⚫400 amount in a bank in a named city to the credit of the owner, of which notice should be given, the railroad company should "be deemed to be seized and possessed of the fee simple of all such land or real estate as shall have been appraised." That the chancellor did not hold to the doctrine that payment or tender of payment must in every case precede the divestiture of the owner's title is clear from the preceding parts of his opinion. He said: "It certainly was not the intention of the framers of the constitution to authorize the property of a citizen to be taken and actually appropriated to the use of the public, and thus to compel him to trust to the future justice of the legislature to provide him a compensation therefor. The compensation must be either ascertained and paid to him before his property is thus appropriated, or an appropriate remedy must be provided, and upon an adequate fund, whereby he may obtain such compensation through the medium of the courts of justice, if those whose duty it is to make such compensation refuse to do so." "The public purse, or the property of the town or county upon which the assessment is to be made, may justly be considered an adequate fund. He has no such remedy, however, against the legislature, to compel the passage of the necessary laws to ascertain the amount of compensation he is to receive, or the fund out of which he is to be paid." So, in People v. Hayden, 6 Hill, 359, 361, Chief Justice Nelson said: "Although it may not be necessary, within the constitutional provision, that the amount of compensation should be actually ascertained and paid be fore property is thus taken, it is, I appre hend, the settled doctrine, even as it respects the state itself, that, at least, certain and ample provision must be first made by law, except in cases of public emergency, so that the owner can coerce payment through the judicial tribunals or otherwise without any unreasonable or unnecessary delay." See, also, Brinckerhoff v. Wemple, 1 Wend. 470472; Rogers v. Bradshaw, 20 Johns. 735, 741; Baker v. Johnson, 2 Hill, 342, 347. In Stacy v. Railroad Co., 27 Vt. 39, 44, the court said that the railroad company derived no title to the condemned land, nor any easement growing out of it, and acquired no right to enter upon it or exercise ownership over the same, until it paid the damages awarded to the owner, or deposited the money as prescribed by the statute. The reason given for this was that the statute expressly provided that that should be done before any right in the land accrued to the company. The case now before us differs from all, or nearly all, of those cited by the plaintiffs in this: that in the latter the statute under which the property was taken, either expressly or by necessary implication, made the payment or tender of the compensation awarded to the owner of the property ap propriated to public use a condition precedent to the acquisition of title by the party at whose instance the property was taken; whereas, in the present case, the statute vests the title in the city of Boston from at least the time it filed in the office of the registry of deeds a description of the lands taken by it, describing them with as much certainty as is required in a common conveyance of lands, and stating that the same were taken pursuant to the provisions of the statute. As soon as they were so taken, the city, invested from that time with the title, had the right forthwith to raise the grade, and could not throw the property back upon the former owner, or compel him to pay the cost of raising the grade; and the owner became, from the moment the property was taken, absolutely entitled to reasonable compensation, the amount to be ascertained without undue delay, in the mode prescribed, and its payment to be assured, if necessary, by decree against the city, which could be effectIvely enforced. We are of opinion that, upon both principle and authority, it was competent for the legislature, in the exercise of the police powers of the commonwealth, and of its power to appropriate private property for public uses, to authorize the city to take the fee in the lands described in the statute, prior to making compensation, and that the provision made for compensating the owner was certain and adequate. It results that, as the title to the lands here in question passed to the city of Boston when such lands were actually taken in the mode prescribed in the statute of 1867, the persons who were then the owners, whoever they were, had thereafter no interest in them, but were only entitled to reasonable compensation. If the proceedings in the probate court of Suffolk county were so defective that the title of the ward was not legally divested by the sale in 1844, upon which question it has, become unnecessary, in the present case, to express any opinion, nevertheless the title passed, under the act of 1867, to the city of Boston, when following the provisions of that statute, it took these lands. In this view, no action can be maintained by the plaintiffs to recover the land under the title of the owner as that title existed prior to the acquisition of the property by the city. The judgment is affirmed. (159 U. S. 487) ISAACS v. UNITED STATES. REVIEW ON ERROR-CONTINUANCE-Murder OF 1. The action of the trial court upon an application for a continuance is purely a matter of discretion, and not subject to review, unless *488 it be clearly shown that such discretion was abused. 2. Upon an application for a continuance in a murder case on the ground of the absence of a material witness, it appeared that 49 days before the case was called for trial an application was made and granted to have such witness summoned at the expense of the government. It was not shown why the subpoena was not served, or that any diligence was used to procure her attendance, or any attachment asked for, although the trial continued for several days. The affidavit did not show that defendant could not safely go to trial without the witness, or that he could not make the same proof by other witnesses. At the trial all that the affidavit stated the witness could prove was, in fact, established by other testimony. Held, that there was no abuse of discretion in refusing the continuance. 3. On the trial of an Indian for murdering a white man, held, that there was no error in an instruction which, in substance, stated that if the corpus delicti were established by other evidence, and in that case only, the fact that deceased was a white man could be proved by the confessions of the defendant. 4. Where the court charged that the corpus delicti could be established by circumstantial testimony, held, that the omission to add that this circumstantial evidence should be such as creates cogent, irresistible grounds of presumption was not erroneous in the absence of any request for such an addition to the charge. In Error to the Circuit Court of the United States for the Western District of Arkansas. The plaintiff in error, Webber Isaacs, a Cherokee Indian, was indicted, with two others, for the murder of a white man in the Indian country. There were four counts in the indictment, two charging that the murdered man was Mike P. Cushing, and two that he was an unknown white man. No witness who testified saw the act of killing, but it was shown by the testimony of several witnesses that a peddler, about 60 years of age, with gray whiskers, and riding a gray pony, was seen going towards Isaacs' house, several days before the body was found. Some days thereafter, within a mile of Isaacs' house, and off from the public road, the body of a horse corresponding to the one the pedIdler was riding was found. The appearances indicated that he had been shot. Near the horse were the remains of a man, with the clothing and flesh nearly consumed by fire. The ground indicated that the body had been dragged from where the horse lay to where it was found, the feet having tied about them what appeared to be a portion of the bridle, which was found cut up. There was evidence that the remains were those of a white man. Under his chin were some grey whiskers unconsumed by the fire. Near the body were found some bills and letters identified as belonging to Cushing. The head was crushed, and there were holes under the Arm. Shortly after the killing, several witnesses saw defendant with money. Defendant admitted that a peddler was at his house on the day that Cushing was last seen alive, and said that he rode away with one Jack Chewey, who told him the next day that he had killed the peddler. He admitted that he had never asked Chewey any questions as to when, how, or where he had killed him, and that he had never told any person that Chewey had told him of the killing. Five witnesses also swore that defendant told them that he and Chewey had killed a white peddler at a time corresponding with the disappearance of Cushing. The jury found the defendant guilty of murder as charged in the first count of the indictment, and the court sentenced him to be hanged, whereupon he sued out this writ of error. Asst. Atty. Gen. Dickinson, for the United States. Mr. Justice BROWN, after stating the facts In the foregoing language, delivered the opinion of the court. *In the absence of an oral argument and of a brief by plaintiff in error, we are compelled to dispose of this case upon the record and the brief of the attorney general. 1. The first error assigned is to the action of the court in overruling a motion for a continuance, requested because of the absence of a material witness for the defense. That the action of the trial court upon an application for a continuance is purely a matter of discretion, and not subject to review by this court, unless it be clearly shown that such discretion has been abused, is settled by too many authorities to be now open to question. Woods v. Young, 4 Cranch, 237; Barrow v. Hill, 13 How. 54; Crumpton v. U. S., 138 U. S. 361, 11 Sup. Ct. 355; Cox v. Hart, 145 U. S. 376, 12 Sup. Ct. 962; Earnshaw v. U. S., 146 U. S. 60, 68, 13 Sup. Ct. 14; Means v. Bank, 146 U. S. 620, 13 Sup. Ct. 186. It appears that 49 days before the case was called for trial an application was made and granted to have the witness whose testimony was desired, summoned at the expense of the government, the affidavit showing that she was within the jurisdiction of the court. It was not shown that any diligence was used to procure the attendance of the witness, or that any attachment was asked for, although the trial continued for several days, or why the subpoena was not served. The affidavit did not show that the defendant could not make the same proof by other witnesses, or that he could not safely go to trial without the testimony of the witness in question. In fact, all that the affidavit showed that the witness could prove was established by other testimony, including that of the defendant himself. There was clearly no abuse of discretion. 2. The second assignment was to the charge of the court "that the fact that the man killed was a white man might be shown by the statement of the defendant in establishing the corpus delicti." The charge of the court is not accurately set out in the assignment, but was, in substance, that the fact that Cushing was a white man might be shown by the testimony of the defendant as well as by any other means, or that it might be shown by that in connection with other facts and circumstan ces. We do not understand that any inference can properly be drawn from this that the court intended to charge that the corpus delicti might be shown by the mere statement of the defendant, but only that his statement, taken in connection with other facts, might be used to show that the murdered man was a white man. If any inference could be drawn to the effect that the court intended to charge that the corpus delicti might be proved by the confession of the defendant, it is completely removed by the further charge that "that state of case [namely, the death of Cushing by violence inflicted criminally] must be proven by circumstances, or by positive proof, one or the other, before the declarations or admissions or confessions of the defendant can be taken as sufficient to warrant a jury in convicting. Now, do not nake any mistake about this proposition,—the proposition called the 'corpus delicti.' The fact that a crime was committed, or the fact that the man charged in the indictment, either as Mike P. Cushing, or an unknown white man, was murdered, must be proven by evidence outside of the confession of the defendant;" and that, "whenever that state of case is established, then you may take the declarations of the defendant as tending to show his guilt." As there was abundant evidence in the case, outside of defendant's confession, not only that the man had been murdered, but considerable evidence that he was a white man, we think there was no error committed in the charge that the fact that he was a white man might be shown by the testimony of the defendant, as well as by other means, or by that in connection with other facts and circumstances. The fact that the murdered man was a white man had no bearing upon the question of the corpus delicti, or of the fact that the defendant murdered him, and bore only upon the jurisdiction of the court. 3. The next assignment is to the charge "that the corpus delicti could be established by circumstantial testimony, without saying that this circumstantial evidence should be such as creates cogent, irresistible grounds of presumption." Without any request on the part of the defendant to add the qualification suggested, there was no error in the charge actually given. It is no ground for reversal that the court omitted to give instructions, where they were not requested by the defendant. It is sufficient that the court give no erroneous instructions. Pennock v. Dialogue, 2 Pet. 1, 15; Railway Co. v. Volk, 151 U. S. 73, 78, 14 Sup. Ct. 239. Beyond this, however, any possible misapprehension upon this point would be removed by the charge that the law says that: "If the propositions I have named to you make up the crime, and the further proposition that brings the crime home to this defendant, are proven beyond a reasonable doubt in the case, that your duty in the premises is imperative. It is to find a verdict of guilty of murder against the defendant. If they are not proven in that way, either one of them,-that is, to such a degree of certainty that they come under that legal definition of proof beyond a reasonable doubt,-then your duty will be to acquit the defendant." As the court charged the jury repeatedly that the crime, and every element thereof, must be made out to their satisfaction beyond a reasonable doubt, it is impossible that they could have been misled by the omission of the qualification suggested. The remaining assignments are either covered by those already considered, or are so obviously frivolous that no discussion of them is necessary. The judgment of the court below is therefore affirmed. (159 U. S. 415) PEOPLE OF THE STATE OF CALIFOR In Error to the Supreme Court of the State of California. Wm. Matthews and Wm. Craig, for plaintiff in error. S. W. Holladay and E. Burke Holladay, for defendants in error. Mr. Chief Justice FULLER. The opinions of the supreme court of California in this case are reported 68 Cal. 439, 9 Pac. 655; 93 Cal. 241, 29 Pac. 54; 102 Cal. 661, 36 Pac. 927. The motion to dismiss is sustained on the authority of San Francisco v. Itsell, 133 U. S. 65, 10 Sup. Ct. 241; Beatty v. Benton, 135 U. S. 244, 10 Sup. Ct. 747; Eustis v. Bolles, 150 U. S. 361, 14 Sup. Ct. 131, and cases cited. And see Hoadley v. San Francisco, 94 U. S. 4; Hoadley's Adm'r v. San Francisco, 124 U. S. 639, 8 Sup. Ct. 659. Writ of error dismissed. (159 U. S. 477) RICHARDS v. CHASE ELEVATOR CO. et al. (November 11, 1895.) Nos. 310, 311, and 312. PATENTS-INVENTION-NOVELTY-GRAIN-TRANS FERRING APPARATUS. 1. The omission of an element in a combination may constitute invention if the result of the new combination be the same as that of the old one; but if the omission of an element is attended by a corresponding omission of the function performed by that element, and the elements retained perform the same function as be fore, there is no patentable invention. 2. The Richards patent, No. 308,095, for an apparatus for transferring grain from one railroad car to another, and weighing it in transit, without mixing different loads with each other, is void as being a mere aggregation of elements, which accomplish no new result. 15 Sup. Ct. 831, reaffirmed. On application for leave to file petition for rehearing of cases reported in 158 U. S. 299, and 15 Sup. Ct. 831. C. K. Offield, for petition. #418 486 Mr. Justice BROWN delivered the opinion of the court. A petition was filed at the last term for a rehearing in these cases, upon the ground that the court erred in assuming judicial knowledge of the construction and operation of grain elevators, and in holding that these elevators contained practically the same elements as the grain-transferring apparatus of the Richards patents. The argument is that the object of Mr. Richards' invention was to obviate and do away with elevators, by securing the continuous and automatic transfer of grain from one car to another, weighing it in transit, and preserving the identity of each lot; whereas, in the ordinary elevator, the grain is raised from the car or vessel, deposited in a storage bin, where its identity is lost, and other grain is withdrawn, as required, from the storage bin, to take its place. That the device described may be a convenient and valuable method of transferring grain from one car to another is not denied. The question is whether it involves invention. There is certainly no novelty in the result, since the grain may be transferred by shovels from one car to a platform or bin, where it may be weighed, and again transferred to a receiving car, though, doubtless, this is a slow and laborious process. Is there any novelty in the method by which this is done? The grain is shoveled from one car into a chute, from which it passes into the elevator leg, through which the buckets move upward, and is discharged into a hopper. It is there weighed, without being mixed with other grain; a valve is opened; and the grain discharged into the receiving car. There is clearly no novelty in the individual steps of this transfer. Indeed, the failure to claim either one of the elements separately raises a presumption that no one of them is novel. The novelty, then, must be in the combination, which differs from the combination of an ordinary elevator only in the omission of the storage feature, by which grain is housed in transit, and its identity lost. While the omission of an element in a combination may constitute invention if the result of the new combination be the same as before, yet, if the omission of an element is attended by a corresponding omission of the function performed by that element, there is no invention if the elements retained perform the same function as before. This is well illustrated in the case of Stow v. Chicago, 3 Ban. & A. 92, Fed. Cas. No. 13,512, decided in the same circuit. If, for instance, another person should take out a patent for this same combination, with the weighing hopper omitted, such patent would clearly be void, unless another method of weighing were substituted. The invention in this case is said to consist in the fact that the grain is not stored in transit, but is delivered directly from one car to another. Of course, its identity is not lost, and cannot be lost, since the storage feature, which destroys the identity of the grain in the elevator, is omitted. But this is a mere accident, and not a new function of the transferring device. The same thing would happen in the case of an elevator if, while a cargo of wheat were being transferred from a vessel to a train of cars, there happened to be no other grain in store with which the cargo in question could become mixed. In the Richards device there is never but one lot of grain being transferred at a time, so that there is no possibility of the grain losing its identity; while the ordinary course of business in an elevator is for the grain to be dealt with in large cargoes, so that the identity of a particular lot is lost by its being mixed with others. After all, the invention resolves itself into the omission of the storage feature and a necessary incident thereto. To make a combination of old elements patentable, there must be some new result accomplished; and as the result in this case is a mere aggregation of the several functions of the different elements of the combination, each performing its old function in the old way, we see nothing upon which a claim to invention can be based. The device is undoubtedly a convenient one, and appears to have proven profitable to the patentee, but we are unanimously of opinion that it lacks the necessary quality of invention. The application is therefore denied. (159 U. S. 491) SHIVER v. UNITED STATES. PUBLIC LANDS-HOMESTEAD ENTRIES-RIGHT OF 1. A settler upon a homestead may cut such timber as is necessary to clear the land for cultivation, or to build him a house, outbuilding, and fences, and perhaps may exchange such timber for lumber, to be devoted to the same purposes; but he has no right to sell timber for money, except so far as the same may have been cut for the purposes of cultivation. 2. Lands duly and properly entered for a homestead are nevertheless, as between the United States and the settler, public lands of the United States, within the purview and meaning of Rev. St. § 2461, which forbids the cutting of timber from lands reserved for the purpose of supplying materials to the navy. 3. A citizen who has made a regular and proper homestead entry is nevertheless liable to a criminal prosecution under Rev. St. §§ 2461 and 5388, for cutting and removing standing trees and timber found upon the land. On Certificate from the Circuit Court of Appeals for the Fifth Circuit. Shiver was tried upon an information filed in the district court for the Southern district of Alabama for cutting and removing 200 pine trees from a quarter section of land in Monroe county, which he had entered as a homestead on January 26, 1894. It appeared that the cutting began about the 1st of April, and that all the standing timber, amounting to about 500 trees, had been, either before or after complaint was made #492 493 against him, cut and removed from the land; that the defendant and his family were living on the land, and had erected a box house worth about $100; that the lumber was cut and hauled from the land by defendant's procurement; that it had been cut all over the land; that the land cleared amounted to about an acre; that the house was not yet completed; that the timber was taken to the mill of the Bear Creek Mill Company, of which defendant was an employé; that defendant was not living on the land when the cutting began, and that the trees would make upwards of 150,000 feet of lumber; that they were not cut for the purpose of clearing the land for cultivation, and that such timber was cut within four months after defendant had made his homestead entry; that the trees yielded an aggregate of the sum of $126, while the improvements made upon the land cost $229. The lumber put into the building amounted to 9,765 feet. There was conflicting evidence as to the motives of the defendant in cutting and selling the timber. He claimed that the logs were exchanged for lumber and building material, all of which were put into his improvement, the government claiming that it was cut for the purpose of sale and profit. The court instructed the jury that defendant had the right to cut timber on his homestead suitable and sufficient to build necessary and convenient houses, fences, etc., for a home, and to have that timber sawed into suitable lumber to make such improvements on his homestead; that he could have exchanged timber for lumber to make such improvements, but only so much as was necessary; and that if he only did this, and did it in good faith, he should be acquitted. On the contrary, that any cutting in excess of the lumber necessary to make his improvements would be unlawful, that he had no right to cut trees for the purpose of sale for profit, or to pay debts or loans of money, or to pay his expenses, or to buy supplies; in short, he had no right to cut them for sale for any such purpose. Defendant was convicted, and appealed to the circuit court of appeals (12 C. C. A. 689), which certified to this court the following questions: (1) Whether lands duly and properly entered for a homestead under the homestead laws of the United States are from the time of entry, and pending proceedings before the land department, and until final disposition by that department, so appropriated for special purpose, and so segregated from the public domain, as to be no longer lands of the United States, within the purview and meaning of section 2461 of the Revised Statutes of the United States. (2) Where a citizen of the United States has made an entry upon the public lands of the United States under and in accordance with the homestead laws of the United States, which entry is in all respects regular, can such citizen be held liable in a criminal prosecution under section 2461 or section 5388 of the Revised Statutes of the United States, or either of said sections, for cutting and removing, after such homestead entry, and while the same is in full force, the standing trees and timber found and being on the land so entered as a homestead? J. W. Smith and M. D. Wickersham, for plaintiff in error. Asst. Atty. Gen. J. M. Dickinson, for the United States. Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court. $491 This case turns upon the question as to what are "lands of the United States," within the meaning of Rev. St. § 2461, providing for the punishment of persons guilty of cutting timber upon such lands other than for the use of the navy. Obviously the question is not whether such lands are so far withdrawn from sale as to be no longer subject to appropriation by any railroad or other person or corporation to which a land grant has been made, but whether they are still so far the property of the United States that the government may protect itself against an unlawful use of them. Indeed, this court has settled by repeated decisions that the claim of a homestead or pre-emption entry, made at any time before filing a map of definite location of a railway, prevents the lands covered by such claim from passing to such railway under its land grant, even though such entry be subsequently abandoned. Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566; Railway Co. v. Whitney, 132 U. S 357, 10 Sup. Ct. 112; Whitney v. Taylor, 158 U. S. 85, 15 Sup. Ct. 796; Land Co. v. Griffey, 143 U. S. 32, 12 Sup. Ct. 362. The same principle applies where lands have been reserved for any purpose whatever. Wilcox v. Jackson, 13 Pet. 498; Witherspoon v. Duncan, 4 Wall. 210;3 Newhall v. Sanger, 92 U. S. 761; Kansa Pac. R. Co. v. Atchison, T. & S. F. R. Co., 112 U. S. 414, 5 Sup. Ct. 208. While these cases indicate that lands once appropriated to a certain purpose thereby cease to be available for another purpose, there is nothing in them to show that the United States loses its title to such lands by the first appropriation, or that they cease to be the property of the government. Upon the contrary, it was said by this court, as early as 1839, in Wilcox v. Jackson, 13 Pet. 498, 516, that, "with the exception of a few cases, nothing but the patent passes a perfect and consummate title." So, in Frisbie v. Whitney, 9 Wall. 187, 193: "There is nothing in the essential nature of these acts [entering upon lands for the purpose of preemption] to confer a vested right, or, indeed, any kind of claim to land, and it is neces |