Page:The Green Bag (1889–1914), Volume 17.pdf/483

 460

THE GREEN BAG

the application is remote, it is not necessary that the court should charge upon it. It is hot required to charge upon testimony which is unreasonable. Speaking of the reasonableness of the testimony, the court asks whether it is probable, or even possible, that any jury would have believed such statements as those detailed by appellant. That a dream to the effect that his father was killing him induced the prisoner to get out of his bed, asleep, and go through the actions detailed by him, is perhaps not the least remarkable part of his statement. The fact that he could tell ex actly everything he did while asleep is more re markable. The failure to give the charge upon reasonable doubt is also justified upon another ground, it being held that the question of reason able doubt never arises where the defendant had pleaded guilty. A reasonable doubt is the pro duct or corollary of a presumption of innocence which is not raised upon a plea of guilty. PATENTS. (DESIGNS — EFFECT OP PREVIOUS MECHANICAL PATENT) U. S. C. C. A., SECOND CIRCUIT. U. S. C. C., M. D. PBNN.

Two Federal courts have recently, without the knowledge of the existence of the other's opinion, decided a novel question in patent law. In Rob erts v. Bennett, 136 Federal Reporter, 193, a me chanical patent had been issued for a basket, and the question arose as to the validity of a subse quent design patent to the same patentee. In Williams Calk Co. v. Neverslip Mfg. Co., 136 Federal Reporter, 210, a design patent had been issued for a horseshoe calk, and the validity of a mechanical patent for the same device was at tacked upon the ground of double patenting. Both courts arrived at the same conclusion, viz: that a subsequent patent of another class is ren dered void for anticipation by a prior patent issued to the same patentee. Gary Mfg. Co. v. Neal, 95 Fed. 725, is cited by the Circuit Court, and Collender v. Griffith, 2 Fed. 206, holding the contrary doctrine, is disapproved.

PRACTISING MEDICINE. (OPHTHALMOLOGIST) SOUTH DAKOTA SUPREME COURT. The question whether one describing himself as an ophthalmologist and engaged in fitting glasses to the eye, is engaged in practising medicine, is decided in the affirmative in State v. Yegge, 103 Northwestern Reporter, 17. The statutes of South Dakota declare that when a person shall append or prefix the title "Dr." or any other sign

or appellation in a medical sense to his name or profess publicly to be a physician or surgeon, or use, recommend, prescribe, or direct for the use of any person any drug, medicine, apparatus, or other agency for the cure or relief of any ailment or disease of the mind or body, or the cure or relief of any injury or deformity, he shall be re garded as practising medicine, within the mean ing of the act which makes it an offense to practise medicine without a license. It was shown that defendant issued an advertisement stating that ophthalmology was a science for the analysis of the cause of human ills and how to abolish them, and that by its assistance many diseases were cured without the aid of drugs or surgical opera tions. Fie also had a sign in front of his office with the name "Dr. Yegge" thereon. There was also evidence tending to prove that ophthalmology is the science which treats of the physiology, anatomy, and diseases of the eye; that any deformity in the eye is considered a disease, and the fitting of glasses for the relief of defective eyesight is a branch of the practice of medicine. The defendant was engaged merely in the business of fitting glasses to the eye, but it was held that under the statute quoted, he was engaged in the practice of medicine. WITNESS. (SUBPOJNAED TO ATTEND TRIAL IN ANOTHER STATE) N. Y. SUPREME COURT. The Code of Criminal Procedure of the State of New York provides that under certain con ditions a citizen of the state of New York may be subpoenaed to appear and testify as a witness in a criminal action pending in another state. In the case entitled In re Commonwealth of Pennsyl vania, 90 New York Supplement, 808, a proposed witness appeared and objected to the issuance of the subpoena, and submitted himself to the protection of the court. The court unquali fiedly holds the section of the Code to be un constitutional, in that it proposes to compel a citizen to go into a locality over which the legis lature and courts of New York have no juris diction; that the statute was not passed for any public purpose affecting any interest of the people of the state of New York; and that it deprived the proposed witness of his liberty without due process of law. The court further states that while the statute was probably passed to facilitate the administration of justice in adjoining states, that matter was not a proper field for the exercise of the powers and functions of the legislature. The question is referred to as a novel one, and no cases are cited.