ed by the law of the state." From the duty of the citizen to obey the laws of the state arises the corresponding right of the citizen to insist that the state comply with its own laws, and to demand, in the language of the Constitution of the state, that he be not deprived of his life, liberty, or his property, unless by the judgment of his peers or the law of the land.

his

Measured by this standard, what conclusion follows? Under the law of the land, to proceed against Valotta for two distinct homicides, two indictments were legally essential, found and returned by a duly constituted grand jury. In each indictment the charge must be distinctly set forth, in order that the accused may properly prepare defense, and be so identified that he may plead, on a subsequent charge for the same offense, former conviction or former acquittal. On each indictment he must be arraigned, and out of the arraignment comes the plea, and the issue of guilt or innocence, between the commonwealth and the accused. All these solemn prerequisites are intended to safeguard the rights of the prisoner in the important issue to be determined by the trial. To secure a fair and impartial jury, 20 peremptory challenges are allowed him. He is entitled to be present at every stage of the proceeding, and to meet the witnesses face to face.

With all these evidences of the state's solicitude for the protection of the accused, can it be possible that in the trial itself, in which are the issues of life and death, the officers of the state can deprive the prisoner of the essential right to a separate trial on the issue solemnly raised on each indictment? Can they be permitted to mingle and confuse the cases, by making hotchpot of the indictments and issues before a single jury, and jeopardize the life of the prisoner by holding him out as a habitual criminal, denying him his full legal right of challenges, confound the prisoner in his defense, and distract the minds of the jury? Such an invasion of the established course of trial in high felonies rises far above mere irregularity of procedure. The time-honored right of a prisoner to a separate trial on each indictment involving his life, which has been recognized for centuries, upheld by the courts as a continuous expression of the consciousness of the people, unchanged in the progress and development of the law, is basic, fundamental, and absolute, and involved in the very conception of free government.

If we stop to inquire, Did harm result to the prisoner from such a procedure? the answer is to be found in the verdict. Our statute provides that "all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, shall be deemed murder of the first degree, and all other kinds of murder [save those committed in the perpetration of certain designated felonies] shall be deemed murder of the second degree." Thus two of the most conspicuous examples were chosen by the lawmakers to illustrate their meaning of willful, deliberate, and premeditated murder. And yet the jury, from a set of cirexistence of a willful, deliberate, and precumstances which practically precluded the meditated intent to kill-flight in the darkness, pursuit by supposed enemies, and a condition of mental terror, with no time for premeditation or deliberation-out of these comes a verdict of murder of the first degree, followed by the sentence of death.

Jurisdiction of the subject-matter of the offense, the place where it was committed, and the person of the prisoner the trial court undoubtedly had. But this jurisdiction was lost by the denial of the prisoner's fundamental right to a separate trial before a separate jury on each indictment against him. Being thus denied that due process of law guaranteed to every citizen under the Constitution, it follows that the court's proceedings and judgment against him were null and void, and the relator is held in custody in violation of the Constitution of the United States.

I have given due consideration to the various decisions of the Supreme Court touching the power and duty of the court on writs of habeas corpus, from Ex parte Royall, 117 U. S. 241, 6 S. Ct. 734, 29 L. Ed. 868, to Frank v. Mangum, 237 U. S. 325, 35 S. Ct. 582, 59 L. Ed. 969, and the latest important deliverance of the court in Moore v. Dempsey, 261 U. S. 93, 43 S. Ct. 265, 67 L. Ed. 543, and whatever the guilt of the prisoner, which it is not my province to determine, I have endeavored to follow the course succinctly stated by the learned judge in Mills v. Commonwealth: "Heeding neither the impulses of passion, nor tolerating the intrusion of prejudice, but in calm severity of judgment, applying the rules of the criminal law."

The relator is therefore discharged.

FEDERAL

FT

(District Court, W. D. Pennsylvania. October 25, 1923.)

No. 525.

1. Patents 114-Suit to adjudicate rights of owners of interfering patents in nature of suit to set aside judgment.

Suit in equity, under Rev. St. § 4918 (Comp. St. § 9463), to determine rights of owners of interfering patents, is not proceeding to review decisions of Patent Office and of Court of Appeals of District of Columbia, but is in nature of proceeding to set aside judgment, as to which burden is on plaintiff to establish case by clearest proof.

2. Patents 14-Decree of Court of Appeals of District of Columbia In Interference proceeding presumed correct not set aside except on clearest proof.

In suit in equity under Rev. St. § 4918, for adjudication that complainant is entitled to patent, previous decree of Court of Appeals of District of Columbia in interference proceeding, over which court has general jurisdiction, is presumed correct, and will not be set aside except on clearest proof.

3. Patents 114-Evidence held insufficient to overcome presumption in favor of correctness of previous decree of Court of Appeals of District of Columbia in interference proceeding.

In suit, under Rev. St. § 4918, to determine rights of owners of interfering patents, evidence held insufficient to overcome presumption of correctness of previous decree of Court of Appeals of District of Columbia in interference proceeding.

4. Patents 328-Wells & Hunter patent, No. 1,363,200, claims 17-22, for automatic printing press feeder, held valid, and entitled to priority over Honigmann patent, No. 1, 074,720, claims 1, 2, 10, 21, 22.

Wells & Hunter patent No. 1,363,200, claims 17-22, for automatic mechanism for feeding blank sheets to, and removing printed sheets from, platen of printing press, held valid, and entitled to priority over Honigmann patent, No. 1,074,720, claims 1, 2, 10, 21, 22, covering same mechanism.

5. Patents 118-Patentee need not disclose accessories or auxiliary devices used in con

nection with invention.

Patentee need not disclose accessories or

auxiliary devices used in connection with his invention but these may be supplied by those skilled in art to which patent relates, and disclosure sufficient to enable one skilled in art to manufacture and use invention is sufficient.

In Equity. Suit by the Miehle Printing Press & Manufacturing Company and another against the Miller Saw-Trimmer Company. Plaintiffs' bill and defendant's counterclaim dismissed.

Wilkinson, Huxley, Byron & Knight, of Chicago, Ill., and Winter, Brown & Critchlow, of Pittsburgh, Pa., for plaintiffs.

Jones, Addington, Ames & Seibold, of Chicago, Ill., and Gordon & Smith, of Pittsburgh, Pa. (W. Clyde Jones and Robert

sel), for defendant.

THOMSON, District Judge. This bill in equity is filed under section 4918 of the Revised Statutes (Comp. St. § 9463), which, in substance, provides that, where there are interfering patents, any person interested in one of them may have relief against the interfering patentee by a suit in equity against the owners of the interfering patent; the court having power to declare either of the patents void in whole or in part, or inoperative. The Miehle Printing Press & Manufacturing Company, one of the plaintiffs, is the owner of Honigmann patent, No. 1,074,720, one of the interfering patents; while the defendant is the owner of the Wells & Hunter patent, No. 1,363,200, the other interfering patent. Both patents relate to an automatic mechanism for feeding blank sheets to, and removing the printed sheets from, the platen of a platen printing press. Both patents contain five claims which are identical, being claims 1, 2, 10, 21, and 22 of the Honigmann patent, and claims 13 to 17, both inclusive, of the Wells & Hunter patent.

The bill seeks to have the said five claims of the Wells & Hunter patent adjudged invalid, while the defendant, by counterclaim, seeks to have adjudged invalid the said five claims of the Honigmann patent. Such is the issue between the parties. The case becomes less difficult of solution, because the issue is the same as that in the interference proceeding in the Patent Office at No. 38,631, between the Honigmann patent and the application which resulted in the Wells & Hunter patent. The interference proceeding was carried through all the tribunals of the Patent Office, and on June 2, 1920, after 5 years of litigation, the Court of Appeals of the District of Columbia awarded priority of invention to Wells & Hunter. A petition for rehearing being denied, on December 21, 1920, Wells & Hunter were granted in their said patent, as against Honigmann, claims 13 to 17, inclusive, on the ground of priority of invention on the subject-matter of said claims.

In order that the questions for decision by this court may be more clearly understood, a statement of the somewhat complicated situation which was presented before the patent tribunals in the interference may be of value. The Wells & Hunter patent was issued upon application filed September 2, 1914, of Hunter and the estate of Wells, who was then deceased, being a renewal of Wells & Hunter application filed December 16, 1907, and allowed September 28, 1912.

ed, Wells & Hunter prevailed in the Court of Appeals. Upon that tribunal, a court of general jurisdiction, Congress has conferred jurisdiction over interferences without any qualification whatever, and its final judgment would undoubtedly be conclusive on the parties here, except for the provisions of section 4918, under which this bill is filed. In this situation the courts in numerous decisions have conclusively established the character of the burden which the plaintiff has assumed and the measure of proof required to sustain it. A proceeding under section 4918 is not a proceeding to review the decisions of the Patent Office tribunals and the Court of Appeals, but has been held rather to be in the nature of a proceeding to set aside a judgment, and all the authorities agree that to do this plaintiff must establish his case by the clearest proof, and all doubts must be resolved against him. Many of the authorities hold that the plaintiff must establish his case beyond reasonable doubt. Various expressions have been used by the courts as expressing that clearness of proof necessary on the part of the plaintiff to justify the finding that the judgment of the Court of Appeals was erroneous. Perhaps the leading case on the subject is Morgan v. Daniels, 153 U. S. 120, 14 S. Ct. 772, 38 L. Ed. 657. After referring to the great diversity of opinion of the several tribunals of the Patent Office, the court said: "Evidently, therefore, the question as to which was the prior inventor is not free from doubt. What, then, is the rule which should control the court in the determination of this case?"

After fully considering the question of the measure of proof, the Supreme Court used this language: "Upon principle and authority, therefore, it must be laid down as a rule that where the question decided in the Patent Office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction. Tested by that rule the solution of this controversy is not difficult. Indeed, the variety of opinion expressed by the different officers who have examined this testimony is persuasive that the question of priority is doubtful, and if doubtful the decision of the Patent Office must control."

Again the court said: "There is other testimony on both sides of this controversy. It is unnecessary to notice it in detail. It

is enough to say that the testimony as a whole is not of a character or sufficient to produce a clear conviction that the Patent Office made a mistake in awarding priority of invention to the defendant; and because of that fact, and because of the rule that controls suits of this kind in the courts, we reverse the judgment and remand the case, with instructions to dismiss the bill."

On

[3] The burden resting on the plaintiff being thus clearly established, it only remains to determine whether the plaintiff here has sustained the burden thus imposed. It is, of course, clear that the issue before the patent tribunals and before this court, namely, the priority of invention, is the same. Not only so, but the legal questions raised there and here, as well as the disputed questions of fact, are the same: the part of the plaintiff in both tribunals, the issuance of the Honigmann patent, a matter of record; the testimony as to the alleged uses and sales of the Honigmann machines in 1912, 1913, and 1914; the proofs offered by plaintiff as to certain acts of the defendant, by which it contends that intervening rights were established on behalf of Honigmann, namely, the filing of the disclaimer by Wells & Hunter; the forfeiture of their application and the renewal 23 months after the date of the allowance; and the failure to copy the claims in issue from the Honigmann patent for the purpose of interference, for 17 months after the issuance of the Honigmann patent. As to the issuance of the Honigmann patent, the disclaimer, forfeiture, and renewal, the testimony there and here is identical. With reference to the proofs in respect to the alleged public uses and sales in 1912, 1913, and 1914 they are the same except for cumulative and contradictory testimony. The manufacture and sale of 12 machines in 1912 and their successful operation, and the manufacture of 50 machines by the Cowdrey Company and the sale of a portion of them, was testified to in the interference proceeding. The same witnesses which were called there are called here, and, in addition, the plaintiff has offered some corroborative or rather cumulative testimony relating to the alleged public uses and sales; seven additional witnesses being called. Defendant has offered contradictory testimony dealing with these alleged public uses and sales. A number of witnesses were called to show that the alleged orders of February, 1912, for 12 machines were not bona fide orders, but merely trial orders to enable Honigmann and others to finance the proposition, building 12 machines for trial and experi

ment, and that these were not actual sales but rather trial sales for purposes of experimentation. Defendant also offers testimony as to the alleged successful operation of the 12 machines, claiming that these were unsatisfactory and experimental in character, and so unsuccessful under test in actual use that they were removed and discarded. It is, of course, true, as claimed by the plaintiffs, that the judgment of the Court of Appeals in no way precludes this court from deciding this case according to its best judgment. This conclusion necessarily follows from the provisions of the act under which the bill is filed. But in reaching such conclusion the finding of the Court of Appeals is presumptively correct, and so persuasive that its conclusion should be controlling, unless the testimony is such, in character and amount, as carries to the mind of the court thorough conviction that their judgment was wrong.

I

[4] I am by no means so satisfied. therefore find priority of invention in favor of the Wells & Hunter patent on the subject-matter of the claims in issue; and by reason thereof I find claims 1, 2, 10, 21, and 22 of the Honigmann patent to be void; and claims 17 to 22, both inclusive, of the Wells & Hunter patent valid. Plaintiffs' bill must therefore be dismissed, with costs.

But defendant, by way of counterclaim, not only attacks the validity of the five claims of the Honigmann patent in issue, because of priority of invention, and prays that they be decreed invalid, but in addition asserts, what was not suggested in the interference proceedings, that the Honigmann patent discloses an inoperative structure, and is hence invalid. The respects in which defendant contends that the disclosures of the Honigmann patent are so inadequate as to destroy its validity are: First, that the patent discloses a combing device initially separating the successive top sheets from the pile of stock for engagement by the grippers, and that such device, although used in its earlier feeders, was displaced by the suction separator in the later Honigmann feeders, which were built by the Cowdrey Machine Works under contract with the Honigmann Company; second, that the patent does not disclose means for retaining the sheets on the platen of the press as they are fed on the same by the mechanism; third, the patent does not disclose any timing means, that is, for preventing the driving pinion of the feeding mechanism being brought into mesh with the gear on the press, except when the parts of the feeder and the press are in proper synchronism.

The invention at issue, as defined by the claims in suit, is not concerned with any particular separating device for presenting the top of the sheet to the feeding mechanism, nor is it concerned with any particular means for receiving the sheets as they are delivered to the platen, nor does the invention comprehend any particular timing mechanism. This will appear from an examination of the claims at issue.

[5] It is not necessary that a patentee should disclose any accessories or auxiliary devices in connection with which his invention is used. These may be supplied by those skilled in the art to which the patent relates, and, if its disclosure is sufficient to enable one skilled in the art to manufacture and use the invention, the statutory requirements are complied with.

Without considering the evidence in detail, I do not think the objections urged are sufficient to invalidate the patent on the ground of failure to disclose an operative device. It follows that the defendant's counterclaim, so far as it relates to the inoperativeness of the device disclosed by plaintiffs' patent, will be dismissed.

A decree may be drawn in accordance with this opinion.

2. Patents

313-Intervener resisting dismissal of bill because of prospective future litigation not entitled to prevail.

One seeking to intervene in patent in

fringement suit under equity rules 30 and 37.

after plaintiff's motion to dismiss, has no valid ground for resisting motion merely because he and his customers will be harassed by future litigation.

In Equity. Suit for infringement by William E. Allington and others against the Shevlin-Hixon Company. On plaintiff's motion to dismiss, resisted by H. J. Burns, petitioning to intervene. Motion granted.

William G. Mahaffy, of Wilmington, Del., for plaintiffs.

Alfred H. Hildreth, of Boston, Mass., and Charles W. Smith, of Wilmington, Del., for defendant.