Opinion of the Court. composed of two pieces of metal united around their edges, one of which has a tubular extension which passes through the fabric and is engaged with a cap or button-head on the other side of the fabric. In the Mead socket the resiliency of the button-hole meinber is in the socket itself, which is directly attached to the fabric. In the Kraetzer fastener the part which engages the button-head or stud serves no other purpose whatever, but rests loosely in the chamber of its holder. This holder or shell is clamped permanently and firmly to the fabric, and is never expanded or contracted as in the Mead socket. In engaging and disengaging the fastener, the wire ring alone expands and contracts. From this statement of the construction of the two devices, which can be made more apparent by a comparison of the drawings, it is very evident that they are constructed upon different principles and operated in a wholly different manner. But it is claimed that an elastic mouth, combined with and firmly united to a dome, the mouth and dome being situated wholly on the under side of the flap and secured by a buttonhead wholly upon the upper side of the flap, was not known. in the art prior to the Mead patent, and that the effect of this is, taken in connection with the fact that the hole in the flap need not be any larger than the diameter of the rivet, as stated by the plaintiff's expert, "that the spring socket presses the glove leather upward into the button-head, and squeezes the leather against the inner surface of the button-head." If this feature be an advantage, as now claimed, it is strange that no allusion is made to it in the specifications; and in his testimony the patentee stated directly that in describing his invention as set forth in his patent, in the attachment of the fastener to the fabric, he did not contemplate any stretching of the leather, or that the hole in the fabric should be of any particular size, or any other effect than is produced when two parts are fastened together by an eyelet. On the contrary, it would appear that this squeezing of the leather could only take place where the disked washer or cap was used, and in his specifications the patentee states that "the disk, E, may Opinion of the Court. be a flat plate, but, in the present instance, I have shown its outer edge or circumference bent in order to approximate to the general shape of the button-head when the latter is pressed into its finished form," and thus it strengthens said cap. This would indicate that the advantage now claimed of a tighter compression of the leather was not originally within the contemplation of the patentee, but is an afterthought, suggested by his inability to make out a case against the defendant of an infringement of the spring portion of the socket. Applying these considerations to the different claims of the patent, it is quite evident that there is no infringement of the fourth claim, which includes as an element the imperforated button-head, F, which is not found in the Kraetzer patent. It is equally clear that there is no infringement of the seventh claim, since the Kraetzer device has not "the hollow socket, D," but a socket of a wholly different construction, operating in a different manner, and depending for its elasticity, not upon the peculiar inwardly projecting wings of the Mead socket, but upon a ring concealed within its walls. Neither has it the eyelet 7, unless the tapering upper end of the spring shell of the Kraetzer patent can be regarded as an equivalent. The charge of infringement must rest, then, upon the sixth claim, which is for "a member of a fastening device consisting of a hollow socket in combination with a rivet and buttonhead, whereby it is centrally attached to the fabric, substantially as set forth." While, by construing the "hollow socket " broadly as including every kind of a hollow socket appropriate for that purpose, and by construing the upper part of such socket as equivalent to the rivet, l, of the Mead patent, it would be possible to make out a literal infringement, yet we do not think the patentee is entitled to such a broad construction of his claim, in view of the fact that the only function obtained by the defendant in the use of his combination is that of squeezing the leather upward into the button-head — a function of very doubtful advantage, and apparently of no value to the Kraetzer device, and one never contemplated by Mead or alluded to in his specification. We think it too frail Statement of the Case. a support to hang a charge of infringement upon. When the essential operation of the two devices is so different there is no equity in charging infringement upon the defendant by an apparently accidental adoption of an immaterial feature of the plaintiff's patent. We are, therefore, of opinion that the court below committed no error in its disposition of the case; but, in view of the fact that the appellee has seen fit to encumber the record with copies of some fifty immaterial patents, we think it a proper case for the application of the 10th rule, which authorizes us (paragraph 9) to impose costs upon an appellee guilty of requiring unnecessary parts of the record to be printed, and that he should be charged with half the cost of printing the record in this case. 66 Care should be taken that costs are not unnecessarily increased by incorporating useless papers, and that the case is presented fairly and intelligently." Railway Co. v. Stewart, 95 U. S. 279, 284. With this qualification the Affirmed. decree is GRAVES v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS. No. 838. Submitted October 19, 1893. Decided November 6, 1893. Where objection is made in a criminal trial to comments upon facts not in evidence or statements having no connection with the case or exagge rated expressions of the prosecuting officer, it is the duty of the court to interfere and put a stop to them if they are likely to be prejudicial to the accused. The wife of a person accused of crime is not a competent witness, on his trial, either in his own behalf or on the part of the government, and a comment to the jury upon her absence by the district attorney, permitted by the court after objection, is held to be reversible error. THIS was a writ of error upon the conviction of the plaintiff in error for the murder of an unknown man in the Indian Territory on the 13th day of February, 1889. Statement of the Case. The evidence on the part of the prosecution tended to show that several days before the murder two men stopped together at Vian, and obtained a contract to make rails for one Waters, and lived in a house about one mile from Waters' residence. They came from Winslow, in the State of Arkansas, in an old vehicle drawn by two horses, and were on their way to Oklahoma, staying at Vian for a few days for the purpose of earning provisions for themselves and horses. One of these men was accompanied by his wife and two small children. After remaining for several days they left the neighborhood, and were next seen camping near the scene of the murder, on the evening of February 13. Their personalities were remembered although their names were forgotten, except that a boy remembered the name of one of them to have been John Graves. The morning after they were seen together in camp one of the men was seen putting the horses to the vehicle, in which were the woman and a child, but the witness saw but one man and one child. About the 1st of May following, the remains of a dead man were found near the place where the witness claimed to have seen the people camped. The body was decayed, but was identified mainly by peculiarities of the teeth and clothing. He was the man who had claimed to own the horses and wagon. The witnesses for the prosecution recognized the defendant Graves as the other man, though to most of them his name had been unknown. Defendant's wife was admitted to have been in town at the time of the trial, but did not appear in the court-room. She was seen by one of the witnesses of the prosecution outside of the court-room, and was believed by the witness to have been the woman who had been with the party. The defence was an alibi, and was supported by several witnesses, who swore that in the months of January, February, and March of that year defendant was in Washington County, Arkansas, a distance of one hundred miles or more from the place where the remains of the dead man were found. Upon conviction of murder, defendant sued out this writ of error, making fifteen assignments of error. Opinion of the Court. Mr. A. H. Garland for plaintiff in error. Mr. Assistant Attorney General Whitney for defendants in error. MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court. The first assignment of error is to the action of the court in permitting "the district attorney in his closing argument to the jury, over the objections of the defendant, to comment upon the absence of the defendant's wife from the presence of the court, and to state, among other things to the jury, that the defendant's wife ought to have been sitting by the side of her husband during the trial, so that witnesses for the government could see her and identify her as the woman who was said to have been with the defendant in the Indian country before the unknown man's remains or bones were found, and other like arguments, statements, and declarations." While we do not wish to be understood as holding that comments by the district attorney upon the facts not in evidence, or statements made having no connection with the case, or exaggerated expressions, such as counsel in the heat of trial are prone to indulge in, will necessarily vitiate a verdict, if not objected to, yet when the attention of the court is called to them specially, and objection is made, it is its duty to interfere and put a stop to them if they are likely to be prejudicial to the accused. Wilson v. United States, 149 U. S. 60; Hall v. United States, ante, 76. Had the wife been a competent witness, the comments upon her absence would have been less objectionable. It was said by Chief Justice Shaw in the case of the Commonwealth v. Webster, 5 Cush. 295, 316: "But when pretty stringent proof of circumstances is produced tending to support the charge, and it is apparent that the accused is so situated that he can offer evidence of all the facts and circumstances as they existed, and show, if such was the truth, that the suspicious circum |