UNITED STATES V. JOSE.
951
UNITED STATES v. JOSE. (Circuit Court, D. Washington, N. D. October 12, 1894.) No. 257.
1.
CONTEMPT-DEGREE OF PROOF REQuIUED.
Accusations for contempt must be supported by evidence sufficient to convince the mind of the trior, beyond a reasonable doubt, of the actual guilt of the accused; and every element of the offense, including a criminal intent, must be proved by evidence or circumstances warranting an inference of the necessary facts.
2.
A shipper of logs by rail, being unlj,ble to pay the freight in advance, agreed with the receivers of the railroad that after transportation each lot of logs should be held in a boom owned by one P., and while so held should be considered as in the possession of the receivers. The thereafter arranged with P. that he should hold the logs as their agent, and should not release any of them except on notice to the receivers, and with their consent. The shipper thereafter induced P. to release one raft without first obtaining the receivers' consent, and the evidence strongly tended to show that he accomplished this by fraud and false statements, but the proof was not sufficient to convince the court beYOnd a reasonable doubt. ,Held, that in the absence thereof, and of proof that he had knowledge of P.'s instructions from the receivers, the ship, ,per could not be convicted of contempt of court in interfering with property in the possession of its receivers.
SAME-INTERF'ERENCE WITH PROPEI{'l'Y IN RECEIVERS' POSSESSION.
This was a proceeding against Thomas Jose for an alleged contempt in interfering with property in the possession of the court's receivers. ' Wm. H. Brinker, U. S. Atty. Greene & Turner, for defendant. Carr & Preston, for receivers, Seattle, L. S. & E. Ry. Co. HANFORD, District Judge. At the instance of the receivers of this court, in charge of the business and property of the Seattle, Lake Shore & Eastern Railway Company, the defendant has beel! arrested and brought before the court to answer a charge of contempt alleged to have been committed by him, in this: That on or, about the 14th day of August, last, said defendant unlawfully, willfully, and clandestinely wrested from the possession of said receivers, and removed out of the jurisdiction of this court, a raft 6f saw logs which were theretofore in the lawful possession of said receivers. The undisputed facts are that the defendant, prior to the date of the alleged offense, was engaged in cutting saw logs a place near to the line of said railroad, and dependent on railroad for transportation of his saw logs to salt water. The logs were delivered to the receivers, and carried upon trucks to Salmon bay, where they were unloaded, and placed in a boom owned and controlled by one A. C. Pates. Timber belonging to other transported by 'the same railroad, was also received and cared by said Pates, who, for a consideration paid by the loggers, attended to the unloading of the logs from the trucks, and placed thelD in a general boom, and afterwards, as required, sorted them, aI1'd made up rafts for towing; having pocket booms, rafting gaps, and
FEDERAL·· REPORIDER,
vol. 63.
other necessary conveniences for the business. The defendant was for transportation, and it unable to prepay the was cua,tomaryfor hint t<;> .make payme;:l1ts on accouJ,ltafter making sale of each raft. In April or May preceding the alleged offense, at the request of the receivers, through the auditor and general of the the -defendant, by the firm name of 'Jose & Son, in 'Which he was then transacting his logging ;1:n:uilili\ess, signed a written contract, whereby he consented that the receivers might do the work of unloading the logs from their trucks, and that said logs should be deemed to be in the possession of the receivers long as the same remained in said boom; the expense of unloading and booming to be borne . in the first instance by the receivers;and added to their charges for freight; such expense to be not greater than had been previously charged for the same service. That part of the written contract relating to the _ payment by the receivers of charges for' unloading and booming has not been observed, the fact being that said Pates continued after the making to do the work, and look to the defendant for payof said" ment,a:$ he had previously done. After said contract had been signea., aJ].d at least two months before the date of the alleged offense, the receiyers, through their employes, entered into a verbal agreement with said Pates, whereby he undertook to receive the logs of the in his boom, and hoJd the same as ligent for the rethat he would not permit,llIlY of said logs to be taken away without giving notice to the receivers, and obtaining their consent previous to the removal; and in fulfillment of his said agreement said Pates did notify the receivers, and obtain instructions from them releasing each· raft takeu by the defendant, until the taking complained of in this case. On the afternoon of August 14, 1894, the defendant, without the kpow)edge or consent or of or employe of theirs, except said of the Pates, toqkaraft of logs! from said boom to British Columbia,and sold thesam.e, alld after returning from nntish: Columbia he called at the office of the receivers, anqstated thatJ'le wished to make full settleplehtof his account for transportation of logs, but coupled with the C()lldition that he shouldl'eceiye certain credits, but went away his account to be made up, andnever afterwaI.'dsretlirrteQ,or preferred any other request'for a settlement; and he any part of the m,oney received from the sllleof said raJt' i t&,tMreceivers, on account of ,bis indebtedness for transportatio:l1 'ot stu!l 10gs,aIld he has not rendered. to them any' stateor amount of his the railment of road. Tbe.,ll.p1ounts wbjch he has paid from, time to time on account charges on his logs are not more than the amountsq(fr¢ight charges on the particular logs which had been to the mill's scale, and 3,lthough approxi· marketed, mately 1,(JOO,POO, teet of logs have,. been transported by said· railroad, on'a,ccqunt of which no payments have made, the dethat he is indebted in any 811m whatever tor freightonJl,js)()gs transported by said railroad.
mUTED STATES'll. JOS;E.
953
In addition to these undisputed facts, the evidence convinces me beyond a reasonable doubt, and I find, that the auditor and general traffic manager of the railroad, after engaging said Pates to keep said logs as agent for the receivers, and two or three weeks previous to the 14th day of August, 1894, distinctly and explicitly informed the defendant that all of his logs which had been transported on said railroad, and which had not been sold, were held by the receivers as security for the amount of his indebtedness for freight charges on the same, and that he would not be permitted to remove any of said logs without first discharging said indebtedness, or making a satis-. factory arrangement whereby the amount due should be secured; and the defendant did not then dispute the possession of the receivers, or the fact of his being indebted as claimed. I am likewise convinced, and also find, that the purpose of said written contract was to enable the receivers to transport the defendant's logs without prepayment of the freight charges, and to retain custody of the logs in order to preserve their carrier's lien for said charges, and that the defendant understood that such was the purpose pf said agreement at the time of signing it. I am likewise convinced,. and also find, that the defendant did ask for and obtain the consent of said auditor and traffic manager to the removal of each of the several rafts which were sold after the signing of said contract, and prior to the taking of the raft on the 14th of August. I make said findings notwithstanding the testimony to the contrary given by the defendant upon this trial. Testimony was introduced upon this trial strongly tending to prove that, at the time of the taking of the raft on the 14th of August, Mr. Pates made objection to the taking of said raft until he should first notify the receivers and receive their consent, and that his objections were overcome by assurances then given by the defendant to the effect· that he had just come from the office of the receivers, and that they understood he was to take the logs, and had assented thereto. I am not, however, convinced beyond a reasonable doubt that any such objections or assurances were made or given, and I give the defendant the benefit of the doubt on this point. As a matter of fact, Mr. Pates was the authorized agent of the receivers to hold possession of said logs; but he had no authority to surrender the possession of said logs to the defendant, or to anyone else, except as he should be especially instructed by the receivers or the general officers of the railroad acting under them, and no such special instructions were at any time given for the release of the raft taken by the defendant on the 14th of August. I consider his position to have been similar to that of a warehouse keeper having possession of goods received from a carrier, on which charges for (;arriage are unpaid, and who, in consideration of the delivery of the goods to him for storage, has undertaken to hold the same for the unpaid freight, or until released by the carrier's order. But the evidence fails to show that the defendant knew the extent of Pates' authority as agent, or knew that he was not authorized to release said logs without special instructions. The evidence fails to 'Prove that the defendant would have willfully taken forcible posl'Iel'l-
954
FEDERAL REPORTER, vol. 63.
s;'6'Jioha:id logs, or removed tJlesame, if they had not been actually delivered to him by Pates; and, th.e'evidence being insufficient to ine beyond a reasonable JQOubtthat such delivery by Pates wilSobtained by. Rctual false statements and' representations m::tde the case lacks the element of taking' of property from thecustoa;Y of 1heirwill. Sectiori"725 of the ReVised·Strttitltes· of the United States limits the.power!bf thiscotirt Persons not parties to litigation p'ending in thecdtirt, and not Mlding official positions 'requiring them to yield Obediehce,to the court in their official be punished for contempt 'only for acts. coDimitted in. the immediate presence of the court j ·. or so near 'as r to with the: administration of justice, or for willfUllyt'tElsisting the executionof;thelawful process ot' commands of the'<;Ouft. The word "resistanCe/' used in the -statute, is to be implying a willful' purpose to interfere so as to preventtl'1e',execution or process or the court's orders. for contempt mustbe,Bupported by evidence sufficient to coriVih,M the mind of the trior, beyond a reasonable doubt, of the 9f the accused,' and every' element of the offense, including a 'criminal intent, must be proved by evidence or circumstances inference of the, necessary facts; otherwise, the defendant-is' 'entitled togo acquit. In this case, While the proof establishes. the fact of an actual interference with the business qf the receivers of this court 'by the taking away of property in their la"Vft11 custody, without their consent, and while the prosecution appears to have been founded upon evidence showing just cause for .the accusation, I nevertheless am constrained to decide t)rat the'accusation has not been proven. Without'proof of knowledge on 'the part of the defendant of the lack of authority in Pates to ,release the logs, and withotitconvincing evidence that the defendaritdid fraudulently induce Pates to surrender the logs by falsely representing to him that tb,e receivers had consented thereto, 1 can find no facts warranting an inference of the criminal intent necessar;r to justify the infliction of punishmen t GESSNER v. PHILIPS et al. (Circuit Court, S. D. New J"ork. February 14, 1894.)
PATENTS-TESTS OF INFRINGEMl1lNT.
Devices which are notequivalent;S· of those patent,,(t and could not be su,bstituted therefor withOllt the exercise of invention, do not Infringe. ..,,: " . .
2. SAM]l:. ::.,
Infringement cannot be safely deterl'nined by compal'ing the two machines, without regard to. the claJIIls of the patent. Where the spirit of an lnvetitloll is taken. infringement is not avoide<l by carrying the invention than thl) patentee did. The following patentlf to David Gessner for improvem<)nts in clothpressing machines explained and construed as to the claims mentioned, ,
8. 4.
SAME;
SAME-PARTICULAR PA'fEllT,TB",",:"Cr.OTH-PRESSING MACHLNES.