patent." The only difference is that, whereas Pries' catch is associated with what is termed the "operated part," Small's catch is associated with the "operating part" of the shaft.

Appellant takes issue with this statement of the similarity of the two structures and says: "It is true that the leaf spring was proposed by Small and a pivoted latch was employed by Pries, for supporting this sliding element; but it is not true that they perform their functions in the same way" nor is "the assertion that the location of the latch upon the operated, instead of upon the operating, part is a mere reversal" of parts.

We may the more readily reach the heart of this controversy by stating (without discussing certain propositions with the soundness of which we are satisfied) that Pries was not entitled to a claim which described means generally for supporting the sliding member of the brake staff. If there be invention at all, it resided in the particular means which he provided for supporting the slidable rod. A pivoted latch, it must be admitted, is not an unusual means to support and ordinarily does not bear the earmark of patentable novelty. But we are not inclined to accept appellees' contention that Small's spring anticipates Pries' latch as described in these four claims. Nor can we say it is the mechanical equivalent of Pries' latch. But does the use of a latch so generally described as being one "pivotally carried by the sleeve" constitute such an advance over Small's spring catch as to spell invention? We think not.

Concede that a latch pivotally carried by the spring is not met by a spring catch, yet what would a mechanic do if the spring did not always work because of the dirt, the ice, and the snow that made successful operation difficult. Having before him the problem of providing means in the nature of a catch which would permit of the operation of two collapsible telescoping shafts, he would use a common mechanical device such as a latch or a catch. He would relocate the catch and mount it so that it would pivot; provided he wanted to get away from the spring.

Such a mechanical expedient would be old. The use of two collapsible, telescoping parts, one of which members is called the operated part and the other the operating part, is likewise old. Our attention is called to a patent to Schoening, No. 887,701, which covered collapsible automobile wheels. It provided "means in connection with the sections for preventing rotary movement thereof with respect to each other and a locking device for locking the sections in the adjusted position." Surely the use of a pivotal latch or a

latch so located as to pivot was the mere selection of a means well known to the mechanic.

We agree with the District Court that these claims were void for want of invention.

Respecting the other five claims (3, 4, 5, 6, and 9) of this patent, the District Court held them valid, but not infringed. They are more limited in their scope than the four claims just considered. Each combination has one element which defines particularly, or locates definitely, the latch. Claim 3 describes this element thus:

"And a latch for supporting the rod within the sleeve and being housed within the sleeve aperture and held in place by the bridge piece."

Claim 4 describes it thus:

"And a latch for supporting the rod within the sleeve and being housed within the sleeve aperture and having a downwardly facing shoulder engageable with the bridge piece."

Claim 5 describes it thus:

"An operated part, an operating part, and means pivotally and slidably mounted within said operated part for supporting said operating part."

Claim 6 describes it thus:

"Means pivotally and slidably mounted within one of said parts adapted to support the other of said parts," etc.

Claim 9 describes it thus:

"And means slidably and pivotally mounted within said operated part for supporting said operating part when in operative position."

Appellees' catch is not so located nor so constructed. If the claims are to be strictly construed, infringement does not appear. In view of the emphasis that must be given to the specific form of catch in order that the claim may be upheld, we cannot give its language a wide range of equivalency. We conclude, therefore, that claims 3, 4, 5, 6, and 9 are not infringed.

[3] Estoppel.-Contending that the appellees were once the owners of the patent, appellant denies its adversary right to question the validity of the patent. In support of this position appellant introduced a so-called assignment from appellees to appellant, also a letter, the effective portions of which read as follows:

"I note, however, you mention Mr. Pries' patents and in this connection, beg to say that Mr. Pries made a complete assignment of the patents which were issued prior to his death also any patents that might be issued to him in the future, to this company and in re

turn for this he received a certain amount of stock, consequently, all of these patents, subject to shop rights held by Haskell & Barker Car Company, are controlled by our company."

The assignment from one of the appellees to appellant recited that it "sold, assigned, and transferred and does hereby sell, assign and transfer unto Amelia Pries

any and all rights, title, and interest, it has or may have in and to the inventions and patents enumerated below, including any and all sales, licenses, or other rights which it has or may have therein." There were some 46 patents described in this assignment including the 2 here under consideration.

Because the instrument was described as an assignment, appellant argues that appellees sold the patents in question. But the word "assignment" would apply to the sale of a license or to certain rights in and to a patent as well as to the patent. The expression "complete assignment of the patent," as used in the letter, is more descriptive; but, in view of the transaction to which the letter referred, we cannot accept appellant's construction of this letter, and say it irrevocably commits appellees to the position of having purchased the patent.

Appellant argues that because the transfer from appellee to Mrs. Pries, the widow of patentee, was called an assignment and the letter offered in evidence and written by an official of one of the appellees speaks of a complete assignment, the court is compelled to find that appellees were at one time the owners of the patent and later sold it to appellant.

It is unfortunate that the agreement of December, 1912, was not offered in evidence. The embarrassment under which appellees labor would be thereby avoided. However, we think the complaint and the answer establish the character of the interest the patentee conveyed. We quote from the complaint:

"Plaintiff further represents that by an arrangement entered into by and between the said Herman Pries and Union Railway Equipment Company (a corporation of South Dakota), and consummated by an instrument in writing on the 3d day of December, 1912, the said Herman Pries conveyed to the said corporation the perpetual selling rights under patents owned and controlled by him, and relating to railway devices, and including all patents on inventions relating to such devices which he might subsequently make, such conveyance being in consideration of the sum of fifty thousand dollars ($50,000), to be paid in a like amount of the preferred and common stock of said corporation,

which stock was in due time issued to and held by him; and such conveyance was recognized by both parties thereto as including the right of manufacture, which right was exercised by the said Union Railway Equipment Company (a corporation of South Dakota) thereafter."

The learned District Judge we think properly described the relationship of the parties when he said:

"It is perfectly obvious that the transfer by Herman Pries to the Union Railway Equipment Company of the perpetual selling rights, and adding to that what is averred in the answer, the right to manufacture (something which is not in the document itself) amounted to a license only, and did not constitute an assignment of the patents within the meaning of the patent law. It is only necessary to refer in that connection to the leading case of Waterman v. Mackenzie, 138 U. S. 252 [11 S. Ct. 334, 34 L. Ed. 923].

The case states the tests to be applied in determining whether a document is an assignment or a license and whether the transferee is entitled to sue for infringement, or the suit must be brought by the original patentee. Again, in Crown Company v. Nye Tool & Machine Works, 261 U. S. 24 [43 S. Ct. 254, 67 L. Ed. 516], there is a review of the cases.

"Starting out with the proposition that this basic document in the case is not an as

signment within the meaning of the Patent Law, but is a license, then this paper of the 10th of June, 1919, in which the plaintiff here is named as the assignee, was in effect a sur

render of a license. It must be borne in mind that this transferee in the paper of the 10th of June, 1919, is the one who had acquired the legal title to the patent as devisee In this under the will of Herman Pries. paper of the 10th of June, 1919, the company did not undertake to transfer to Amelia Pries more than it had received by the transfer from Herman. There is no claim that the company had any interest of any kind in these patents except that which had been received by the transfer from Herman Pries. The writing, then, though it is designated as an assignment, is not an assignment of an interest in a patent within the meaning of section 4893 of the Revised Statutes [35 USCA § 36; Comp. St. § 9437]."

The relationship between these parties having been that of a licensor and licensee which relationship terminated prior to the alleged infringement, appellees are not estopped to attack the validity of the patent. The decree is affirmed.

DE BELLIS v. UNITED STATES. Circuit Court of Appeals, Seventh Circuit. December 7, 1927.

No. 3868.

1. Criminal law 323-Presumption from possession of narcotic drugs in unstamped package of unlawful purchase does not extend to venue of purchase (Harrison Anti-Narcotic Act, § 1, as amended [26 USCA §§ 211, 691-694]).

Possession of narcotic drugs in unstamped package in district of indictment does not raise presumption that they were purchased in that district, in violation of Harrison Anti-Narcotic Act, § 1, as amended (26 USCA §§ 211, 691694; Comp. St. § 6287g).

2. Criminal law 1056(1)-Failure to instruct on presumption of innocence, not excepted to, held not reversible error.

A general request by defendant to instruct on the presumption of innocence, to which the court replied, "I have so instructed," in the absence of exception or specific instruction, requested and refused, held not to involve reversible error, though the instructions given contained nothing on the subject.

3. Criminal law 1209-Sentence on each of two counts held for different offenses, and not to constitute punishment twice for same offense.

A count in an indictment for having unlawful possession of narcotic drugs in violation of Harrison Anti-Narcotic Act, § 8 (26 USCA § 700; Comp. St. § 6287n), and another count for unlawful sale of same in violation of section 2 of the act (26 USCA § 696; Comp. St. § 6287h), charge two distinct offenses under different provisions of the statute, and imposition of sen

tence on each count does not constitute punish

ment of defendant twice for same offense.

In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Criminal prosecution by the United States against Rocco De Bellis. Judgment of conviction, and defendant brings error. Affirmed.

John B. Boddie, of Chicago, Ill., for plaintiff in error.

Jacob I. Grossman, of Chicago, Ill., for the United States.

Before EVANS, PAGE, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge. Plaintiff in error complains of his conviction upon an indictment charging him and one Colamanico with violation of the Narcotic Act and conspiracy to violate that act.

The indictment charges, in the first count, that the defendants purchased specified large quantities of morphine hydrochloride and cocaine hydrochloride; in the second, that de

fendants were persons whose business it was to deal in these drugs, and that they were required to register with the internal revenue collector and to pay the special tax, but not having registered nor paid the special tax, nevertheless had in their possession the large quantities of drugs above mentioned; in the third, that the defendants sold to one Dodd morphine and cocaine not in pursuance of a written order from Dodd on a form issued in blank by the Commissioner of Internal Revenue; in the fourth, that the defendants fraudulently and knowingly received, concealed, and sold, after importation, the large amount of drugs mentioned in the first count, knowing that the drugs had been unlawfully imported into the United States; and in the fifth, that the defendants, with persons unknown, conspired to unlawfully have narcotics in their possession as dealers, and to unlawfully purchase, sell, and possess these drugs.

Colamanico was a witness for the government, and plaintiff in error was tried alone. He was found guilty and sentenced upon all of the counts. The sentence was that he be imprisoned for five years on each of counts 1, 2, 3, and 4, and that he pay a fine of $5,000 and costs upon count 5. The judgment provided that the sentences on counts 2 and 3 should run consecutively, and that the sentences on counts 1 and 4 should run concurrently with the sentence on count 3, thus makThe maximum punishment on counts 1, 2, ing the sentence of imprisonment ten years. and 3 is five years, and that on count 4 is ten years.

[1] Count 1 is based upon section 1 of the Harrison Act (26 USCA §§ 211, 691-694; Comp. St. § 6287g), and sufficiently charges an unlawful purchase of the drugs mentioned. The point made upon this count is that the evidence is not sufficient to warrant a conviction upon it. The only evidence to sustain the purchase alleged was the possession of the narcotics. There is no proof as to We held in De Moss v. United

the venue.

States, 14 F. (2d) 1021, that the mere possession of narcotics in the district is not sufficient to support the averment that it was purchased in the district.

Count 2 is based upon section 8 of the Harrison Act (26 USCA § 700 [Comp. St. § 6287n]). It charges that the defendants "were persons who then and there sold, distributed, dealt in, dispensed and gave away a certain derivative of opium, to wit, morphine hydrochloride, and a certain derivative of coca leaves, to wit, cocaine hydro

chloride, and being such persons as aforesaid, it was then and there the duty of the said defendants to register with the collector of internal revenue of the United States for the first internal revenue collection district of Illinois, their names or style, place of business, and place or places where said business was to be carried on, and to pay the special tax required by law; and the said defendants, who were then and there such persons as aforesaid, and who had not then and there, nor theretofore, registered as required by law, and who had not then and there, nor theretofore, paid the special tax required by law, then and there knowingly, willfully, unlawfully, and feloniously did have in their possession and under their control, a large quantity of said morphine hydrochloride, to wit, 896 grains, and a large quantity of said cocaine hydrochloride, to wit, 19,980 grains."

Section 8 provides: "It shall be unlawful for any person not registered under the provisions of this act, and who has not paid the special tax provided for by this act, to have in his possession or under his control any of the aforesaid drugs; and such possession or control shall be presumptive evidence of a violation of this section, and also of a violation of the provisions of section one of this act."

This count charges, in apt words, that these persons were such persons as are required by the statute to register and pay the special tax, and that without having registered or paid they had in their possession and under their control the prohibited drugs, and is sufficient.

Count 3 charges that at and in the district the defendants "knowingly, willfully, unlawfully, and feloniously did sell to one Clarence Dodd, for a large sum of money, to wit, the sum of $60.00, a large quantity of a certain derivative of opium, to wit, 144 grains of morphine hydrochloride, and a large quantity of a certain derivative of coca leaves, to wit, 312 grains of cocaine hydrochloride, not in pursuance of a written order from said Clarence Dodd on a form issued in blank for that purpose by the Commissioner of Internal Revenue."

Section 2 of the Narcotic Act (26 USCA § 696; Comp. St. § 6287h) provides: "It shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue."

It charges the violation of this provision in the language of the statute and is sufficient. Count 4 is based upon clause (c) of section 2 of the Narcotic Drugs Import and Export Act (21 USCA § 174). This count appears to be sufficient. It follows the language of the statute, and alleges that the defendants received and concealed narcotic drugs, after being imported, "knowing the same to have been imported contrary to law." The single fact of possession is relied on to sustain the conviction on this count.

Clause (f) of this section provides: "Whenever on trial for a violation of subdivision (c) the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains the possession to the satisfaction of the jury." 21 USCA § 174.

Upon the authority of De Moss v. United States, supra, it is argued that mere possession cannot be deemed sufficient to sustain the averment that the drugs were imported into the United States, and that plaintiff in error received or concealed them knowing them to have been imported contrary to law. It is not necessary to decide this because there are other counts proven upon which the judgment may rest. There was ample evidence to sustain the charge under count 2.

As to count 3, it is contended that the evidence fails to establish that there was a completed sale; that is to say, it is urged that there was no delivery of the drug to Dodd. Colamanico testified that in obedience to the directions of plaintiff in error he gave a package of the drug to Dodd. Under the circumstances testified to concerning this transaction, the statement of Colamanico that he gave it to Dodd can bear no other construction than that he delivered it to him. If the jury believed this, it would warrant a finding that the delivery was made.

It is contended that the court erred in permitting evidence to be given to the jury of a purchase by plaintiff in error from one person, and an offer by him to sell to another, neither of which persons were mentioned in the indictment. The fifth count charged that the defendants, with persons unknown, on January 1, 1924, conspired to violate the Narcotic Act; that is to say, to unlawfully have the drugs in their possession, as dealers, and to unlawfully sell and to unlawfully purchase the same. Under this count it was competent for the government to prove, as tending to establish the combination to commit the acts of possessing, purchasing and selling, that with