character of the deceased nor any threats that he may have made forfeits his right to life, until, by some actual attempt to execute his threats, or by some act or demonstration at the time of the killing, taken in connection with such character and threats, he induces a reasonable belief on the part of the slayer that it is necessary to deprive him of life in order to save his own or to prevent some felony upon his Prichett v. State, 22 Ala. 39; Com. v. Hilliard, 2 Gray, 294.

person.

Exceptional cases arise where it is held that the evidence should be received as confirmatory of other evidence in the case tending to support the theory that the killing was in selfdefence. Cases of that character may be found where courts have ruled that evidence of the kind may be admitted, even though the prisoner had no knowledge of the same at the time of the alleged felonious homicide; but there is not a well-considered case to be found anywhere, in which it is held that evidence of previous threats is admissible as substantive proof that the act of homicide was committed in self-defence, nor which shows that such evidence is admissible for any purpose, whether the threats were known or unknown to the prisoner, except to confirm or explain other evidence in the case, tending to justify or excuse the homicidal act, as having been committed in opposing force to force in defence of life, or to avoid enormous bodily harm. 2 Whart. Cr. L. (6th ed.) 1020; 1 Hale, P. C. 481.

Provided the uttering of the threats was known to the prisoner, the tendency of modern decisions is to admit the evidence, even if the other evidence to support the theory of self-defence is slight, and to exclude it in all cases where the threats have not been communicated, unless the circumstances tend strongly to inculpate the deceased as the first aggressor. People v. Lamb, 2 Keyes, 466; Powell v. State, 19 Ala. 577; Dupree v. State, 33 id. 380.

Examples, almost without number, are found in the reported. cases, which support those propositions, to a few of which reference will be made.

Violent threats were made by the deceased against the prisoner in the case of Stokes v. People, 53 N. Y. 174; and the court held that proof of the same was admissible, whether

known to the prisoner or not, inasmuch as other evidence had been given making it a question for the jury whether the homicidal act was or was not perpetrated by the prisoner in defending himself against an attempt of the deceased to take his life or to commit a felony upon his person.

Authorities to show that fear only is not sufficient to justify the taking of the life of another have already been referred to, of which there are many more. State v. Collins, 32 Iowa, 38; Whart. Homicide, 407.

Pursuant to that rule, it was held, in the case of Newcomb v. State, 37 Miss. 400, that the belief on the part of the accused that the deceased designed to kill him is no excuse for the homicidal act, unless the deceased at the time made some attempt to execute such a design, and thereby induced the accused reasonably to believe that he intended to do so immediately. Hence the court held that it was not competent for the accused to introduce evidence of an assault that the deceased committed on him six weeks before, nor to give evidence of previous uncommunicated threats, the other evidence showing that the deceased at the time of the killing made no hostile demonstration against the accused calculated to show that the accused was in any danger of life or limb.

Actual danger of the kind, or a reasonable belief of such actual danger, must exist at the time, else the justification will fail. Repeated threats, even of a desperate and lawless man, will not and ought not to authorize the person threatened to take the life of the threatener, nor will any demonstration of hostility, short of a manifest attempt to commit a felony, justify a measure so extreme.

Reasonable doubt upon that subject cannot be entertained; but the Supreme Court of Kentucky decided, that, where one's life had been repeatedly threatened by such an enemy, and it appeared that he had recently been exposed to an attempt by the same person to assassinate him, and that the previous threats were continued, the person threatened might still go about his lawful business, and if on such an occasion he happened to meet the threatener, having reason to believe him to be armed and ready to execute his murderous intention, and if he did so believe, and from the threats, the previous attempt at assassina

tion, the character of the man, and the circumstances attending the meeting, he had a right to believe that the presence of his adversary put his life in imminent peril, and that he could secure his personal safety in no other way than to kill the supposed assailant, he was not obliged to wait until he was actually assailed. Bohammon v. Com., 8 Bush, 488.

Beyond all doubt, that is the strongest case to support the theory set up for the prisoner in this case to be found in the judicial reports, and yet it is obvious that it does not make an approach to what is necessary to constitute a defence for the crime charged against the prisoner in the indictment.

Except where threats are recent, and were accompanied by acts and conduct indicative of an intention to execute the threatened purpose, the evidence of previous threats is not. admitted by the Supreme Court of Arkansas. Atkins v. State, 16 Ark. 584; Pitman v. State, 22 id. 357.

Where the evidence of previous threats is necessary, in connection with the other evidence, to make out a case of selfdefence, the Supreme Court of Indiana hold that the evidence is admissible. Holler v. State, 37 Ind. 61.

Jurists and text-writers appear to concur that antecedent threats alone, whether communicated or not, will not justify a subsequent deadly assault by the other party, unless the party who made the previous threats manifests, at the time of the act, a design to carry the threats into immediate effect. People V. Scroggins, 37 Cal. 683.

"It

Argument to establish that proposition seems to be unnecessary in this case, as the legislature of the Territory have enacted that a bare fear that a felony is about to be committed "shall not be sufficient to justify the killing" in such a case. must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge," showing that the court below could not have decided otherwise than they did without violating the statute law of the Territory. Laws Utah, p. 60, sect. 112.

Weighed in the light of the adjudged cases, it is clear that the evidence of previous uncommunicated threats is never admitted in the trial of an indictment for murder, unless it

appears that other evidence has been introduced tending to show that the act of homicide was committed in self-defence, and that the evidence of such threats may tend to confirm or explain the other evidence introduced to establish that defence. Society, in my opinion, is deeply interested that criminal justice shall be accurately and firmly administered; and, being unable to concur in the opinion and judgment of the court in this case, I have deemed it proper to state the reasons for my dissent.

SMITH v. GOODYEAR DENTAL VULCANITE COMPANY ET AL.

1. Where the claim for a patent for an invention, which consists of a product or a manufacture made in a defined manner, refers in terms to the antecedent description in the specification of the process by which the product is obtained, such process is thereby made as much a part of the invention as are the materials of which the product is composed.

2. Whether the single fact that a device has gone into general use, and displaced other devices previously employed for analogous uses, establishes, in all cases, that the later device involves a patentable invention, it may always be considered as an element in the case, and, when the other facts leave the question in doubt, it is sufficient to turn the scale. 8. Hotchkiss v. Greenwood, 11 How. 248, decides that employing one known material in place of another is not invention, if the result be only greater cheapness and durability of the product. It does not decide that the use of one material in lieu of another in the formation of a manufacture can, in no case, amount to invention, or be the subject of a patent.

4. In the present case, the result of the use, in the manner described in the specification, of hard rubber in lieu of the materials previously used for a plate for holding artificial teeth, or such teeth and gums, is a superior product, having capabilities and performing functions which differ from any thing preceding it, and which cannot be ascribed to mere mechanical skill, but are to be justly regarded as the results of inventive effort, as making the manufacture of which they are attributes a novel thing in kind, and, consequently, patentable as such.

5. A patent is prima facie evidence that the patentee was the first inventor, and casts upon him who denies it the burden of sustaining his denial by proof.

6. The presumption arising from the decision of the Commissioner of Patents, granting the reissue of letters-patent, that they are for the same invention which was described in the specification of the original patent, can only be overcome by clearly showing, from a comparison of the original specification with that of the reissue, that the former does not substantially describe what is described and claimed in the latter.

7. Upon consideration of the history of this invention, the court holds: 1. That

there was no abandonment by the patentee of his original application. 2. That the application upon which the patent was finally allowed was a mere continuation of the original, and not a new and independent one. 3. That the invention was never abandoned to the public. 4. That reissued letters-patent No. 1904, dated March 21, 1865, for an alleged "improvement in artificial gums and palates," are valid.

APPEAL from the Circuit Court of the United States for the District of Massachusetts.

This was a bill in equity filed by the appellees against the appellant for an infringement of reissued letters-patent No. 1904, for "improvement in artificial gums and palates," granted March 21, 1865, to the appellees, as assignees of John A. Cummings. The bill prayed for an injunction, discovery, account, and assessment of damages.

The original letters-patent No. 43,009, for said improvement, were granted to said Cummings, and bear date June 7, 1864.

A decree was entered in favor of the complainants; whereupon the defendant appealed to this court, and assigns the following errors:

First, The decree of the court below is erroneous, in adjudging that John A. Cummings was the original and first inventor of the improvement described and claimed in the reissued letters-patent No. 1904, dated March 21, 1865.

Second, In adjudging that the reissued letters-patent No. 1904, dated March 21, 1865, is a good and valid patent.

Third, In adjudging that the defendant had infringed the said reissued letters-patent No. 1904, and upon the exclusive rights of the complainants under the same.

Fourth, In awarding an account of profits and a perpetual injunction against the defendant, according to the prayer of the bill.

The history of the invention and the facts bearing upon the questions involved are fully set forth in the opinion of the

court.

Mr. Henry Baldwin, Jr., for the appellant.

It is a well-settled and universally accepted rule of law, that while a patent is prima facie evidence that the patentee was the original and first inventor of what is therein described as his improvement, such presumption in no case extends further back than to the date of filing the original application. When