text:
    JAMES v. STIMSON.
    Patent Appeal No. 2667.
    Court of Customs and Patent Appeals.
    April 27, 1931.
    Joshua R. H. Potts, of Chicago, 111., and T. Bertram'Humphries, of Philadelphia, Pa., for appellant.
    John H. Bruninga, of St. Louis, Mo., for appellee.
    Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
   GRAHAM, Presiding Judge.

This is an appeal by the appellant from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the Examiner of Interferences in awarding priority to the party Stimson. An interference was declared on June 12, 1926, betWeen the patent of the appellant, dated September 1, 1925, No. 1,552,166, and the application of the appellee, serial No. 92,025, filed March 3, 1926.

The subject-matter of the interference is contained in one count, which reads as follows:

“In a highway danger signal the combination of two reflectors placed at right angles to each other and with their reflecting surfaces facing one another, one of the reflectors haying a plane surface, the other being grooved, the grooves running at right angles to the plane reflector, and each groove being composed of two plane surfaces placed at right angles to one another.”

The said patent to the appellant was issued on an application filed September 2, 1924, for improvements in highway danger reflectors, the scope of the invention being sufficiently shown by the facts hereinafter stated. The appellee, Stimson, filed his application for an improvement in highway signals, as has been stated, on March 3, 1926, In this application he states that the same is a continuation in part of application, serial No. 7164, filed February 5, 1925. The said last-named application went to patent on July 6, 1926. The disclosure and the claims in said patent are for a process of making reflecting glass for highway signals, and for a mold of the necessary character to make the same. No contention is made here t.hat the appellee is not entitled to prosecute his present application as a continuation of said prior application, if the said prior disclosure is sufficient to read upon the count of the interference here.

One of the principal contentions in this matter arises from a motion .of the party James to dissolve the interference herein on the grounds that the party Stimson could not make the count. This motion was decided adversely to James by the law examiner, the Examiner of Interferences, and by the Board of Appeals in its final decision on the merits. Appellant contends that the original patent No. 1,591,572, granted to the appellee on his application filed February 5, 1925, does not disclose the subject-matter of the interference count, and hence that the present application can be extended no further than the disclosures in said patent. Appellant contends, with much insistence, that his disclosure, as shown by his patent No. 1,552,166, shows a continuous plane reflecting surface with another reflector placed at right angles thereto, the latter being grooved, and consisting of two plane reflecting surfaces placed at right angles to one another and at right angles to said first-mentioned plane reflecting surface.

On the other hand, he insists that the Stimson disclosure shows a series of half cubes, the interior portions of said half cubes having reflecting surfaces, and that light reflected from such a series of half cubes will be reflected in a different manner than that which will result from the use of the single plane surface of appellant’s disclosure. In connection with this, appellant goes into an exhaustive discussion of the laws of physics as regards reflected light, to demonstrate the correctness of his position.

The Board of Appeals held, and we think properly, that Stimson’s disclosure in his patent No. 1,591,572 reads upon the count of the interference. The patent in question was for a mold for making reflecting glass. The original molds are offered in evidence as Stimson’s Exhibits J and AA, together with samples of glass made therefrom, some of which glass was used in the Moorlands sign, hereinafter referred to, and other pieces of which were used in a railroad crossing sign offered in evidence as Exhibit MM. Both these molds and the glass made therefrom, and offered in evidence, show along one or more sides thereof a continuous plane surface which, if appellant’s contentions are correct, fully satisfy the requirements of the count, which must be read broadly. Stern et al. v. Schroeder et al., 36 F.(2d) 518, 17 C. C. P. A. 690.

It will be observed that the count of the interference is confusingly drawn. It is a copy of claim 1 of appellant’s patent No. 1,-552,166. The count first recites that there are but two .reflectors, with their surfaces facing one another, one of the reflectors being plane and the other being grooved; then, having recited subject-matter which would seem to be covered by a combination of' but three reflecting surfaces, the count further proceeds with a statement: “The grooves running at right angles to the plane reflector.” This latter statement seems to indicate that, instead of being two reflecting surfaces, one grooved and the other plane, there are at least four of such reflectors, otherwise there could be no grooves. In fact, we are satisfied, from an examination of the drawings and the specification in the James patent, as well as by an examination of his first models, James’ Exhibits Nos. 1 and 3, that the inventor intended to have a multiplicity of these opposed reflecting surfaces. The glass which he finally manufactured commercially indicates the same thing.

It is argued that, if the patty Stimson has any such continuous plane surface, it was accidental, and not intended or comprehended by Stimson. While this may not have been Stimson’s primary design, his disclosure fully shows the necessary existence of such a continuous plane surface in his product. In his specification he calls attention to the fact that such a continuous plane surface will exist:

“* * * The outer rows of hexagonal elements along the sides of the box 35 are not surfaced with the three faces 20, 21, 22, but the elements of the bottom row (Figure 2) are given only one angularly cut face and those of the top row two angularly cut faces.”

We And no error in the ruling of the Board of Appeals affirming the action of the Examiner of Interferences in denying the motion to dissolve the interference.

The record testimony offered on behalf of the party Stimson is sufficient to establish, in our opinion, the facts alleged by him in !his preliminary statement. The party Stimson testifies that he had been working upon the problem of a glass reflector for use in road signs and other articles, and that, on June 11, 1923, he conceived the idea involved in the count of the interference here, his conception at that time being that of a plate reflector, every unit of which should be a complete half cube; that on the same day he made a rough model of wood preliminary to plans for making a mold to carry out his invention. His conception on this date is amply corroborated by a diary képt by him, by other documentary evidence, by the testimony of his father and his brother, to whom he communicated the same, by the testimony of his attorney, to whom he made disclosure of it, and by others whose testimony is stipulated into the record. He made a drawing of his invention on or about June 25, 1923, and proceeded at once thereafter to procure the necessary materials and molds for carrying out his invention.

His testimony shows that a mold was completed and delivered to Stimson on July 10, 1923, from which, thereafter, numerous plates of glass with reflecting surfaces were made. This is corroborated by the proprietor of the machine works where the same was made, as well as by the mechanic who did the work. The witnesses Roach and Witherow testified that a full and complete disclosure of the invention was made to them in August, 1923, and that samples of the glass reflectors were shown to them at that time.

Some attempt was made by Stimson to test the reflective power of these glasses in the shop, but the testimony shows that full and complete tests were made of them on the .public highway and otherwise in the fall of 1923. Highway signals were made up and placed in position along public highways in the early part of September, 1923, and signs were installed, thus made up, in Jefferson City, Mo., and Richmond, Ind., at about the same time.

Certain of the signs which were put up locally in St. Louis county, Mo., were tested by Stimson and others, by the use of the automobile headlights of passing automobiles, with spotlights and. otherwise, at such distances as would show their availability for ordinary highway use.

In addition to this, in August, 1923, a large sign was erected by Stimson containing letters made from his reflecting glass and put up to advertise a real estate development known as “Moorlands.” The sign was about 35 feet long, and the letters were each about 5 feet high. This sign was kept in service until after snowfall' in the fall of 1923. A railway crossing sign was also made and put in use at about the same time. All of these signs were thoroughly tested, and proved satisfactory in every respect.

There is therefore no question from the record that Stimson made a complete reduction to practice of his invention, not later than August 10, 1923, when he erected the Moorlands sign.

The record made by the party James shows that in the month of April, 1923, James had a conference with one Edgar A. Miller, during which James disclosed to Miller, for the purpose of obtaining financial assistance, his idea of a highway danger reflector composed of a “plane surface and a surface composed of 90° grooves and these surfaces being placed at right angles to one another.” James testifies that he had conceived the subject-matter of said conference in 1921; the idea being suggested to him by the reflection of the lights from his automobile headlights by the corner of a tin box lying along the highway. Miller corroborated James in this disclosure as of the date mentioned by James. At that time the party James’ idea was incorporated in a tin model which is in evidence as James’ Exhibit Ho. 1, which consists of a flat piece of tin plate to which is attached, at right angles thereto, a piece of tin plate in the form of three rectangular grooves, the side of each of said grooves being made by a fold of said tin plate. Between these upright grooves and the lower flat reflected surface was interposed a sheet of red celluloid. James relies to a large degree for his early date of conception upon this exhibit.

In August, 1923, James constructed a model of a reflector which is in evidence, and known as James’ Exhibit Ho. 3, and which was used by him in demonstrating his idea. It consisted of a wooden frame containing therein an enlargement of the old tin model, Exhibit 1, but was constructed of silvered mirror plates of glass, and had four upright grooves instead of three, as in the original tin model. In the center of each groove was placed a piece of red glass. This model was, to some degree, broken up and lost, but was reconstructed and identified for the purposes of this interference proceeding.

James also constructed several other reflectors of nickel plated-material in the fall of 1923, according to Ms testimony, one of wMch, ExMbit No. 7, be states was “tried out in the bouse and on the highway.” There is, however, no corroboration of this statement by the testimony of the other witnesses.

On August 13, 1923, James testifies that he demonstrated the use of his invention by means of Exhibit No. 3, and that members of Ms family and the witness Miller were present. It appears from the testimony that in maMng this demonstration the model reflector was placed on the back of a davenport, and that it was caused to be illuminated by an electric light chandelier in the ceiling, and sometimes by a flash-light, the demonstrator standing about 10 feet away from the reflector during the test. It is stated that the test was satisfactory. This test is corroborated and sufficiently shown by the record.

The witness Miller states that he saw a demonstration of the nickel plated reflectors, Exhibits Nos. 5 and 7, in the fall of 1923, in the cellar or basement of the party James’ home. This test was conducted by placing the reflector at one end of the cellar, and with the aid of a mirror and a gas jet a light beam was projected onto the plane surface of the reflector. These nickel plated reflectora had strips of red celluloid- inserted, so that the reflected light was red in color.

No other tests of any kind are shown by James’ record óf his deviee prior to Stimson’s reduction to practice on August 10, 1923. In fact, the tests which were made, as last above stated, of ExMbits 5 and 7, may have been after August 10, 1923, so far as the record discloses.

We are of opinion that the Board of Appeals committed no error in holding that James had not shown reduction to practice prior to his constructive reduction to practice on the filing of his application for patent on September 2, 1924. There has been much discussion in the case as to what was necessary to constitute reduction to practice in this case. It is sufficient for us to observe that the parties here were both trying to perfect highway danger signals and light reflecting glass for similar purposes. It is quite apparent that a test of a Mghway danger signal to be used to catch and reflect the light from automobile headlights at night cannot be satisfactorily made except under actual working conditions. Such a test would be easy of accomplishment, and would be the natural and reasonable thing to do. To test such a deviee with a small contrivance made of tin plate, or of small mirrors contained in a temporary wooden frame by the light of a ceiling eleetrie light, or by flash-light, in a room, at a distance of 10 feet or thereabouts, is not such a test as is required to prove that the deviee will work satisfactorily under actual working conditions. In the same way the tests claimed to have been made by James, in his cellar, were equally inefficient. The physical laws involved in the reflection of light from surfaces disposed as they were in James’ deviee were well known long prior to his experiments, and nothing could be claimed as inventive in this line. If, however, in the adaptation of this known principle to actual conditions, something of invention had occurred, it was necessary that this be demonstrated by a test under such conditions as would show this to be true.

In Bennett v. Fitzgerald, 48 F.(2d) 917, 18 C. O. P. A.-, we had occasion to comment somewhat upon the amount of proof required for reduction to practice in various eases, and it will not be necessary to repeat what was there said. This, in our opinion, is one of the cases where a test was required under actual working conditions. The cases in point are Jardine v. Hartog, 36 F.(2d) 606, 17 C. C. P. A. 764; Wickers v. McKee, 29 App. D. C. 4; Sherwood v. Drewson, 29 App. D. C. 161, 173; Malcom v. Richards, 47 App. D. C. 582; Van Auken, etc., v. Cummings, 49 F. (2d) 490, 18 C. C. P. A.-.

We come to the conclusion, therefore, that the party Stimson, although being the last to conceive, reduced his invention to practice not later than August 10, 1923, and that the party James constructively reduced his invention to practice on September 2, 1924. [4] Appellant was required to be diligent from the period immediately prior to appellee’s reduction to practice to the time of filing his application, which was Ms constructive reduction to practice. Beidler v. Caps, 36 F.(2d) 122, 17 C. C. P. A. 703; Blunt v. Grace, 45 F.(2d) 140, 18 C. C. P. A.-.

During the period above mentioned, appellant did nothing toward further reducing his invention to practice, except to make some variations of his design, such as James’ Exhibits 5 and 7, out of nickel plated metal, and to exhibit the same to a few persons. No excuse is given for his failure to file an application sooner, nor is any reason suggested why this could not have been done. We are of opinion that his actions in this matter did not constitute such diligence as the law requires.

The decision of the Board of Appeals in awarding priority to the party Stimson is affirmed.

Affirmed.


source: Caselaw Access Project

author: MARTIN, Chief Justice.

license: Public Domain

text:
    GOLTRA v. INLAND WATERWAYS CORPORATION.
    No. 5048.
    Court of Appeals of District of Columbia.
    Argued March 3, 1931.
    Decided April 6, 1931.
    Wm. J. Neale and Frank Davis, Jr., both of Washington, D. C., and Jos. T. Davis, of St. Louis, Mo., for appellant.
    Leo A. Rover, Wm. A. Gallagher, and J. Frank Staley, all of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRO-NER, Associate Justices.
   MARTIN, Chief Justice.

Appeal from a judgment holding plaintiff’s amended declaration to be bad in substance, and dismissing the case.

Goltra, as plaintiff below, alleged in his amended declaration that on May 28, 1919, he entered into a certain lease contract with the United States wherein the United States, acting by the Chief of Engineers, United States Army, leased to plaintiff 19' barges and 3 towboats among those acquired by the Secretary of War under section 141, title 49, U. S. Code (49 USCA § 141), and which were afterwards transferred to the defendant corporation under the provisions of sections 151-156 of that title; that the lease was for the term of five years, and plaintiff agreed to operate the leased boats and barges as a common carrier upon the Mississippi River and its tributaries during that period, to maintain them in good condition, to pay all operating expenses, to pay over to the Secretary of War the net earnings from such operation until they should equal the cost of the boats and barges plus 4 per cent, per annum interest thereon from the date of delivery; that within three months prior to the expiration of the lease plaintiff was to have the option of purchasing the boats and barges upon certain terms prescribed in the contract; and that on May 27, 1921, a supplemental contract was entered into by plaintiff and the United States relative to certain unloading facilities, to be governed as far as applicable by the terms and conditions relating to the boats and barges aforesaid; that plaintiff duly entered upon the performance of these contracts and has ever been ready, willing, and able to perform the terms and conditions thereof on his part to be performed, and has expended large sums of money, to wit, the aggregate sum of $211,061.28, in the necessary expenses thereby required, and was fully discharging the obligations imposed upon him by the contracts, when nevertheless the United States acting through the Secretary of War and other officers and agents refused to permit him to continue in the possession and control of the boats and barges aforesaid, but (at a time not specified in the amended declaration) forcibly seized them depriving plaintiff of the possession thereof and preventing him from operating them, and thereupon delivered them to the defendant corporation and the same are now in the possession of defendant and by it controlled and operated in total disregard of plaintiff’s rights, to plaintiff’s damage in the sum of $10,000,000. Plaintiff alleged furthermore that as a war emergency measure the United States, acting by and through the Secretary of War, created the Inland and Coastwise Waterways Service for the purpose, among' others, of transporting commodities on the navigable rivers, canals, and coastwise waterways of the United States by means of boats, barges, tugs, and other transportation facilities, and as part of such service the United States engaged as a common carrier in the transportation of commodities upon the Mississippi River and its tributaries under the name of the Mississippi Warrior Service, which was operated as such by and through the Secretary of War until the creation of the defendant corporation on June 3, 1924; and that, under the direction and mandate of the Congress of the United States, all of such boats, barges, and transportation facilities, including the contractual rights, duties, and liabilities of the United States in the boats, barges, and unloading facilities hereinbefore mentioned, were then transferred by the Secretary of War, acting under sections 151-156, title 49, U. S. Code (49 USCA §§ 151-156), to the defendant corporation subject to the provision that all liabilities of the Secretary of War or the Inland and Coastwise Waterways Service in respect to any contract, lease, or other obligation as to the aforementioned boats, barges, and transportation facilities, including such contracts, leases, and other obligations as those accruing to plaintiff in the contracts hereinabove set out, became the liabilities of the defendant corporation; that no part of plaintiff’s damages has ever been paid to him, wherefore he claims a recovery against defendant in the sum of $10,211,061.-28, and costs.

The defendant filed a demurrer to the amended declaration, alleging that it failed to state a cause of action against defendant and was bad in substance. The court sustained the demurrer, and, plaintiff electing to stand upon his pleading, the ease was dismissed, and this appeal was taken.

The defendant, the Inland Waterways Corporation, was created by Act of Congress of June 3,1924 (49 USCA §§ 151-156), for the purpose of carrying on the operations of the government-owned inland canal and coastwise waterways system to the point where the system might be transferred to private operation to the best advantage of the government. The Secretary of War was deemed to be the incorporator, and was authorized to govern and direct the corporation in the exercise of the functions vested in it by law. The corporation was to continue the operation of the transportation and terminal facilities then operated by the Secretary of War. Section 6 of the Act (49 USCA § 156 (a, b, d) provides in part as follows:

“(a) The Secretary of War shall transfer to the corporation all assets transferred to, or acquired, constructed, or operated by, or under the direction of, the Secretary of War, or which revert to the United States, under section 201 of the Transportation Aot, 1920, as amended. * * *
“(b) The rights, privileges, and powers, and the duties and liabilities, of the Secretary of War, or the inland and coastwise waterways service, in respect of any contract, loan, lease, account, or other obligation, under section 201 of such Act, or under such joint resolution, shall become the rights, privileges and powers, and the duties and liabilities, respectively, of the corporation. * s‘ *
“(d) The enforcible claims of or against the Secretary of War, or the inland and coastwise waterways service, in respect of the operation, construction, or acquisition of any such transportation facilities, shall become the claims of or against, and may be enf oreed by or against, the corporation.”

The plaintiff relies upon subsections (b) and (d), supra, as authority for the proposition that Congress intended the defendant corporation to assume such liabilities as plaintiff’s claim for damages herein sued upon. This position is untenable. The legislative purpose was to substitute the corporation for the Secretary of War in respect to the assets and enforceable liabilities of the waterways transportation business which- the Secretary had carried on under section 201 of the Transportation Act of 1920, 41 Stat. 458 (49 TJSCA § 141). It was not the purpose of the act to provide for the payment of an unliquidated claim for damages arising out of the alleged breach of a contract for the lease of vessels to he operated directly hy the lessee. Such a claim cannot be classified' as an "enforceable claim” against the Secretary of War in respect to the operation, construction, or acquisition of transportation facilities, nor as an enforceable claim against the United States.

Moreover we are of the opinion that the amended declaration does not set out a valid claim against the United States or any of its officers or agencies. A copy of the lease is filed by plaintiff and made by reference a part of the amended petition. Section 8 thereof reads as follows, to wit: “8. The lessor reserves the right to inspect the plant, fleet and work, at any time to see that all the said terms and conditions of this lease are fulfilled, and that the crews and other employees are promptly paid, monthly or oftener; and non-compliance, in his judgment, with any of the terms or conditions will justify his terminating the lease and returning the plant and said barges and towboats to the lessor, and all moneys in the Treasury or in bank to the credit of the Secretary of War shall be deemed rentals earned by and due to the lessor for the use of said vessels.”

This identical lease was before the Supreme Court of the United States in Goltra v. Weeks, Secretary of War, 271 U. S. 536, 46 S. Ct. 613, 618, 70 L. Ed. 1074, wherein Goltra sought an injunction to prevent the Secretary of War and other officers from taking possession of the leased towboats and barges against his objection. The court denied the injunction because of the provisions of section 8, supra, and held that: "The right of the lessor to take over the fleet under section 8 of the contract) unless there was fraud in the judgment of termination by the Chief of Engineers, the lessor, of which we have found no evidence, is clear. We think, therefore, the injunction should be dissolved, and the fleet restored to the lessor.” See Weeks v. Goltra (C. C. A.) 7 F.(2d) 838; Goltra v. Davis (C. C. A.) 29 F.(2d) 257. It is true-the opinion of the Supreme Court in Goltra v. Weeks, above quoted from, is not imported into this record by the amended declaration, nevertheless we are entitled to consider the legal principles stated in that opinion and apply them in the consideration of this case. Bienville W. S. Co. v. Mobile, 186 U. S. 212, 217, 22 S. Ct. 820, 46 L. Ed. 1132; United States v. North America Oil Consolidation (C. C. A.) 264 F. 336.

It thus appears that the United States t as lessor was entitled to terminate the lease if in its judgment there was such noneompli.anee with its terms by the lessee as would justify such action. The amended declaration contains no specific reference to this provision but it is reasonably open to the construction that the lessor in fact terminated the lease in the exercise of this authority, and, in view of the language of the Supreme Court in Goltra v. Weeks, supra, we feel justified in placing that construction upon the pleading. It follows accordingly that the amended petition shows that no claim accrued to plaintiff against the United States or any • of its officers or agencies because of the termination of the lease. It is true that plaintiff alleges that the lease was unlawfully terminated, but this is a conclusion which is contradicted by the fact that such action was taken under the right reserved hy the contract.

In our opinion therefore the allegations of the amended declaration are not sufficient to show that any liability of the United States or the Secretary of War ever arose in favor of Goltra because of the facts therein stated, and, such being the case, no liability of this character was imposed by law upon the defendant corporation.

The demurrer accordingly was rightly sustained, and the judgment of the lower court is affirmed, with costs.


text:
    EDWARD THOMPSON CO. v. THOMAS.
    No. 5071.
    Court of Appeals of District of Columbia.
    Argued March 10, 1931.
    Decided April 6, 1931.
    Albert E. Steinem and Milton D. Korman, both of Washington, D. C., for plaintiff in error.
    H. E. Kennedy, óf Washington, D. C., for defendant in error.
    Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.
   MARTIN, Chief Justice.

On April 12,1921, the Edward Thompson Company recovered a judgment against Os■car C. Thomas for $264.26, by consideration of the municipal court of the District of Columbia.

On August 23,1924, the company brought suit against Thomas in the corporation court of Alexandria, Va., to recover judgment upon a record of the former judgment as a subsisting cause of action against him. Thomas was personally served with summons in the case but made no defense, whereupon -judgment was rendered ag-ainst him in the amount of the former judgment, with interest and costs.

Afterwards in the year 1928, the company sued Thomas in the municipal court of the District of Columbia, in the present ease, to recover a judgment upon the record of the judgment last above named, as a still subsisting cause of action against him. Thomas moved to dismiss the suit upon the ground that at the time when the suit was begun in the corporation court of Alexandria the judgment upon which it was founded—that is to say, the judgment theretofore rendered by the municipal court of the District of Columbia—was not in force, inasmuch as it had been rendered more than three years prior to the commencement of the suit, citing section 12, D. C. Code of Laws as then in force (D. C. Code 1930, T. 18, § 213). Defendant contended that the judgment rendered in the corporation court was therefore not a valid judgment nor a subsisting cause of action against him and that no lawful judgment could be predicated upon it. This motion was sustained by the court; the suit was accordingly dismissed; and that ruling is here for review.

The ruling in question was erroneous. It is not denied that the corporation court of Alexandria had jurisdiction of actions at law brought for the recovery of money upon account, nor is it denied that summons was served upon Thomas personally in the case wherein the judgment was rendered against him by that court. Therefore, since the court had jurisdiction of the parties and the subject-matter, its judgment is not open to collateral attack in this ease. “A collateral attack upon a judgment has been defined to mean any proceeding in which the integrity of a judgment is challenged, except those made in the action wherein the judgment is rendered or by appeal, and except suits brought to obtain decrees declaring judgments to be void ab initio. A scire facias or an action at law upon a domestic judgment is a collateral proceeding so far as any attaek upon the judgment is concerned, and if the defense is set up that the judgment is void in an action to revive such judgment, it has been held that such defense constitutes a collateral attack.” 15 R. C. L. 838, § 311. This rule prevails even if the judgment attacked is entirely erroneous, or is based upon a mistake of law. “A judgment is conclusive as to all the media eoneludendi, and it cannot be impeached either in or out of the State, by showing that it was based on a mistake of law. A judgment of a court of a State in which the cause of action did not arise, but based on an award of arbitration had in the State in which the cause did arise, is conclusive, and, under the full faith and credit clause of the Federal Constitution, must be given effect in the latter State, notwithstanding the award was for a claim which eo-uld not, under the laws of that State, have been enforced in any of its courts.” Fauntleroy v. Lum, 210 U. S. 230, 28 S. Ct. 641, 52 L. Ed. 1039; United States v. California & Oregon Land Co., 192 U. S. 355, 24 S. Ct. 266, 48 L. Ed. 476; Am. Exp. Co. v. Mullins, 212 U. S. 311, 29 S. Ct. 381, 53 L. Ed. 525, 15 Ann. Cas. 536.

In the present instance Thomas had his day in court when he was personally called upon to answer to the suit in the corporation court of Alexandria. He was entitled then to make his defense, and to avail himself of all lawful remedies by way of appeal or proceedings in error had he ’so desired. He cannot in this ease challenge the judgment then rendered.

The judgment of the municipal court is reversed, and this cause is remanded for further proceedings not inconsistent herewith.


author: HITZ, Associate Justice.

text:
    ABRAMSON v. ABRAMSON.
    No. 5075.
    Court of Appeals of District of Columbia.
    Argued March 11, 1931.
    Decided April 6, 1931.
    Raymond Neudeeker and Wm. C. Ash-ford, both of Washington, D. C., for appellant.
    W. Bissell Thomas, of Washington, D. C., for appellee.
    Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.
   HITZ, Associate Justice.

This case is here on appeal from, a decree of the Supreme Court of the District of Columbia granting the appellee here, plaintiff below, a limited divorce, alimony, and other relief after dismissing a cross-bill for annulment filed by appellant, who was defendant below.

The plaintiff and defendant, while residents of Chicago, 111., were married in Milwaukee, Wis., February 17, 1912, three months after the plaintiff had been granted a divorce from a former husband in Chicago under a statute of Illinois (Hurd’s Rev. St. 1908, c. 40, § la), prohibiting remarriage of either party to the decree within twelve months, and declaring any marriage so contracted both void and felonious.

This statute is in the following language:

Chapter 40. “la. Remarriage Within One Tear Forbidden. § la. That in every case in which a divorce has been granted for any of the several causes contained in section 1 of said act, neither party shall marry again within one year from the time the decree was granted; Provided, when the cause for such divorce.is adultery, the person decreed guilty of adultery shall not marry for a term of two years from the time the decree was granted: Provided, however, that nothing in this section shall prevent the persons divorced from remarrying each other; and every person marrying contrary to the provisions of this section shall be punished by imprisonment in the penitentiary for not less than one year, nor more than three years, and said marriage shall be held absolutely void. (Added by amendment by act approved May 13, 1905. In force July 1, 1905; L. 1905, p. 194; Legal News Ed., p. 166.)”

Immediately after their marriage in Milwaukee, the parties returned to Chicago, where they lived together for five or six years; then lived for a time in New York; and came to Washington in 1919, where they have ever since resided, though apparently not in cohabitation since 1926.

On June 1, 1921, a female child was bom to the couple, and is now living.

On July 1, 1923, a statute of Illinois went into effect expressly repealing the earlier statute prohibiting the marriage of divorced persons within one year of their divorce, and validating all marriages contracted in violation of such prohibition, in the following language:

Laws of Illinois of 1923, p. 327:

“An Act to repeal section la of ‘An Act to revise the law- in relation to divorce,’ approved March 10, 1874, in force July 1, 1874, as amended and to validate certain marriages heretofore contracted in violation of said section.” Approved June 30, 1923. In force July 1, 1923, p. 327.
“12 (1). Repeal. Section 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly: Section la of ‘An Act to revise the law in relation to divorce,’ approved March 10, 1874, in force July 1, 1874, is repealed.
“12 (2). Validation. § 2. In all eases where a marriage has been contracted in violation of the provisions of section la of ‘An Act to revise the law in relation to divorce,’ approved March 10, 1874, as amended, except where either of the contracting parties has, subsequent to said marriage * * * entered into another marriage contract which was and is legal and binding, under the laws of Illinois, said marriages so contracted in violation of said section la, if otherwise legal, are hereby validated and confirmed, except that property rights heretofore vested shall not be affected by this Act.” (Cahill’s Rev. St. 1929, e. 40, par. 2 (1, 2).

On June 1, 1927, the appellee here filed her bill of complaint in the Supreme Court of the District of Columbia praying for a limited divorce, custody of the child, and alimony, on the ground of desertion.

To this bill the defendant filed an answer and cross-bill, and on October 17, 1928, filed an amended and supplemental cross-bill asserting that the marriage of the parties in Wisconsin was void ab initio by operation of the Illinois statute of 1874, and praying a decree to annul and set aside said marriage; to declare the child his lawful heir; and to award him her custody.

The trial court dismissed the cross-bill and granted the prayers of the bill of connplaint, the cause apparently being presented and decided there without knowledge of the repealing act of 1923.

The repealing act was first brought into the ease by the appellee’s brief in this court; was considered at the argument; -and counsel for the appellant- have filed a supplemental brief giving us the benefit of their views of the situation.

The four assignments of error can be conveniently considered together, as they raise differing aspects of the contention that the Milwaukee marriage was void ab initio, and consequently incapable of becoming the basis of a valid decree of divorce or alimony in the District of Columbia.

In the view we take of the questions presented, it is not necessary to determine to what extent, if at all, the prohibiting statute had extraterritorial effect, since the two statutes must be regarded in pari materia, and the salutary and remedial provisions of the repealing act must be given at least as wide an operation as the penal provisions of the act it was designed to cure.

And it is noteworthy that the prohibiting provision of the Illinois statute does not undertake to retain any jurisdiction of the divorce proceedings, as against a possible marriage in disregard of the act, which is done in some other statutes of like character, as in Wisconsin and Virginia.

For, while the statute is highly penal, as exposing one violating it by another marriage, not only to annulment of that marriage but to imprisonment in the penitentiary as well, it does not undertake to restore in any measure the status quo ante helium and to invalidate the second marriage by reviving the first to any extent.

Consequently, the Illinois divorce is good; it is not attacked in this proceeding; and the plaintiff there, who was plaintiff here, was entitled to marry except for the temporary disqualification of the statute which was carried into the decree.

Again, the language of the Illinois statute, that, if a divorced party shall marry within a year, “said marriage shall be held absolutely void,” may be regarded as contemplating a judicial proceeding in which it should be so declared, and does not go so far as the language of our Code regarding prohibited marriages which “shall be absolutely void ab initio, without being so decreed, and their nullity may be shown in any collateral proceedings.” D. C. Code, T. 14, c. 1, § 1.

We find the term “void” used with many modifications and shades of meaning, even in legislative enactments and judicial decisions, and the same or similar acts described as “void”; “absolutely void”; “forever void”; “void without decree”; and “null and void to all intents and purposes whatsoever.”

As Chancellor -Kent puts it: “There is in our books, great looseness, and no little confusion in the use of the terms void and voidable, growing perhaps in some degree out of the imperfection of language.” 2 Kent. Com. 234; 7 Bae. Ab. 64, “Void and Voidable.”

A situation very similar in principle to the present case, as involving both a prohibiting and a validating statute, and the effect thereof on an extraterritorial marriage, was considered at length by the Court of Appeals of Marylánd in Harrison v. State, 22 Md. 468, 85 Am. Dee. 658.

In that case Harrison and his niece, both residents of Maryland, were married in Washington in violation of a Maryland statute declaring that “such marriages shall be void.”

■The couple returned to live and die m Maryland, leaving children and property there.

After the death of Harrison, a nephew claimed a share in his estate to the exclusion of the children of the marriage, on the ground that the marriage was a nullity ab initio in Maryland.

After full consideration, the court decided that the operation of the term “void” is an open question, to be decided in each instance by the connection and circumstances of its use, and that a marriage declared by statute to be void is not necessarily void ab initio, or whenever it may be brought incidentally into question, but only from the time its nullity is pronounced by a court of competent jurisdiction. Not void ipso facto, but void only after judgment thereon.

And the healing power of the validating act of Maryland, passed seventy years after the prohibiting statute, was held to prevent subsequent proceedings to attack the marriage, such a statute operating to confirm and to ratify the marriage, to quiet the possession and assure the title of children born in wedlock by giving it the sanction of law.

“Where the parties contracting marriage labor under legal disabilities, the contract is liable to be dissolved by the Courts or affirmed by the Legislature.” Harrison v. State, supra.

And the trial court, having held that the marriage was void ab initio and not validated by the later act, was reversed.

The doctrine of the Harrison Case has long been regarded as the settled law of Maryland. Dimpfel v. Wilson, 107 Md. 336, 68 A. 561, 13 L. R. A. (N. S.) 1180, 15 Ann. Cas. 753; Harlane Law of Domestic Relations in Maryland, pp. 16 and 17.

And this court has affirmed that doctrine in respect of the marriage of a Maryland man with his stepdaughter, the parties contracting a ceremonial marriage in Ohio; returning to Maryland; and continuing residence there until the death of the husband, after which litigation arose in settlement of his estate touching certain property in the District of Columbia, which drew into question the validity of the Ohio marriage.

This marriage fell into the same statutory class as the marriage in the Harrison Case, denounced by the Maryland act as void, but this court held it to be voidable only, for “no steps having been taken during the lifetime of the parties, to avoid it, appellant was his lawful wife at the time of his death, and must be so considered in this District.”

And the trial court here, having held thei Ohio marriage void ah initio, was according-i ly reversed. Tyler v. Andrews, 40 App. D. C. 100.

So in the present ease, Mrs. Abramson’sj divorce in Illinois being good, her marriage in Wisconsin in violation of the Illinois statute may have exposed her to all the penalties of that statute during its life and her residence in Illinois.

But no steps attacking the marriage, or the status created thereby, having been taken before the repealing act went into effect, operating “in all cases where a marriage has been contracted in violation” of the earlier statute, it is now too late to attack that marriage here.

The statutory infirmity having been cured by the same power that created it, property rights and obligations having been assumed in this jurisdiction by the parties to the marriage on the faith of the marriage, and a ehildjiaving been born here to the marriage, we hold that marriage to be now neither void nor voidable, but valid, and properly recognized as valid by the trial court.

The decree is affirmed, with costs.

Affirmed.


text:
    CASSIDY v. UNITED STATES.
    No. 5318.
    Court of Appeals of District of Columbia.
    Argued March 2, 1931.
    Decided April 6, 1931.
    E. Russell Kelly and Myron G. Ehrlieh, both of Washington, D. C., for appellant.
    Leo A. Rover, Neil Burkinshaw, and John J. Wilson, all of Washington, D. C., for the United States.
    Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, and HITZ, Associate Justices.
   MARTIN, Chief Justice.

Appellant was convicted and sentenced in the lower court upon an indictment charging him with the unlawful possession and transportation of intoxicating liquors.

It appears that certain police officers had searched appellant and his automobile, without a search warrant, and found intoxicating liquors on his person and in his car; and that they had seized the liquors and put him under arrest. The present indictment was based upon these facts.

Prior to the. trial appellant moved, the lower court to suppress for use as evidence the liquors seized from him, alleging that the officers had made the search without probable cause and in violation of his constitutional rights against unreasonable search and seizure under the Fourth Amendment. The motion was overruled, and the liquors in question were introduced in evidence at the trial over appellant’s objection and exception.

1 This ruling gives rise to the only question presented in the present appeal, to wit, whether there was probable cause for the search of Cassidy and his automobile at the time when the search was made and the intoxicating liquors were seized from him and his car.

The law governing such search and seizure has been clearly declared by the Supreme Court of the United States in recent cases. In Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280; 69 L. Ed. 543, 39 A. L. R. 790, the eoux’t held that search without a warrant of an automobile, and seizure therein of liquor subject to seizure and destruction under the Prohibition Act, do not violate the Fourth Amendment, if made upon probable cause; that is, upon a belief, reasonably arising out of circumstances known to the officer, that the vehicle contains such contraband liquor. The court further said that a necessary difference was recognized between a search for contraband in a store, dwelling house, or other structure for the search of which a warrant may readily be obtained, and a search of a ship, wagon, automobile, or other vehicle which may be quickly moved out of the locality or jurisdiction in which the warrant must be sought. In Husty v. United States, 282 U. S. 694, 51 S. Ct. 240, 75 L. Ed.-, the court held that to show such probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act, but that it is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched.

The record in the present ease discloses that there were two officers who acted together in making the search and seizure. One of them testified that he had known Cassidy for a number of years, and five or six years before this transaction had observed him enter a plea of guilty in the police court to a charge of violating the Prohibition Act for which he received a jail sentence; that he had seen Cassidy in the vicinity of the Senate Office building on three or four occasions ; that .witness had received certain information concerning Cassidy, and had cheeked and examined the source of the information by personal interview prior to the day of the arrest; that this information was to the effect that Cassidy was a bootlegger and would go to the Senate Office building in the mornings and get his orders and in the afternoons would deliver his orders there; that his informant stated that on one occasion Cassidy had put several packages in his ear and then drove a certain distance and stopped the ear, removed the upholstery and placed the packages in the rear of the car; that, acting on that information, witness went to the vicinity of Cassidy’s house on the day of the search, where he saw his car parked in the rear, but his attention was directed away from Cassidy’s house for about five minutes, and when he came' back the car was gone; that he then went to the vicinity of the Senate Office building, where he observed Cassidy parking his car; that about that time a street car passed in front of the witness, and, when it had gotten by, Cassidy was out of sight; that a little lhter he observed Cassidy come out of the Senate Office building, go to his automobile, remove the upholstery in the back of his ear, and look about several times, then take a package looking like a pint bottle out of the ear and put it in his right hip pocket; that witness then started across the street with another officer and told Cassidy he was a policeman, witness reached in Cassidy’s hip pocket and took a pint bottle of colored liquor out of it; that witness then opened the back of Cassidy’s automobile, and found the back rest of the car was movable; that witness moved the back out and found two quarts of colored liquor, one quart of gin, and a package which contained two pints. A second officer who assisted in the arrest was examined as a witness, and his testimony corroborated that of the former witness. It was shown by other testimony that the liquors seized by the officers were intoxicating liquors within the National Prohibition Act.

The bare recital of this evidence is sufficient to show that there was probable cause for the search and” seizure in this ease. The information, which the officers had received concerning Cassidy’s activities at the Senate Office building which caused them to watch his movements there, Cassidy’s furtive conduct in front of that building, his opening of the back of the seat in his ear which ordinarily would not be movable, his removal therefrom of a package having the appearance of a pint bottle, Ms action in placing tMs in his hip pocket as if to hide it, all taken together would naturally lead a reasonably intelligent and prudent man to believe that Cassidy was engaged in delivering intoxicating liquors in the Senate Office building contrary to law. The motion to suppress the evidence was rightly denied.

The judgment of the lower court is accordingly affirmed.


author: VAN ORSDEL, Associate Justice.

text:
    FALL v. UNITED STATES.
    No. 5171.
    Court of Appeals of District of Columbia.
    Argued Feb. 3, 1931.
    Decided April 6, 1931.

      Wm. E. Leahy, Wilton J. Lambert and Frank J. Hogan, all of Washington, D. C., for appellant.
    Leo A. Rover, TJ. S. Atty., of Washington, D. C., and Atlee Pomerene, of Cleveland, Ohio (Frank Harrison, of Cleveland, Ohio, of counsel), for the United States.
    Before ROBB and VAN ORSDEL, Associate Justices, and COX, Justice, Supreme Court of the District of Columbia.
   VAN ORSDEL, Associate Justice.

Appellant Albert B. Fall was convicted in the Supreme Court of the District of Columbia of the crime of bribery in violation of section 117 of the United States Criminal Code (18 USCA § 207); and from a judgment sentencing him to pay a fine of $100,000 with imprisonment for one year this appeal was prosecuted.

The indictment recites that President Taft on December 13, 1912, promulgated the following order: “It is hereby ordered that all lands included in the following list and heretofore forming a part of Petroleum Reserve No. 2, California No. 1, withdrawn on July 2, 1910, from settlement, location, sale or entry, and reserved for classification and in aid of legislation under the authority of the Act of Congress entitled An Aet to authorize the President of the United States to make withdrawals of public lands in certain cases (36 Stat. 847 [as amended, 43 USCA §§ 141-143]), shall hereafter, subject to valid and existing rights, constitute Naval Petroleum Reserve No. 2, and shall be held for the exclusive use or benefit of the United States Navy until this order is revoked by the President or by Aet of Congress. To this end and for this public purpose, the order of July 2, 1910, is modified and the withdrawal of that date is continued and extended insofar as it affects these lands.”

The Act of Congress of June 4, 1920, 41 Stat. 813 (34 USCA § 524), provided as follows : “The Secretary of the Navy is directed to take possession of all properties within the naval petroleum reserves as are or may become subject to the control and .use by the United States for naval purposes * * * to conserve, develop, use, and operate the same in his discretion, directly or by contract, lease, or otherwise, and to use, store, exchange, or sell the oil and gas products thereof, and those from all royalty oil from lands in the naval reserves, for the benefit of the United States.”

On May 31, 1921, President Harding promulgated an Executive Order as follows: “Under the provisions of the Aet of Congress approved February 25, 1920 (41 Stat. 437), authorizing the Secretary of the Interior to lease producing oil wells within any Naval 'Petroleum Reserve; authorizing the President to permit the drilling of additional wells or to lease the remainder of any part of a claim upon which such wells have been drilled, and under authority of the Act of Congress approved June 4, 1920 (41 Stat. '812, 813 (34 USCA § 524), directing the Secretary of the Navy to conserve, develop-, use and operate, directly or by contract, lease, or otherwise, unappropriated lands in the Naval Reserves, the administration, and conservation, of all oil and gas bearing lands in Naval Petroleum Reserves Nos. 1 and 2 in California, and Naval Petroleum Reserve No. 3 in Wyoming, and Naval Shale Reserves in Colorado and Utah, are hereby committed to the Secretary of the Interior subject-to the supervision of the President, but no general policy as to drilling or reserving lands located in a Naval Reserve shall be changed or adopted except upon consultation and cooperation with the Secretary or Acting Secretary of the Navy. The Secretary of the Interior is authorized and directed to perform any and all acts necessary for the protection, conservation, and administration of the said Reserves subject to the conditions and limitations contained in this order and of the existing laws or such laws as may hereafter be enacted by Congress pertaining thereto.”

It is then charged that immediately following the promulgation of ■ the Executive Order of President Harding, Albert B. Pall, in pursuance thereof, as Secretary of the Interior, assumed and undertook the administration and conservation of the properties mentioned in the Executive Orders; and that at the time of the committing of the offense charged he was an officer of the United States in an official capacity, and while acting in that capacity he assumed and undertook to dispose of the so-called royalty oil which had accrued and which was to accrue to the United States during the period specified under leases and contracts made and to be made of lands in said Naval Reserves, and to make further similar leases and contracts covering lands in the Naval Reserves.

The indictment further charges that defendant, “without advertisement and request for or permission of competitive proposals and bids,” made a contract with the Pan American Petroleum & Transport Company for the construction in the territory of Hawaii of storage tanks of the capacity of 1,-500,000 barrels to be filled with fuel oil in consideration of the United States delivering to said corporation at the places of production in the Naval Reserves and in further consideration of giving to said corporation a• lease “carrying the privilege of extracting petroleum oil from the entire unleased portion of said Naval Petroleum Reserve.”

It is also charged that in pursuance of the authority assumed by defendant and by virtue of the Executive Order, “there then became and was pending before said Albert B. Pali, in his said official capacity, the question and matter of his decision and action upon said negotiations; that Edward L. Doheny, on November 30, 1921, was the president and director of said Pan American Petroleum and Transport Company and was actively engaged in the conduct of its business affairs”; and that Albert B. Fall, as Secretary of the Interior, and in connection with the administration of the Naval Petroleum Reserves located within the state of California, unlawfully and feloniously accepted from Edward L. Doheny, on November 30, 1921, the sum of $100,000, with intent to have his decision influenced in approving and making the contracts and lease in question between the United States and the Pan American Petroleum & Transport Company, in accordance with the agreements and negotiations theretofore conducted between defendant and Doheny.

Prior to the trial on this indictment, a second indictment was returned by the grand jury for the District of Columbia charging defendant and Edward L. Doheny with conspiracy to defraud the United States in violation of section 37 of the Criminal Code (18 USCA § 88). This indictment in substance charged that defendant and Doheny had agreed on and prior to November 30, 1921, that defendant, in consideration of the payment to him on that date by Doheny of the sum of $100,000, would award to the Pan American Company the same contracts and lease set out in the bribery indictment.

The government elected to proceed to arraignment and trial on the conspiracy indictment, the trial resulting in a verdict of not guilty. Defendant then interposed a demurrer to the indictment charging him with bribery on the broad ground that inasmuch as defendant was acting without jursdiction in the making of the contracts and lease, and in a capacity not authorized by law, he could not be guilty of bribery. This demurrer was overruled, whereupon the defendant submitted four special pleas to the indictment, in substance that the judgment and acquittal in the conspiracy ease was res adjudicata as to the present ease, and that to subject defendant to trial in the bribery case would be to twice put him in jeopardy in violation of the Fifth Amendment of the Constitution of the United States.

We will consider the points relied upon by counsel for defendant in the order in which they are presented. It is contended that there can be no bribery of an official to do a particular act unless the law requires or imposes upon him the duty of acting; and that, inasmuch as the Executive Order of May 31,1921, has been declared by the courts to be void, no legal authority was imposed upon defendant as Secretary of the Interior to proceed with the administration of the Petroleum Reserves, and there could be no bribery for the inducing of any action on the part of the defendant in respect of the leasing of these Reserves.

Section 117 of the Criminal Code (18 USCA § 207) provides as follows: “Whoever, being an officer of the United States, or a person acting for or on behalf of the United States, in any official capacity, under or by virtue of the authority of any department or office of the Government thereof; * * * shall ask, accept, or receive any money, * * * with intent to have his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or which may by law be brought before him in his official capacity, or in his place of trust or profit, influenced thereby,” shall be punished, etc.

It is clear, we think, that defendant in these" transactions not only assumed to exercise the authority attempted to be conferred by the Executive Order, but that he acted under color of authority. In the case of Pan American Petroleum & Transport Co., et al. v. United States, 273 U. S. 456, 47 S. Ct. 416, 419, 71 L. Ed. 734, where the contracts in question were set aside on the ground of' fraud, the court, considering the authority exercised by defendant in connection with the execution of the contracts and leases in question, said: “E. L. Doheny controlled both companies. Pall was active in procuring the transfer of the administration of naval petroleum reserves from the Navy Department to the Interior. And, after the executive order was made, he dominated the negotiations that eventuated in the contracts and leases. From the inception no matter of policy or action of importance was determined without his consent. Denby [Secretary of the Navy] was passive throughout, and signed the contracts and lease and the letter of April 25, 1922, under misapprehension and without full knowledge of their contents. July 8, 1921, Fall wrote Doheny: ‘There will be no possibility of any further conflict with Navy officials and this department, as I have notified Secretary Denby that I should conduct the matter of naval leases under the direction of the President, without calling any of his force in consultation unless I conferred with himself personally upon a matter of poliey. He understands the situation and that I shall handle matters exactly as I think best and will not consult with any officials of any bureau in his department, but only with himself, and such consultation will be confined strictly and entirely to matters of general poliey.’ After that Doheny and his companies acted upon the belief that Fall had authority to make the contracts and leases.”

The evidence in the civil ease to set aside the contract as fraudulent parallels closely the evidence in this case; indeed, the evidence in the two cases is practically the same as touching the question of authority. On this point the court said at page 498 of 273 U. S., 47 S. Ct. 416, 421: “But the evidence sustains the finding that he [the Secretary of the Navy] took no active part in the negotiations, and that Fall, acting eollusively with Doheny, dominated the making of the contracts and leases.”

And again on page 500 of 273 -U. S., 47 S. Ct. 416, 422: “The facts and circumstances disclosed by the record show clearly that the interest and influence of Fall as well as his official action were corruptly secured by Doheny for the making of the contracts, and leases; that, after the executive order of May 31, 1921, Fall dominated the administration of the naval reserves, and that the consummation of the transaction was brought about by means of collusion and corrupt conspiracy between him and Doheny.”

It will be observed that defendant assumed at all times to act in his official capacity as Secretary of the Interior and upon the assumption that the Executive Order was valid. Fall was a de jure officer occupying at the time a lawful office of which he was the lawful head, and even though, as held by the court below, he was here acting in a de facto capacity, he cannot be heard to set up the want of official authority when he is charged with accepting money to influence his assumed official conduct. The gravamen of the offense charged is not the execution of the contracts and lease, but the acceptance of a bribe to influence his official conduct. Sharp v. United States (C. C. A.) 138 F. 878; Rembrandt v. United States (C. C. A.) 281 F. 122; United States v. Rosenthal (C. C.) 126 F. 766.

Defendant was here considering a matter apparently within his jurisdiction, a matter pending before him in his official capacity, and upon which he assumed the official responsibility of rendering a decision. If he accepted money to influence his action, all the elements of the crime of bribery are present. Whether the pending matter is valid or not becomes immaterial, since the acceptance of the bribe is to do an unlawful act. In other words, if, as the Supreme Court-held in the civil ease, he had authority to make a contract, effective to the extent that it required a decree of the court to set it aside, certainly the making of such a contract corruptly could constitute the basis of the crime of bribery.

It matters not that the Executive Order has since been declared void by the courts. It was an operative order, until declared void. It was sufficient to confer jurisdiction. It at least extended color of authority to the defendant in the pursuance of his official duties. Bribery under these circumstances is well defined in the case of People v. Lafaro, 250 N. Y. 336, 165 N. E. 518, 520, as follows: “The gist of the crime of bribery is the wrong done to the people by corruption in the public service. None can doubt that this defendant sought corruptly to influence.a police officer, in the performanee of an act which, it is evident, the defendant, the police officer and the Governor of the state considered a public duty owed by a public servant. We have given to the statutory definition of bribery a construction broad enough to cover eases where a public officer has accepted a bribe to act corruptly in a matter to.which he bears some official relation, though the act itself may . be technically beyond his official powers or. duties.”

Counsel for defendant place special reliance upon the decision of this court in the ease of Thomson v. United States, 37 App. D. C. 461, where the court in its opinion inserted the following quotation from State v. Butler, 178 Mo. 272, 77 S. W. 560: “There is no rule so uniformly adhered to by the courts, both State and Federal, as the one ‘that there can be no bribery of any official to . do a particular act, unless the law requires or imposes upon him the duty of acting.’ ”

In the Thomson Case, however, it was held that the person to whom the bribe had been given had-been appointed by the Post Master General, and was exercising an official function at. the time the offense was committed. Of course, the rule announced can be sustained where the person is a mere usurper in office, or in the case of a private individual assuming to perform official acts without any color of authority; but that is not this ease. Here everything that the defendant did was done as Secretary of the Interior. He was not a usurper of that office. He was a de jure official of a de jure office acting for the government. In the matter of the making of the contracts and lease in question ,he had had that duty imposed upon him. by the President, his superior officer. He believed that it was a legal duty. Doheny and the other lessees believed that defendant had full legal authority to make and execute the contracts and leases. This brings the acts of the defendant within the definition of official function, as given by this court in its opinion in the Thomson Case, where we said: “When, therefore, Congress used the term ‘official function,’ it had reference to acts official in character, something within the legal duty of the person performing them. It was well known that the word ‘officer’ has a technical signification, and that many aet3 or duties of an important nature are legally intrusted to persons not officers at all. It was to cover just such a situation that the term ‘official function’ was used.”

A proper administration of justice imposes upon courts in dealing with existing conditions the duty of giving due regard to the circumstances of the particular ease. Defendant was performing grave and important acts in relation to the public lands of the United States, a subject over which he exercised general jurisdiction. This was sufficient to establish á legal presumption of the validity of his acts. The public had the right to assume that he was acting within the limits of his lawful authority. Indeed, the legality of the President’s Order of May 31, 1921, seems to have been fully accepted by the Navy Department, since Secretary Denby, in a letter to Fall dated October 22, 1921, among other things, said:

“5. That the Interior Department will exercise its best efforts to obtain for the Navy as large royalties and as favorable returns as practicable by public competition or otherwise.
“6. That the terms for conversion of the crude oil at the well to fuel oil at Tidewater or in tanks to be provided by the lessor, will be submitted to the Navy Department for approval of the qualities, deliveries, engineering, and other features involved.
“7. That all leases and contracts, exeept as provided in paragraph 6, will be arranged and consummated by the Interior Department, copies of the same being furnished to the Navy Department as a matter of information and record only.”

Defendant, in the making and execution of the contracts and leases in question, was acting officially in carrying out the directions of the President, his superior officer — an official function which the record clearly discloses he solicited and which he assumed full authority to perform. He cannot, therefore, be heard to say that he was a mere usurper possessing no lawful authority whatever to perform the acts in question.

It is urged as ground for reversal that the charge made in the present bribery indictment is res adjudicata, and that the United States is estopped by the judgment entered in favor of Doheny and Fall in a former ease. On May 27, 1925, Fall and Doheny were indicted for conspiracy to defraud the United States. The facts alleged in the indictment leading up to the charge of conspiracy were substantially the same as those alleged in the present indictment leading up to the charge of bribery. One of the overt acts alleged in the conspiracy indictment was the payment by Doheny of $100,000 to Fall, and this' act is charged in the two indictments in substantially the same language. It necessarily followed that the evidence in support of the charge was substantially the same in both cases, but the offenses charged were not the same. Two or more persons must be involved in a conspiracy. The jury, for aught we know, in the former case may have reached the conclusion that Doheny in paying the $100,000 understood it to be a loan, and the payment was made without intent to influence Fall or without intent to commit any fraud against the government. If the jury believed that, then, however guilty they may have believed Fall to be, it was their duty to return a verdict of not guilty. In other words, in the conspiracy case it was necessary to establish an agreement, understanding, common purpose, or intent, of both the parties charged, while in the present case the intent of Doheny becomes entirely irrelevant. The only mind that the jury was called upon to penetrate was the mind of Fall. What was hi? intent and motive in accepting the $100,000 at the hands of Doheny? But before a plea of res adjudieata- can be successfully interposed in a criminal case, the prosecution must have been for the same offense. As said in the ease of Burton v. United States, 202 U. S. 344, 380, 26 S. Ct. 688, 698, 50 L. Ed. 1057, 6 Ann. Cas. 362: “A plea of autrefois acquit must be upon a prosecution for the same identical offense.” The crime of conspiracy and the crime of bribery are separate and distinct offenses. There was therefore no error in overruling the plea in abatement on this point.

Error is assigned in the action of the trial judge in excusing from the jury one Beatrice P. Duke. After full examination on voir dire, and the jury had been accepted by counsel, the trial judge informed the jurors that they would be locked up during t^ie continuance of the trial, and if any of the ladies on the jury desired to be excused they could then inform the court, whereupon the juror Duke requested to be excused and was excused from further service. Objection and exception was taken by counsel for defendant to the action of the court. Another juror was called, qualified on voir dire, and was accepted by counsel. The jury was then sworn and the trial proceeded with.

The Act of February 26, 1927, section 215a of the D. C. Code (D. C. Code 1929, T. 18, § 358), provides as follows: “No person shall be disqualified for service as a juror or jury commissioner by reason of sex but the provisions of law relating to the qualifications of jurors and exemptions from jury duty shall in all cases apply to women as well as to men: Provided, That such service shall not be compulsory on any woman.”

We think there was no error in the ruling of the court. Counsel for defendant at the time the juror Duke was dismissed still had four peremptory challenges. These were not exercised. It was within the discretion of the court at that stage of the proceedings to dismiss from the jury a woman upon her own request. The jury had not been sworn, and defendant had hot therefore, been placed in jeopardy. The right exercised by this juror to be excused is recognized by the statute, and, inasmuch as defendant still had a number of peremptory challenges which he never exercised, it is difficult to see how he could be prejudiced by the action of the court in this respect. This is not a ease of a trial court arbitrarily forcing upon the defendant a juror who on his examination has expressed bias or prejudice, as in Kleindienst v. United States, 48 App. D. C. 190. In Welch v. Tribune Publishing Co., 83 Mich. 661, 47 N. W. 562, 563,11 L. R. A. 233, 21 Am. St. Rep. 629, it was held that the judge has not the “right to reject a qualified juror with whom the parties'are satisfied, unless for sufficient cause; and such cause should appear upon the record.” In the present case, the cause was the exercise by the woman juror Duke of her statutory right to be excused from service, and this clearly appears upon the record. This constituted sufficient cause to justify the action taken by the court.

In Horton v. United States, 15 App. D. C. 310, where the .question of the power of the court in the impaneling of a jury was involved, Mr. Justice Shepard, speaking for the court, said: “In the process of impaneling the jury, the talesmen are examined by and in the presence of the court touching their qualifications. Qualification is a question of mixed law and fact submitted to the sound discretion of the court, and the exercise of that discretion ought not to be disturbed, unless there be disclosed manifest error to the prejudice of the accused. * * * An accused person brought to trial acquires no vested right to have a particular member of the panel sit upon the trial of his ease, until, at least, he shall have been accepted and sworn. What the accused is entitled to is a trial by an impartial jury duly qualified and impaneled to sit thereon. That the appellant had such a jury is not denied. No objectionable person was forced upon him; .his peremptory right of challenge was not exhausted.”

Counsel for defendant challenge the action of the trial court in admitting evidence of transactions with one Sinclair in making a lease with the Mammoth Oil Company for the development and operation of Naval Reserve lands in Wyoming, known as the Teapot Dome. The Mammoth Oil Company lease was made some time prior to the commission of the offense here charged. The record discloses no connection between Doheny and» Sinclair, but it does disclose that Fall was considering the two leases on behalf of the government at the same time, and considering each vith relation to the other. In the opinion in the case of Mammoth Oil Co. v. United States, 275 U. S. 13, 40, 48 S. Ct. 1, 6, 72 L. Ed. 137, the court said: “Fall personally conducted the negotiations with Sinclair. And he contemporaneously arranged with Doheny the contract that was set aside for fraud in the Pan American Case, supra.” It appears from the record that Sinclair began negotiations for a lease of Naval Petroleum Reserve No. 3, in Wyoming (Teapot Dome), in December, 1921, at the same time that negotiations were opened for the first contract that was given Doheny’s company. The date of Sinclair’s proposition for lease was February 3, 1922. It also appears that just before defendant went to his home ranch in New Mexico on April 30, 1922, he expressed some disappointment to his assistant Finney that he was not in shape to close with Doheny, stating that he “was anxious to close up all the relating oil matters at the same time.” Finney, testifying to this statement, said that he assumed defendant “referred to the Mammoth lease as well as the storage matter when he referred to the relating oil matters.”

Indeed, the record clearly shows that while there is no relation between Sinclair and Doheny, defendant was carrying along the respective transactions simultaneously and with a common motive in mind. Transfer to defendant by Sinclair of a large amount of government bonds, and the alleged loan of $100,000 by Doheny to Fall to purchase the Harris ranch, were prompted by initial suggestions from Fall of difficulties that he was having in relation to his ranch holdings in New Mexico. Both sums were advanced in connection with these transactions, and presumably to aid Fall in carrying on his ranch enterprise, and relieving him from financial difficulties in which he had become involved. The two transactions are so closely associated as to bring the admission of the testimony as to the -Sinclair matter well within the rule of evidence permitting testimony of other offenses or transactions as bearing upon the motive or intent of the accused. The rule is well stated in Moore v. United States, 150 U. S. 57, 60, 14 S. Ct. 26, 37 L. Ed. 996, and quoted by Chief Justice Martin in Eagles v. United States, 58 App. D. C. 122, 25 F.(2d) 546, 548, as follows: “Where the question relates to the tendency of certain testimony to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge, which a court of errors will not interfere with, unless it manifestly appear that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused in the minds of the jurors.” Such evidence may be used not only in arriving at the motive and intent of a defendant, but for establishing the constituent elements of the crime of which the defendant is accused. Price v. United States, 53 App. D. C. 164, 289 F. 562.

As showing the close connection the Sinclair and Doheny transactions had in the mind of defendant, reference may be had to his letter to the Senate committee on public lands on December 26, 1923, where he said: “The fact that Mr. H. F. Sinclair came to Three Rivers with his wife and another lady and gentleman on December 31, 1921, or January 1, 1922, just after I had taken possession of the Harris home ranch property and of the Harris-Brownfield cattle have incited some evil minded persons to the conclusion that I must have obtained money from Mr. Sinclair. It should be needless for me to say that in the purchase of the Harris ranch or in any other purchase or expenditure I have never approached E. L. Doheny or anyone connected with him or any of his corporations or Mr. H. F. Sinclair pr anyone connected with him or any of his corporations, nor have I ever received from either of said parties one cent on account of any oil lease of upon any other account whatsoever.”

After he had stated that he received the $100,000 to purchase the Harris ranch from Edward B. McLean, which Mr. McLean denied in his testimony given before the Senate committee, he wrote Senator Thomas F. Walsh as follows: “I desire to advise you that I have carefully read the testimony which Mr. McLean gave today, and that I endorse the accuracy of the same. I will also say that before giving his testimony Mr. McLean had a conference with me and I told him that, so far as I was concerned, it was my wish that he answer freely, and, in this connection, I will say that it is absolutely true that — I did not finally use the money from Mr. McLean, which he expressed himself willing to give me, because I' found that I could readily obtain it from other sources. I wish it thoroughly understood that the source from which I obtained the money which I used- was in no way connected with Mr. Sinclair or in any way involved in the concession regarding the Teapot Dome, or any other oil concession.”

The admissibility of evidence of transactions of a kindred character to the one charged as showing fraudulent intent, the purpose for which the testimony was introduced in the present case, is sustained in Wood v. United States, 16 Pet. 342, 360, 10 L. Ed. 987, as follows: “The question was one of fraudulent intent or not; and upon questions of that sort, where the intent of the party is matter in issue, it has always been deemed allowable, as well in criminal as in civil cases, to introduce evidence of other acts and doings of the party, of a kindred character, in order to illustrate or establish his intent or motive in the particular act directly in judgment. Indeed, in no other way would it be practicable, in many eases, to establish such intent or motive, for the single act, taken by itself, may not be decisive either way; but when taken in connection with others of the like character and nature, the intent and motive may be demonstrated almost with a conclusive certainty”

The whole record in this ease is so replete with Pall’s concurrent handling of the California and Wyoming leases, coupled with the fact that the moneys received by him in each case were used for a similar purpose, that all doubt as to the propriety of the court below in admitting this evidence is removed. Indeed, counsel for defendant seem to have conceded the competency of this evidence in requesting the following prayer, which was allowed by the court: “You are instructed that there is no charge in this indictment involving any transaction to which H. P. Sinclair was a party. You are further instructed that the evidence regarding transactions to which he was a party is before you for your consideration only insofar as it throws light, if any, upon the intent of the defendant in connection with the transaction between him and Doheny, and unless the testimony relating to the transaction in which Sinclair participated in your judgment throws light upon the defendant Pad’s intention on November 30, 1921, in his transaction with Doheny, you shall disregard entirely the evidence relating to the so-called Sinclair transaction.”

It is contended, however, that there were certain transactions connected with the Sinclair evidence that were improperly admitted over the objection and exception of the defendant. It appears that one Everhart, defendant’s son-in-law, was the ranch manager for the Tres Bitos Cattle & Land Company, in which Sinclair was alleged to have purchased an interest with the bonds which he transferred to Pall through Everhart. Defendant directed Everhart to give Sinclair a check for $1,100' for certain cattle, as he did not want it to appear that the cattle were a gift from Sinclair. When Everhart gave Sinclair the cheek, Sinclair returned $1,100 in currency, with a statement that he wished it used to cover certain expenses at the ranch. Everhart later received $10,000 from Sinclair at Three Bivers, N. M., where Pall’s home ranch is located; and $25,000 was later received at the Wardman Park Hotel, in Washington, where Pall resided. It does not appear directly from the evidence that Pall was informed of these three transactions. Error is accordingly assigned in the admission of testimony as to these transactions in evidence.

The testimony of Everhart related to actual transactions in "connection with the negotiations of Sinclair with Pall, and the alleged interest which he held in the ranch property. Everhart, the general manager, was the agent of both Pall, who owned a half interest in the ranch, and Sinclair. The testimony that Pall had not seen the books of the company and was therefore not apprized of these transactions is not conclusive. They were all evidentiary facts tending to establish the relations between Pall and Sinclair. Considering the close relation of the parties, that, in the handling of the bonds between Sinclair and Pall, Ever-hart had been the intermediate agent, we think that all these transactions were evidentially relevant to the general issue of conveying to the jury the fuE Sinelair-Pall transactions as evidence of the motive and intent that PaE had in receiving the money from Doheny in the present case.

We come now to the exceptions to the charge of the court. It is urged that the following statement of the court was erroneous and prejudicial to the defendant: “It also appears that upon three different occasions subsequent to the receipt of that money tbe defendant was asked about it. On at least one of those occasions he asserted his right to say nothing about it, and he was right in that. He could have said nothing whatever about it. But there were occasions, in connection with a certain quasi-judicial situation, where, while he was entitled to say nothing, he did say something, and he was required then, as on all occasions, if he spoke, to speak truly. He made' certain statements as to where he got' that money, and it now appears, from the statements of his own counsel, in arguing his own case, that he did not get that money where he said he got it, and he did get it exactly where he said he did not get it. One of counsel speaks of that transaction as an unfortunate falsehood. Another of his counsel speaks of it as a lie, but a lie that he was entitled to make under the circumstances. In view of those statements of his counsel, I call particularly to your attention that this defendant is not charged in this indictment with lying. He is charged with bribery and with the corrupt intention, at.the time this money was received, to favor the source of it; so that it does not necessarily follow that because he lied about it, as Ms counsel said he did, that he is guilty of tMs crime. Those are circumstances that have appeared in the evidence that have been emphasized by counsel. The weight and signifiehnee of them are wholly for you to decide, and they are to be decided by you in the light of the charges of the indictment, which are bribery, and not lying.”

This charge, taken as a whole, would seem favorable to the defendant, inasmuch as had the court failed to have called attention to it in the way he did the admitted falsehoods of the defendant might have created a very prejudicial impression on the minds of the jury. The charge as a whole amounted merely to a caution to the jury only to consider this testimony in connection with all other testimony in the ease in arriving at the conclusion as to whether or not the defendant was guilty of the crime of bribery as charged, andonot of the offense of lying. TMs was merely an outstanding piece of evidence which the trial judge in his discretion felt should be called to the attention of the jury, and, when taken in connection with other parts of the charge, wherein the court cautions the jury that they are to disregard the statements the court may make in regard to the evidence in the case and reach their conclusions independent of these statements, we cannot possibly find any error in tMs portion of the court’s charge.

Exception was taken to portions of the following part of the charge: “Counsel have urged you to send this man back to the sunshine of New Mexico. You have nothing whatever to ■ do with the sunshine of New Mexico. I realize that a man or a woman in a jury box has exactly the same feelings of sympathy and sorrow that a man or a woman sitting elsewhere has; and the judge upon a judicial bench, wearing a shroud, has exactly the same feelings that a man sitting anywhere else has. But neither you nor I have anything to do with the sunshine of New Mexico. You are here to decide this ease upon the evidence, and notMng else. Counsel has also said to you that no matter what your verdict is, you cannot be called to account for it by anybody anywhere; and that-is true. You have the physical power to decide this ease entirely upon your feelings, whether they are merciful toward, the defendant or whether they are hostile toward the defendant; and to turn your back upon the evidence. But you cannot lawfully do that. You have a physical power to do it. Now, the most that any jury may lawfully do in the direction of clemency is what any jury may do in a proper ease if, 'in their good judgment, the case requires it. It may couple its verdict with a recommendation for the mercy of the law. If that is done, such a recommendation is no part of the verdict. It has no binding effect upon the court or upon anybody else. It is the expression of the judgment and opinion of the jury upon the consideration and examination of the case, voluntarily made upon the motion of the jury itself. That much may be done lawfully by a jury, and no more, in that direction. That, once done, takes its place in the record of the ease, and it goes wherever the record of the case goes, for whatever weight, if any, it may have.”

Of course, it is error for the court to suggest to the jury the probability of clemency by the court in rendering judgment upon their verdict without further qualification. Miller v. United States, 37 App. D. C. 138. The danger of a charge of tMs sort is the inducement it may have in the mind of some juryman to render a verdict of guilty on the theory that the penalty imposed by the court would be lighter with the recommendation of clemency incorporated into the verdict. We think, however, the charge of the court in this case was not prejudicial to the defendant, but merely by way of caution to the jury. The atmosphere existing in the courtroom throughout this trial, as disclosed by the record, was most remarkable. The defendant, over seventy years of age, an invalid, was brought into the courtroom in a wheel chair, wrapped in blankets, to stand trial on the indictment for bribery. He had had an illustrious official career. This situation was brought to the attention of the jury in the most forceful and dramatic manner by counsel for the defendant, clearly for the purpose of creating a feeling of sympathy in the minds of the jury favorable to the defendant. In one appeal to the jury the following language was used: “It is like asking you to wreck and ruin.men who stand upon the threshold of the hereafter. It is like asking you to go out and steel your hearts and minds against what you know to be the fact; instead of sending him back to Ms family, instead of sending the slumped form in yonder chair back to his home and his family, sending him to the penitentiary.” In another portion of the argument counsel, impressing upon the jury the fact that they are the sole judges of the evidence, and that upon them rests the duty of determining whether the defendant is guilty or not guilty, said: “With the power comes a great responsibility. And now I shift from my shoulders the responsibility which has been mine and place it well upon yours. • And I plead with you, and plead with you with all the earnestness at my command, that before darkness closes in on this good day you will send Albert B. Fall back to the sunshine and the lung-healing climate of his beloved New Mexico with your verdict of not guilty — not guilty.”

At another part in the argument counsel, referring to defendant’s letter of December, 1923, in which he denied having received any money from Doheny and later explained that it was written to avoid giving information to political opponents, said: “And in that hour was bom the determination of Albert B. Fall to risk the most precious things that he had, Ms reputation and honesty, and truthfulness, in order to save Ms friend, Ms family, from that terrific onslaught and avalanche of political persecution that has ever since thrown itself about Mm. * * * He deliberately lied to the Senate of the United States, as he had a right to do and as he should have done under those circumstances. He attempted to deceive them with every power in his command. It was a futile gesture, gentlemen. * * * It was that, gentlemen of the jury, that has brought these two old men to the end of the trail, bowed with worry, broken in spirit — it is that that has brought them thousands of miles away, from the day they first spent fighting the avalanche that has impended over their heads. Sitting today as you see them trying to protect each other as they did in the old days. * * * It is in your hands to determine whether or not. he shall go back and spend the last few remaining days in happiness and peace; whether a month from tomorrow his shall be a day of Thanksgiving or a day of death.”

These are only 'examples of the toueMng appeal that was made to the sympatMes of the jury. “The trial judge does not sit as a mere moderator of a town meeting.” It is Ms duty to see that the jury are not misled by such appeals to sympathy. It is Ms duty to caution the jury as to the responsibility which rests upon them of deciding the ease upon the evidence and not upon any sympathetic feeling that they may have arising either from the phyiseal or mental condition of the defendant.

The court, at the conclusion of the charge, carefully cautioned the jury as to the limits placed upon the trial judge in commenting upon questions of fact as follows: “The facts are for you, and any comment I may have made is in no way binding upon you. My function in this case is to decide the questions of law as they arise, and to do what little is humanely possible to keep the talk of the lawyers within reasonable bounds. All the questions of fact are wholly for you to decide, upon the evidence and upon your oaths and upon your consciences, and upon nothing else.”

The charge of the court on the whole was comprehensive, fair, and impartial. As said by Chief Justice Waite in Reynolds v. United States, 98 U. S. 145, 168, 25 L. Ed. 244: “The effort of the court seems to have been not to withdraw the minds of the jury from the issue to be tried, but to bring them to it; not to make them partial, but to keep them impartial.”

The judgment is affirmed.