patents

Opinion of the Court.

one to Adam Snyder, No. 48,733, July 11, 1865, for a "fruit-drier"; one to Joseph B. Okey and Ferdinand A. Lehr, No. 108,289, October 11, 1870, for an "improvement in fruit-driers"; and one to Joel Orlando Button, No. 155,286, September 22, 1874, for an "improvement in fruit-driers." Their introduction was objected to by the plaintiff, because they were not set up in the answer. But they were receivable in evidence to show the state of the art, and to aid in the construction of the plaintiff's claim, though not to invalidate that claim on the ground of want of novelty, when properly construed. Vance v. Campbell, 1 Black, 427, 430; Railroad Co. v. Dubois, 12 Wall. 47, 65; Brown v. Piper, 91 U. S. 37, 41; Eachus v. Broomall, 115 U. S. 429, 434.

The Snyder patent and the Okey and Lehr patent show, each of them, in a fruit-drier, a series of trays, arranged one above another, so that the frames of the trays form the wall of the drier. The Button patent shows a fruit-drier, within which is a movable frame, which carries racks that rest upon each other. The racks are inserted through a door immediately above the frame, one by one, and each one is separately elevated on the frame by cam levers till it is held by springcatches, which move back while a rack is being elevated, and as soon as it passes spring out and support it, while the frame is being lowered for another rack. Each rack goes up with the frame, and, having been inserted at the extreme bottom, it carries up the racks above it, when it reaches them, and so on until they can be successively taken out at the top. The frames of the trays, which thus rest on each other, constitute, in a measure and to a degree, the walls of a chamber in which the drying takes place.

Movable trays, the outer walls of which constituted the drying chambers, being old, and apparatus having existed before to raise a tray or rack, and a column of racks above it, and insert a fresh one at the bottom, and the two having been used in connection, the fourth claim of the plaintiff's patent must be limited to the mechanism described and shown. cuit Court made no reference to the Button patent. The plaintiff's patent describes and claims "a suspending

The Cir

Syllabus.

device, operating substantially as described." The defendant has no such suspending device. The plaintiff has a crane, with suspended ropes, and his lowermost tray, while being raised, necessarily carries on it the weight of all the trays and fruit above it. In the defendant's apparatus each tray can be lifted independently of the others, and each tray is supported independently, so that the weight of the series of trays, and of the fruit on them, need not rest entirely on the lowermost tray. This result being different from that in the plaintiff's device, the mechanism is different and is not an equivalent of that of the plaintiff any more than the plaintiff's is the equivalent of Button's. The fourth claim of the patent, if valid, cannot be construed so as to cover the defendant's apparatus.

The decree of the Circuit Court is reversed, and the case is remanded to that court, with a direction to dismiss the bill of complaint, with costs.

HOPT v. UTAH.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH.

Argued January 21, 1887.- Decided March 7, 1887.

Evidence, or what purports to be evidence, in a criminal case, printed in a newspaper, is "a statement in a public journal" within the meaning of the act of Utah declaring that no person shall be disqualified as a juror by reason of his having formed or expressed an opinion upon the matter or cause to be submitted to him, "founded upon public rumor, statements in public journals, or common notoriety, provided it appear to the court, upon his declaration under oath or otherwise, that he can and will, notwithstanding such an opiniou, act impartially and fairly upon the matters submitted to him."

The judgment of the court as to the competency of the juror upon his declaration under oath or otherwise, as above, is conclusive. When a challenge by a defendant in a criminal action to a juror, for bias, actual or implied, is disallowed, and the juror is thereupon peremptorily challenged by the defendant, and excused, and an impartial and competent juror is obtained in his place, no injury is done to the defendant, if until the jury is completed he has other peremptory challenges which he

can use.

Opinion of the Court.

The opinion of a physician, after making a post-mortem examination of the deceased, who came to his death by a blow inflicted upon his head, as to the direction from which the blow was delivered, is admissible in evidence.

If the evidence produced in a criminal action be of such a convincing character that the jurors would unhesitatingly be governed by it in the weighty and important matters of life, they may be said to have no reasonable doubt respecting the guilt or innocence of the accused, notwithstanding the uncertainty which attends all human evidence. Therefore, a charge to the jury that if, after an impartial comparison and consideration of all the evidence, they can truthfully say that they have an abiding conviction of the defendant's guilt, such as they would be willing to act upon in the more weighty and important matters relating to their own affairs, they have no reasonable doubt, is not erroneous.

An allusion, in the final argument to the jury by the counsel for the prosecution, to the case as having been many times brought before the tribunals, is not a ground for reversing a judgment under the statute of Utah, which declares that on a new trial the "former verdict cannot be used or referred to either in evidence or argument."

THIS writ of error was sued out by the defendant below, who was indicted, tried and convicted of murder, to review the proceedings and judgment there. The case is stated in the opinion of the court.

Mr. Benjamin Sheeks and Mr. P. L. Williams for plaintiff

in error.

Mr. Assistant Attorney General Maury for defendant in

error.

MR. JUSTICE FIELD delivered the opinion of the court.

The defendant below, the plaintiff in error here, Frederick Hopt, was indicted in the District Court of the Third Judicial District of Utah, in December, 1880, for the murder of John F. Turner on the 3d of the preceding July. He was four times convicted in that court, upon this indictment, of murder in the first degree. The judgment of death pronounced against him on each previous conviction was reversed by this court. The decisions are found in 104 U. S. 631; 110 U. S. 574; and 114 U. S. 488. The last conviction took place in September, 1885; judgment was passed in October following;

Opinion of the Court.

and on appeal to the Supreme Court of the territory it was affirmed in January, 1886, except as to the time of its execution; that was to be fixed by the District Court, to which the cause was remanded for that purpose. To secure a reversal of this judgment the case is brought before us on a writ of

error.

The errors assigned are: 1st, the ruling of the trial court upon challenges to several jurors; 2d, the admission in evidence of the opinion of a witness as to the direction from which the blow was delivered which caused the death of the deceased; 3d, the instruction to the jury as to the meaning of the words "reasonable doubt;" and, 4th, the reference on the argument by the district attorney to previous trials of the

case.

1st. Four persons summoned as jurors were examined on their voir dire, and challenged by the defendant, one for actual bias, under § 241 of the act of the territory regulating proceedings in criminal cases, passed in 1878; and the other three for both actual and implied bias. Actual bias is defined by that act to be "the existence of a state of mind, on the part of a juror, which leads to a just inference in reference to the case that he will not act with entire impartiality."

The juror Young, challenged as having that state of mind, that is, for actual bias, testified that he had heard of the case, but had never talked with any one who pretended to know about it; that he had impressions as to the guilt or innocence of the defendant, but could not say that he had ever formed any opinion on the subject, and did not remember that he had ever expressed any; that possibly his impressions were strong enough to create, from sympathy, some bias or prejudice, but he thought he could sit on the jury and be guided by the evidence, and try the case impartially as if he had never heard of it before. Upon this testimony, the court was of opinion that he was a competent juror; and accordingly the challenge was disallowed. In this ruling we see no error. The juror was then peremptorily challenged by the defendant, and was excused.

That act also provides, in § 242, that a challenge for implied

Opinion of the Court.

bias may be taken for all or any of the following causes, and for no other:

1. Consanguinity or affinity within the fourth degree to the person alleged to be injured by the offence charged, or on whose complaint the prosecution was instituted, or to the defendant;

2. Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offence charged, or on whose complaint the prosecution was instituted, or in his employment on wages;

3. Being the party adverse to the defendant in a civil action, or having complaint against or being accused by him in a criminal prosecution;

4. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment;

5. Having served on a trial jury which has tried another person for the offence charged in the indictment;

6. Having been one of the jury formerly sworn to try the same indictment, and whose verdict was set aside, or which was discharged without a verdict, after the case was submitted to it;

7. Having served as a juror in a civil action brought against the defendant for the act charged as an offence;

8. Having formed or expressed an unqualified opinion or belief that the prisoner is guilty or not guilty of the offence charged;

9. If the offence charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror.

The act provides, in § 244, that, "in a challenge for implied bias, one or more of the causes stated in § 242 must be alleged." (Laws of 1878, pp. 111, 112.)

Another act of the territory, passed in March, 1884, declares that "no person shall be disqualified as a juror by reason of

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