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on what charge he will continue the trial. a person has been tried upon two indietSee also, Rex v. Clendon, Strange, 870. ments for two separate and distinct mur

The well-established rule of the common ders, before the same jury at the same time, law of Pennsylvania, forbidding the trial of and the decision has been sustained on audistinct felonies before the same jury, has thority of the common law, the court has no not been modified by statute. On the con- knowledge of its existence. The reason for trary, the rigor of the rule has been recog- the rule is based on considerations of hunized in reference to the joinder of counts manity and the tender solicitude for human in one indictment. Recognizing that it re- life, the highest gift of God. From the quired the sanction of legislation to permit same humane source have come all the safeeven such joinder, certain statutes have been guards which the law has thrown around the passed for that purpose. By the Criminal accused : The presumption of innocence, Act of 1860 (P. L. 427) the district attor- the requirement of proof of guilt beyond ney was empowered to charge willful and reasonable doubt, the provision in the Penninvoluntary manslaughter in the same in- sylvania Constitution giving to the accused dictment. Another section makes it lawful the right to be heard by himself and counto add in one indictment for feloniously sel, to demand the nature of the accusation stealing property a count for felonious re- against him, to meet the witnesses face to ceiving of the same; by another section, in face, and to have compulsory process in his the case of embezzlement by clerks and cer- favor, to have a speedy public trial by an tain others in the employ of a master, to impartial jury, and that he be not compelled charge distinct acts of embezzlement, not ex- to give evidence against himself, nor be deceeding three, committed against the same prived of his life, liberty, or property, unmaster within the period of six months. less' by judgment of his peers and the law Section 25 of the act makes the arraign- of the land. ment of the prisoner, in all cases of felony, The all-sufficient reasons assigned by the obligatory, and provides that “in all cases authorities for the rule of law awarding of felony the prisoner shall be arraigned, separate trials for distinct felonies is that a and where any person on being so arraigned joinder of distinct charges tends to confound shall plead not guilty, every such person the prisoner in his defense, prejudice him as shall be deemed and taken to put himself to his challenges, hold him out as a habitual upon the inquest or country for trial, with- criminal, and distract the minds of the juout any question being asked of him how he rors. So plain a proposition needs no elabwill be tried, and the inquest shall be charg- oration. ed only to inquire whether he be guilty or Is the trial of two indictments charging not guilty of the crime charged against him, distinct felonies, and particularly capital and no more."

offenses, before the same jury, warranted by Section 40 of the act (Pa. St. 1920, § the judicial decisions of Pennsylvania! 8161) provides for persons jointly indicted Most certainly not. The case of Withers v. for an offense, in which case "it shall be in Commonwealth, 5 Serg. & R. (Pa.) 59, rethe discretion of the court to try them joint- lied upon by the trial court to support the ly or severally, except that in cases of felo- commonwealth's contention, involved the nious homicide, the parties charged shall joinder of two indictments for misdemeanhave the right to demand separate trials; ors. Judge Gibson stated that he had found and in all cases of joint trials, the accused no case exactly like it, but found a strong shall have the right to the same number of analogy between it and those cases in which peremptory challenges to which either would distinct offenses were included in separate be entitled if separately tried, and no more.” counts of the same indictment, as the latter The law of 1860 in reference to arraignment would be necessarily tried together, and that was modified by the act of 1895 (Pa. St. in cases of misdemeanors it had never been 1920, § 8114), by which the arraignment of held that separate offenses could not be defendants in courts of oyer and terminer joined. But he adds: “As to felonies, a is abolished, except where the indictment different rule prevails, and the court goes charges murder.

so far as to quash where distinct offenses are It would thus appear plain beyond rea- charged, or, if no motion for that purpose sonable doubt that the procedure of arraign- be made in time, to compel the prosecutor to ment, plea, issue, and trial on a single issue select a particular offense, to which alone in homicide cases is expressly retained and the prisoner is held to answer.” Perhaps preserved; and, if there be a single case, the chief reason which reconciled the learned either in Pennsylvania or in England, where jurist to the unusual procedure in that case

2 F.(20) 735 was that the defendant was allowed his chal- tried together by the same jury at the same lenges on each indictment, and thus was not time. harmed. The futility of this citation to sup- [2] Sanctioned neither by common law, port the government's contention is at once by the statute law, nor by judicial decision, apparent.

the evidence taken on this hearing shows The case of Commonwealth v. Brown, 264 that the practice contended for finds no supPa. 85, 107 A. 676, was relied on alone by port in long-established practice. The evithe Supreme Court to support its position dence shows that such procedure is unheard that the simultaneous trial is warranted, and of in Philadelphia and throughout the comthe finding of "guilty in the second degree monwealth, except in some isolated cases in on one indictment does not affect the first Allegheny county. Hon. John C. Haymakdegree conviction on the other.” In that er, a judge and criminal lawyer of large excase Brown broke into a store at night. Be- perience, being called by the respondent on ing discovered, Elford and a policeman were this question, was asked: attempting to force their way into the store, “Q. Now, in connection with the trial of when two shots were fired, one of which both indictments, or the several indictments, killed Elford, and the other shot killed the where no objection has been made and no policeman. Two indictments were found request for severance made, what has been and tried together; a verdict of murder in and what is the practice and procedure in the first degree being found in one, and sec- so far as the number of challenges, perempond degree in the other.

tory challenges, allowed the defendant, is It is sufficient to say that the question now concerned? A. The same as if he was tried before us was never raised at any point in on one indictment." the proceedings in that case. It was not This, of course, would deprive the prisondiscussed nor in any manner decided by the er of 20 peremptory challenges. The judge Supreme Court, and hence is not to be re- being then asked by the court whether, when lied upon as an authority on the question. the offenses charged in separate indictments In that case, too, the killings might be re- were somewhat closely connected, was the garded as simultaneous acts. In the case claimed right of the state to try the indictbefore us, the offenses, though closely con- ments together based on a right which the nected in point of time and place, are wholly state could insist upon, or based on the asseparate and distinct. This is conclusively sumption that the defendant by his silence shown by a consideration of the facts sur- had waived it, the judge's answer was, “On rounding each homicide, by the verdict of the assumption that the defendant has waivthe jury finding different degrees of guilt, ed it by keeping quiet, sitting still." and, finally, by the finding of the Supreme The testimony offered by the respondent Court itself.

thus comes very far short of establishing a In answer to the defendant's claim of dou- long-continued and uniform practice, such ble jeopardy, the court said: "How it could as to justify the state's procedure. Such inbe contended that there is double jeopardy vasions in practice of the time-honored rule to a defendant in trying him for the killing in the prisoner's favor neither make the law of two different individuals, it is a little nor constitute evidence of what the law is.' difficult to comprehend. Twice in jeopardy Second. We now pass to the second quesis available to a defendant as a bar only tion: Did the defendant waive his right to where he has been twice put in jeopardy of separate trials by his silence ? life or limb for the same offense;

[3] In all criminal cases, and more parwhere two persons are killed—by separate ticularly in felonies of high grade, the prisshots or strokes, although in the same riot oner is not required to open his mouth at or affray, an acquittal or a conviction of any stage of the proceedings. Even if he one

homicide is no bar to an in- stand mute, a plea will be entered for him dictment for the other, as they are distinct by the commonwealth, and the trial will

proceed. He has the high prerogative of Aside from the Valotta Case, I think it silence; a silence which the state dare not may be safely said that no case in Pennsyl- in any manner invade. In criminal proceedvania can be produced, from the foundation ings, involving the life of the prisoner, evof the state to the present time, in which ery step of the state's procedure is adverse, the Supreme Court has considered and de- resting not at all on the prisoner's consenty cided that two indictments, charging sepa- from the time of his arrest on warrant unrate and distinct felonies of a high grade, til he is led on the scaffold and the fatal and particularly capital felonies, may be trap is sprung.


In the remorseless movement of the state's then tried, it would not have the slightest criminal machinery, consent has no place at influence with me. I look to the law of the all. The result which follows, when adverse land.” to the prisoner, is justified only when pro- We now come to the third inquiry upon cured by established procedúre in strict ac- which the question of jurisdiction rests. cord with the law of the land. What course Did the state in violating the relator's right of reasoning, when human life is at stake, to a separate trial on the two indictments can justify an invasion by the state of a for murder, deny to him that due process of right of the prisoner guaranteed him by the law guaranteed by the Fourteenth Amendlaw, on the ground that the prisoner has not ment? spoken and has therefore by his silence con- Various definitions have been given by the sented ?

authorities to the words “due process of In Lewis v. United States, 146 U. S. 370, law." While certain governing principles 13 S. Ct. 136, 36 L. Ed. 1011, were laid have been distinctly announced, and certain down some fundamental principles—among boundary stakes driven, the Supreme Court these, that a prisoner cannot waive the sub- has never undertaken to give a comprehenstantial rights incident to trial by jury; sive definition of the term, nor undertaken that the right of challenge is a substantial to limit its meaning and scope by lines defiright; that it must appear afirmatively on nitely drawn. The court has preferred to the record that the prisoner enjoyed the rest each decision on the facts of each case rights guaranteed to him by the Constitu- as it arose. But from these decisions we tion. The Supreme Court quotes with ap- know that the prohibition is directed to the proval, on page 372 (13 S. Ct. 137), the state itself, and if a violation be threatened case of Prine v. Commonwealth, 18 Pa. 103, by one agency of the state, but prevented holding: "We are of opinion that it was by another agency of higher authority, there not within the power of the accused or his is no violation by the state. We know counsel to dispense with the statutory re- that the state can go very far in the exercise quirement as to his personal presence at the of its sovereign power, in the passage of trial.” The court again said: “The public laws regulating procedure, evidence, and has an interest in his life and liberty. Nei- methods of trial, not in conflict with the fedther can be lawfully taken, except in the eral Constitution. It may make indictment mode prescribed by law. That which the by grand jury unnecessary in prosecutions law makes essential in proceedings involv- for homicide; may make lawful the proseing the deprivation of life or liberty cannot cution of felonies by information; may limbe dispensed with or affected by the consent it the number of challenges allowed the deof the accused, much less by his mere fail- fendant, or regulate the number, in relation ure, when on trial and in custody, to object to the population of cities; may confer upto unauthorized methods." This position on the accused the right to waive a trial by has been fully sustained in Prine v. Com- jury, and elect to be tried by the judge; monwealth, supra.

may take away trial by jury altogether, both In Mills v. Commonwealth, 13 Pa. 627, in criminal and civil cases; may abolish the court said: “I need not repeat the au- courts, and establish new ones, with new thorities which establish that consent can- modes of procedure, leaving unchanged those not give jurisdiction. In criminal proceed- substantial protections, with which the exings especially, that axiom has grown with isting laws surround persons accused of the growth and strengthened with the crime. strength of the law. Trials by lynch law [4, 5] These powers, and very many might otherwise be valid; but at times, I more, some of which are summarized by Jusdare to say, a man might consent to their tice Moody in the case of Twining v. New jurisdiction, in hope or in fear, or perhaps Jersey, 211 U. S. 78, 29 S. Ct. 14, 53 L. Ed. in ignorance.

Some affidavits and 97, the state in the exercise of its sovereignsome certificates of such consent were pro- ty may lawfully exert, and the laws and duced at bar, but the counsel for the defend- modes of procedure which the state estabant positively deny it on their affidavit. But lishes every citizen thereof is absolutely we can regard neither the one nor the oth- bound to obey. To him they become "the er; they are no part of the record, nor can law of the land.” As was said by Chief they be made such. But for myself I think Justice Waite in Walker v. Sauvinet, 92 U. it a matter of no account, and if the prison- S. 90, 23 L. Ed. 678: “Due process of law er had appeared in court, and under his is process due according to the law of the sign manual, on the record, agreed to be land. This process in the states is regulat

2 F.(20) 735 ed by the law of the state.” From the duty If we stop to inquire, Did harm result to of the citizen to obey the laws of the state the prisoner from such a procedure? the anarises the corresponding right of the citizen swer is to be found in the verdict. Our to insist that the state comply with its own statute provides that “all murder which shall laws, and to demand, in the language of the be perpetrated by means of poison, or by Constitution of the state, that he be not de- lying in wait, or by any other kind of willprived of his life, liberty, or his property, ful, deliberate and premeditated killing, unless by the judgment of his peers or the shall be deemed murder of the first degree, law of the land.

and all other kinds of murder (save those Measured by this standard, what conclu- committed in the perpetration of certain sion follows? Under the law of the land, to designated felonies] shall be deemed murder proceed against Valotta for two distinct of the second degree." "Thus two of the homicides, two indictments were legally es- most conspicuous examples were chosen by sential, found and returned by a duly con

the lawmakers to illustrate their meaning of stituted grand jury. In each indictment the charge must be distinctly set forth, in order willful, deliberate, and premeditated murthat the accused may properly prepare

, of

his defense, and be so identified that he may existence of a willful, deliberate, and pre

cumstances which practically precluded the plead, on a subsequent charge for the same offense, former conviction or former ac

meditated intent to kill-flight in the darkquittal. On each indictment he must be ar

ness, pursuit by supposed enemies, and a raigned, and out of the arraignment comes

condition of mental terror, with no time for the plea, and the issue of guilt or innocence, premeditation or deliberation--out of these between the commonwealth and the accused. comes a verdict of murder of the first deAll these solemn prerequisites are intended gree, followed by the sentence of death. to safeguard the rights of the prisoner in

Jurisdiction of the subject-matter of the the important issue to be determined by the offense, the place where it was committed, trial. 'To secure a fair and impartial jury, and the person of the prisoner the trial 20 peremptory challenges are allowed him. court undoubtedly had. But this jurisdicHe is entitled to be present at every stage tion was lost by the denial of the prisoner's of the proceeding, and to meet the witness- fundamental right to a separate trial before es face to face.

a separate jury on each indictment against With all these evidences of the state's so- him. Being thus denied that due process of licitude for the protection of the accused, law guaranteed to every citizen under the can it be possible that in the trial itself, in Constitution, it follows that the court's prowhich are the issues of life and death, the ceedings and judgment against him were officers of the state can deprive the prisoner null and void, and the relator is held in cusof the essential right to a separate trial on tody in violation of the Constitution of the the issue solemnly raised on each indict- United States. ment? Can they be permitted to mingle and

I have given due consideration to the vaconfuse the cases, by making hotchpot of rious decisions of the Supreme Court touchthe indictments and issues before a single ing the power and duty of the court on jury, and jeopardize the life of the prisoner writs of habeas corpus, from Ex parte Royby holding him out as a habitual criminal, denying him his full legal right of chal- all, 117 U. S. 241, 6 S. Ct. 734, 29 L. Ed. lenges, confound the prisoner in his defense, 868, to Frank v. Mangum, 237’U. S. 325, and distract the minds of the jury? Such 35 S. Ct. 582, 59 L. Ed. 969, and the latest an invasion of the established course of important deliverance of the court in Moore trial in high felonies rises far above mere

v. Dempsey, 261 U. S. 93, 43 S. Ct. 265, 67 irregularity of procedure. The time-honored L. Ed. 543, and whatever the guilt of the right of a prisoner to a separate trial on prisoner, which it is not my province to deeach indictment involving his life, which termine, I have endeavored to follow the has been recognized for centuries, upheld course succinctly stated by the learned judge by the courts as a continuous expression of in Mills v. Commonwealth: "Heeding neithe consciousness of the people, unchanged ther the impulses of passion, nor tolerating in the progress and development of the law, the intrusion of prejudice, but in calm severis basic, fundamental, and absolute, and in- ity of judgment, applying the rules of the volved in the very conception of free gov- criminal law.” ernment.

The relator is therefore discharged.


744 affidh I (ad)

, both of Chicago, Il., of coun


sel), for defendant. (District Court, W. D. Pennsylvania. October THOMSON, District Judge. This bill in 25, 1923.)

equity is filed under section 4918 of the ReNo. 525.

vised Statutes (Comp. St. § 9463), which,

in substance, provides that, where there are 1. Patents @m! 14–Sult to adjudicate rights interfering patents, any person interested of owners of interfering patents in nature of in one of them may have relief against the suit to set aside judgment.

Suit in equity, under Rev. St. 4918 interfering patentee by a suit in equity (Comp. St. $ 9463), to determine rights of against the owners of the interfering patowners of interfering patents, is not proceed. ing to review decisions of Patent Office and of ent; the court having power to declare eiCourt of Appeals of District of Columbia, but ther of the patents void in whole or in is in nature of proceeding to set aside judg. part, or inoperative. The Miehle Printing ment, as to which burden is on plaintiff to establish case by clearest proof.

Press & Manufacturing Company, one of the 2. Patents Sw! 14-Decree of Court of Ap- plaintiffs, is the owner of Honigmann pat

peals of District of Columbia in Interference ent, No. 1,074,720, one of the interfering proceeding presumed correct not set aside patents; while the defendant is the owner except on clearest proof.

In suit in equity under Rev. St. & 4918, for of the Wells & Hunter patent, No. 1,363,adjudication that complainant is entitled to pat- 200, the other interfering patent. Both patent, previous decree of Court of Appeals of ents relate to an automatic mechanism for District of Columbia in interference proceeding, over which court has general" jurisdiction, feeding blank sheets to, and removing the is presumed correct, and will not be set aside printed sheets from, the platen of a platen except on clearest proof.

printing press. Both patents contain five 3. Patents Cm114_Evidence held insufficient claims which are identical, being claims 1,

to overcome presumption in favor of cor. 2, 10, 21, and 22 of the Honigmann patent, rectness of previous decree of Court of Appeals of District of Columbia in interfer: and claims 13 to 17, both inclusive, of the ence proceeding.

Wells & Hunter patent. In suit, under Rev. St. $ 4918, to determine The bill seeks to have the said five claims rights of owners of interfering patents, evi- of the Wells & Hunter patent adjudged indence held insufficient to overcome presumption of correctness of previous decree of Court of valid, while the defendant, by counterclaim, Appeals of District of Columbia in interference seeks to have adjudged invalid the said five proceeding.

claims of the Honigmann patent. Such is 4. Patents 328–Wells & Hunter patent, the issue between the parties. The case be

No. 1,363,200, claims 17-22, for automatic printing press feeder, held valid, and entitled comes less difficult of solution, because the to priority over Honigmann patent, No. 1,. issue is the same as that in the interference 074,720, claims 1, 2, 10, 21, 22.

Wells Hunter patent No. 1,363,200, proceeding in the Patent Office at No. 38,claims 17-22, for automatic mechanism for 631, between the Honigmann patent and the sheets from, platen of printing

press, held valid, Hunter patent. The interference proceedfeeding blank sheets to, and removing printed application which resulted in the Wells & and entitled to priority over Honigmann patent, No. 1,074,720, claims 1, 2, 10, 21, 22, covering ing was carried through all the tribunals game mechanism.

of the Patent Office, and on June 2, 1920, 5. Patents, em 118-Patentee need not disclose after 5 years of litigation, the Court of accessories or auxiliary devices used in con- Appeals of the District of Columbia awardnection with invention. Patentee need not disclose accessories or

ed priority of invention to Wells & Hunauxiliary devices used in connection with his ter. A petition for rehearing being denied, invention but these may be supplied by those on December 21, 1920, Wells & Hunter skilled in art to which patent relates, and digclosure sufficient to enable one skilled in art were granted in their said patent, as against to manufacture and use invention is sufficient. Honigmann, claims 13 to 17, inclusive, on

the ground of priority of invention on the

subject matter of said claims. In Equity. Suit by the Miehle Printing

In order that the questions for decision Press & Manufacturing Company and an- by this court may be more clearly underother against the Miller Saw-Trimmer Com- stood, a statement of the somewhat complipany. Plaintiffs' bill and defendant's coun

cated situation which was presented before terclaim dismissed.

the patent tribunals in the interference may Wilkinson, Huxley, Byron & Knight, of be of value. The Wells & Hunter patent Chicago, Ill., and Winter, Brown & Critch- was issued upon application filed September low, of Pittsburgh, Pa., for plaintiffs. 2, 1914, of Hunter and the estate of Wells,

Jones, Addington, Ames & Seibold, of who was then deceased, being a renewal of Chicago, Ill., and Gordon & Smith, of Pitts- Wells & Hunter application filed December burgh, Pa. (W. Clyde Jones and Robert 16, 1907, and allowed September 28, 1912.

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