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to regard the weight of the evidence as evenly balanced. The jury have a right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence or the lack of intelligence, and from all of the other surrounding circumstances appearing on the trial, which witness is the more worthy of credit, and to give credit accordingly."
But, so far as the plaintiffs were entitled to this instruction, it was given to the jury by instruction 14. A judge is not bound to charge the jury in the exact words proposed to him by counsel. The form of expression may be his own. If he instructs the jury correctly and in substance covers the relevant rules of law proposed to him by counsel, there is no error in refusing to adopt the exact words of the request. Continental Improv. Co. v. Stead, 95 U. S. 161, 24 L. ed. 403.
the defendant in error, a citizen of Nebraska, in the circuit court for the district of Nebraska, where there was judgment for the defendant, which is brought here by writ of error on a constitutional question. The land sought to be recovered was once the property of Ezra S. Whitney, through whom both parties claim title,—the plaintiff, through a deed of the land executed and delivered by Whitney, on November 30, 1898; the defendant, under a sale of the land on execution in pursuance of a levy duly made on April 12, 1898. The defendant's paper title is therefore the earlier one and must prevail if the sale upon execution was valid. The validity of this sale is the only question in the case.
The execution issued on a judgment in a criminal case, in which, by information, Whitney was charged with the embezzlement, while county treasurer of Harlan 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.
JAMES COFFEY, Plff. in Err.,
COUNTY OF HARLAN.
Constitutional law due process of law in criminal proceedings.
A public officer convicted of embezzling public moneys, who has been afforded full opportunity to present every defense permitted by the laws of the state, is not denied due process of law by the imposition, as a part of the sentence, pursuant to Neb. Crim. Code § 124, entirely irrespective of the question whether restitution has been made, of a fine in double the amount of the
embezzlement found by the jury, which, by the terms of that section, is to operate as a judgment against the estate of the con
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 e sum of $22,390," which was double the amount of the embezzlement found by the jury. On appeal the conviction was aшrmed by the supreme court of Nebraska. Whitney v. State, 53 Neb. 287, 73 N. W. 696. The sentence awarded was that prescribed by § 124 of the Nebraska Criminal Code, which provides that a public officer who embezzles the public money "shall be imprisoned in the penitentiary not less than one year nor more than twentyone years, according to the magnitude of the embezzlement, and also pay a fine equal to double the amount of money or other fine shall operate as a judgment at law on property so embezzled as aforesaid, which fine shall operate as a judgment at law on all of the estate of the party so convicted and sentenced, and shall be enforced to collection by execution or other process for 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.
Circuit Court of the
aforesaid has been so embezzled." Neb. Comp. Stat. 1903, p. 1942.
IN ERROR to the Cire District of Nee The proceedings which ended in the sale
United States for the District of Nebraska to review a judgment for defendant in an action of ejectment. Affirmed.
The facts are stated in the opinion. Messrs. C. C. Flansburg and R. O. Williams for plaintiff in error.
on execution under which the defendant claims title were in conformity with the Constitution and laws of Nebraska, and the sheriff's deed vested title in the defendant. Everson v. State, 66 Neb. 154, 92 N. W. 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.
Mr. Justice Moody delivered the opinion of the court:
The plaintiff in error, a citizen of Kansas, brought an action of ejectment against 27 S. C.-20.
against its sovereignty, regulating the procedure in the trial of those who are charged with committing them, and prescribing the character of the sentence which shall be awarded against those who have been found guilty. In these respects the state is su
Second, that it was unconstitutional in inflicting a double punishment, in that the fine was added to imprisonment.
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 exercise of the power of the state in this field cannot be drawn in question in this court or elsewhere than in its own courts, except for the purpose of restraining it within the limits thus established. One of the limitations upon the power of the state, imposed by une 14th Amendment, is that the state shall not deprive any person of life, liberty, or property without due process of law. The plaintiff contends that the sentence awarded against Whitney violated this prohibition, in that Whitney had no opportunity to be heard upon and defend against that part of the sentence which imposed a fine and authorized a judgment against his estate for its collection. The plaintiff therefore insists that the sale on execution of Whitney's land was bad, because the execution issued upon a judgment which was void. The short and conclusive answer to the whole contention is, that it is not true in fact. Whitney was given an opportunity to be heard and to defend. The information charged him with embezzling $11,190, the property of Harlan county. The trial was had upon this information and the jury returned a verdict in the following terms:
In overruling these two contentions the court described the statute as one giving a fixed sum "in the nature of liquidated damages .. to one who has suffered injury by the wrongful act of a public officer," and said: "We . . . do not care to put ourselves upon record as holding that the return of the property or the value of the property which the thief has embezzled or stolen, either voluntarily or by compulsory process, should be considered any part of his punishment within the meaning of our Bill of Rights." P. 158, N. W. p. 138. Seizing hold of this language, the plaintiff in error in this case argues that, by an interpretation of the statute binding upon us, it authorizes a mere civil judgment for damages, against which the defendant has been denied the right to defend by showing that his civil liability for the embezzlement had been discharged, and that therefore the judgment was wanting in due process of law. But this argument misinterprets the decision of the supreme court of Nebraska by giving to its language a meaning not expressed 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 une 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 so em- a fine double the amount embezzled shall pe bezzled to be $11,190." Thereupon it became the duty of the court to impose a sentence of imprisonment of not less than one year nor more than twenty-one years, and of a fine that should be equal to double the amount of the money embezzled. This was done. The case was then appealed to the supreme court of Nebraska, argued by counsel, and the conviction affirmed. It is ale to say that Whitney was denied a hearing, or an opportunity for every defense permitted to him by the laws of Nebraska.
inflicted, which shall operate as a judgment against the estate of the convict. It is not of the slightest importance whether this fine is called a penalty, a punishment, or a civil judgment. Whatever it is called, it comes to the convict as the result of his crime. The amount of the judgment is fixed by the amount of the embezzlement, and not by the amount remaining due on account of the embezzlement, and the only question left open to the accused is the fact and amount of the embezzlement. It is provided that the judgment shall issue for double that amount, entirely irrespective of the question whether restitution has been made in whole or in part. Upon the only question, therefore, open to him, Whitney had an opportunity to be heard, and, in point of fact, was heard. Upon his appeal (53 Neb. 287, 73 N. W. 696) the amount of the embezzlement was expressly affirmed by the court (p. 303, N. W. p. 701), and the claim that the restitution of the stolen property relieves the offender from criminal liability was pronounced "a monstrous doctrine," and it was said: "Whether or not Harlan county has been successful in collecting or securing the payment of the monFirst, that the law under which it was ey which the defendant is charged with hav
The plaintiff in error rests his contention upon some language used by the supreme court of Nebraska in Everson v. State. ubi supra. In that case Everson was convicted of a trespass upon the land in dispute. He defended against the charge by claiming title through the deed from Whitney, under which, as Everson's grantee, the plaintiff in this case claims title. The state, on the other hand, contended that the title was in Harlan county by virtue of the sale on execution hereinbefore stated. Everson, asserting, as the plaintiff here asserts, that the execution sale passed no title, attacked the judgment upon which it was issued upon two grounds:
ing embezzled is of no consequence in this | case." Whitney had full opportunity to present every defense allowed to him by the law of the state. The law itself was justified by the plenary power of the state, and neither it nor its administration in this case discloses any violation of a right secured by the Constitution of the United States, and the judgment of the Circuit Court is therefore affirmed.
COMPUTING SCALE COMPANY
AUTOMATIC SCALE COMPANY.
Messrs. Melville Church and Joseph B. Church for appellant.
Messrs. H. P. Doolittle and E. Hilton Jackson for appellee.
Mr. Justice Day delivered the opinion of the court:
This is an appeal from the court of appeals of the District of Columbia, affirming 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, OF based upon the alleged infringement of letters patent No. 700,919, granted to the complainant as the assignee of the inventor, Austin B. Hayden, said letters bearing date
Patents-construction - narrowing claim-May 27, 1902, for an improvement in com
prior state of art.
1. The claims of the Hayden patent No. 700,919. for an improvement in a spring-balance computing scale, must be deemed to be limited to the specific means shown for translating the vertical movement of the runner into the rotary movement of the vertical inner computing cylinder, in view of the action of the Patent Office in requiring, as a means of saving the first claim, that such claim call for "a spring-supported, loadbearing, and cylinder-revolving rod," and "connecting means between rod and computing cylinder" to secure the rotary movement of the inner cylinder, in which action the applicant acquiesced, though "without prejudice to the claims which remain," because "the allowed claims appear to cover the invention as it would be constructed in practice," and in view of the state of the art, which shows that the elements of the invention, broadly considered, were previously disclosed in horizontal machines, and that the idea of vertical construction was old. Patents-infringement-nonuse of essential
The bill contained a prayer for an injunction and accounting. The answer denied the patentability of the alleged invention of the plaintiff, set up the alleged anticipating invention of one Christopher, and denied infringement.
The alleged improvement of Hayden is shown in the accompanying illustrations taken from the patent. [See next page.]
To understand these drawings they are to be viewed in the light of the description of the mechanism given by complainant's expert, which has the approval of the expert of the defendant, and was accepted as correct in the court of appeals. This description, somewhat abridged, is as follows:
"The two principal parts of the mechanism are as follows: 1st, a vertically arranged, nonrotating frame which comprises and includes a vertical cylindrical casing which incloses, conceals, and protects the major portion of the operating portions of the scale, and upon which are marked the
2. Infringement of the claims of the Hayden patent 700,919, for an improvement price indications which indicate the price 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 computing cylinder by other mechanism than the suspended rod with its spiral, which, with its connection with the cylinder, is the essential element of the Hayden invention.
vided with a vertically disposed sight opening through which the coacting mechanism is observable, and along one vertical edge of this sight opening are arranged the numerals indicating the price per pound.
"The second of these principal parts is a second cylinder located within the casing,
Argued January 23, 1907. Decided February this cylinder constituting a computing cyl
inder or chart drum upon which are placed indications indicating the weight in pounds of the article weighed, and also having other indications indicating the price of an article weighed corresponding to the weight and to the price per pound. This chart drum or
PPEAL from the Court of Appeals of the District of Columbia to review a decree which affirmed a decree of the Supreme Court of that District dismissing a bill to restrain the infringement of a patent. Af-computing cylinder extends vertically withfirmed.
See same case below, 26 App. D. C. 238.
in the external casing and it is arranged to rotate on a vertical axis within the external 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 balancing mechanism moves up and down on the placing or removing of a load on the scale pan, the chart drum will be rotated in one direction or the other within the external casing or frame.
rod. Consequently as the rod moves vertically the spiral groove thereof causes the chart drum or computing cylinder to rotate on its vertical axis.
"Accordingly, the mechanism is such that the vertical movement of the runner is translated into rotary movement of the chart drum, and the chart drum is rotated to an
ment of the runner."
weight this vertical movement of the springsupported runner is converted or translated into a rotary movement of the chart drum by suitable intervening mechanism. This intervening mechanism consists of a spiral 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 com- pressed 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, and the price indications in horizontal rows above, there being as many of these horizontal rows of price indicating figures as there are 'price per pound' indicating figures on the fixed external casing. These valueindicating figures on the chart drum are computed at different rates corresponding to the 'price per pound' figures on the ex-extent proportional to the vertical moveternal casing. As indicated in figure 2 of the drawings of the patent, there is supposed to be a weight on the scale pan of 5 pounds, this weight being indicated on the weight scale, and it will be seen that in such instance the various value indications on the chart drum opposite the 'price per pound' indications on the fixed casing are, in each illustrated instance, five times as great as the corresponding 'price per pound' indications. The drawings illustrate only a portion of the indicating figures on the chart drum, but it will be understood in practice that this drum will be entirely covered on its external surface with figures correspond-scribed as nonrotatably suspended. Claims ing to the weights multiplied by the figures indicating 'price per pound' on the nonrotatable external casing. Accordingly, whenever the interior chart drum is turned a distance corresponding to the load placed on the scale pan, the value of the load can be read at once opposite the figures on the external casing which correspond to the price per pound of the article weighed.
"The various price indications on the chart drum are visible through the sight opening in the external casing.
"The mechanism whereby the chart drum is rotated a distance corresponding to the weight of the load placed on the scale pan is as follows: The balancing mechanism is a spring balance comprising two springs which are suspended from a suitable portion of the nonrotating frame of the scale. To the lower ends of these springs is attached a crossbar in the middle of which depends a rod, this crossbar and rod constituting the runner of the scale. (See Fig. 3.) The scale pan is suspended from the lower end of this rod as illustrated in Figure 1. When a load is placed on the scale pan the vertical runner moves vertically downward distending the spring to an extent proportional to the
In his application, Hayden, having set forth a description of his invention, disclaiming any intention to limit his invention by the precise description of the specifications, except as appears from his claims, sets forth eleven (11) claims, which he alleges as new and desires to secure by letters patent.
The claims alleged to be infringed in this case are numbered 1, 2, 6, 7, and 8. Numbers 1 and 2 are practically alike, except that in No. 2 the spring-supported, loadbearing, and cylinder-revolving rod is de
6, 7, and 8 have some trifling variations, but, in the view we take of this case, they are sufficiently embodied in claim No. 6. We shall, therefore, consider, in arriving at a decision, claims 1 and 6. They are as follows:
"1. In a spring-balance computing scale, the combination of a suitably-supported vertical nonrotatable casing provided with a price index, a vertical rotatable computing cylinder journaled in said casing, provided with cost computations, a spring-supported, load-bearing, and cylinder-revolving rod suspended from said casing, and connecting means between rod and computing cylinder, whereby, by longitudinal movement of the rod, rotary movement is imparted to said cylinder, substantially as and for the purpose set forth.
"6. In a spring balance, the combination of a nonrotating frame providing an external casing and having means for supporting it from above, weighing springs secured at their upper ends to rigid parts of said frame, a vertically-movable runner which is suspended from the lower ends of said springs and is provided with depending means to support the load, a chart drum