persuaded Marian to have sexual intercourse with him; that he gave her some money and cautioned the girls not to tell what had occurred. Fearing that her mother I would punish her, Marian did not go home, but spent the night on the porch of a vacant house, and the next night went to her grandmother's, going home the following morning.

Mr. J. A. O'Shea for the appellant.

Mr. John E. Laskey, United States District Attorney, and

Mr. S. McC. Hawken, Assistant, for the appellee.

Mr. Justice ROвв delivered the opinion of the Court:

In her direct examination the injured child, having testified to what took place, was asked what she meant by one of her statements, and whether she said or did anything at the time of the occurrence in question. This is assigned as error, the ground of the assignment being that the questions were leading. There is no merit in the contention. The nature of the occurrence and the tender years of the child fully justified the questions asked, which merely tended to elicit, and not to suggest, the facts.

The mother of the complaining witness was allowed to state that the child had complained to her, and was also permitted to describe certain physical conditions present in the child and the appearance of her clothing. The defendant objected to this testimony because two nights and one day had elapsed; in other words, because the testimony was too remote. It is a well-settled rule that the fact that a complaint was made soon after the assault is competent evidence, and that the time which intervened between the commission of the crime and the making of the complaint is a subject for the consideration of the jury in passing upon the weight of the evidence. State v. Peres, 27 Mont. 361, 71 Pac. 162; State v. Sudduth, 52 S. C. 488, 30 S. E. 408; People v. Bernor, 115 Mich. 695, 74 N. W. 184; State v. Niles, 47 Vt. 82, 1 Am. Crim. Rep. 646; State v. Peterson, 110 Iowa, 647, 82 N. W. 329; Com. v. Cleary, 172 Mass. 175, 51 N. E. 746. The witness did not testify to the particulars of the complaint, but merely to the fact that one had been made.

There can be no doubt that the mother was competent to testify to physical conditions which would have been apparent to anyone upon inspection, and also to testify to the condition of the child's clothing. The witness did not attempt to do more than this. In other words, she stated conditions which she found, and it was for the jury to say what produced them. The weight of such testimony depends in each case upon the surrounding circumstances. State v. McLaughlin, 44 Iowa,