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7 F.(2d) 24

Plate 13, called in the specification a "bridge piece," was riveted to the inside of the rim at one end and projected across under the opposed free end; this underprojecting portion carried an open-ended slot, and through the slot a bolt was inserted and screwed up into a suitably threaded hole in that rim end. This bolt and its head would prevent radial or lateral displacement of the two ends, and as the bolt head was tightened up it would clamp and hold, more or less effectively, against the expansion of the wedges, and keep the free ends from separating circumferentially. Shaw points out that the restraining effect of the separable flange rings was important to prevent undue rimend separation; and it may well be, and for our present purpose we may assume, that his screw bolt end-clamping device would not be positive enough to be commercially satisfactory, unless aided by the rings. Beyond that, fair criticism cannot

go.

We see, then, that a demountable rim with a single transverse split and with integral flanges, and of the bolted-on class, was old in Shaw (although Shaw had additionally the endless ring flange), and that the completely integral, flanged, single-piece, demountable rim, transversely split at one point only, but not of the bolted-on class, was old in Hawley and Baker, and that Baker conceived that Hawley and Baker's demountable rim might, in effect, be transferred to the bolted-on class. In this mere thought of substituting one known method of attachment for another there was no invention. It could be done by changing Shaw, so as to have the common integral tire-restraining flanges instead of separable ones, or by changing Hawley and Baker so as to make the split rim sufficiently resist the wedge expansion, as an unsplit one would do. It now seems to have been the obvious thing to provide this resistance by some sort of a slip interlock between the free ends, which could be pulled out of the locking engagement and so permit the rim to contract, and which, as the rim was expanded, would snap back into engagement and hold against further expansion. We have reached the conclusion that this is not only obvious now, but that it was an obvious and familiar mechanical expedient in 1908-09. This we regard as the turning point in the case, and we do not doubt that the question is a close one. However, we think it sufficiently clear.

The general slip-interlock method of detachable and nonadjustable engagement is

familiar everywhere; sufficient examples of it are found in this art or close to it. It was shown in the French patent of addition to Liais, No. 8,428 of 1907, and the fact that it is here shown only casually indicates that it was a means too familiar to be stressed. Lipowski, by a British patent, No. 23,496 of 1899, also shows this method of slip end-interlock as applied to a split flange for retaining the tire in position.

[3] It will be seen by reference to defendant's device that all it has done (and therefore all that Baker can claim to have done to justify a patent broad enough to cover defendant's device) is to take Shaw's form of end-holding device and substitute for his detachably attached bolt, which screws into holding position, the permanently attached lug, which snaps into holding position. From another point of view, we see that demountable split rims had been fastened on by clamping down (Hawley and Baker) or by wedging out (Shaw); that with the latter method it was obviously necessary to keep the ends from separating; that Shaw did this by an external restraining ring; and defendant has done it by a mere and familiar end-interlock. Applying as well as may be the familiar principles, we must conclude that invention was not involved of a breadth necessary to support the conclusion that claims 1 and 9 are infringed. In this connection, it is not without significance that claim 9 expressly disclaims a mere end-interlock, which is what defendant uses.

[4, 5] Claims 2 and 6 have reference to an added function. In Baker's form of connection plate, which was not permanently attached to either rim end, studs, attached to the plate and which projected into and engaged the opposite rim ends, were long enough to pass through the rim ends and enter holes provided in the permanent wheel rim or felly. Thus the studs served the double function of holding the rim ends together against expansion, and of causing the demountable rim to be positively driven by the revolving permanent rim. If the claims are confined to a device where the same locking member serves both functions, there is no occasion to consider their validity, for in that case the defendant has not infringed. Defendant's so-called plate is some 8 inches long; 4 inches being permanently attached, by riveting, to one of the rim ends, and the other 4 inches extending beyond that end and carrying the outwardly projecting stud for engagement with the other rim end. (If these dimensions are in

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correctly stated, the error does not seem important.) Near the end of the plate opposite from this stud is an inwardly projecting stud, which enters a corresponding recess in the felly and makes the driving

connection. There is no functional relation whatever between the two studs. As a matter of convenient assembly, they are both carried by the same frame. If the plate were shorter, they might be close together, and the distance between them can be extended indefinitely by extending the length of the plate. The driving stud would drive, and the locking stud would lock, just the same, if the other were not in the vicinity, nor carried by the plate, but were carried directly by the rim. The holding or foundation plate, the means situated thereon for engaging the other rim end, and the means situated thereon for engaging the rim and the felly, having no connection with each other excepting the foundation on which they rest, plainly make an aggregation, and not a patentable combination. Reckendorfer v. Faber, 92 U. S. 347, 23 L. Ed. 719; Gas Co. v. United Co. (C. C. A. 6) 228 F. 684, 689, 143 C. C. A. 206. Since to give these two claims a construction covering this form would make them invalid, and since such construction is necessary to make out infringement, we conclude that infringement

is not shown.

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4. Conspiracy 48-Under indictment alleging conspiracy at one place to violate National Prohibition Act, instruction permitting evidence of another violation to be considered held error.

In prosecution for conspiracy at certain time and place to violate National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.), in absence of testimony tending to show that accused persons, assembled at such place, were parties to conspiracy to transport, possess, or sell intoxicating liquor at another place six weeks prior thereto, or had any knowledge of such transaction, instruction permitting evidence of violation of Prohibition Act at such other place to be considered constituted reversible error.

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6. Criminal law 778 (2)—Instruction that, if acts of parties gave rise to reasonable and just inference of being done as result of previous agreement, finding conspiracy was proper, held error.

In prosecution for conspiracy to violate National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.) instruction that, if acts of parties were committed in manner or under circumstances which, by reason of their situation and conditions surrounding them, give rise to reasonable and just inference that they were result of previous agreement, jury could find existence of conspiracy to do those acts, was error, in view of presumption of innocence of accused until proven guilty.

In Error to the District Court of the United States for the Southern Division of the Northern District of California; John S. Partridge, Judge.

S. Terry was convicted of conspiracy to violate the National Prohibition Act, and he brings error. Reversed and remanded for new trial.

Wilford H. Tully, of San Francisco, Cal., for plaintiff in error.

7 F.(2d) 28 Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

"It is not necessary that the government prove each and all of the overt acts charged in the indictment, nor even the specific act Before GILBERT, HUNT, and RUDKIN, here of another overt act, known as the Bodtherein charged. Evidence was introduced Circuit Judges.

RUDKIN, Circuit Judge. On or about June 19, 1922, a number of prohibition agents gained information from some source that a large quantity of inxtoxicating liquors was about to be landed at Allen's Wharf, in Monterey county, and that the liquors so landed would be removed from the wharf by automobiles. The agents concealed themselves in the vicinity of the wharf until the

automobiles, to the number of a dozen or 15, appeared upon the scene to remove the liquor, and while the occupants of the auto. mobiles were thus engaged they were apprehended by the agents, and the liquors, together with the automobiles, were seized. Such is the brief story told by the record, yet the indictment covers 38 pages of the printed transcript, and is said to contain upwards

of 8,000 words.

The indictment charges that the defendants, to the number of 16, did, at or near Allen's Wharf, in the county of Monterey, on or about the 1st day of November, 1921, the real and exact date being to the grand jurors unknown, conspire and confederate together to commit offenses against the United States in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.), to the number of 10, and sets forth a large number of overt acts to effect the object of the conspiracy. Upon the trial the case was submitted to the jury as to 9 of the defendants, and a verdict of guilty was returned as to 5, and not guilty as to 4. Terry, one of the defendants found guilty, has sued out a writ of error to review the judgment of

conviction.

Upon the trial the court admitted testimony, over objection and exception, tending to prove that, about 6 weeks prior to the incident at Allen's Wharf, the plaintiff in error employed one Frohn to transport several barrels of intoxicating liquor from Bodega Bay to a ranch house in the vicinity of Petaluma; that at or about the same time the defendant Zucker rented a barn from one Sousa in that vicinity, and that 9 barrels of intoxicating liquor were stored therein. There was no testimony of any kind, direct circumstantial, tending to connect any of the other defendants with this prior incident or transaction. Upon the foregoing facts the court charged the jury as follows:

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ega Bay incident; that would be sufficient to sustain the charge as against at least the deIt is sufficient if the jury are satisfied that fendants whom you find concerned therein. a conspiracy was entered into for the purpose charged, and that some one or more of the parties did some one of the acts charged for the purpose of carrying it into effect." Again:

"In arriving at your verdict as to whethwhich, if any, of the defendants were parer or not there was a conspiracy, and, if so, ties to it, you are not confined to evidence of a common design to land, transport, sell, or possess the liquor at Allen's Wharf, but you may consider whether or not any of sell, or possess liquor generally, or at any these parties conspired to land, transport, other place. The landing and attempted sale, transportation, or possession at Allen's Wharf, if you believe there was such attempted sale, transportation, or possession, was but the overt act as previously defined the defendant Terry employed the witness to you. There is testimony that Lawrence Frohn, brother of defendant Edison Frohn, to transport liquor to and from a farm near Petaluma. Then there is evi

dence that the defendant Zucker rented a barn near Petaluma, and that barrels of whisky were stored in this barn, and transported from there in demijohns. This evidence, if it is believed by you to be true, and you believe this was the same farm, is evidence of a common design to transport and posses liquor as to the defendants Terry and Zucker."

[1-3] These instructions were duly excepted to. The plaintiff in error contends that the charge in the indictment is limited to a conspiracy entered into at or near Allen's Wharf, in the county of Monterey, and does not extend to or include the prior incident at Bodega Bay. Ordinarily a charge of conspiracy is not circumscribed or limited by averments as to the time when or the place where the conspiracy was formed. charge is limited, however, by the terms of the indictment itself. The indictment here charges but one combination or conspiracy, however diverse its objects, and no defendant could be convicted thereunder unless he was shown to be a member of or party to that conspiracy. Furthermore, the scope of

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the conspiracy must be gathered from the testimony, and not from the averments of the indictment. The latter may limit the scope but cannot extend it.

[4] Here we find no testimony tending to show any general conspiracy covering and including both the incident at Allen's Wharf and the incident at Bodega Bay. On the other hand, every inference from the testimony is to the contrary. There is no testimony tending to show that the parties assembled at Allen's Wharf were parties to a conspiracy to transport, possess, or sell intoxicating liquor at Bodega Bay, six weeks before, or that they had any knowledge what ever of that transaction. In short, there is no testimony in the record tending to connect the defendants, other than Terry and Zucker, with any conspiracy, except such inferences as may be drawn from their presence at or connection with the incident at Allen's Wharf, and all the overt acts relate to that incident alone. The indictment charges no conspiracy to transport, possess, or sell intoxicating liquor at Bodega Bay, in terms, and avers no overt act to effect the object of such a conspiracy, if one existed.

In ruling upon the admission of testimony, and in the charge to the jury, the court proceeded upon the theory that some of the defendants might be convicted of one conspiracy and some of another; that is, that the plaintiff in error and the defendant Zucker might be convicted of a conspiracy to transport, possess, or sell intoxicating liquor at Bodega Bay, and the remaining defendants of a conspiracy to transport, possess, or sell intoxicating liquor at Allen's Wharf, even though the two conspiracies and the parties thereto were entirely different. The rulings admit of no other construction. "If, however, the charge of conspiracy in the indictment is merely that all the defendants had a similar general purpose in view, and that each of four groups of persons were co-operating without any privity each with the other, and not towards the same common end, but toward separate ends similar in character, such a combination would not constitute a single conspiracy, but several conspiracies, which not only could not be joined in one count, but not even in one indictment." United States v. M'Connell (D. C.) 285 F. 164.

[5] In other words, a conspiracy is not an omnibus charge, under which you can prove anything and everything, and convict of the sins of a lifetime. For these reasons the rulings complained of are erroneous and

call for a reversal. Proof that the plaintiff in error was guilty of another crime was in itself prejudicial, and an instruction that he might be convicted of a crime not charged in the indictment cannot be sustained.

[6] In view of a retrial of the case, we deem it proper to refer to one of the instructions complained of. The instruction is as follows:

"The formation or existence of a conspiracy may be shown either by direct or positive evidence, such as declarations or writings, or by circumstantial evidence, such, for instance, as showing that the parties charged acted together or in concert, or in a manner or under circumstances warranting the inference that their acts were the result of previous understanding or arrangement between them. The law does not require the prosecution to put their finger upon the precise method or manner in which a conspiracy of this kind is entered into, if the facts that may be adduced before you show such an arrangement did exist between the defendants to do the acts charged, because it would be impossible, in 99 cases out of 100, for the government to undertake such proof. Things are not done in that way. The existence of a conspiracy may be manifested either in words or deeds. In this case, therefore, even though you may find that there was no open or express declaration of purpose on the part of these defendants or the other parties concerned to unite in doing the acts charged, yet if you find that the acts of the parties were committed or accomplished in a manner or under circumstances which, by reason of their situation at the time and the conditions surrounding them, give rise to a reasonable and just inference that they were done as the result of a previous agreement then you are justified in finding that a conspiracy existed between them to do those acts."

The italicized portion of the instruction does not contain a correct statement of the law.

"It is also true, in cases of conspiracy, as in other criminal cases, that the prisoner is presumed to be innocent until the contrary is shown by proof; and, where that proof is, in whole or in part, circumstantial in its character, the circumstances relied upon by the prosecution must so distinctly indicate the guilt of the accused as to leave no reasonable explanation of them which is consistent with the prisoner's innocence." United States v. Lancaster (C. C.) 44 F. 896, 904, 10 L. R. A. 333.

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7 F.(2d) 31

"I have stated to you that the offense may be established by circumstantial evidence; but circumstantial evidence, to warrant a conviction in a criminal case, must be of such a character as to exclude every reasonable hypothesis but that of guilt of the offense imputed to the defendant, or, in other words, the facts proved must all be consistent with and point to his guilt only, and inconsistent with his innocence. The hypothesis of guilt should flow naturally from the facts proven, and be consistent with them all. If the evidence can be reconciled either with the theory of innocence or with guilt, the law requires that the defendant be given the benefit of the doubt, and that the theory of innocence be adopted." United States v. Richards (D. C.) 149 F. 443, 454.

This rule is elementary, and facts which merely give rise to a reasonable and just inference that a conspiracy existed do not necessarily exclude every other reasonable inference or hypothesis, unless it can be said that only one just and reasonable inference may be drawn from a given state of facts. The latter proposition, of course, cannot be maintained. Nor is it entirely clear that the specific erroneous charge as to the quantum of proof required to establish a conspiracy was cured by a correct general charge on the presumption of innocence or the legal requirement of proof beyond a reasonable doubt. This question however, we are not called upon to determine on the present record.

For error in the admission of testimony as to the Bodega Bay incident, and the charge of the court in relation thereto, the judgment is reversed, and the cause is remanded for

a new trial.

JACKSON et al. v. NEW YORK LIFE
INS. CO.

(Circuit Court of Appeals, Ninth Circuit. August 3, 1925. Rehearing Denied September 14, 1925.)

No. 4463.

1. Insurance 136(2)-When policy of insurance is "delivered" to insured stated.

A policy of insurance is "delivered" to insured when it is deposited in the mails, duly directed to insured at his proper address and with postage prepaid, even though he never receives it, and is constructively delivered when it is mailed to an agent unconditionally for delivery to insured, even though agent does not actually deliver it; but rule is otherwise when

policy is mailed to agent for delivery only on performance of certain conditions.

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

2. Insurance

136 (2)-Plaintiffs held entitled to recover on life insurance policy, notwithstanding death of insured prior to delivery of policy to him.

Plaintiffs held entitled to recover on life insured prior to delivery of policy to him, where surance policy, notwithstanding death of induring his lifetime policy was mailed to local agent unconditionally for sole purpose of delivery to insured.

In Error to the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.

Action by A. O. Jackson and Lizzie Jackson against the New York Life Insurance Company. Judgment for defendant, and plaintiffs bring error. Reversed and remanded.

See, also, 299 F. 679.

On May 16, 1919, a son of the plaintiffs in error, at the solicitation of local agents of the defendant in error at Tillamook, Or., made and signed a written application for life insurance in the sum of $5,000, and in case of accidental death twice that sum. The application contained the stipulation "that the insurance hereby applied for shall not take effect unless the first premium is paid and the policy is delivered to and received by me during my lifetime, and that unless otherwise agreed in writing the policy shall then relate back to and take effect as of the date of this application." At the same time the agents received from the insured a promissory note, payable 90 days thereafter, in the sum of $102.95, in payment of the first annual premium on the poliey. The application and the note were then forwarded to the agents of the insurance company at its branch Office at Portland, Or., where the note was retained, and the application was forwarded to the home office of the company in New York City, where on May 28, 1919, a policy of insurance was issued, and on the following day was mailed to the branch office at Portland, with instruction to hold the same until released by our medical board." On June 4, 1919, the policy was released by. the medical board.

According to the records of the Portland office, the promissory note was mailed back to the agents at Tillamook on June 16, and on the following day the policy was mailed to them. About 9 o'clock on June 18 the applicant was killed in an automobile accident.

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