Petition for Rehearing.

support and continuance of the railroad stations and depots of the country? Such conditions would be analogous to the inventions of Mr. Richards, who has done away with the elevators of this country, and the housing of grain therein, and has substituted therefor the mechanical devices of his patent for transferring and weighing grain at terminal points without the necessity, use or employment of elevators.

"III. The third ground of complaint we have against the reasoning and opinion of the court in the disposal of Mr. Richards' patent is the closing sentence of the opinion, namely: 'In fact, the combination claimed is a pure aggregation.' It is most difficult to reconcile the above statement with the apparent facts in this case. Having in view, however, the function and result of the combination, namely, the transfer of grain from one car to another, and the weighing of the same in such continuous operation of transfer, keeping each lot and load distinct and separate from the other, wherein can it be contended that any portion of the mechanism or devices utilized to produce this result is in any sense an aggregation. From the track and car where the loaded grain is first taken and acted upon to the track and car where it is taken to and deposited, the operation is continuous and uninterrupted. Every mechanical element entering into the carrying out of and production of this result co-acts either simultaneously or successively with every other element of the combination. Not a single element entering into any one of the mechanical combinations of Richards to transfer and weigh grain, as identified by either claim, can be omitted without destroying the combination and its effectiveness, function and result. How then can it be claimed that a combination of mechanical means and devices, producing a result, co-acting together, wherein no one element of the combination can be omitted without destroying the combination, function and result, is a pure aggregation, we confess we are at a loss to appreciate or understand. Moreover, whether or not an alliance.of mechanism is a mere aggregation and juxtaposition of parts is a question which, if disputed, can only be determined by proof, and we most earnestly and confidently contend that if the opportunity

Opinion of the Court.

is offered the patentee Richards to determine this question of aggregation, as represented by his combination, abundant proof can be offered that cannot be contradicted, to the effect that every element of his combination enters into and produces the new function and result identified as his invention, and that all parts co-act together to produce this result, and that such result and function would be impossible if any of the identified parts should be omitted from the combination. For the above reasons briefly stated, we submit that this petition for rehearing should be granted, and Mr. Richards should be given his day in court to demonstrate not only the patentability and validity of his patent grant in question, but also its great value commercially, as an invention, over every and all of the old devices that can be arrayed as an anticipation or comparison therewith."

Mr. Charles K. Offield for the petitioner submitted on the petition.

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

Opinion of the Court.

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 shovelled 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 performed the same function as before. This is well illustrated in the case of Stow v. Chicago, 3 Bann. & Ard. 92, 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

Statement of the Case.

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.

ISAACS v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS.

No. 609. Submitted October 23, 1895. Decided November 11, 1895.

The action of the trial court upon an application for a continuance is purely a matter of discretion, not subject to review by this court, unless it clearly appears that the discretion has been abused.

The court committed no error in charging that the fact that the man killed was a white inan might be shown by the statement of the defendant taken in connection with other facts and circumstances.

It is no ground for reversal that the court omitted to give instructions which were not requested by the defendant.

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. witness who testified saw the act of killing; but it was shown

No

Opinion of the Court.

by the testimony of several witnesses, that a peddler, about sixty 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 peddler 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 gray 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.

No appearance for plaintiff in error.

Mr. Assistant Attorney General Dickinson for defendants in error submitted on his brief.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.