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strike out the words material fact and put | the jury when it retired. We do not know in the word issue, so the instruction will whether it was so taken or not. It is read, gentlemen, as follows: enough to say that the record does not affirmatively disclose that the judge failed to give the written amendment to the jury when it retired. If the plaintiffs' counsel did not discover at the time that the instructions were not taken by the jury, in accordance with the terms of the statute, it is too much to expect this court to conjecture that they were not taken, in the absence of any such statement in the record. Grove v. Kansas City, 75 Mo. 672.

"In this case the burden of proof is on the plaintiffs as to every issue, except that of payment, as to which issue the burden of proof is upon the defendants. In order to entitle the plaintiffs to recover in this case they must establish every such issue, with the exception aforesaid, by a preponderance of the evidence; and if you find that the evidence bearing upon the plaintiffs' case is evenly balanced, or that it preponderates in favor of the defendants, then the plaintiffs cannot recover, and you should find for the defendants.'

"Now, gentlemen, I will withdraw instruction No. thirteen given to you before, and insert and give this amended instruction instead."

The court read the foregoing amended instruction from a carbon copy of the original charge, in which the words above mentioned as stricken out were crossed out with a pencil, and the words mentioned as having been inserted were written in with a pencil. After the foregoing amended instruction was read to the jury, the counsel for the plaintiffs said to the court:

"As thus modified I think the charge is absolutely without objection, if the court please."

The exception, therefore, was abandoned in open court, but it is argued that reversible error appears in the record because it goes on to say:

An exception is alleged to the refusal of the court to give the following instruction: "If the jury believes from the evidence that the plaintiff A. A. Jones agreed with the defendant Charles Springer to defend the case of the Maxwell Land Grant Co. v. Dawson, for a fee of $500, and that thereafter and before the rendition of all the services agreed to be rendered by said Jones in said cause, the said Springer said to the said Jones, 'You cannot be expected to attend to this business for any $500; go on with the case, and we will see how we come out, and after it is all over, you will be paid what is right,' or words to that effect, and such proposition was accepted and acted on by said Jones, then the plaintiffs in this case are entitled to recover for the services of said Jones in said case whatever the same may be reasonably worth, as shown by the evidence in this case."

But the instruction requested was substantially as given by the court in instructions 5 and 8, which are as follows:

"Plaintiffs claim, however, that the orig

"The amendment to the thirteenth instruction by the court to the jury as thus made was also taken down by the court's stenog-inal contract in relation to the services of rapher and transcribed by the said stenographer from his notes of the proceedings of the trial and attached to the original charge on file, after the verdict of the jury had been returned."

In support of this contention it was said that by § 2922 of the statute of New Mexico "all instructions to the jury must be in writing;" and that, by § 3002, "the jury, when it retires, shall be allowed to take the pleadings in the case, instructions of the court, and any instruments in writing admitted as evidence," and urged that either the record shows that the amended instruction in writing was not taken to the jury room, and therefore the plaintiff is entitled to claim this failure as an error, although it was not alleged at the time of the occurrence, or that, by the failure of the court to send the amended instruction to the jury, the plaintiff is entitled to the benefit of the original exception which was abandoned in open court. Whatever merit this contention may have rests upon the assumption that the amended instruction was not taken by

A. A. Jones was modified by a subsequent agreement made with the defendant Charles Springer to the effect that his compensation was not to be limited to the $500 originally fixed, but that he was to go on with the litigation, see how it came out, and then Charles Springer would do what was right, and after the property should be sold he would pay said Jones a big cash fee.

"(8) If the jury believes from the evidence that the original contract in relation to Mr. Jones's compensation was afterward modified so that such compensation was not to be the $500 agreed upon, then you should find for the plaintiffs in such sum as you believe from the evidence to be the reasonable value for the services of Jones, less whatever sum may have been paid thereon."

The plaintiff excepted to the refusal of the court to instruct the jury as follows:

"The court instructs the jury that the credibility of the witnesses is a question exclusively for the jury; and the law is that where two witnesses testify directly opposite to each other, the jury are not bouri

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to regard the weight of the evidence as evenly balanced. The jury have a right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent candor and fairness, their apparent intelligence or the lack of intelligence, and from all of the other surrounding circumstances appearing on the trial, which witness is the more worthy of credit, and to give credit accordingly."

the defendant in error, a citizen of Nebraska, in the circuit court for the district of Nebraska, where there was judgment for the defendant, which is brought here by writ of error on a constitutional question. The land sought to be recovered was once the property of Ezra S. Whitney, through whom both parties claim title, the plaintiff, through a deed of the land executed and delivered by Whitney, on November 30, 1898; the defendant, under a sale of the land on execution in pursuance of a levy duly made on April 12, 1898. The defend

and must prevail if the sale upon execution was valid. The validity of this sale is the only question in the case.

But, so far as the plaintiffs were entitled to this instruction, it was given to the jury by instruction 14. A judge is not bound to charge the jury in the exact words pro-ant's paper title is therefore the earlier one posed to him by counsel. The form of expression may be his own. If he instructs the jury correctly and in substance covers the relevant rules of law proposed to him by counsel, there is no error in refusing to adopt the exact words of the request. Continental Improv. Co. v. Stead, 95 U. S. 161,| 24 L. ed. 403.

The execution issued on a judgment in a criminal case, in which, by information, Whitney was charged with the embezzlement, while county treasurer of Harlan county, in the state of Nebraska, of $11,190

The judgment of the Supreme Court of of the public money in his possession by virNew Mexico is, therefore, affirmed.

(204 U. S. 659)

JAMES COFFEY, Plff. in Err.,

V.

COUNTY OF HARLAN.

Constitutional law due process of law in criminal proceedings.

A public officer convicted of embezzling public moneys, who has been afforded full opportunity to present every defense permitted by the laws of the state, is not denied due process of law by the imposition, as a part of the sentence, pursuant to Neb. Crim. Code § 124, entirely irrespective of the question whether restitution has been made, of a fine in double the amount of the embezzlement found by the jury, which, by the terms of that section, is to operate as a judgment against the estate of the convict.

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tue of his office. Upon trial by jury Whitney was found guilty as charged and sentenced to imprisonment for a term of years, and to "pay a fine in e sum of $22,390," which was double the amount of the embezzlement found by the jury. On appeal the conviction was armed by the supreme court of Nebraska. Whitney v. State, 53 Neb. 287, 73 N. W. 696. The sentence awarded was that prescribed by § 124 of the Nebraska Criminal Code, which provides that a public officer who embezzles the public money "shall be imprisoned in the penitentiary not less than one year nor more than twentyone years, according to the magnitude of the embezzlement, and also pay a fine equal to double the amount of money or other property so embezzled as aforesaid, which fine shall operate as a judgment at law on all of the estate of the party so convicted and sentenced, and shall be enforced to collection by execution or other process for the use only of the party or parties whose money or other funds, property, bonds, or

Argued and submitted January 24, 1907, securities, assets or effects of any kind as Decided February 25, 1907.

IN

N ERROR to the Circuit Court of the United States for the District of Nebraska to review a judgment for defendant in an action of ejectment. Affirmed.

The facts are stated in the opinion. Messrs. C. C. Flansburg and R. O. Williams for plaintiff in error.

aforesaid has been so embezzled." Neb. Comp. Stat. 1903, p. 1942.

The proceedings which ended in the sale on execution under which the defendant claims title were in conformity with the Constitution and laws of Nebraska, and the sheriff's deed vested title in the defendant. Everson v. State, 66 Neb. 154, 92 N. W. 137. It is within the power of the state to

Messrs. J. W. Deweese, W. A. Myers, and enact laws creating and defining crimes W. S. Morlan for defendant in error.

*Mr. Justice Moody delivered the opinion of the court:

The plaintiff in error, a citizen of Kansas, brought an action of ejectment against 27 S. C.-20.

against its sovereignty, regulating the procedure in the trial of those who are charged with committing them, and prescribing the character of the sentence which shall be awarded against those who have been found guilty. In these respects the state is su

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preme and its power absolute, and without | rendered was repealed by a subsequent proany limits other than those prescribed by vision of the Constitution of the state; Second, that it was unconstitutional in the Constitution of the United States. The exercise of the power of the state in this inflicting a double punishment, in that the field cannot be drawn in question in this fine was added to imprisonment. In overruling these two contentions the court or elsewhere than in its own courts, except for the purpose of restraining it court described the statute as one giving within the limits thus established. One of a fixed sum "in the nature of liquidated to one who has suffered the limitations upon the power of the state, damages do not care to put imposed by une 14th Amendment, is that injury by the wrongful act of a public officer," the state shall not deprive any person of and said: "We life, liberty, or property without due proc- ourselves upon record as holding that the ess of law. The plaintiff contends that return of the property or the value of the the sentence awarded against Whitney vio- property which the thief has embezzled or lated this prohibition, in that Whitney had stolen, either voluntarily or by compulsory no opportunity to be heard upon and de- process, should be considered any part of fend against that part of the sentence which his punishment within the meaning of our imposed a fine and authorized a judgment Bill of Rights." P. 158, N. W. p. 138. Seizagainst his estate for its collection. The ing hold of this language, the plaintiff in error in this case argues that, by an interplaintiff therefore insists that the sale on execution of Whitney's land was bad, be-pretation of the statute binding upon us, it cause the execution issued upon a judgment authorizes a mere civil judgment for damwhich was void. The short and conclusive ages, against which the defendant has been answer to the whole contention is, that it denied the right to defend by showing that fact. Whitney was his civil liability for the embezzlement had is not true given an opportunity to be heard and been discharged, and that therefore the to defend. The information charged him judgment was wanting in due process of with embezzling $11,190, the property law. But this argument misinterprets the of Harlan county. The trial was had upon decision of the supreme court of Nebraska this information and the jury returned a by giving to its language a meaning not expressed or intended. verdict in the following terms:

in

"We, the jury, duly impaneled and sworn
in the above-entitled cause, do find the de-
fendant guilty, as charged in the informa-
tion, and we further find the sum so em-
bezzled to be $11,190." Thereupon it be-
came the duty of the court to impose a sen-
tence of imprisonment of not less than one
year nor more than twenty-one years, and
of a fine that should be equal to double the
This was
amount of the money embezzled.
done. The case was then appealed to the
supreme court of Nebraska, argued by coun-
sel, and the conviction affirmed. It is idle
to say that Whitney was denied a hearing,
or an opportunity for every defense permit-
ted to him by the laws of Nebraska.

The plaintiff in error rests his contention
upon some language used by the supreme
court of Nebraska in Everson v. State, ubi
supra. In that case Everson was convicted
of a trespass upon the land in dispute. He
defended against the charge by claiming ti-
tle through the deed from Whitney, under
which, as Everson's grantee, the plaintiff in
The state, on the
this case claims title.
other hand, contended that the title was in
Harlan county by virtue of the sale on ex-
Everson, as-
ecution hereinbefore stated.
serting, as the plaintiff here asserts, that
the execution sale passed no title, attacked
the judgment upon which it was issued
upon two grounds:

First, that the law under which it was

As part of the consequences of a conviction of the crime of embezzlement by a public officer, the law of Nebraska provides tuat a fine double the amount embezzled shall be inflicted, which shall operate as a judgment against the estate of the convict. It is not of the slightest importance whether this fine is called a penalty, a punishment, or a civil judgment. Whatever it is called, it comes to the convict as the result of his The amount of the judgment is crime. fixed by the amount of the embezzlement, and not by the amount remaining due on account of the embezzlement, and the only It is question left open to the accused is the fact and amount of the embezzlement. provided that the judgment shall issue for double that amount, entirely irrespective of the question whether restitution has been made in whole or in part. Upon the only question, therefore, open to him, Whitney had an opportunity to be heard, and, in point of fact, was heard. Upon his appeal (53 Neb. 287, 73 N. W. 696) the amount of the embezzlement was expressly affirmed by the court (p. 303, N. W. p. 701), and the claim that the restitution of the stolen property relieves the offender from criminal liability was pronounced "a monstrous doctrine," and it was said: "Whether or not Harlan county has been successful in collecting or securing the payment of the money which the defendant is charged with hav

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ing embezzled is of no consequence in this case." Whitney had full opportunity to present every defense allowed to him by the law of the state. The law itself was justified by the plenary power of the state, and neither it nor its administration in this case discloses any violation of a right secured by the Constitution of the United States, and the judgment of the Circuit Court is therefore affirmed.

(204 U. S. 609)

Messrs. Melville Church and Joseph B. Church for appellant.

Messrs. H. P. Doolittle and E. Hilton Jackson for appellee.

Mr. Justice Day delivered the opinion of the court:

This is an appeal from the court of appeals of the District of Columbia, affirming a decree of the supreme court of the District, dismissing the bill of the Computing Scale Company of America, appellant, against the Automatic Scale Company,

COMPUTING SCALE COMPANY OF based upon the alleged infringement of let

AMERICA
V.

AUTOMATIC SCALE COMPANY.

Patents construction - narrowing claimprior state of art.

1. The claims of the Hayden patent No. 700.919, for an improvement in a spring-balance computing scale, must be deemed to be limited to the specific means shown for translating the vertical movement of the runner into the rotary movement of the vertical inner computing cylinder, in view of the action of the Patent Office in requiring, as a means of saving the first claim, that such claim call for "a spring-supported, loadbearing, and cylinder-revolving rod," and "connecting means between rod and computing cylinuer" to secure the rotary movement of the inner cylinder, in which action the applicant acquiesced, though "without prejudice to the claims which remain," because "the allowed claims appear to cover the invention as it would be constructed in practice," and in view of the state of the art, which shows that the elements of the invention, broadly considered, were previously disclosed in horizontal machines, and that the idea of vertical construction was old. Patents-infringement-nonuse of essential

element.

ters patent No. 700,919, granted to the complainant as the assignee of the inventor, Austin B. Hayden, said letters bearing date May 27, 1902, for an improvement in com. puting scales.

The bill contained a prayer for an injunc tion and accounting. The answer denied the patentability of the alleged invention of the plaintiff, set up the alleged anticipating invention of one Christopher, and denied infringement.

shown in the accompanying illustrations The alleged improvement of Hayden is taken from the patent. [See next page.]

To understand these drawings they are to be viewed in the light of the description of the mechanism given by complainant's expert, which has the approval of the expert of the defendant, and was accepted as correct in the court of appeals. This description, somewhat abridged, is as follows:

"The two principal parts of the mechanism are as follows: 1st, a vertically arranged, nonrotating frame which comprises and includes a vertical cylindrical casing which incloses, conceals, and protects the major portion of the operating portions of the scale, and upon which are marked the 2. Infringement of the claims of the price indications which indicate the price Hayden patent 700,919, for an improvement in spring-balance computing scales, does not per pound at which the articles weighed are result from the use of a scale in which the to be sold. As clearly shown in the drawdownward movement of the load accom-ings this external casing or frame is proplishes the rotary movement of the inner vided with a vertically disposed sight opencomputing cylinder by other mechanism than the suspended rod with its spiral, which, with its connection with the cylinder, is the essential element of the Hayden invention.

[No. 175.]

ing through which the coacting mechanism is observable, and along one vertical edge of this sight opening are arranged the numerals indicating the price per pound.

"The second of these principal parts is a second cylinder located within the casing,

Argued January 23, 1907. Decided February this cylinder constituting a computing cyl

A

25, 1907.

inder or chart drum upon which are placed indications indicating the weight in pounds of the article weighed, and also having oth er indications indicating the price of an arti cle weighed corresponding to the weight and to the price per pound. This chart drum or

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PPEAL from the Court of Appeals of the District of Columbia to review a decree which affirmed a decree of the Supreme Court of that District dismissing a bill to restrain the infringement of a patent. Af-computing cylinder extends vertically with-firmed.

See same case below, 26 App. D. C. 238.
The facts are stated in the opinion.

in the external casing and it is arranged to rotate on a vertical axis within the external casing. This casing is appropriately con

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