ently constituted as respects both animal and | consideration. Our ancestors, observing that moral courage, and fear may spring from guilty persons usually fled from justice, adopted causes very different from that of conscious the hasty conclusion that it was only the guilt, and every man is therefore entitled to a guilty who did so, according to the maxim candid construction of his words and actions, Fatetur facinus qui fugit judicium, so that particularly if placed in circumstances of under the old law a man who fled to avoid great and unexpected difficulty." being tried for felony forfeited all his goods even though he were acquitted; and the jury were always charged to inquire, not only whether the prisoner were guilty of the of

And the same author at p. 80 quotes the observation of Mr. Justice Abbott on a trial for murder, where evidence was given proving flight: "A person however conscious of inno-fense, but also whether he fled for it, and, if cence might not have courage to stand a trial, so, what goods and chattels he had. This but might, although innocent, think it necessa practice was not formally abolished until the ry to consult his safety by flight. It may be," Stat. 7 & 8 Geo. IV. chap. 28, § 5. In modadded the learned judge, "a conscious anticipa-ern times more correct views have prevailed, tion of punishment for guilt, as the guilty and the evasion of or flight from justice seems 419 will always anticipate the *consequences, now nearly reduced to its true place in the adbut at the same time it may possibly be, accord- ministration of the criminal law, namely, that ing to the frame of mind, merely an inclina of a circumstance, a fact which it is always of tion to consult his safety by flight rather than importance to take into consideration, and stand his trial on a charge so heinous and combined with others may afford strong eviscandalous as this." dence of guilt, but which, like any other piece of presumptive evidence, it is equally absurd and dangerous to invest with infallibility." And this is quoted with approval in Burrill on Circumstantial Evidence, p. 473. See also Roscoe's Criminal Evidence (8th Am. ed.) p. 30. Mr. Wharton, in his Criminal Evidence, after referring in a note to the American authorities, states the rule in accordance with the foregoing, and concludes: "The question, it cannot be too often repeated, is simply one of inductive probable reasoning from certain established facts. All the courts can do when such inference is invoked is to say that escape, disguise, and similar acts afford, in connection with other proof, the basis from which guilt may be inferred, but this should be qualified by a general statement of the countervailing conditions, incidental to a comprehensive view of the question."

So, again, at p. 88, the same writer says: "So also is the concealment of death by the destruction or attempted destruction of human remains (a presumption of guilt), but in this case the presumption of criminality results from the act of concealment rather than from the nature of the means employed, however revolting, which must be regarded only as incidental to the fact of concealment, and not as aggravating the character and tendency of the act itself. Where a prisoner tried for murder admitted that he had cut off the head and legs from the trunk of a female, and concealed the remains in several places, but alleged that her death had taken place by accident while she was in his company, and that in the alarm of the moment, and to prevent suspicion, he had determined to conceal the death, Lord Chief Justice Tindal told the jury that the concealment of death under such circumstances had always been considered to be a point of the In a footnote at p. 645 this author collects greatest suspicion, but that this evidence must several marked and peculiar instances where a be received with a certain degree of modifica-person had fled who was undoubtedly innocent. tion, and especially in a case where the feelings might be excited by the singular means of concealment adopted by the prisoner; that this point of evidence was therefore for the consideration of the jury, and it was for them to show how far it was proof of the prisoner's guilt; but the mere general fact of concealment, added the learned judge, is to be considered, and not the circumstances under which it took place."

The text-writers generally state the principle in accordance with the foregoing.

"Few things," says Best on Presumption, p. 323, "distinguish an enlightened systems of judicature from a rude and barbarous one more than the way in which they deal with evidence. The former weighs testimony, while the latter, conscious, perhaps, of its inability to do so, or careless of the consequences of error, at times rejects whole portions en masse, and at others converts pieces of evidence 420] into rules of *law by investing with con clusive effect some whose probative force has been found to be, in general, considerable. If any proof of this were wanting it would be amply supplied by the history of our law with reference to the species of evidence under

One of these instances is this: ** Dr. [421 Thomas Fuller gives the following quaint excuse for running away from London when charged with treason: And if any tax me, as Laban taxed Jacob, 'Wherefore didst thou flee away secretly without taking solemn leave?' I say with Jacob to Laban, Because I was afraid.' And that plain-dealing patriarch, who could not be accused for purloining a shoe latchet of other men's goods, confessed himself guilty of that awful felony that he 'stole away' for his own safety, seeing truth may sometimes seek corners, not as fearing her cause, but as suspecting her judge."

Thompson on Trials, tit. 6, chap. 69, § 2543, makes this statement: "It is often inaccurately said that the flight of the accused creates a presumption of his guilt, and this presumption is sometimes inadvertently dealt with as though it were a presumption of law. But it belongs to that class of presumptions which are generally classified as presumptions of fact. If it were a presumption of law, the jury would be bound to draw it in every case of flight, and the court might so instruct them; whereas it is merely a circumstance tending to increase the probability of the defendant being

the guilty person, which on sound principle is to be weighed by the jury like any other evidentiary circumstance.'

of the supreme court of Pennsylvania (Burke v. Maxwell, 81 *Pa. 139, 153), saying: [423 "When there is sufficient evidence upon a Measuring the correctness of the charge by given point to go to a jury, it is the duty of these principles and authorities, it is at once the judge to submit it calmly and impartially. demonstrated to have been plainly erroneous. And if the expression of an opinion upon such It magnified and distorted the proving power evidence becomes a matter of duty under the of the facts on the subject of the concealment; circumstances of the particular case, great it made the weight of the evidence depend not care should be exercised that such expression so much on the concealment itself as on the should be so given as not to mislead, and esmanner in which it was done. Considering pecially that it should not be one sided." the entire context of the charge, it practically The charge given in this case violates every instructed that the facts were, under both di- rule thus announced. It was neither calm nor vine and human law, conclusive proof of guilt. was it impartial. It put every deduction The statement that no one who was conscious which could be drawn against the accused of innocence would resort to concealment was from the proof of concealment and flight, and substantially an instruction that all men who omitted or obscured the converse aspect. In did so were necessarily guilty, thus ignoring so doing it deprived the jury of the light rethe fundamental truth, evolved from the exquisite to safely use these facts as means to perience of mankind, that the innocent do the ascertainment of truth. Nor can it be conoften conceal through fear or other emotion.sidered that the language subsequently used The legal influence which this language must corrected the error. "Now," says the charge, have exerted on the jury was increased by the "there may be exceptions to the general rule. 422]subsequent instruction that it was as *old General as it is, it may have its exceptions." as the first murder for the conduct of an inno- But none of the exceptions thus referred to cent person to be different from that of a guilty were called to the attention of the jury. Inone. Putting this language in connection with deed, taking the language of the charge which the epithets applied to the acts of concealment follows the foregoing words, it must have and the vituperation which the charge contains, conveyed, by the strongest possible intimation, it is justly to be deduced that its effect was to the impression to the jury that the case before instruct that the defendant was a murderer, them was controlled by the general rule previand therefore the only province of the jury ously stated to them by the court, although was to return a verdict of guilty. It is true other cases might be an exception to such rule. that a subsequent portion of the charge refers For these reasons the judgment must be reto the evidence on the subject of concealment versed. In this state of the case it would oras "proper to be taken into consideration, as dinarily be unnecessary to consider the other evidence of guilt," as going to show guilt. assignments. As, however, the case is before. But these qualified remarks did not recall the us for the second time, and must be remanded undue weight which the previous language for a new trial, the ends of justice will best be had affixed to the facts to be considered by the subserved by passing on the remaining assignjury. The instruction as to the probative ment, that is to say, the eleventh assignment. weight which the jury should attach to the The portion of the charge to which this asfact of flight was equally erroneous. It was signment is addressed is as follows: as follows: "And not only this, but the law "And then, again, there stands before you recognizes another proposition as true, and it a witness who was there, a positive witness, is that the wicked flee when no man pur- who saw this killing. That witness is the desueth, but the innocent are as bold as a lion.' fendant. Bear in mind when you are passing That is a self-evident proposition that has upon this case that the other witness to it cannot been recognized so often by mankind that we appear before you, he cannot speak to you, excan take it as an axiom and apply it to this cept as he speaks by his body as it was found, case." This instruction was tantamount to having been denied even the right of decent saying to the jury that flight created a legal burial, by the dead body of his horse, by the presumption of guilt, so strong and so conclu- concealed weapons and the concealed [424 sive that it was the duty of the jury to act on saddle, by the blood stains that were obliterit as an axiomatic truth. On this subject also, ated. He stands before you, although he is in it is true, the charge thus given was apparently his grave, speaking by the aid of the power afterwards qualified by the statement that the and the might of these circumstances in this jury had a right to take the fact of flight into case. You are to see whether they harmonize consideration, but these words did not correct with this statement of this transaction as given the illegal charge already given. Indeed, tak by the defendant, bearing in mind that he ing the instruction that flight created a legal stands before you as an interested witness, presumption of guilt with the qualifying while these circumstances are of a character words subsequently used, they were both that they cannot be bribed, that cannot be equivalent to saying to the jury that they were, dragged into perjury, they cannot be seduced in considering the facts, to give them the by bribery into perjury, but they stand as weight which, as a matter of law, the court bloody, naked facts before you, speaking for declared they were entitled to have, that is, as Joseph Wilson and justice, in opposition to creating a legal presumption so well settled as and confronting this defendant, who stands to amount virtually to a conclusive proof of before you as an interested party; the party guilt. In Starr v. United States, 153 U. S. 626 who has in this case the largest interests a man [38: 845], in considering the power of a Federal can have in any case upon earth. While you court to comment in charging a jury on the ev- are not to disbelieve his evidence because of idence, we quoted with approval the language | that alone, if you are to do justice, if you are,

1. An employee who devises an improved method of doing his work, using the property or labor of his employer to put his invention into practical form, and assents to the use of such improvements by his employer, cannot, on taking out a patent upon such invention, recover a royalty or other compensation for such use.

2. A person looking on and assenting to that which he has power to prevent is precluded ever afterwards from maintaining an action for damages.

3.

It is apparent that this part of the charge is replete with the errors which we have already found to exist in the matter which we have already considered. But the instruction contains an additional error of so grave a nature that we call attention to it in order to prevent its recurrence. The manner of contrasting the testimony of the accused with the circumstances connected with the concealment was clearly illegal. The language in which this was done is: "Bearing in mind that he stands before you as an interested witness, while these circumstances are of a character that they cannot be bribed, that cannot be dragged into perjury, they cannot be seduced by bribery Into perjury, but they stand as bloody, naked facts before you, speaking for Joseph Wilson and justice, in opposition to and confronting this defendant, who stands before you as an interested party; the party who has in this case Argued November 21, 22, 1895. Decided Janu- · the largest interest a man can have in any case 425] upon earth." This *contrast thus made could have conveyed but one meaning to the

If the inventions of a patentee be made in the course of his employment by the government, and he knowingly assents to the use of such inventions by it, he cannot claim compensation therefor, especially if his machines have been made at the expense of the government, although the inventions were conceived out of the hours of labor.

[No. 85.]

ary 6, 1896.

jury; that is, a warning that the testimony of APPEAL from a judgment of the Court of

Claims dismissing a suit brought by Jabez H. Gill to recover from the United States a certain sum of money upon an implied contract for the use of certain machines covered by letters patent issued to said Gill. Affirmed. See same case below 25 Ct. Cl. 415.

Statement by Mr. Justice Brown: This was a suit by Gill to recover of the United States the sum of $94,693.04 upon an implied contract for the use of certain machines covered by letters patent issued to the claimant.

the accused was to be considered by them as of little or no weight because he could be bribed, he could be dragged or seduced into perjury. Such denunciation of the testimony of an accused is without legal warrant. Allison v. United States, [160 U. S. 203, ante, 395]. Indeed, this instruction, besides giving rise to this error, was also, if possible, more markedly wrong from the implications which it conveyed to the jury. It substantially said to them: The circumstances as to the killing and concealment cannot be bribed, but the defendant can be; therefore you must The petition alleged in substance that from consider that these circumstances outweigh March, 1864, to March, 1881, the claimant was his testimony, and it is hence your duty employed as machinist, foreman, and draftsto convict him. In Starr v. United States, man at the Frankford Arsenal, in the state of 153 U. S. 626 [38: 845], speaking through Mr. Pennsylvania, and since March, 1881, as masChief Justice Fuller, this court called attention ter armorer at such arsenal, receiving during to the fact that there were limitations on the the term of his employment a per diem compower of a Federal court, in commenting on pensation for his services. His engagement the facts of a case, when instructing a jury, required him to perform manual labor and to limitations inherent in and implied from the exercise his mechanical skill in the service of very nature of the judicial office. In Reynolds the government, but did not require the exerv. United States, 98 U. S. 168 [25: 251], speak-cise of his inventive genius in such service, ing through Mr. Chief Justice Waite, this or secure to the government the right to use court also said on the same subject: "Every any of his inventions without compensation. appeal by the court to the passions or preju- That at sundry times from 1869 to 1882, six dices of the jury should be promptly rebuked, patents were granted to him for a cartridgeand... it is the imperative duty of the re-loading machine, a weighing machine, a gaugviewing court to take care that wrong is not done in this way." Admonished by the duty resting on us in this regard, we feel obliged to say that the charge which we have considered crosses the line which separates the impartial exercise of the judicial function from the region of partisanship where reason is dis-ble value of such use by the government turbed, passions excited, and prejudices are necessarily called into play.

The judgment is reversed, and the case remanded with directions to grant a new trial.

ing machine, a cartridge anvil, a heading machine, and a priming tool for reloading; that at different times he assigned to individuals or corporations all these inventions, but reserved to the government the right to use them.

The petition further alleged that the reasona

amounted to the sum of *$94,693.04, no [427 part of which had ever been paid; that no action upon the claim had been had in any department of the government beyond repeated ac

knowledgments, by the Ordnance Department,, imply a contract; and that a contract will not

ployer to put his invention into practical form, I should take out a patent and purchase his and assenting to the use of such improvements right. He made no demand upon them for by his employer, may, by taking out a patent compensation for using his improvement, and 430]*upon such invention, recover a royalty gave them no notice not to use it, until a misor other compensation for such use. In a series understanding had arisen, when he left their of cases, to which fuller reference will be employment, and made an agreement with made hereafter, we have held that this could plaintiffs to assign his right to them. The denot be done. fendants continuing to make the rollers on his The principle is really an application or out- plan, the action was brought by the plaintiffs, growth of the law of estoppel in pais, by without any previous notice by them. It was which a person looking on and assenting to held that the facts above stated justified the that which he has power to prevent is held to presumption of a license to use the invention, be precluded ever afterwards from maintain and that the charge of the court, that the deing an action for damages. A familiar in fendants might continue to use it without liastance is that of one who stands by while ability to the plaintiffs, was correct. sale is being made of property in which he has an interest, and makes no claim thereto, in which case he is held to be estopped from setting up such claim. The same principle is applied to an inventor who makes his discov ery public, looks on, and permits others to use it without objection or assertion of a claim for a royalty. In such case he is held to abandon his inchoate right to the exclusive use of his invention, to which a patent would have entitled him had it been applied for before such use. As was said by Mr. Justice Story in Pennock v. Dialogue, 27 U. S. 2 Pet. 1, 16 [7: 327, 332]: "This inchoate right, thus once gone, cannot afterwards be resumed at his pleasure; for, where gifts are once made to the public in this way they become absolute." "It is possible," said the trial court, in charging the jury, "that the inventor may not have intended to give the benefit of his discovery to the public, and may have supposed that, by giving permission to a particular individual to construct for others the thing patented, he could not be presumed to have done so. But it is not a question of intention which is involved in the principle we have laid down, but of legal inference, resulting from the conduct of the inventor, and affecting the interests of the public. It is for the jury to say whether the evidence brought this case within the principle which has been stated." This language was quoted with approval in Grant v. Raymond, 31 U. S. 6 Pet. 218 [8:376]. So also, in Shaw v. Cooper, 32 U. S. 7 Pet. 292, 323 [8: 689, 700], it was held directly that "whatever may be the intention of the inventor, if he suffers his invention to go into public use, through any means whatsoever, without the immediate assertion of his right, he is not entitled to a patent."

431] *The application of this principle to a single individual whom the patentee has permitted to make use of his invention without claiming compensation therefor first arose in McClurg v. Kingsland, 42 U. S. 1 How. 202 [11: 102]. In this case the patentee, Harley, was employed by the defendants at their foundry upon weekly wages. While so employed, he invented the patented improvements, making experiments in the defendants' foundry, and wholly at their expense. The result proving useful, his wages were increased. He con tinued in their employment, during all of which time he made rollers for them, spoke about procuring a patent, and finally made an application, which was granted. He assigned the patent to the plaintiffs, after the defendants had declined his proposition that they

In the case of Solomons v. United States, 137 U. S. 342 [34: 667], one Clark, who was in the employ of the government as chief of the bureau of engraving and printing, conceived the idea of a self-canceling stamp, and prepared a die or plate therefor, making use of the services of the employees of the bureau and the property of the government. While his application for a patent was pending, he assigned his rights to the appellant, Solomons, in payment of an account between them. On taking out the patent, the appellant notified the Commissioner of Internal Revenue that he was the owner of the patent, and demanded compensation for the use of the stamp on whiskey barrels. It further appeared that Mr. Clark, as chief of the bureau, had been assigned the duty of devising a stamp for this purpose, and it was not understood or intimated that the *stamp which he was to devise [432 should be patented or become his personal property. Indeed, before the final adoption of the stamp, he said that the design was his own, but he should make no charge to the government therefor, as he was employed on a salary by the government, and had used its machinery and other property in the perfection of the stamp. It was held that, having been employed and paid to devise a new stamp, the invention, when accomplished, became the property of the government, and that the patentee had practically sold in advance whatever he might be able to accomplish in that direction.

A similar case was that of Lane & B. Co. v. Locke, 150 U. S. 193 [37: 1049], in which an engineer and draftsman, at a fixed salary, in the employ of the defendants, and using their tools and patterns, invented a stop valve, which the firm used with his knowledge in certain elevators constructed until its dissolution, an I after that a corporation organized by the firm used it in the same way and with the like knowledge. It was held that the patentee, having made no claim for remuneration for the use of the patent, saying that he did not desire to disturb his friendly relations with the firm, might be presumed to have recognized an obligation to permit them to use the invention.

In McAleer v. United States, 150 U. S. 424 [37: 1130], there was an express license by an employee in the Treasury Department to such department and its bureaus, of a right to make and use machines containing the improvements of the patentee to the end of the patented term, and it was held that this agree ment could not be varied by parol evidence