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23 F.(2d) 7

to believe that on November 22 he confessed his wrongdoing to Phelan and obtained, in this haphazard fashion, an advance of $35,000 to help him make up an embezzlement which he (Murphy) admits was then over $100,000, rather than that Phelan agreed to advance enough to take up overdue bank loans, to which it was in fact applied. His own story lacks all the natural incidents of a confession by a young man gone very wrong, to a kindly, paternal old friend, from whom he hoped for such relief as might save him and his company from the dire destruction naturally resulting from his misdeeds.

We are unable to adopt the referee's view that the natural and consistent story of a man of unimpeached integrity is to be found intentionally false, and that the inconsistent and unnatural story of a confessed wrongdoer is to be taken to be truthful and accurate. The referee's certificate is an unconvincing document; read with the evidence, we think it plainly wrong. His finding must be reversed.

On this record it is possible that Phelan's claim should not be allowed for the full $35,000, the face of the note given him on November 22. His actual advances were $5,000 cash and $30,000 (at par) of bonds, which were pledged as security for Murphy's note of $27,500, and perhaps some accrued interest. Whether Phelan has any right to redeem these bonds is not clear. Nor is there anything to show the market value of the bonds. The reversal, therefore, will be without prejudice to the right of either party to any such accounting as may be necessary for the determination of the exact amount due Phelan. We limit our decision to holding that Phelan's advances were made to the bankrupt and not to Murphy.

The results are:

In No. 2159, the decree disallowing Phelan's claim must be reversed.

In No. 2164 (Phelan's appeal from the decree confirming the composition), as Phelan was a creditor, the decree must be reversed, and the case stand for a hearing on the issues raised by Phelan's objections.

2164 relative to the confirmation of the composition, the intervention of other creditors shall seem to the District Court appropriate, intervention may then be allowed.

In Nos. 2159 and 2164, the decrees of the District Court are reversed, and the cases are remanded to that court for further proceedings not inconsistent with this opinion; the appellant recovers costs of appeal.

In No. 2173, the appeal is dismissed, without costs to either party.

The

JOHNSON, Circuit Judge (dissenting). I am compelled to dissent from the majority opinion, because it is opposed to the wellestablished rule, not only in this circuit, but elsewhere, that an appellate court should not reverse a finding of fact by the court below, unless such finding is clearly wrong. oral testimony in the case was conflicting, and was given by two witnesses. The referee, who saw them, and could observe their manner in testifying, believed one of these witnesses, instead of the other, and made his finding of fact upon his testimony. This finding was affirmed by the District Judge, and there is nothing in the record to show that his decision was pro forma, as stated in the majority opinion. It is to be assumed that his decision was reached after a full and adequate consideration of all the competent evidence. Where a finding of fact has been made by a referee, and affirmed by the District Judge upon review, it should not be reversed, unless clearly wrong or manifestly against the weight of evidence. Even if probabilities are to be considered, they do not, in my mind, constitute sufficient reason for disturbing the finding of fact made under such circumstances, nor can it be said that they all appear to oppose it.

Although Murphy was a confessed embezzler, there is nothing in the record to show that he had any interest in testifying that he applied to Phelan to aid him personally; nor, taking into consideration the confidential relation which existed between him and Phelan, does it seem to me improbable that

On these two appeals Phelan may recover he should have disclosed to Phelan that he costs.

In No. 2173, Phelan's appeal is to be dismissed, without costs to either party.

The petition of the trustees and a single creditor to intervene in Nos. 2164 and 2173 is denied. The trustees are merely stakeholders, pending determination of the composition. If, on further proceedings in No.

had taken the funds of the corporation for his personal use, and wanted his assistance in replacing them. On the other hand, Phelan testified under the influence of self-interest, as it is evident that his claim would be of greater value if he could establish it as a debt of the corporation, rather than as a debt of Murphy.

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Appeal from the District Court of the United States for the Western District of Louisiana; Benjamin C. Dawkins, Judge.

Petition by Byron Dunn and W. Robert Dunn against J. Horace Lyons, Sheriff, for a writ of habeas corpus. From an order dismissing the petition, petitioners appeal. Affirmed.

P. L. Ferguson, of Leesville, La., and M. G. Adams, of Beaumont, Tex. (M. R. Stewart, of Lake Charles, La., and C. W. Howth and Lamar Hart, both of Beaumont, Tex., on the brief), for appellants.

E. R. Schowalter, Asst. Atty. Gen:, of Louisiana (Percy Saint, Atty. Gen., of Louisiana, and J. J. Robira, Dist. Atty., and S. H. Jones, Asst. Dist. Atty., both of Lake Charles, La., on the brief), for appellee.

Before WALKER, BRYAN and FOSTER, Circuit Judges.

BRYAN, Circuit Judge. The District Judge dismissed upon demurrer the petition of appellants for writ of habeas corpus, but certified that in his opinion there was probable cause for an appeal. Appellants were convicted of murder in a state trial court of Louisiana. The judgment of conviction was affirmed by the Supreme Court of Louisiana (161 La. 532, 109 So. 56), and writ of error dismissed by the Supreme Court of the United States (273 U. S. 656, 744, 47 S. Ct. 344, 71 L. Ed.). After that the state Supreme Court denied the writ of habeas corpus on a petition containing substantially the same averments of fact that we now have to consider.

The petition is based on the ground that the trial in the state court was one in form only and deprived appellants of their liberty without due process of law. It is alleged

that the trial was dominated by an organization commonly known as the Ku Klux Klan; that the judge, the sheriff, the clerk, and at least one of the jurors were all members of that organization; that the person of whose murder appellants were convicted was a member thereof at the time of his death; that during the trial the courtroom was packed with its members; that the judge allowed one of them to sit with him on the bench, and to pay a fine imposed upon one of the attorneys, and failed to require another member to leave the witness room in order that appellants might have a private interview with their counsel. The petition contains other averments tending to support the general statement that this organization exerted its influence to impress upon the jury that a verdict of guilty would meet with popular approval.

It is not alleged that appellants did not have full knowledge of every matter now complained of, either before or during the trial, or at the time they submitted their motion for a new trial, or that they did not have full opportunity to present such matters on their appeal to the State Supreme Court. They did assign as error the overruling of their challenges for cause of certain jurors on the ground that they were members of the Ku Klux, and many other rulings of the trial court. All the rulings that were excepted to and assigned as error were considered and passed upon by the Supreme Court on that appeal. No objection was made to the qualifications or competency of the trial judge or any of the court officials. It is not suggested that counsel for the accused were intimidated by popular clamor or hostile sentiment, and that they fearlessly represented their clients affirmatively appears from the number and nature of exceptions reserved at the trial and presented for review on appeal. The Supreme Court entertained jurisdiction of the petition for a writ of habeas corpus, but declined to issue that writ on the grounds that all questions of law and fact that were reserved and presented had already been decided, and that the matters complained of in that petition for the first time should have been presented in the regular and appropri ate way by proper bills of exceptions on the appeal from the judgment of conviction.

Appellants contend that the state trial court lost jurisdiction on account of the influence and activities of the Ku Klux, and that this case is governed by Moore v. Dempsey, 261 U. S. 86, 43 S. Ct. 265, 67 L. Ed. 543. In the cited case it is said: "In Frank

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v. Mangum, 237 U. S. 309, 335 [35 S. Ct. 582, 590, 59 L. Ed. 969], it was recognized, of course, that if in fact a trial is dominated by a mob, so that there is an actual interference with the course of justice, there is a departure from due process of law, and that if the state, supplying no corrective process, carries into execution a judgment of death or imprisonment based upon a verdict thus produced by mob domination, the state deprives the accused of his life or liberty without due process of law.' We assume in accordance with that case that the corrective process supplied by the state may be so adequate that interference by habeas corpus ought not to be allowed. It certainly is true that mere mistakes of law in the course of a trial are not to be corrected in that way. But if the case is that the whole proceeding is a mask-that counsel, jury, and judge were swept to the fatal end by an irresistible wave of public passion, and that the state courts failed to correct the wrong, neither perfection in the machinery for correction, nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob, can prevent this court from securing to the petitioners their constitutional rights."

It is thus established by these two leading Supreme Court cases that a writ of habeas corpus will not lie where the state supplies and its courts make available process adequate to correct errors committed during the trial of a case. In Ashe v. U. S. ex rel. Valotta, 270 U. S. 424, 46 S. Ct. 333, 70 L. Ed. 662, it is said that the regular administration of the criminal law of a state can only be attacked by collateral habeas corpus proceedings in "extraordinary cases where there is only the form of a court under the domination of a mob." Louisiana recognizes that motions for a new trial are reviewable on appeal, as sufficiently appears from the opinion of its Supreme Court that was rendered in reviewing the judgment of conviction of appellants. State v. Dunn, 161 La. 532, 597, 109 So. 56. It was open to appellants to attack the fitness and qualifications of the trial judge by taking exceptions during the trial, or by motion for a new trial after conviction. All the matters complained of here were reviewable by the Supreme Court. Many of them were in fact made the subject of review, and those that were not were not presented as they ought to have been in the regular way provided by law.

Finally, the judgment of the state trial court was affirmed by the Supreme Court of the United States. It therefore is clear,

not only that the state of Louisiana affords adequate corrective process, but that such process was made available to appellants in the state Supreme Court.

The order appealed from is affirmed.

BUTLER et al. v. BURCH PLOW co.

Circuit Court of Appeals, Ninth Circuit.
October 31, 1927.

Rehearing Denied January 5, 1928.
No. 4853.

1. Patents 328-1,233, 107, claims 1, 2, 3, and 4, for road-building machine, held valid and infringed.

Myers patent, No. 1,233,107, claims 1, 2, 3, and 4, for road-building machine, held valid, as against claim of anticipation, and infringed. 2.

Patents 328-1,401,149, claims 2, 3, 7, 8, and 9, for combined spreader and roller, held valid and infringed.

Foster patent, No. 1,401,149, claims 2, 3, 7, 8, and 9, for combined spreader and roller for road construction, held valid and infringed.

3. Patents 328-1,470,157, claims 1-7, for stone spreader, held valid and infringed.

Fike patent, No. 1,470,157, claims 1-7, for stone spreader for road construction work, held valid and infringed.

4. Patents 51(1)-Test of "anticipation" Is whether patentee has added anything to human knowledge, and made world's work easier, cheaper, or safer.

The test of "anticipation" is whether patentec has added anything of value to the sum of human knowledge, whether he has made the world's work easier, cheaper, and safer, so that return to prior art would be a retrogression.

and Phrases, First and Second Series, Anticipa[Ed. Note. For other definitions, see Words tion.]

Appeal from the District Court of the United States for the Southern Division of the Southern District of California; Edward J. Henning, Judge.

Patent infringement suit by the Burch Plow Company against Mark M. Butler and others. Decree for plaintiff, and defendants appeal. Affirmed.

Raymond Ives Blakeslee, of Los Angeles, Cal., for appellants.

Lacey & Lacey and R. W. Bishop, all of Washington, D. C., and Ford W. Harris, of Los Angeles, Cal., for appellee.

Before RUDKIN, Circuit Judge, and SAWTELLE and JAMES, District Judges.

SAWTELLE, District Judge. This is a suit for infringement of letters patent No. 1,233,107, for a road-building machine, dated July 10, 1917, issued to Rolla M. Myers, and assigned to appellee; of patent No. 1,401,149, for combined spreader and roller, dated December 27, 1921, issued to appellee, as assignee of Harry C. Foster; and of patent No. 1,470,157, for a stone spreader, dated October 9, 1923, issued to appellee as assignee of Joseph L. Fike.

It is alleged in the complaint that the inventions, covered by said letters patent, are capable of joint use, and are intended to be jointly used in road machines, manufactured and sold by appellee, and in similar machines. manufactured and sold by appellants, and that the appellee is now the sole owner of said letters patent, and all the rights thereunder, including the right to recover for past infringement; that the appellants jointly and severally infringed said letters patent and each of them by making, selling, and using, or causing to be made, sold, and used, machines containing the inventions of said letters patent and the claims thereof. The bill of complaint contains the usual allegations of irreparable damage and injury to the appellee by reason of said infringement, as well as the usual prayer for injunctive relief and damages.

The appellants have denied the material allegations of the bill of complaint, and have pleaded certain separate and alternative de fenses, among others that said letters patent, and each of same, are void for aggregation, the subjects of none of same and the claims of none of same reflecting or amounting to invention; that such machines or devices, or instrumentalities, as appellants have made and sold, embody and contain and reflect invention and acts of invention totally distinct and different from the inventions of said letters patent, being in part the inventions of the appellant Butler, for which inventions application for letters patent of the United States have heretofore been filed by him, and which inventions are to be distinguished patentably from said alleged inventions of said letters patent mentioned in the bill of complaint; and that appellee's patents were anticipated in and by numerous prior letters patent of the United States and in foreign countries.

The lower court entered an interlocutory decree in favor of the appellee, plaintiff below, and this case comes here on appeal from that order.

Appellee began the manufacture of the stone spreader and distributer in the year

1917. The value in money of the machines so manufactured amounts to approximately $320,000. The total number of machines so manufactured, up to the time of the commencement of this suit, is slightly in excess of 1,000 machines.

The evidence shows that, prior to the time appellee's machine came into general use throughout the United States, the prevailing method of distributing road material on the roadway was to dump it out of the truck or wagon and distribute it over the surface of the road by hand. This method was inefficient, expensive, and unsatisfactory, it being almost impossible to distribute evenly the different grades of material over the road, or to distribute same to a given thickness; whereas, by the use of appellee's spreader, which regulated the amount of material to be placed on the road, the proper amount of such material could be distributed evenly and without any guesswork, and this regardless of the condition of the subgrade. Under proper conditions, 2 men on the spreader did the same work that 14 men did by hand.

Appellee insists that the patents in suit are in themselves prima facie evidence of validity, and of the truth of the facts therein stated. On the other hand, the appellants contend that the issuance of the patents to Butler creates a prima facie presumption of the patentable difference from that of the appellee's patents. We think it unnecessary to review the many authorities cited in support of these propositions. It will suffice to quote from the opinion of the Supreme Court in the case of Corning et al. v. Burden, 15 How. (56 U. S.) 252, 270 (14 L. Ed. 683) :

"It is evident that a patent, thus issued after an inquisition or examination, made by skillful and sworn public officers, appointed for the purpose of protecting the public against false claims or useless inventions, is entitled to much more respect, as evidence of novelty and utility, than those formerly issued without any such investigation. Consequently, such a patent may be, and generally is, received as prima facie evidence of the truth of the facts asserted in it. And in cases where the evidence is nicely balanced, it may have weight with a jury in making up their decision as to the plaintiff's right; and, if so, it is not easy to perceive why the defendant who uses a patented machine should not have the benefit of a like presumption in his favor, arising from a like investigation of the originality of his invention, and the judg ment of the public officers, that his machine is new, and not an infringement of the patent previously granted to the plaintiff. It shows,

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at least, that the defendant has acted in good faith, and is not a wanton infringer of the plaintiff's rights, and ought not, therefore, to be subjected to the same stringent and harsh rule of damages which might be justly inflicted on a mere pirate. It is true the mere question of originality or infringement generally turns on the testimony of the witnesses produced on the trial; but, if the plaintiff's patent in a doubtful case may have some weight in turning the scale in his favor, it is but just that the defendant should have the same benefit from his; 'valeat quantum va

leat.' The parties should contend on an equal field, and be allowed to use the same weapons."

The Myers Patent, No. 1,233,107.

The invention as described in this patent is set forth in the second paragraph of the specification:

"My invention is an improvement in roadbuilding machines, and has for its object to provide a machine of the character specified, especially adapted for distributing and leveling stone, slag, or gravel on roadways, wherein the distributer is adapted to be drawn be

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