[35] not be limited to pink in its choice of colors. | oaths aforesaid, do further present, that, at The legislative fancy or taste would be bound- the time and place and within the jurisdicless. It might equally as well provide that tion aforesaid, the said George Pounds unlawit should be colored blue or red or black. fully did conceal and aid in the concealment Nor do we see that it would be limited to the of distilled spirits on which the tax had not use of coloring matter. It might, instead of been paid, which said spirits had been rethat, provide that the article should only be moved to a place other than the distillery sold if mixed with some other article which, warehouse provided by law, contrary to the while not deleterious to health, would never-form of the statute in such case made and theless give out a most offensive smell. If provided, and against the peace and dignity the legislature have the power to direct that of the United States." the article shall be colored pink, which can The count was drawn under § 3296 of the only be accomplished by the use of some for- Revised Statutes, which provides that: eign substance that will have that effect, we "Whenever any person removes, or aids or do not know upon what principle it should be abets in the removal of, any distilled spirits confined to discoloration, or why a provision on which the tax has not been paid, to a place for an offensive odor would not be just as other than the distillery warehouse provided valid as one prescribing the particular color. by law, or conceals, or aids in the concealThe truth is, however, as we have above stat-ment of, any spirits so removed, or removes, ed, the statute in its necessary effect is prohibitory, and therefore upon the principle recognized in the Pennsylvania cases it is invalid. or aids or abets in the removal of, any distilled spirits from any distillery warehouse, or other warehouse for distilled spirits authorized by law, in any manner other than is The judgment of the Supreme Court of provided by law, or conceals or aids *in the [36] New Hampshire is reversed, and the case re-concealment of any spirits so removed, he manded to that court for further proceedings shall be liable to a penalty of double the tax not inconsistent with this opinion. imposed on such distilled spirits so removed Mr. Justice Harlan and Mr. Justice two hundred dollars nor more than five thouor concealed, and shall be fined not less than Gray dissented. GEORGE POUNDS, Plff. in Err., 0. UNITED STATES. (See S. C. Reporter's ed. 35-38.) sand dollars, and imprisoned not less than three months nor more than three years." After the verdict, and before the judgment, the plaintiff in error filed his notion in arrest of judginent, as follows: "Now comes the defendant after the rendition of the verdict of the jury finding him guilty as charged in the sixth count of the indictment and before judgment and sentence, Indictment for concealing distilled spirits and moves the court to arrest the judgment separation of jury. 1. An indictment in the language of U. S. Rev. Stat. § 3296, charging the concealment of distilled spirits on which the tax had not been paid, which had been removed to a place other than the distillery warehouse provided by law, is sufficiently certain and sufficiently alleges the existence of a warehouse provided 2. A claim that a jury separated before the in this case, upon the ground that the sixth count of the indictment is too vague and uncertain to authorize a judgment and sentence against the defendant." Afterwards an amended motion in arrest of judgment was filed, as follows: "By leave of the court first had and obtained the defendant amends his motion in arrest of judgment by adding the following grounds: "First. The said sixth count of the indictdoes appear that a sealed verdict was rement fails to show that there was a wareturned, under agreement of counsel for both parties, in open court and in the presence of the defendant. [No. 298.] house provided by law to which the spirits alleged to have been concealed should have been removed. "Second. That the jury separated before the Submitted May 6, 1898. Decided May 23, verdict of the jury was returned into court." 1898. IN ERROR to the District Court of the United States for the Northern District of Alabama to review a judgment convicting George Pounds for concealing distilled spirits on which the tax had not been paid. Affirmed. Statement by Mr. Justice McKenna: The indictment under which the defendant (plaintiff in error) was tried contained fifteen counts. He was convicted on the sixth count, which read as follows: "The grand jurors aforesaid, upon their The overruling of this motion is assigned as error. Mr. J. A. W. Smith for plaintiff in error. Mr. James E. Boyd, Assistant Attorney General, for defendant in error. Mr. Justice McKenna delivered the opinion of the court: Section 3271 of the Revised Statutes provides that "every distiller shall provide, at his own expense, a warehouse, to be situated [37] on and to constitute a part of his distillery premises, and to be used only for the storage of distilled spirits of his own manufacture until the tax thereon shall have been paid: [of judgment, it is enough to say that there is and such warehouse, when approved nothing in the record to show that the jury separated before the verdict was returned into court, but the record does show that a sealed verdict was returned by ne jury by agreement of counsel for both parties in open court and in the presence of the defendant. This verdict was rightly received and recorded. Commonwealth v. Carrington, 116 Mass. 37. by the Commissioner of Internal Revenue. on report of the collector, is hereby declared to be a bonded warehouse of the United States, to be known as a distillery warehouse, and shall be under the direction and control of the collector of the district, and in charge of an internal revenue storekeeper, assigned thereto by the Commissioner." The judgment is affirmed. WALTER H. HARRISON, Plff. in Err., D. FRANKLIN J. MORTON. Section 3287 provides that all distilled spirits shall be drawn from the receiving cisterns into casks of a designated capacity and the quantity of spirits marked thereon, "and shall be immediately removed into the distillery warehouse," and stamps designating the quantity of spirits shall be applied thereto. Other sections provide that no distilled spirits upon which the tax has been paid Review of state judgment-when this court shall be stored or allowed to remain on any distillery premises, and such spirits found in a cask containing 5 gallons or more without having the stamp required by law shall be forfeited. To secure the enforcement of this provision. Plaintiff in error says: will not review it. (See S. C. Reporter's ed. 38-47.) 1. To give this court jurisdiction to review a state judgment, a Federal question must have been presented to the state court and decided adversely to the party claiming the Federal right, or it must appear that the judgment could not have been rendered without deciding such question. 2. This court will not review a state judg ment, although a Federal question was decided adversely to the plaintiff in error, if an. other question, not Federal, was also raised and decided against him, the decision of which is sufficient to sustain the judgment. [No. 245.] 1898. "It seems clear that section 3296 of the Revised Statutes intended to provide a punishment for a distiller who had complied with the various provisions of chapter four of the Revised Statutes, and had provided a ware house as required by section 3271, and then concealed or aided in the concealment of distilled spirits which had been removed, the tax not having been paid, to a place other than the distillery warehouse so provided." And it hence claimed that the indictment is Argued May 2, 3, 1898. Decided May 23, too uncertain to sustain the judgment, because it does not inform the defendant that a warehouse was provided in which the spirits which he is charged to have concealed should have been stored until the tax was paid. Undoubtedly, the statute was intended to punish a distiller who violated its provisions. It was also intended to punish any [38] one else who did, and the *oliense could be committed by a removal of spirits from the premises before storage in the distillery warehouse or by concealment of the spirits so removed. And it is this concealment which the indictment charges, and it sufficiently Statement by Mr. Justice McKenna: This suit was brought by the plaintiff in alleges the existence of a warehouse. It also alleges that the tax had not been paid. The error Harrison against the defendant in error offense was purely statutory. In such case it on the 8th of February, 1895, in the Baltimore is generally sufficient to charge the defend-city court, to recover the sum of $300,000 ant with acts coming within the statutory description in the substantial words of the statute without any further expansion of the matter. United States v. Simmons, 96 U. S. 360 [24: 819]; United States v. Britton, 107 U. S. 655 [27:520]. One of the acts which is made an offense by 3296 is the concealment of distilled spirits on which the tax has not been paid, removed to a place other than the distillery warehouse provided by law. The indictment charges in the language of the statute the performance of that act at a particular time and place. It was therefore sufficiently certain. As to the second ground of motion in arrest State of Maryland to review a judgment of damages for the breach of a contract under seal for the sale of certain patent rights. Under the alleged contract the plaintiff in error sold, and the defendant in error bought NOTE. As to jurisdiction in the United States Supreme Court where Federal question arises or where are drawn in question statutes, treaty, or Constitution,-see notes to Martin v. Hua ter, 4: 97; Matthews v. Zane, 2: 654; and Williams v. Norris, 6:571. As to jurisdiction of United States Supreme Court to declare state law void as in conflict with state Constitution; to revise decrces of state courts as to construction of state laws -see notes to Jackson, Hart, v. Lamphire, 7: 679, and Commercial Bank v. Buckingham, 12: 169. and agreed to pay for, a certain machine, method, and device for making barrels and kegs, and all his right, title, and interest in certain pending letters patent therefor, when issued, at and for the price of $300,000, whereof $100,000 were to be paid in cash within ten days after the issuing of letters patent, and the remaining $200,000 were to be paid in the full-paid, nonassessable shares of a corporation, to be incorporated and organized by the defendant in error Morton under the laws of Maryland, with a capital stock of $500,000. The pleas were: First. Non est factum. were granted, bearing date January 22, 1895, as read in evidence, and that the plaintiff, at the time of the execution of said agreement with the plaintiff, had no knowledge or notice of the agreement between Henry Campbell and the Campbell Barrel Company offered in evidence, then the plaintiff is entitled to recover. *"(And that there is no evidence that the [41] plaintiff had any knowledge or notice of said agreement between said Campbell and said Campbell Barrel Company.') (Rejected as fered, but granted as modified by omitting the words in italics.) "Plaintiff's Second Prayer. "The plaintif!, by his counsel, prays the court to rule that the defendant has offered no evidence legally sufficient to show that the contract set out in the declaration was pro Second. That the signature of the defendant in error to the alleged agreement was procured by the fraud of the plaintiff in error. Third. That the signature of the defendant in error was procured by the undue influ-cured by the plaintiff from the defendant by ence of the plaintiff in error. fraud or by undue influence. (Conceded.) "Plaintiff's Third Prayer. And also three supplemental pleas on equitable grounds: 1st. That there was no consideration for the alleged agreement. 2d. That at the date of the alleged agree 140]ment Harrison *was not the owner of and had no valid title to the machine, method, and device mentioned in the declaration. 3d. That at the time of the alleged assignment of the patent Harrison was not the owner of and had not a valid title to the said pat ent. The defendant also filed a plea of set-off, and upon demand for a bill of particulars of such set-off filed a bill of particulars, amounting to thirty-one thousand, seven hundred and ninety-one dollars and fifty-two cents ($31,791.52). Replications were duly filed and issues joined on all of them. The case was tried before the judge without a jury. At the trial the parties asked the court to rule on certain propositions contained in what the record calls "prayers." They were as follows, with the action of the court expressed thereon: "The plaintiff, by his counsel, prays the court to rule that the defendant has offered no evidence legally sufficient to show that there was no consideration for the agreement set out in the declaration. (Rejected.) "Plaintiff's Fourth Prayer. "The plaintiff prays the court to rule that if the court shall find that on the 11th day of September, 1894, Henry Campbell made to the plaintiff the assignment of one-half interest in his then pending application to the United States Patent Office for a patent for the invention in said assignment mentioned, and subsequently, on or about the 26th of November, 1894, made to the plaintiff a further assignment of all his interest in his said pending application and to the patent thereon, whenever the same should thereafter be granted; then, by virtue of said two assignments, the plaintiff acquired an inchoate title to said invention and to the patent thereon, when the same should thereafter be granted, which title it was competent for the plaintiff to sell, assign, and dispose of; and if the court shall further find that on or about the 10th day of December, 1894. the plaintiff executed "Plaintiff's First Prayer. to the defendant the assignment read in the "The plaintiff, by his counsel, prays the evidence and dated the 8th day of December, court to rule that if it shall find from the evi- 1894, for the consideration therein mentioned, dence that the contract between the plaintiff and that subsequently, on or about the 22d and defendant, dated December 8, 1894, and day of January, 1895, a patent was issued by read in evidence, was signed and sealed by the United States in the name of said Henry the plaintiff and defendant, and left in the Campbell, for the invention described *ir said [42] possession of the defendant as a complete and several assignments from said Campbell to operative instrument according to its terms, the plaintiff and from the plaintiff to the deand that in accordance with said contract, fendant, then the defendant, by virtue of shortly after the execution thereof, the plain- said letters patent, acquired a valid title to tiff executed to the defendant the assignment and became the owner of said patent, and said read in evidence of his right to the invention assignment from the plaintiff to the defendtherein mentioned, on which application for ant, bearing date the 8th day of December, a patent was then pending, and that defend- 1894, was supported by a good and sufficient ant afterwards employed and paid patent at- consideration, and the plaintiff is entitled to torneys to procure for him the patent from recover upon the contracts set out in the decthe government of the United States and laration, provided the court, sitting as a jury, from the governments of other countries; and shall find that the said contract was signed if the court shall further find that the said and sealed by the plaintiff to the defendant, application for a patent was allowed by the and was designed by them to be an operative government of the United States, and subse- instrument according to its terms; and proquently that letters patent for said inventionvided further that at that time of the execu tion of said contract, the plaintiff had no embrace rulings on testimony, on the knowledge or notice of the agreement between prayers, and the following: Henry Campbell and the Campbell Barrel "1. It was error to decide that under the Company, Dearing date the — day of January, laws of the United States the assignments 1892, and offered in evidence by the defend- from Henry Campbell to Walter H. Harrison, ant, and that there is no evidence legally suf-dated the 11th day of September, a. d. 1894, ficient to show that the plaintiff had any and the 26th day of November, 1894, resuch knowledge or notice of said agreement. (Rejected.) "Fifth Prayer. "That the agreement of January, 1892, between Henry Campbell and the Campbell Barrel Company, offered in evidence by the defendant, is no defense to this action, if the court shall find that by the true construction of said agreement the invention and device described in the contract set out in the declaration is not embraced within said agreement. (Granted.)" And the defendant offered the following two prayers: "Defendant's First Prayer. "The defendant asks the court to rule as matter of law that upon the pleadings of the case the burden is upon the plaintiff to prove the delivery of the sealed instrument sued on, and if the court, sitting as a jury, finds that the paper sued on never was delivered, the verdict must be for the defendant. (Granted.) "Defendant's Second Prayer. spectively, purporting to convey to the said Harrison the entire right, title, and interest in and to the application for patent-serial number, 522,266-and the patent right contained therein and covered thereby,' operated to convey to the plaintiff Harrison merely the equitable title in and to said invention and the patent rights covered by said application. "2. It was error to decide that the said assignments were not drawn as the laws re- [44] quired and hence did not convey the legal title to the invention in question." The opinion of the supreme court of Maryland is quite long, necessarily so, as it passes upon all the points which were raised by plaintiffs. The parts of it which concern the case are as follows: "We think there can be no doubt that the defendant's two prayers were properly granted. By the first the court declared as matter of law that upon the pleadings the burden was upon the plaintiff to prove the delivery of the sealed instrument sued on, "If the court, sitting as a jury, shall find and that if the court, sitting as a jury, that when the paper sued on was presented should find that said paper never was de[43] by the plaintiff to the defendant *for the lat-livered, the verdict must be for the defendter's signature, with the request that he ant. The second prayer recites the evidence would sign it, the defendant declined so to more at length, but asserts the same propodo, as the terms of such papers did not corre-sition of law which appears to be well settled spond with any agreement made or talked of in this state. Edelin v. Sanders, 8 Md. 129. between the plaintiff and defendant, and that We discover no inconsistency between the thereupon it was agreed between them that two prayers. The plaintiff specially exthe papers in duplicate should be signed by cepted to the second on the ground that there the defendant, and both kept in his posses- was no evidence in the cause legally sufficient sion, and should not be of any force, and to prove the facts therein set forth. It is should belong to the defendant until he clear, however, that the testimony of the chose to put them in force, and that in pur- witnesses Morton and Coale support the facts suance of this agreement they were then set forth in this prayer, and we have already signed by the defendant, and always after-held it to be competent and admissible under wards kept in his possession until produced at the trial of this cause, on notice, and that at no time after the signing of said papers did the defendant ever exercise his option of putting into force, but, on the contrary, subsequently thereto, exercised his option by declining to recognize them as in force, then the verdict shall be for the defendant. (Granted.)" The trial judge rendered a general verdict for the defendant, on which judgment was entered for $35,091.65, with interest and costs. the issue made by the plea of non est factum. "We will now consider the prayers of the plaintiff. He offered five, the second having been conceded and the fifth granted. "The controlling proposition in this part of the case is that contended for by the plaintiff in his first, third, and fourth prayers, namely, that there is no legally sufficient evidence in the case to show that he had any knowledge or notice of the agreement between the inventor, Campbell, and the Campbell Barrel Company. "The correctness of this contention of the An appeal having been taken to the court plaintiff depends first, upon the legal effect of appeals of Maryland by the plaintiff Har- of the assignments from Campbell to the rison, the judgment of the court below was plaintiff, and, secondly, upon the effect of affirmed by the said court of appeals on the the contract of Campbell with the Campbell 17th of June, 1896, for $39,091.65, with in-Barrel Company-that is to say, whether said terest from the 13th of December, 1894, until paid, and costs. company thereby assigned to said company 65 Mr. Justice McKenna delivered the opin It is manifest that the pleadings of the par that it is a mere equitable title, subsequent sides Federal ones, and which could be, independent of the Federal ones, determinative of the controversy. Assuming, therefore, that a Federal question was involved, it does not appear but that the decision was given on the contention of the defendant that the agreement never became operative for want of delivery. This contention was clearly presented by defendant's prayers, and they con "It will befound upon an examination of these instruments that they do not contain a request to the Commissioner of Patents to issue letters patent to the plaintiff. Not-tained the only rulings urged upon the court withstanding they were recorded in the Pat- in that way, that is, in the nature of instrucent Office, letters patent were issued in the tions. They were given and the verdict was name of Henry Campbell, the inventor, and generally for the defendant. It is therefore the defendant contends that the legal effect natural to presume that the verdict was renof such an assignment, in which the inventordered on account of them and on the ground fails to embody a request to the Commis- urged by them. The ruling of the court sioner of Patents to issue letters to the as-granting them was sustained by the supreme signee, is to convey to such assignee only an court of the state. It affirmed the ruling as equitable title. It is conceded that by one correct in law and as supported by competent of the rules of the Patent Office the Commis-testimony. The supreme court, it is true, sioner will not and cannot issue the letters passed on other grounds, passed on the one patent to an assignee, unless specially re- which it is claimed involved a Federal ques- [47] quested so to do by the terms of the assign- tion, and decided it adversely to plaintiff. ment. One of the witnesses refers to this But the rule in such cases has been repeatedly rule in his testimony. The patent having declared by this court. It is not necessary to been issued to Campbell instead of to the de-review the decisions. That has been done by fendant, the witness thus explains: 'I ascerMr. Justice Shiras in Eustis v. Bolles, 150 U. tained that the probable reason why it (the S. 361 [37:1111]. It is sufficient to announce patent) had not been issued to Mr. Morton the rule pronounced in the case: was this: The original assignment from Mr. Campbell to Mr. Harrison did not contain the request which the rules of the Patent Office required in order that the patent should be issued in the name of the assignee.' Rule 26, Rules of Practice in the United States Patent Office, page 9. Revised April 1, 1892." After considering authorities, the opinion decides that— "It is settled law that, to give this court jurisdiction of a writ of error to a state court it must appear affirmatively, not only that a Federal question was presented for decision by the state court, but that its decision was necessary to the determination of the cause, and that it was actually decided adversely to the party claiming a right under the Federal laws or Constitution, or that the judgment. as rendered could not have been given with"If, therefore, the Campbell Barrel Com-S. 20 Wall. 590 [22: 429]; Cook County v. out deciding it. Murdock v Memphis, 87 U. pany acquired an equitable title to the pat-Calumet & Chicago Canal & D. Co. 138 U. S. ent, as it undoubtedly did, under its contract 635 [34:1110]. It is likewise settled law with the inventor, before the assignment of that, where the record discloses that if a the equity to the defendant, the latter took question has been raised and decided adversesubject to the equitable title in the said com-ly to a party claiming the benefit of a propany, and the first, third and fourth prayers [46] of the plaintiff were properly refused. for they all asked the court to say that there was no legally sufficient evidence to show that the plaintiff had knowledge or notice of the agreement between the plaintiff and the bar rel company, but, as we have seen, knowledge and notice will be imputed to him, as Ch. J. Gibson said in Chew v. Barnet, supra [11 Serg. & R. 389], 'whether he had notice or not,' holding as he did only an equitable title." The opinion concludes as follows: "Finding no error in the rulings of the learned judge below, the judgment will be affirmed." Messrs. William Pinkney Whyte, Frederic D. McKenney, and Samuel F Phillips for plaintiff in error. Messrs. Bernard Carter and Edgar H. Gans for defendant in error. vision of the Constitution or laws of the The writ of error must therefore be dis- Mr. Justice Gray did not hear the argument and took no part in the decision. |