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Before ALSCHULER, PAGE, and AN- returned upon illegal and incompetent eviDERSON, Circuit Judges.

dence and without legal evidence to connect

defendants with the crime charged. These ANDERSON, Circuit Judge. The plain- motions were all sworn to upon information tiffs in error, with several others, were and belief. charged in the court below with the violation [1,2] “A motion to quash is always adof sections 194 and 197 of the Criminal dressed to the discretion of the court, a deCode (Comp. St. $$ 10364, 10367). The in- cision upon it is not error, and cannot be redictment is in four counts, and charges all viewed on a writ of error.

." United States v. the defendants, in the first count with rob- Hamilton, 109 U. S. 63, 3 S. Ct. 9, 27 L. bing persons having lawful charge of the Ed. 857; United States v. Rosenberg, 7 Wall. mails; in the second, with robbing such per- 580, 19 L. Ed. 263; Logan v. United States, sons and in effecting the robbery, putting 144 U. S. 263, 282, 12 S. Ct. 617, 36 L. Ed. the life of the persons having custody of the 429; Durland v. United States, 161 U. S. mails in jeopardy by the use of deadly 306, 314, 16 S. Ct. 508, 40 L. Ed. 709; Radweapons; in the third, with receiving and ford v. United States, 129 F. 49, 51, 63 C. C. concealing stolen mail matter, knowing that. A. 491. But, aside from this, the motions of it was stolen; and, in the fourth, with hav- Dietmeyer and Lanham were based upon the ing possession of stolen mail matter with

erroneous notion that a person convicted of knowledge that it was stolen. Plaintiff in

an infamous crime is an incompetent witness. error Dietmeyer was found guilty on counts The old common-law rule of the incompe1 and 2, and the other eight plaintiffs in er- tency of felons as witnesses is no longer in ror were found guilty on all counts. Each force in the courts of the United States. was sentenced to the penitentiary for 25 Rosen v. United States, 245. U. S. 467, 38 years.

Some of them assigned errors and S. Ct. 148, 62 L. Ed. 406; Peace v. United petitioned for writs together and some sep- States (C. C. A.) 278 F. 180. arately. They are all here on one record; [3, 4] Eppelsheimer's motion stated no facts their cases have been heard together, and and alleged mere conclusions and was bad will be so disposed of. The errors chiefly re

on its face. The request of Colbeck, Daughlied on in the briefs and urged upon the ar- erty, Robinson, Smith, and Ryan for pergument are: (a) The overruling of the mo- mission to withdraw their pleas of not guilty tions to quash the indictment; (b) the in- mission to withdraw their pleas of not guilty structions upon alibi; (c) the refusal to al- and file motion to quash came just as the low impeaching witnesses to say whether court was entering upon the trial, and the they would believe an impeached witness un

refusal to permit them to withdraw their der oath; and (d) the instruction upon rea- pleas of not guilty and file their motion was sonable doubt.

purely within the discretion of the court. On (a) The motion to quash.

October 31, the motion of Eppelsheimer came The indictment was. returned on Septem- on to be heard. He called the district atber 3, 1924. On October 10, Dietmeyer and torney to the stand, who testified that perLanham filed their motions to quash. These sons, eyewitnesses, testified before the grand motions were identical in terms and were jury to the subject matter in all its phases, based wholly upon the alleged fact that the and, in answer to a question, whether there indictment was found and presented on the

was other evidence before the jury besides evidence of a convict. On October 21, Eppel- the statements of the convict to connect the sheimer filed his motion to quash "because defendant with the crime the district attorsaid indictment was not found and present- ney said “there was positive identification ed by the grand jury on legal and competent by witnesses.” So it appears there was alevidence, but was found and based wholly ready evidence in the case ten days before and entirely on illegal, incompetent, and the day of trial that competent and legal hearsay evidence." No other conclusion and evidence upon all phases of the matter had no' facts whatever were alleged in his mo- been presented to the grand jury. This case tion. The case came on for trial on Novem- illustrates the abuses to which such practices ber 10, 1924, and on that morning, just be- would lead if they were encouraged. If a fore the trial began, while the jury was in defendant, without any knowledge of the waiting, Colbeck, Daugherty, Robinson, facts, upon a' motion sworn to upon informaSmith, and Ryan asked leave to withdraw tion and belief, can compel a review of the their pleas of not guilty and to file a motion evidence before the grand jury, which reto quash. This motion to quash was based turned the indictment against him, to ascerupon the allegation that the indictment was tain whether it was competent or sufficient,

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10 F.(20) 401 then all the evidence received must be brought alibi at all. The complaint is that the court, before the court to be weighed and examined. in its instructions upon this point, “belittled Such practice should not be tolerated, much and disparaged" this defense. As the showless encouraged.

ing made did not rise to the dignity of an In the case most cited in support of such alibi, it is difficult to see how the defendants procedure, the reason given for it is that "no were injured by the court's treatment of it. person should be subjected to the expense, (c) Refusal to allow the question to be vexation, and contumely of a trial for a put to the impeaching witnesses whether they criminal offense, unless the charge has been would believe Renard under oath. investigated, and a reasonable foundation [9] The impeaching witnesses were asked if laid for an indictment or information.” As they knew the general reputation of Renard stated by the court, in Radford v. United in the community in which he resided for States, supra, after conviction this reason no truth and veracity. Upon answering "Yes," longer exists, a jury, under the guidance of they were asked what it was, and each said the judge, having heard the evidence in open it was bad. They were then asked, “Based court and having come to the conclusion, not

on what you have said as to his general repuonly that there was reasonable ground for tation for truth and veracity, would you bethe charge but also that the charge was true. lieve him on oath ?" The government's ob(b) Alibi.

jection to this question was sustained, and [5-8] This defense means that the defend- the ruling excepted to. There is conflict in ant was elsewhere, away from the scene of the decisions upon this question. The Suthe crime when it was committed, and there- preme Court in Teese et al. v. Huntingdon fore could not have taken part in it. To be et al., 23 How. 2, 16 L. Ed. 479, said: effective, it must appear that the defendant “According to the views of Mr. Greenwas elsewhere during all the activities which leaf, the inquiry in all cases should be rego to make up the crime and show his connec. stricted to the general reputation of the wittion with it. The defendants were all in- ness for truth and veracity; and he also dicted as principals. There was evidence to expresses the opinion that the weight of aushow that a part only perpetrated the ac- thority in the American courts is against altual robbery, while the others were acces- lowing the question to be put to the imsories before the fact. Under section 332 peaching witness whether he would believe of the Criminal Code (Comp. St. § 10506), the other on his oath. In the last edition accessories before the fact are principals, and of his work on the law of evidence, he reit has been held that an accessory before the fers to several decided cases, which

appear

to fact

may be charged as a principal, and the support these positions; and it must be adcharge will be sustained by proof showing mitted that some of these decisions, as well him to be an accessory before the fact. Vane as others that have since been made to the v. United States, 254 F. 32, 165 C. C. A.

same effect, are enforced by reasons drawn 442; Di Preta v. United States (C. C. A.) from the analogies of the law, to which it 270 F. 73. It is not necessary that one who would be difficult to give any satisfactory aids and abets the commission of a crime be answer," citing numerous cases. present when the crime is committed. Parisi We think the weight of authority susv. United States (C. C. A.) 279 F. 253, 255. tains the ruling below. But suppose the In Jin Fuey Moy v. United States, 254 U. ruling should have been the other way, was S. 189, 41 S. Ct. 98, 65 L. Ed. 214, the the error a substantial one? Renard was an Supreme Court upheld the conviction of a admitted convict. He was brought from physician upon a charge of "selling” mor- prison to testify. He admitted his guilt in phine when the evidence showed him to have the instant case and testified to his participaaided and abetted the sale by issuing a pre- tion in it. Witnesses had testified that his scription upon which a druggist made the general reputation for truth and veracity was sale. The evidence of the so-called alibi went bad and no testimony to the contrary was only to the time of the actual robbery. There offered by the government. was no effort to show that the defendants ceived how his standing as a witness could urging this defense were not at the places be further impaired by allowing witnesses to at the times when the evidence tended to express their opinion that they did not reshow them aiding and abetting the crime gard him worthy of belief. No substantial by assisting in the preparations for it. It injury was done plaintiffs in error by this did not pretend to cover the activities al- ruling. leged against them and therefore it was no (d) Reasonable doubt.

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[10] At the close of the charge to the jury, presents no question at all. The exception is the court asked defendant's counsel if they to the "supplemental instruction upon the had any suggestions to make. The record subject of reasonable doubt.” It does not shows this to have occurred.

point out wherein the instruction is wrong “Mr. Baer: The defendants and each of and thus give the court an opportunity to them desire to except to the charge of the correct it. But we fail to see any error in court upon the subject of reasonable doubt, the instruction complained of. It certainly as not being a proper statement of the law is sound as far as it goes, and is not subject upon the subject of reasonable doubt.

to the meticulous criticisms made of it in the “The Court: In what respect ?

briefs. "Mr. Baer: Well, I think it leaves to [12] The court directed the jury to find Dietthe jury the question of this doubt based up- meyer not guilty on counts 3 and 4, apparon a reason, and does not advise the juryently because there was no direct evidence specifically that a reasonable doubt, if it is that he had shared in the loot. His counsel created, is of itself sufficient, in the absence insist that because of this, and the fact that of all other evidence, to warrant an acquit- he was not shown to be present at the time tal of the defendants.”

of the robbery, the case failed as to him. The court had already in its instructions, This ignores the fact that there was evidence after defining a reasonable doubt, specifical- before the jury which, if believed, was suffily told the jury that if they had such a cient to show him quite active in the preparadoubt as to the guilt of any or either of the tions for the robbery. As shown above, his defendants in the case, it was their duty to presence at the robbery was not essential. give such defendants the benefit of such Further complaint is made on behalf of Dietdoubt. After the jury had been out for some

meyer of the refusal to give his instruction as time, the court called them back and asked to his abandonment of the enterprise and of whether any question of law was troubling the court's instruction on this point. The rethem, whereupon this occurred :

quest and the objections to the instructions “The Juror: Well, we have had some dis- given are based upon an erroneous concepcussion in regard to what would be con

tion of the crime charged and of the evidence sidered a reasonable doubt.

adduced to establish it. Counsel argue that “The Court: A reasonable doubt, gen- the joint enterprise in which he is shown to tlemen, is just such a doubt as the name im- have been engaged had for its object the plies-a doubt based upon reason, and that

robbery of the mails on April 14 only, and reason being based upon the evidence or lack

did not contemplate the robbery which was of evidence in the case. A reasonable doubt is not the possibility of a doubt, nor the committed on May 26. The evidence showed probability of a doubt, nor a speculative

a design and plan to rob the mail coming indoubt, but a substantial doubt, based upon ed. It was first designed to rob it on April

to Staunton when the circumstances warrantthe evidence or lack of evidence in the case. If, upon a consideration of all of the evidence 14, but "something went wrong" as one witin the case, you have a conviction amounting ness said, and the crime was postponed and to a moral certainty that such and such is actually committed May 26. Dietmeyer was the case, then the proof is beyond a reason

shown to have been active in the preparations able doubt. Is there anything else?

for robbing the mail upon its arrival at "Mr. Baer: The defendants and each of Staunton whenever it arrived and the surthem except to the supplemental instruction roundings were propitious. This broad and given by the court upon the subject of alibi general plan included the robbery which was and upon the subject of reasonable doubt." effected. He therefore aided and abetted in [11] Under the rules of practice in this sit- the commission of that robbery. uation, the exception to what is called the There is no substantial error in the record, supplemental instruction on reasonable doubt and the judgment is affirmed.

46. Lepct. 486. STROMBERG MOTOR DEVICES CO. v. BENECKE & KROPF MFG. CO. 405

10 F.(20) 405 STROMBERG MOTOR DEVICES CO. v.

is here presented the question of infringeBENECKE & KROPF MFG. CO.

ment of plaintiff's Goldberg patent No. 1,(two cases).

128,773, where claims 1 to 6, 11, 17 to 22, BENECKE & KROPF MFG. CO. v. STROM- and 25 to 27, are involved, and of plaintiff's BERG MOTOR DEVICES CO.

Anderson patent No. 1,166,734, where claim (two cases).

15 only is involved. Defendant's counter(Circuit Court of Appeals, Seventh Circuit. claim brings into question the infringement October 19, 1925. Rehearing Denied

of Rayfield patent No. 1,335,389. January 13, 1926.)

Goldberg patent No. 1,128,773: DecemNos. 3499, 3502.

ber 17, 1910, Goldberg filed application, on 1. Patents Cm83–Subject-matter of patent for which, on December 1, 1914, patent No. 1,which divisional application was not made 119,078 was issued on certain claims. Withuntil more than three years after required in 60 days after filing that application, he must be treated as abandoned.

was told that his 21 claims were drawn for Under Rev. St. § 4894 (Comp. St. $ 9438), subject-matter of patent for which divisional

no less than four separate inventions. A application was not ma until more than three division was required, and applicant notified years after it was required should have been to cancel certain matters and modify his treated as abandoned.

drawings. On March 19, 1914, more than 2. Patents 328–1,166,734, claim 15, held three years after it was required, a divisional invalid as uncertain and indefinite.

application was filed by Goldberg, for and Anderson patent 1,166,734, claim 15, for

upon which patent No. 1,128,773, in suit carburetor attachments held invalid as being uncertain and indefinite.

was issued February 16, 1915.

In 1909 Goldberg and one Tillotson made 3. Patents m328–1,128,773, claims 1 to 6, 11, application and were granted, June 9, 1914, 17 to 22, and 25 to 27, held invalid.

patent No. 1,099,293. Goldberg patents 1,128,773, claims 1 to 6, 11, 17 to 22, and 25 to 27, for carburetor at

In his divisional application for the Goldtachments held invalid.

berg patent in suit he said: “In patent No.

1,099,293, issued June 9, 1914, to Harry C. 4. Patents 328–1,335,389 held not infringed.

Tillotson and myself as joint inventors, there Rayfield patent No. 1,335,389 for carburetor

is set forth and claimed an arrangement improvements held not infringed.

wherein a secondary fuel inlet is provided, Appeal from the District Court of the and wherein this secondary fuel inlet is perUnited States for the Eastern Division of the manently open to the carbureting chamber Northern District of Illinois; James H. Wil

below the throttle. In that application, the kerson, Judge.

height of the nozzle is relied upon to effect Consolidated patent infringement suits

the necessary delay in the response of the by the Stromberg Motor Devices Company

secondary fuel nozzle, while in the present

application, the secondary fuel nozzle is conagainst the Benecke & Kropf Manufacturing

trolled by a valve which co-operates with the Company, wherein defendant counterclaims. From judgments for defendant on the suits

valve for the auxiliary air inlet so that the brought by plaintiff, and for plaintiff on de

fuel nozzle is opened at the inception of the fendant's counterclaims, both parties appeal. opening movement of the air valve or at a Afirmed.

definite point after the air valve has opened.”

That statement as to the Goldberg & TilCharles A. Brown and Arthur H. Boett- lotson patent seems to be contradicted by the cher, both of Chicago, Ill., for plaintiff.

specification of that patent, viz: “The reCharles W. Hills and Charles W. Hills, sponse of the auxiliary fuel is delayed with Jr., both of Chicago, Ill., for defendant

the delay in the response of the auxiliary air Before ALSCHULER, PAGE, and AN- valve until the greater suctions are attained DERSON, Circuit Judges.

and this delay may be made more definite

by disposing the second nozzle at a higher PAGE, Circuit Judge. Plaintiff appel- level than the first nozzle. After the relant in Nos. 3499 and 3501 and defendant sponse of both auxiliary air and fuel, the air appellee in Nos. 3500 and 3502 is here called valve being properly retarded as above deplaintiff. Defendant appellee in Nos. 3499 scribed, the co-operation resides in the fact and 3501 and plaintiff appellant in Nos. 3500 that the issue from the nozzle varies with the and 3502 is here called defendant.

aspiration, and the aspiration is determined The District Court consolidated all cases, by the opening of the air valve due to sucand, after hearing, dismissed them. There tion."

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Further reference to the specification will it is closed by physically seating a valve on show that the statement that the "secondary it." fuel inlet is permanently open to the car- The flow of the fuel being controlled, the bureting chamber below the throttle” is also means of control, in this case, is immaterial, misleading, because the application shows because we are of opinion that in the Goldthat there was provided a so-called “bleeding berg patent there was involved in this remeans for positively preventing even the spect nothing more than simple mechanical slightest issue from the fuel nozzle 89 before operation that was not invention. the auxiliary air valve is opened." The aux- Plaintiff, in argument, has attempted to iliary fuel nozzle in the Goldberg patent in show that the Goldberg & Tillotson carburesuit was no more effectively closed by the tor had a defect, viz., in that there was a valve, or cap, over the end of it. In argu- back fire which created an intolerable fire ment, counsel for plaintiff said: "In the hazard, and that that defect was remedied in Goldberg-Tillotson carbureter, such control the Goldberg patent in suit. There is no jusof fuel as there is is obtained indirectly tification in the record for such a contention. through the control of the air bleed, which The record shows that the Goldberg & Tillotdelays response of the fuel, and, after re- son carburetor was used on a Stoddard-Daysponse, volves the displacing of gasoline by ton car. Plaintiff's president testified: air until the bleed is closed entirely. In the "Q. Was there any difficulty encountered Goldberg structure the valve is applied di- in the operation of the car with this type of rectly to the solid column of gasoline, and carburetor? If so, what? A. There was a the response is immediate from a minute sup- danger of fire on account of backfiring by ply when the valve begins to open, and in- reason of the peculiar construction of this creasing until the maximum capacity of the particular motor. nozzle is reached.”

“Q. Please state what was the success There is no evidence in the record to sup- of the carburetor referred to, that is, the port any such supposed differences. Plain Goldberg & Tillotson, aside from this fault

. tiff's expert witness was asked nothing about that you have mentioned. A. It was very the Goldberg & Tillotson patent on direct satisfactory in its operation." examination, and on cross-examination plain- That was a motor, not a carburetor, diftiff succeeded in preventing its witness from ficulty, and there is no evidence or reasonable answering a question involving that identical inference that the difficulty would have been matter.

remedied by the use of the Goldberg invenSpecification of the Goldberg & Tillotson tion in question. patent, speaking of the bleeding means, says: A reading of the 27 claims of the patent “This feature includes means for adjustment and the analyzation of them by plaintiff's by which the bleeder may be brought into expert witness Webster convinces us that the and out of action and by means of which, applicant, having no real substance to prewhen the bleeder is in action, the response of sent in the application for the patent in quesfuel from the nozzle 89 may be definitely tion, was endeavoring to make a showing by and adjustably delayed even somewhat be- the use of many words and the multiplication yond the opening of the auxiliary air valve." of claims. Claims 7 and 8, and perhaps other claims, [1] In the prosecution of the three patents,

, of the Goldberg patent show clearly that viz., the Goldberg & Tillotson patent, the there is an adjustable regulation.

original Goldberg patent, of which the patPointing out the difference between the ent in suit is divisio and the patent in Goldberg & Tillotson patent and the Gold- suit, resort was had to every possible means berg patent in suit, defendant's witness Ki- of delay, and, in the face of section 4894 of nealy said: "The principal difference be- the Revised Statutes (Comp. St. $ 9438), tween the auxiliary carburetor of the Gold- applicant filed a divisional application more berg & Tillotson patent and the auxiliary than a year after the subject matter thereof carbureting element of the Goldberg patent should, under that section, have been treated in suit lies in the fact that in the Goldberg as abandoned. & Tillotson the auxiliary fuel inlet is not Anderson Patent No. 1,166,734: Claim closed nor is it controlled in any sense other 15, which reads as follows, is involved : “15. than the flow of the fuel through it is con- In a carburetor, (1) a carbureting passage, trolled, while in the Goldberg patent in suit (2) a throttle therein, (3) a fuel chamber the auxiliary fuel inlet is physically con- feeding into said passage, (4) an auxiliary trolled by a valve that is seated upon it and chamber fed from said fuel chamber and al.

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