of an improvement upon a one-piece buckle, the principal features or elements of the improvement being a clamping-plate, having an inner flat face, connecting with side bars at one end, the inner face of said plate lying at an angle to the normal strain, and a counter-bar joining the side bars at the opposite end, with an approximately semicircular projection extending rearwardly in a plane coincident with a plane therefrom passing through a median longitudinal line of the side bars. Or, to simplify it, the invention consists of this bindingplate composing the front of the buckle and the projection or lip on the connecting-bar at the rear. All other features or elements claimed for the improvement are purely arbitrary and without inventive utility. I call your attention to the binding-plate, which is this front piece of the buckle. This is one element of the invention. And then this lip or extension on the after bar, which is another part or element of the invention. Something has been said and testified to here before you relative to a mechanical principle which has been attempted to be illustrated by the plate marking the quarter part of a circle. But that element is not claimed in the patent itself and it is not a part of the claim here, so that you may as well put that out of your minds. Another element as spoken of in the claims is the forward edge of the clamping-plate being of appreciable width to form a binding-face and lying in a plane coincident with the plane of the forward edge of the side bars and at an angle to the plane or inner face. That refers to the face of the plane at the front of the buckle being coincident with the sides of the bar, but that is not a matter of invention. That is merely arbitrary, so that matter is not in this case. It is also claimed in the patent that this pin is placed at right angles with the clamping-face. That is an old device, and it is not claimed as a part of the improvement here, so that the improvement or the elements of the improvement are reduced to two, as I have stated them to you; simply the binding-plate composing the front of the buckle, and the projection or lip on the connecting-bar or rear. So that you can disabuse your minds of all other complications about this patent, and reduce it to these two elements or conditions.

Was it Van Emon or was it the defendant who was the inventor of this new improvement? Both of these men claim to be the original or first inventor of said improvement. If the defendant was the original, first, and sole inventor of such improvement, then that is the end of this case; because if so, his oath or declaration would be true, and he would not be guilty of perjury under the indictment. But if Van Emon was the original, first, and sole inventor-and this you must ascertain-then another question will arise, which has two aspects, namely: Whether the defendant knew that Van Emon was such original, first, and sole inventor, and, having such knowledge, took the oath or made the declaration in question; or, whether he had

no such knowledge of such fact, but, knowing that he himself was not such inventor, verified said oath or declaration, because in either event he could not have believed the alleged facts stated in said oath or declaration to be true.

In this relation, I further instruct you that, to constitute perjury, the false oath must have been taken wilfully and corruptly; that is to say, it must have been taken with some degree of deliberation, and with an intent to testify falsely, and the accused must not, at the time, have believed the facts so verified and sworn to to be true. The intent or motive being a condition of the mind, you must determine as to that by the acts and demeanor of the accused, and by all the attendant facts and circumstances. Men do not usually act without some impelling influence, some purpose in view, and for the ascertainment of that purpose, or the intent or motive behind it, where there is no express declaration respecting it by the accused, resort must be had to his acts and demeanor, his relationship with the principal and controlling facts in the case, and all the attendant circumstances that may throw light upon the subject.

False swearing in an honest belief that the statements verified are true could not constitute perjury; and if the defendant, when he made oath to the declaration in question, truly believed that he was the original, first, and sole inventor of the specified improvement, and honestly and in good faith believed such statement to be true, he would not be guilty of the charge. The law also presumes that a person to whom a patent has been issued is the original and first inventor of the device or thing patented; that is to say, the production of the patent makes a prima facie case in his favor. But this presumption or prima facie case may be overcome by proof to the contrary, and has been overcome in the courts, because patents have been set aside and canceled on subsequent ascertainment and proof that the claimant was not in truth and in fact such original and first inventor.

It is further essential to this case, before a conviction can be had, that Van Emon must have been the original and first inventor of the improvement upon a one-piece buckle containing the same elements. that defendant has obtained the patent upon, which principal and essential elements I have explained to you heretofore. For the ascertainment, therefore, as to who of these parties, Van Emon or the defendant, was the original, first, and sole inventor of this improvement in question, you will take into consideration the relationship of the parties, the purchase of the Larson claim or application for patent jointly by Van Emon, the defendant and Mrs. Parrish, the opportunity afforded the parties, namely, Van Emon and the defendant, for ascertaining minutely the elements of such claim, the suggestions and discussions between them and others as to its utility, and touching

any improvement thereto, and especially the improvements in question; the further joint application for a patent upon a buckle by Van Emon, the defendant and Mrs. Parrish, the purpose they had in view in making such application, and the final withdrawal of such claim, and how and why it was done, and the subsequent application of the defendant alone for the patent to the improvement in question, and how and why he so made the application alone, and without joining with the other parties concerned in the previous claims for a patent particularized by the last invention upon a one-piece buckle.

You will further take into consideration the models that have been produced here by the respective parties, namely, Van Emon and the defendant, and determine, if you can, who originated or produced the first and primary idea of the improvement, which is shown forth by the one-piece-buckle patent-whether, considering all these, together with other testimony in the case bearing upon the subject, bearing in mind at the same time the credibility of the witnesses and the weight to be given such testimony, Van Emon produced the original, first distinct and definite idea of the improvement, not vague and fanciful, but well defined, exact, and susceptible of demonstration, or whether the defendant was the original, first, and sole inventor, as he declares under oath that he believes he was. If he was not such original, first, and sole inventor thereof, as I have said before, and was conscious that Van Emon was such inventor, if you so find that Van Emon was, or was conscious that he (defendant) was not such original, first, and sole inventor, and deliberately, with culpable and corrupt intent, swore to such declaration that he believed he was the original, first, and sole inventor of such improvement, and did not at the time believe the declaration to be true, he would be guilty under the charge. Otherwise, he should be acquitted.

I will explain to you now the significance of the expression reasonable doubt. It is such a doubt as exists in reason-not captious, frivolous, or whimsical, but of substantial moment-and intercepts or arrests satisfactory conviction in the mind, and causes hesitation and uncertainty as to the real fact. Applied to a finding as to the guilt of the accused in criminal practice, it is such a doubt, suggested by the dictates of reason, common sense or common understanding, not fanciful or farfetched, as will intercept fair conviction in the minds of the jury touching the guilt of the accused under the charge for which he is being tried, after a careful survey and consideration of all the testimony in the case. Stated objectively, it is that state of the case which, after entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty, as to the truth of the charge. If, therefore, upon such proof as here adduced, considering it in its fullness and entirety, there remains in your

minds a reasonable doubt as to the guilt of the accused, he is entitled to the benefit of it by an acquittal. That is, the evidence must establish guilt under the charge to a reasonable and moral certainty-a certainty that convinces and directs your understanding, and satisfies your reason and judgment, acting under your duties and obligations as jurors.

It is the province of the court to instruct you touching the law governing the cause at issue, and you will take and accept the law given to be the law in the case. But it is But it is your sole province, under the instructions of the court, to find the fact or facts from the testimony adduced; that is, you must judge of the effect of the evidence. and return your verdict accordingly. And here I will say to you that if the court has expressed an opinion upon the fact or facts in the case you will not be controlled by that, but you must use your own judgment upon that subject. Your power and authority of judging of the effect of evidence is, however, not arbitrary, but your function in that regard should be exercised with legal discretion, and in subordination to the rules of evidence. For instance, you are not bound to find in conformity with the declarations of any number of witnesses, which do not produce conviction in your minds, against a less number, or against a presumption or other evidence satisfying your minds. To justify conviction upon a charge of perjury, it must be supported by the testimony of two credible witnesses, or by one witness worthy of credit and other corroborating proof or circumstances. A witness is presumed to speak the truth. This presumption, however, may be overcome by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character on oath, or by contradictory evidence. And a witness false in one part of his testimony is to be distrusted in all.

Being the judges of the effect and value of the evidence, you are necessarily the judges also of the credibility of the witnesses. This you must determine by the manner in which the witness deports himself upon the witness-stand-whether he appears to be candid and fair, or whether he is evasive, or is swift, or is reserving part of the truth, not detailing the whole truth, and also by testimony serving to contradict or impeach the witness, or by any facts or circumstances appearing in the case tending to his discredit, considering at the same time any bias or interest the witness may have in the cause. In this relation, I direct your attention to the fact that the defendant has taken the witness-stand in his own behalf, which he had a right to do if he so chose. Having gone upon the stand, it was competent for the Government to discredit his testimony, as that of any other witness, and by the same methods. You can properly consider, therefore, his manner of testifying, the inherent probabilities of his story, the amount and character of the contradictory testimony, the nature and extent of his interest in the result of the trial, and the impeaching

evidence, whatever it may be, in determining how much credence he is entitled to.

Now, gentlemen of the jury, you will take this case, and, under the instructions that I have given you, acting fairly and impartially, and without prejudice or bias, either toward the Government or toward the defendant, as triers of fact, you will determine from all the testimony adduced at the trial whether the defendant is guilty or not guilty under the charge contained in the indictment, as I have explained it to you, and render your verdict accordingly.

The jury found the defendant guilty.

[U. S. District Court--District of Oregon.]

UNITED STATES OF AMERICA v. PATTERSON.

PERJURY-AFFIDAVIT

66

Decided August 9, 1909.

146 O. G., 258.

ΤΟ SUPPORT APPLICATION FOR LETTERS PATENT-WORD SOLE MATERIAL.

The use of the word "sole" in the affidavit as subscribed, in connection with the words "original" and "first," has a significant and material bearing in the inquiry which was then being prosecuted before the Commissioner of Patents and a false oath with reference thereto renders the affiant guilty of perjury.

Mr. Walter H. Evans and Mr. J. R. Wyatt for the Government. Mr. H. H. Riddle, Mr. R. A. Wade, and Mr. E. S. J. McAllister for the defendant.

WOLVERTON, Dis. J.:

This is a motion for a new trial, based upon the instructions of the court touching the alleged crime charged in the indictment, namely, perjury, and what act or asseverations on the part of the defendant would render him guilty of that offense. (Ante, 257; 144 O. G., 563.)

The indictment is drawn under section 5392 of the Revised Statutes of the United States, which provides that every person who, having taken an oath before a competent tribunal, officer, etc., that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, wilfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury. It is alleged in the indictment that the defendant took an oath before C. W. Hodson, a notary public, to the effect that:

He verily believes himself to be the original, first and sole inventor of the improvement in buckles described and claimed in the annexed specification; that he does not know and does not believe that the same was ever known or used before his invention or discovery thereof.

21895-H. Doc. 124, 61-2- -18