19 Wall. 287, 22 L. Ed. 125; 1900 Washer Co. v. Cramer, 169 F. 629, 95 C. C. A. 157; Royal Co. v. Tweedie (C. C. A.) 276 F. 351. The appellee's muffle, spaced as it is from the ore bed, and directing the flame upon only a small portion thereof at a time, imperforate as it is for the admission of air, is in no sense the cover described in the appellant's patent.

The decree is affirmed.

SAN JOSE CANNING CO. v. ONEAL. (Circuit Court of Appeals, Ninth Circuit. January 18, 1926. Rehearing Denied

February 23, 1926.)

No. 4668.

Patents 328-1,235,680, claims 4, 5, for device for preparing string beans for canning, held valid and infringed, but claims as to method held invalid.

Greco, No. 1,235,680, claims 4, 5, for device for preparing string beans for canning, held valid and infringed, but claims as to method of canning held invalid.

Appeal from the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Kerrigan, Judge.

Suit by Louis Oneal against the San Jose Canning Company. Decree for plaintiff, and defendant appeals. Affirmed in part, and reversed and remanded, with directions, in part.

R. M. J. Armstrong, of San Francisco, Cal., for appellant.

Preston & Duncan, of San Francisco, Cal., for appellee.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

HUNT, Circuit Judge. This is an appeal from an interlocutory decree in favor of Oneal, and enjoining the San Jose Canning Company from infringing certain patent rights. Damages were also sued for. The company set up noninfringement, invalidity, and lack of invention.

Appellee's patent, No. 1,235,680, issued August 7, 1917, to Greco, assigned by him to Oneal, relates to a device and method of preparing string beans for canning. The strings are first removed from the beans, the beans are then blanched to make them pliable, and then are placed in bunch formation within a mold. The ends of the beans which project

are cut off so as to secure uniformity. The beans in bunches are put into the can by inserting the end of the mold into the open end of the can, and then clamping the mold. A slight jar of the mold causes the beans to slip into the can. When the can is opened and the contents removed, the bunch of beans is substantially of uniform length. The mold has at one end an outwardly projected flange, which, when the guide end of the mold is inserted within the open mouth of the can, rests on the end thereof. The beans are put into the mold when open. The mold is then closed and a clamp lock lowered to engage the flanges and lock the mold. With the beans thus clamped, and the projecting ends cut away, the guide end of the mold is inserted within the open mouth of the can, and the clamp lock thrown upward to release and unclamp the mold. The mold is then slightly raised, and with a downward movement the flange impacts on to the end of the can, and causes the beans to slip from within the mold into the can.

Four claims of the patent are for method of canning beans. Two claims, 4 and 5, for the device, are as follows:

"4. A device for use in canning of beans and similar vegetables in bunch formation, the same comprising a mold for the reception of the vegetable to be canned, lock means for holding the mold in locked position, and an outwardly projected flange on the mold adjacent one of its ends.

"5. A device for use in the canning of beans, the same comprising a mold adapted to receive and encompass the beans in bunch closed position, and an outwardly projected formation, means for holding the mold in flange on the mold adjacent one end thereof adapted to contact with the end of the

can."

Claim 6 reads as follows:

"6. The method of canning beans or similar elongated vegetables in bunch formation within an encircling mold, closing the mold to encompass the vegetables therein, applying one end of the mold to the open end of a can, causing the bunch of vegetables to pass endwise from within the mold into the can by the application of a slight jar or tap to the mold."

Appellant's contention is that its mold follows patent No. 1,464,829, issued August 14, 1923, to Rancadore and Pecoraro, for a device facilitating the canning or packing of vegetables, such as beans, asparagus, and the like. That device embodies an open-sided structure; the opening extending the length of the cylinder projected out on an obtuse

angle to the cylinder; on one side is a forked bracket. The forks are arranged parallel, and made to receive between them one end of a handle with an opening in the end of the handle or lever with an opening in the end of the two forks of the bracket, so that a bolt may be passed through the registering opening to connect the handle of the bracket. The handle is arranged transversely of the cylinder adapted to move radially thereof. Along the sides of the opening of the cylinder are curved guide plates. Each of the plates is slotted to receive the handle in order to align the plate with the opening of the cylinder. The beans are placed through an opening of the sides of the cylinder, being arranged in parallel position. The handle is then clasped by the hand and brought down, so the plate will impart a pressure to the beans to pack them in the cylinder. The beans which protrude are then cut beyond the open ends of the cylinder and the operator puts the device over the open end of the can. The diameter of the cylinder is less than the diameter of the can, so that the end of the cylinder telescopes with the open end of the can; the telescope action being limited by the bands with adjacent opposite ends of the cylinder acting as abutments. When the cylinder has been placed over the end of the can a jar of the can will transfer the beans from the mold to the can.

Appellant's combination is practically the same as appellee's. Use of a flange which protrudes from the cylinder is not materially different from appellee's flange, which runs around the mold. In both the purpose of the flange is to prevent the mold from dropping too far into the can. Nor does the use of a different form of lock means to close appellant's mold avoid infringement. Both the devices encompass the beans in bunch formation; both have means for holding the mold in closed position; both have outwardly projecting flanges on the mold adjacent one of the ends thereof, adapted to contact with the ends of the can. We can see no resulting difference in the modes of operation.

Appellant introduced a device as anticipatory of the claims of the patent in suit, a cigarette mold in which tobacco is laid lengthwise in a small hinged cylindrical piece of brass. A plunger is used to press the tobacco down, in order to enable the cylinder to be closed. The empty cigarette tube is then put on top of the cylinder, and the tobacco pushed into the tube. The marked difference between the cigarette mold and the mold of appellee is that, in the one there are no flanges to prevent the filler from entering the

tube, nor is there a clamp or lock used to make the mold stay closed. Apparently, too, in making cigarettes, it is not necessary to use means to prevent the breaking of the tobacca, while in the canning of beans it is most desirable that means be employed to keep the beans in lengthwise and whole.

Reference was also made to a mold that was used in 1913 and 1914 for packing asparagus at Manlius, N. Y. The mold was simply a plain cylindrical piece of metal, with about one-quarter of the cylinder cut out. The asparagus was laid in the cylinder horizontally, and when a sufficient quantity was put in, the cylinder was taken up by hand, the hand being held over the open space of the cylinder, which was rested upon the can, and the asparagus was jarred into the can. There is no hinge upon the mold; nor is there any means of clamping the two sides together, so as to hold the asparagus while the ends are being cut off and until the vegetable is finally deposited in the can.

No other disclosure bore close enough relationship to the patent in suit to call for special comment, and while it may be that a cylinder like that used in the packing of asparagus could be altered and added to, so as to perform the same function as does appellee's device, still the new use of the appellee's device has produced results which did not occur to one of ordinary mechanical skill, and it has met a need. In Potts v. Creager, 155 U. S. 597, 15 S. Ct. 194, 39 L. Ed. 275, the court said: "If the new use be so nearly analogous to the former one that the applicability of the device to its new use would occur to a person of ordinary mechanical skill, it is only a case of double use; but if the relations between them be remote, and especially if the use of the old device produce a new result, it may at least involve an exercise of the inventive faculty."

But we see no merit in the claims for the method of canning beans by arranging them in bunch formation, with an encircling mold, then placing one end of the mold in contact with the open end of the can, causing the beans to move from the mold into the can. Such a process amounts to nothing more than the obviously necessary manner of operating the mechanism. Risdon Locomotive Works v. Medart, 158 U. S. 68, 15 S. Ct. 745, 39 L. Ed. 899; Vapor Car Heating Co. v. Gold Car H. & L. Co. (C. C. A.) 7 F. (2d) 285.

The result of these views is that the decree of the District Court is affirmed, in so far as it decrees in favor of appellee, sustaining the validity of claims 4 and 5 of the patent to Greco, and adjudges that those claims

have been infringed by the San Jose Canning Company, and in so far as it orders a reference to take an account in profits and damages in respect to such infringement. In so far as the decree sustains the validity of the other claims of the patent, it is reversed, and the injunction with respect to such other or method claims must be dissolved. Upon remand, the District Court is directed to take such proceedings as shall be according to law, and not inconsistent with this opinion.

Affirmed in part, and reversed in part. Costs on this appeal to be equally divided.

DELL'AIRA v. UNITED STATES. (Circuit Court of Appeals. Ninth Circuit, January 18, 1926.)

No. 4612.

1. Forgery ~28(1)—Indictment for altering bill of lading held not defective for failure to allege issuance by common carrier.

Indictment under Act Aug. 29, 1916, § 41 (Comp. St. § 8604u), for forging and altering bill of lading, held not defective for failure to allege that bill was issued by common carrier.

2. Criminal law 304 (17)-It is common knowledge that Railroad Administration had no charge of private carriers.

It is common knowledge that United States Railroad Administration had no charge of or connection with private carriers.

3. Forgery28 (2)—Indictment for altering bill of lading need not set forth literal copy thereof.

7. Forgery 27-Indictment for altering bill of lading held not insufficient for failure to allege defendant knew bill of lading was altered.

Under Act Aug. 29, 1916, § 41 (Comp. St. § 8604u), indictment charging that defendant forged and altered an original bill of lading, then took it to diversion agent, and procured issuance of new bill of lading, which he later negotiated, held not defective for failure to allege that defendant knew original bill of lading was forged and altered when he took it to diversion agent, or subsequently negotiated the new bill.

125(19)—

11. Indictment and information Indictment may charge in single count violation of statute in several ways.

When offense against criminal statute may be committed in one or more of several ways, indictment may in a single count charge commission in any or all of such ways.

12. Forgery 34(5)—Indictment for altering bill of lading held not at fatal variance with proof.

Indictment under Act Aug. 29, 1916, § 41 (Comp. St. § 8604u), charging forgery and alteration of bills of lading, held not at fatal variance with proof showing only alteration; it clearly appearing that class of forgery charged was that of alteration..

13. Criminal law 1169(11)—Admission of evidence of similar transactions, if unwarranted, held not reversible error.

41 (Comp. St. § 8604u), for alteration of bills In prosecution under Act Aug. 29, 1916, § of lading, admission of evidence of similar transactions, if not warranted on issue of intent, held not reversible error, in view of other uncontroverted evidence.

14. Criminal law 822(11)-Instruction as to presumption of intent in prosecution for altering bill of lading held not erroneous.

In prosecution under Act Aug. 29, 1916, § 41 (Comp. St. § 8604u), for alteration of bills of lading, instruction that law presumes that every person intends the natural and ordinary consequence of his act held not erroneous, as informing jury that evidence of commission of act charged was conclusive proof of commission of crime, without regard to intent, in view of court's charge as a whole.

15. Criminal law 823(15)—Instruction as to reasonable doubt held not misleading, in

view of further instruction.

In prosecution under Act Aug. 29, 1916, § 41 (Comp. St. § 8604u), for altering bill of lading, instruction to acquit if jury had a reasonable doubt of defendant's guilt, but that a doubt, to authorize acquittal, must be "a substantial doubt arising from the insufficiency of the evidence, and not a mere possibility of innocence," held not misleading, on theory that sufficiency of evidence was matter of law for court, in view of further definition given by court of reasonable doubt.

The plaintiff in error was convicted on 186 counts of an indictment charging him with violation of the provisions of section 41 of the Act of Congress of August 29, 1916, 39 Stat. 544 (Comp. St. § 8604u), entitled "An act relating to bills of lading in interstate and foreign commerce." The counts substantially follow the terms of section 41, and in addition thereto each count follows the form of a sample count shown in the record, which charges that the defendant, at a time and place named, knowingly and feloniously attempted to defraud the California Grape Association, of Chicago, state of Illinois, and caused to be made, altered, forged, and printed a bill of lading purporting to represent goods for shipment in car initial “M. C." No. 41608, from Rutherford, state of California, to Chicago, state of Illinois, as follows, to wit: "That he did change figures 27466 inserted originally in said bill of lading to represent the weight in pounds avoirdupois of a certain number of boxes of grapes, by crossing out the said figures 27466 and writing instead figures 47466 to represent the weight in pounds avoirdupois of said boxes of grapes, and did by so changing said figures represent that the

goods received for shipment as represented in said bill of lading was 20,000 pounds more than was represented by said bill of lading as originally issued." The count proceeded to allege that the defendant procured issuance to him by the diversion agent of the United States Railroad Administration at San Francisco, Cal., of a new bill of lading for said car, and did thereafter negotiate and transfer said bill of lading for value to Pietro Taddeo of Philadelphia, Pa., and received payment for 47,466 pounds avoirdupois of grapes represented as goods contained in the said car.

John J. Taaffe and Jos. L. Taaffe, both of San Francisco, Cal., for plaintiff in error. George J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and McCAMANT, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above). [1] A demurrer was interposed to each count of the indictment for its failure to charge that the bill of lading referred to therein was issued by a common carrier. Act Aug. 29, 1916, 39 Stat. 538, under which the indictment was had, begins with the enactment "that bills of lading issued by any common carrier for the transportation of goods in any territory of the United States, or the District of Columbia, or from a place in one state to a place in another state, shall be governed by this act." Section 1 (Comp. St. § 8604aaa). It is true that the indictment contains no express allegation that the bills of lading therein referred to were issued by a common carrier. That fact, however, sufficiently appears in the allegations of each count.

[2] It is charged in each that the bill of lading purported to represent goods for shipment in a car designated by initials and by number from a point in California to a point in some eastern state, and that the defendant altered the weight specified therein and took the altered bill to the diversion agent of the United States Railroad Administration at San Francisco, state of California, and procured to be issued to him in exchange therefor a new bill of lading for said ear. Those allegations can bear no other construction than that the bills of lading were issued in interstate commerce by a common carrier. It was common knowledge that the United States Railroad Administration had charge of or connection with private carri

no

ers. The allegations meet the requirement that the crime must be charged with precision and certainty, and that every ingredient of which it is composed must be accurately and clearly alleged. It was not necessary to charge in the language of the statute that the bills of lading were issued by a common carrier. It was sufficient that the fact appeared distinctly from other averments. Cohen v. United States (C. C. A.) 294 F. 488; Hill v. United States (C. C. A.) 275 F. 187.

[3] Another ground of the demurrer which is urged here as ground for reversal is that in each count there is failure to set forth a literal copy of the bill of lading. The common-law rule is invoked that in an indictment for forgery a literal copy of the alleged forged instrument must be set out, unless the instrument is lost or destroyed, or is in the possession of the defendant, or for some other reason it is not available to the grand jury. In many of the states and in England the common-law rule has been abolished by statutes, which enact that in prosecutions for forgery it is sufficient to designate the instrument forged by the name by which it is known, without setting out its tenor, and in State v. Curtis, 39 Minn. 357, 40 N. W. 263, in the absence of such a statute, the common-law rule was rejected. [4] It is to be noted, however, that the offense with which the defendant is charged here is not the forgery of an instrument, but the alteration of certain figures in a valid instrument issued in the regular course of busi

ness.

It is a statutory offense, and the indictment follows the statute. The cases in which it is held that an indictment in the exact language of the statute is not sufficient are those wherein the statute does not contain all the elements of the offense, but "the general rule still holds good that upon an indictment for a statutory offense the offense may be described in the words of the statute, and it is for the defendant to show that greater particularity is required by reason of the omission from the statute of some element of the offense." Ledbetter v. United States, 170 U. S. 606, 612, 18 S. Ct. 774, 776 (42 L. Ed. 1162).

[5] There is no omission of an element here. All that is required of an indictment is that it shall advise the defendant with reasonable certainty of the crime with which he is charged, with averments sufficient to enable him to prepare his defense, and in the event of acquittal to plead the judgment in bar of a second prosecution for the same offense. United States v. Behrman, 258 U. S. 280, 42

S. Ct. 303, 66 L. Ed. 619; Burton v. United States, 202 U. S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 392; Simpson v. United States (C. C. A.) 289 F. 188. [6] The indictment here complies with those requirements. It would have been of no possible advantage to the defendant to plead the bills of lading according to their tenor. The very fact that the common-law rule is dispensed with in cases where the instrument is lost or destroyed is proof that the rule relates not to substance but to form, and if the failure to comply with it is a defect, it is one of those defects which under the statutes and decisions an appellate federal court, after verdict, is bound to disregard. [7] We find no merit in the contention that the indictment is defective in not alleging in each count that the defendant knew that the original bill of lading was forged and altered when he took it to the diversion agent and procured the issuance of a new one, or when he subsequently negotiated the latter. The indictment charges in each count that the defendant unlawfully, willfully, knowingly, and feloniously altered the bill of lading with intent to defraud, and that with like intent he took it to the diversion agent, and procured the issuance of a new bill of lading, and thereafter negotiated and transferred the latter for value to a person named. It was not necessary to allege that he knew what he was doing. His knowledge is necessarily inferable from his acts. 31 C. J. 695; United States v. Schuler, 6 McLean, 28, Fed. Cas. No. 16,234; United States v. Jolly (D. C.) 37 F. 108. In the case last cited Judge Hammond said: "One may pass a forged instrument innocently, because he does not know it to be forged, and believes it to be genuine; but one cannot innocently make or himself forge the instrument without guilty knowledge of the fact of the want of genuineness, if his intention be 'to defraud,' in the language of the statute." [8] Nor is it defective for failure to state the name of the person whom the defendant caused to make, alter, and forge the original bill of lading. Each count contains the distinct allegation that the defendant himself made the alterations. United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819, is not in point. It holds that, if the defendant is not charged with committing the illegal act, but is accused of causing some other person to do it, it is necessary to state the name of that person.

[9] Nor is the indictment defective for failure to allege that the original weight on the bill of lading was the correct weight, or that