The facts are stated in the opinion. Messrs. William D. Daly, Thomas O'Brien and James J. Furey for appellant. Mr. Joshua S. Salmon for appellee.

J.

Mr. Justice Harlan delivered the opinion of the court:

The appellant, August Bergemann, was convicted in the Court of Oyer and Terminer of Morris County, New Jersey, of the crime of murder in the first degree under an indictment, charging that, on a day and within the county named, he "did wilfully, feloniously, and of his malice aforethought kill and murder" one Julius Bergemann, "contrary to the form of 656] the statute in such case made and provided, and against the peace of the state, the government and dignity of the same."

Being in custody of the sheriff, awaiting the time fixed for his execution under a sentence of death, he presented his petition to the Circuit Court of the United States for the District of New Jersey, representing that he had applied to all the courts of the state having power in the premises to stay his said execution, and for a writ of error to review the judgment of conviction, but his application had been denied; that the indictment against him charged the crime of murder of the second degree, and

died,-sufficiently charges that an assault was made with a deadly weapon, that the knife was used by defendant, and that deceased was cut with the knife. State v. Regan, 8 Wash. 506.

An indictment for murder need not, in California, allege the means used to procure death. People v. Hyndman, 99 Cal. 1.

An indictment for murder must allege that the bomicidal act, or the act which is the efficient cause of death, was done with a premeditated design to effect the death of the deceased. Simmons v. State, 82 Fla. 387.

An indictment for murder charging that the defendant did "murder" the deceased is not insufficient because it fails to use the words "deliberate" and "premeditated." Weatherman v. Com. (Va.) June 14, 1894.

An indictment for murder, defined by Cal. Pen. Code, 187, as the unlawful killing of a human being with malice of aforethought need not allege that the killing was deliberate or premeditated. People v. Hyndman, 99 Cal. 1.

An indictment charging defendant as an accessory before the fact to murder in the first degree is not insufficient because of failure to use the words "with malice aforethought and with premeditation and deliberation," where such words are used in charging the principal with the crime, and the part charging the defendant with being accessory adopts the words used in the principal charge by apt and appropriate words relating back thereto. Jones v. State, 58 Ark. 390.

The use of the word "maliciously," in describing the circumstances, in an indictment for manslaughter charging that the act was done in a sudden affray," does not vitiate it. Coe v. Com. 94 Ky. 606.

An indictment which clearly and distinctly alleges the facts showing a murder by the unlawful killing of a human being, with malice aforethought, is good as an inducement for murder under the Utah statutes, although it may not use the very words of the statutes, or indicate upon its face, in terms, the degree of that crime. Davis v. Utah, 151 U. S. 262 (38: 153).

informed of the crime of murder of the first degree by any indictment, "as by the Constitution and laws of the land he should have been so charged before he could have been convicted thereof," that "he ought not to have been sentenced to death, as the said court was without jurisdiction in the premises, and could not have imposed said judgment upon said indictment according to the Constitution and law of the land;" and that "the said conviction and the judgment of the said court thereon was in violation of the 14th Amendment of the Constitution of the United States, in that he was denied the equal protection of the laws, as contemplated by said amendment, and the 6th Amendment, which requires that the defendant shall be informed of the nature and cause of the accusation made against him."

Upon these grounds he prayed that a writ of habeas corpus be issued. The application for the writ having been denied, he prayed, and was allowed, an appeal pursuant to the statute.

The application for the writ of habeas corpus was properly denied. The court of oyer and terminer had jurisdiction both of the of fense charged and of the accused. Rev. Stat. N. J. 272. 30.

Whether the indictment sufficiently charged the crime of murder in the first degree was

An indictment containing the averments requisite to a good common law indictmeat of accessory before the fact, without any allegation that defendants in the manner and by the means alleged killed deceased and were guilty of murder, will not support a verdict of guilty of the principal offense of murder. Usselton v. People, 149 Ill. 612. An indictment alleging that about a certain date defendant did then and there, with his malice aforethought, kill and murder deceased by shooting him with a gun, against the peace and dignity of the state,-charges the elements of murder under Tex. Pen. Code, § 605, in plain and intelligible language. Scott v. State, 31 Tex. Crim. Rep. 383. An indictment for murder will not be quashed because of failure so to describe the wound as to enable the court to say that it may have been fatal. State v. Green, 111 Mo. 585.

A conviction of manslaughter in the second degree may be had under an indictment for murder. Brown v. State, 31 Fla. 207.

An indictment for murder, failing to allege that the killing was done "feloniously," is demurrable. Kaelin v. Com. 84 Ky. 354.

An indictment for murder need not allege that the killing was "unlawfully" done. Jackson v. State, 25 Tex. App. 314.

An indictment for murder in the first degree may allege the killing to have been done "with the premeditated design to effect the death," the words used in the statute in defining the offense-instead of "with malice aforethought,"--the words used in the form for an indictment for murder given in the statute. State v. Holong, 38 Minn. 368.

The expression "mortal injuries and mortal sickness" is the equivalent of "mortal bruise or mortal wound" in an indictment for murder. Territory v. Godas, 8 Mont. 347.

Murder in the first degree is sufficiently stated by an indictment that defendant did, at a named place and time, of his malice aforethought, kill and murder deceased by shooting her with a gun, etc. Rather v. State. 25 Tex. App. 623.

An indictment charging that a man did feloni

for that court to determine. Caldwell v. Teras, 137 U. S. 692, 698 [34: 816, 818).

Nor is there any ground for the contention that the laws of New Jersey prescribing the form of indictments in cases of murder or manslaughter are inconsistent with the due pro657]cess of law, or the equal protection of the laws required by the 14th Amendment of the Constitution of the United States. By the 68th section of the New Jersey Crimes Act it is provided: "All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliber ate and premeditated killing, or which shall be committed in perpetrating, or attempting to perpetrate, any arson rape, sodomy, robbery or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder of the second degree: and the jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, designate by their verdict whether it be murder of the first or second degree." Rev. N J. 239, § 68. And by the forty-fifth section of the criminal procedure act it is provided: "In any indictment for murder or manslaughter it shall not be necessary to set forth the manner in which, or the means by which the death of the deceased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did willfully, feloniously, and of his

ously, etc., shoot off and discharge, and by means and force of gunpowder and leaden balls did give to the person killed mortal wounds, but which fails to charge that the homicidal act was done feloniously, is insufficient. State v. Herrell, 97 Mo. 105. An indictment for murder, charging that defendant "willfully and of his alice aforethought, feloniously did kill and murder one A with a knife, a sharp edged instrument and deadly weapon," and adding, "from which said cutting and wounding the said did then and there die,"

is not sufficient without the words last quoted but, if not, the words "said.. "could refer to no one but A. Alford v. Com, 84 Ky. 623.

An indictment under the statute, for willful and malicious shooting and wounding with intent to kill, need not charge that the act was done feloniously. Cundiff v. Com. 86 Ky. 196.

It is absolutely necessary to state in an indictment for murder, that deceased died of the injury that he received. United States v. Barber, 9 Mackey, 79.

An indictment setting forth with great particularity all the facts necessary to constitute murder is sufficient. Territory v. O'Donnell, 4 N. M. 66.

A count in an indictment for the murder, alleging that the killing was with malice "aforethought," is not equivalent to the necessary allegation that the killing was with malice "aforethought." Griffith v. State, 90 Ala. 583.

An indictment for murder must aver both the time and place of the death of the person murdered. Ball v. United States, 140 U. S. 118 (35: 377).

A complaint before an examining magistrate, alleges that the accused "then and there unlawfully, willfully, maliciously, and feloniously, and of his deliberate and premeditated malice, did kill and murder" two persons named, . . . although informal, charges murder. Haunstein v. State, 31 Neb. 112.

An indictment alleging that at a certain time and place defendant purposely and of deliberate and premeditated malice killed the deceased by then

malice aforethought kill and murder the deceased; and it shall be sufficient in every indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased." Rev. N. J. 275, § 45.

In Graves v. State, 45 N. J. L. 203, it was held that an indictment charging, in a general form, the perpetration of a murder without indicating which of the two felonies into which that offense was divided by the statute, was sufficient to fulfill the constitutional requirement of informing the defendant of the nature and cause of the accusation against him. The effect of the statute, Chief Justice Beasley said, was neither to add any case to nor take any case from the class of crimes which, at common law, was denominated murder, for every act that was murder at common law was still murder in New Jersey. What the statute effected, he said, was to distribute the offense into two classes for the sake of adjusting the punishment. In the same case in the court of errors and appeals, 45 N. J. L. 347, 358, 46 Am. Rep. 778, Chancellor Runyon, after observing that the legislature, in declaring what shall constitute murder *in the first degree, and[658 what murder of the second, created no new crimes, but merely made a distinction with a view to a difference in the punishment between the most heinous and the less aggravated grades of the crime of murder, said: "When the legislature, commendably simplifying the

.

and there shooting him in the body with a doublebarreled shot gun sufficiently charges murder, although it omits many well known features of the common law indictment, such as stating that the weapon was loaded, and the part of the body in which the wound was inflicted, and that the deceased died thereof. United States v. Clark, 46 Fed. Rep. 633.

An indictment which charges that the accused did, with malice aforethought, kill the person deceased by shooting him with a pistol, sufficiently charges murder of the first degree. Banks v. State, 24 Tex. App. 559.

An indictment for manslaughter in the fourth degree that at C county, Jan. 1, 1886, the defendant did kill A by then and there discharging a gun, whereby he received injuries causing his death but not stating that they caused death at the place and time mentioned, is not certain or defìuite enough. State v. Sundheimer, 93 Mo. 311.

An indictment for an assault with a knife with intent to commit murder in a place of exclusively. Federal jurisdiction, but not alleging a striking with the knife or the inflicting of wounds tending to produce death, charges no Federal offense, since there is no such crime as assault with intent to commit murder named in the United States statutes; and it cannot be sustained as for attempt to murder, because of the insufficiency of the allegations; and no punishment is provided for simple assault in such a place in such a case. United States v. Barnaby, 51 Fed. Rep. 20.

An indictment, under Mo. Rev. Stat. 1879 § 1262, for a felonious assault with a deadly weapon with intent to kill, which unnecessarily avers that the assault was by shooting, is not bad because it does not allege that the shooting was done feloniously, since the statute makes the assault itself a felony. State v. Doyle, 107 Mo. 36.

An indictment charging an assault with an axe need not describe the axe for the purpose of showing it to be a deadly weapon. State v. Shields, 110 N. C. 497.

corporation of the state of New York, filed in the Circuit Court of the United States for the District of Massachusetts a bill of complaint against Keeler & Brother, partners doing business in the city of Boston.

By an agreed state of facts it appears that the complainants are assignees, for the state of Massachusetts, of certain letters patent granted to one Lyman Welch, for an improvement in wardrobe bedsteads; That the Welch Folding Bed Company own the patent rights for the state of Michigan, and that the defendants purchased a carload of said beds from the Welch Folding Bed Company, at Grand Rapids, Michigan, for the purpose of selling them in Massachusetts, and that they afterwards sold and are now engaged in selling the said beds in Boston.

The conclusion in the court below was that the defendants were not protected from the claim of the Massachusetts assignee by having purchased the patented articles from the Michigan assignee, and accordingly there was an injunction and final decree in favor of the complainants, from which an appeal was taken to this court.

Messrs. Causten Browne and J. Henry Taylor for appellants.

Mr. Edwin T. Rice for appellee.

661] *Mr. Justice Shiras delivered the opinion of the court:

It is provided in section 4884 of the Revised Statutes that "every patent shall contain a grant to the patentee, his heirs and assigns, for the term of seventeen years, of the exclusive right to make, use, and vend the invention or discovery throughout the United States and territories thereof;" and in section 4898 that "any patent or any interest therein shall be assignable in law by an instrument in writing, and the patentee and his assigns or legal representatives may in like manner grant and convey an exclusive right under his patent to the whole or any specified part of the United States."

Where the patentee has not parted, by assignment, with any of his original rights, but chooses himself to make and vend a patented article of manufacture, it is obvious that a purchaser can use the article in any part of the United States, and, unless restrained by contract with the patentee, can sell and dispose of the same. It has passed outside of the monopoly, and is no longer under the peculiar protection granted to patented rights. As was said by Mr. Justice Clifford, in Goodyear v. Beverly Rubber Co. 1 Cliff. 349: "Having manufactured the material and sold it for a satisfactory compensation, whether as material or in the form of a manufactured article, the patentee, so far as that product of his invention is concerned, has enjoyed all the rights secured to him by his letters patent, and the manufactured article, and the material of which it is composed, go to the purchaser for a valuable consideration, discharged of all the rights of the patentee previously attached to it, or impressed upon it, by the Act of Congress under which the patent was granted."

Suppose, however, the patentee has exercised his statutory right of assigning by conveying to another an exclusive right under the patent

to a specified part of the United States, [662 what are the rights of a purchaser of patented articles from the patentee himself within the territory reserved to him? Does he thereby obtain an absolute property in the article, so that he can use and vend it in all parts of the United States, or, if he take the article into the assigned territory, must he again pay for the privilege of using and selling it? If, as is often the case, the patentee has divided the territory of the United States into twenty or more "specified parts," must a person who has bought and paid for the patented article in one part, from a vendor having an exclusive right to make and vend therein, on removing from one part of the country to another, pay to the local assignee for the privilege of using and selling his property, or else be subjected to an action for damages as a wrongdoer? And is there any solid distinction to be made, in such a case, between the right to use and the right to sell? Can the owner of the patented article hold and deal with it the same as in case of any other description of property belonging to him, and, on his death, does it pass, with the rest of his personal estate, to his legal representatives, and thus, as a part of the assets to be administered, become liable to be sold?

These are questions which, although already in effect answered by this court in more cases than one, are now to be considered in the state of facts disclosed in this record.

In Wilson v. Rousseau, 45 U. S. 4 How. 688 [11:1160], and in Bloomer v. McQuewan, 55 U. S. 14 How. 539 [14: 532], it was held that the purchasers of patented machines had the right to continue the use of such machines, without again paying royalty, although the patent was twice extended. In the latter case it appeared that McQuewan, the defendant, had purchased his machines, not from the original patentee or from a territorial assignee, but from a purchaser from the latter. Therefore that case is authority for the proposition that the purchaser of a patented machine has not only the right to continue the use of the machine as long as it exists, but to sell such machine, and that his vendee tikes the right to use.

The scope and effect of those decisions were thus expressed by Mr. Justice Clifford, in Mitchell v. Hawley, 83 U. S. 16 Wall. 547 [21:323]: "Patentees acquire by their letters pa- [663 tent the exclusive right to make and use their patented inventions and to vend to others to be used for the period of time specified in the patent, but when they have made one or more of the things patented, and have vended the same to others to be used, they have parted to that extent with their exclusive right, as they are never entitled to but one royalty for a patented machine, and consequently a patentee, when he has himself constructed a machine and sold it without any conditions, or authorized another to construct, sell, and deliver it, or to construct, use, and operate it, without any conditions, and the consideration has been paid to him for the thing patented, the rule is well established that the patentee must be understood to have parted to that extent with all his exclusive right, and that he ceases to have any interest whatever in the patented machine so sold and delivered or authorized to be constructed and operated. Where such circum.

These cases were followed, and a step fur ther taken, in the case of Adams v. Burks, 84 U. S. 17 Wall. 453 [21: 700]. There, Lockhart and Seelye owned, by assignment, all the right, title, and interest which the patentees had in a certain patented coffin lid, in a circular district of a diameter of ten miles, whereof the city of Boston was the center. Adams, also by assignment, was the owner of all other rights under the patent. Burks, an undertaker, carried on his business at Natick, and within the territory covered by the patent as owned by Adams. To a bill for an infringement. filed by Adams in the Circuit Court of the United States for the District of Massachusetts, Burks pleaded that the patent coffins used by him in his business were purchased by him from Lockhart and Seelye, and were sold to him without condition or restriction.

The validity of this plea was sustained by the circuit court, and its decree dismissing the 664] *bill was affirmed by this court.

Mr. Justice Miller, in giving the opinion of the court, said: "In the essential nature of things, when the patentee, or the person having his right, sells a machine or instrument whose sole value is in its use, he receives in consideration for its use, and he parts with the right to restrict that use. The article, in the language of the court, passes without the limit of the monopoly. That is to say, the patentee, or his assignee, having in the act of sale received all the royalty or consideration which he claims for the use of his invention in that particular machine or instrument, it is open to the use of the purchaser with out further restriction on account of the monopoly of the patentee. A careful examination of the plea satisfies us that the defendant, who, as an undertaker, purchased each of these coffins, and used it in burying the body which he was employed to bury, acquired the right to this use of it, freed from any claim of the patentee, though purchased within the ten-mile

circle and used without it."

It is obvious that necessarily the use made by Burks of these coffins involved a sale in every case. He did not put them to his personal use, unless we are permitted to suppose that he was himself buried in each one of the coffins. He bought the coffins for the purpose of selling them to others, and the legal significance of the decision upholding his defense is that a person who buys patented articles from a person who has a right to sell, though within a restricted territory, has a right to use and sell such articles in all and any part of the United States; that when the royalty has once been paid to a party entitled to receive it, the patented article then becomes the absolute, unrestricted property of the purchaser, with the right to sell it as an essential incident of such ownership.

That this was the meaning of this decision, not only appears from the language used, and from the necessary legal effect of the conclu

Boesch v. Gräff, 133 U. S. 698 [33: 788], is cited by the defendant in error. But it is not out of line with the previous cases. The exact question presented was whether a dealer residing in the *United States could purchase[665 in another country articles patented there from a person authorized there to sell them, and import them to and sell them in the United States without the license or consent of the owners of the United States patent, and the court held that the sale of articles in the United States under a United States patent cannot be controlled by foreign laws. In this case neither the patentee or any assignee had ever received any royalty or given any license to use the patented article in any part of the United States.

Hobbie v. Jennison, 149 U. S. 355 [37: 766], is interesting as the last opinion delivered by Mr. Justice Blatchford.

The facts were these: An assignee for Michigan, of a patent for an improvement in pipes for conveying gas, water, and other fluids, made, sold and delivered in Michigan pipes made according to the patent, knowing that they were to be laid in the streets of a city in Connecticut, a territory the right for which the seller did not own under the patent, and they were laid in that city. An action at law was brought in the Circuit Court of the United States for the Eastern District of Michigan by Hobbie, who was the owner, by assignment, of the patent for the state of Connecticut, against Jennison, who, under his rights as assignee for Michigan, made and sold patented pipes to the Hartford Steam Supply Company, which had a contract to lay pipes in Hartford, Connecticut. A jury was waived, and the cause was tried before Judge Brown, the district judge, now a member of this court. The decision and judgment of the circuit court were in favor of the defendant, and that judgment was affirmed here.

What was principally discussed was the true interpretation of Adams v. Burks, 84 U. S. 17 Wall. 453 [21: 700], and an attempt was made to distinguish the case in hand by the fact, made affirmatively to appear, that the sale was made with the knowledge and intention on the part of the defendant that the use would be at Hartford.

But this court was of opinion that the case of Adams v. Burks, supra, was applicable; that the sale was a complete one in Michigan, and that neither the actual use of the pipes in Connecticut, nor a knowledge on the part of the defendant that they were intended [666 to be used there, would make him liable.

This brief history of the case shows that in Wilson v. Rousseau, 45 U. S. 4 How. 688 [11: 1160]. and cases following it, it was held that as between the owner of a patent, on the one side, and a purchaser of an article made under the patent on the other, the payment of a roy alty once, or, what is the same thing, the purchase of the article from one authorized by the patentee to sell it, emancipates such article from any further subjection to the patent throughout the entire life of the patent, even