Opinion of the Court.

ing, attached to which is a flexible or adjustable tube leading from a reservoir of the liquid to be used for steeping the drug. The percolator is turned bottom up while the drug is put in, and a perforated or porous diaphragm inserted to hold the drug in place. It is then turned bottom down again. The pressure of the liquid, and consequently the quickness of its passage through the drug, are increased or diminished by elevating or lowering the reservoir, or by turning a stop-cock in the tube; and the extract is discharged through the bottom of the percolator into a vessel placed below.

The novelties suggested consist in having one end of the percolator open, serving both to receive the drug and to discharge the extract; in turning the percolator bottom up to put in the drug, and bottom down to let the extract drip out; in having a perforated or porous diaphragm to hold the drug in place; and in regulating the pressure of the liquid by means of a tube from the reservoir to the small opening in the covered end of the percolator.

But, passing over the difficulty that the diaphragm is not claimed as part of the combination patented, neither the percolator open at one end, the diaphragm, the inversion of the percolator, the insertion of the tube in the small opening in the covered end, nor the making that tube flexible and with a stop-cock, is new. All those elements appear in the Real press, as modified by Beindorf, described in Geiger's Handbuch der Pharmacie, pt hlished in 1830 at Stuttgart in Germany, which is an exhibit in the case, and a translation of the material parts of which, (vol. 1, pp. 157-160,) verified by the oath of a witness for the defendant, and included in the record, appears, though not quite grammatical, to be substantially accurate, notwithstanding the opposing testimony introduced by the plaintiff to impugn its correctness.

It will be sufficient to quote from that translation the following passages:1 "The Real press consists principally of a

1" Die Real'sche Presse besteht der Ilauptsache nach aus einem hohlen Cylinder, in welchem die auszuziehende Substanz im gepulverten Zustande zwischen 2 siebförmig durchlöcherten Platten fest gepackt enthalten ist, so dass sie nach keiner Seite hin weichen kann. Wenn der Cylinder an beiden

Opinion of the Court.

hollow cylinder, which contains the powdered substance to be exhausted between two perforated plates, tightly packed, so that the substance cannot move to [in] either direction, If the cylinder is open at both ends, a cover is fitted air-tight at one end, having a hole in the centre, into which a long tube is fitted, also air-tight. Between the cover and the perforated plate mentioned some space must remain. In extracting, the cylinder is placed vertical [upright], so that a vessel for gathering the liquid may be placed underneath." "A very practical change in the construction of the Real press has been introduced by Beindorf. The cylinder is fitted into a chair [frame], the cover or seat of which is movable, so that by turning [inverting] the same the press may be filled and connected with, the tube." "The filled cylinder, turned bottom up, is placed upon a chair [frame] having a hole in the

Enden offen ist, so wird an einem Ende ein Deckel luftdicht aufgepasst, welcher in der Mitte ein Loch hat, worein eine hohe Röhre ebenfalls luftdicht gesteckt wird. Zwischen dem Deckel und der obern siebförmigen Platte muss etwas Raum bleiben. Beim Extrahiren wird der Cylinder aufrecht festgestellt, so dass ein Gefäss zum Aufsammeln der Flüssigkeit untergestellt werden kann." "Eine sehr zweckmässige Abänderung der Real'schen Presse hat Beindorf vorgenommen. Der Cylinder wird in einen Stuhl gepasst, dessen Deckel beweglich ist, so dass durch Umdrehen desselben die Presse gefühlt und mit dem Rohr verbunden werden kann." "Der gefühlte, mit dem Boden nach oben gerichtete Cylinder wird auf einen Stuhl gestellt, der in der Mitte ein Loch hat, in welches derselbe passt und mit seinem Wulste aufliegt." "Den obern leeren Raum füllt man mit der auszuziehenden Flüssigkeiten an, und passt in die Oeffnung des Bodens eine Röhre: sie kann von Weissblech, Glas, Holz, oder ein lederner Schlauch u. s. w. seyn.". "Neben das obere Ende der Röhre stelle man ein Gefäss mit der Ausziehungsflüssigkeit, so dass der Spiegel der Flüssigkeit etwas niederer als das Ende der Röhre steht. Man senke jetzt einen Heber in die Flüssigkeit und in die Röhre, ziehe durch die Röhre mit dem Munde etwas Luft an indem man mit den Lippen, dem Daumen und Zeigefinger das Eindringen derselben von aussen zu hindern strebt; die Flüssigkeit wird sich heben und durch den Heber in die Röhre auslaufen, diese wird selbst damit angefüllt, und so wirkt die Flüssigkeit drückend und lösend auf die Substanz. Sie durchdringt sie und kommt, mit extractiven Theilen beladen, anfangs oft von Syrupsdicke, vollkommen klar hervor." "Um die Wirkung nach Belieben aufhören zu machen, bringt man einen Hahn an die Röhre, den man schliesst, oder man verschliesst, nach weggenommenem Heber das obere Ende der Röhre."

Syllabus.

middle, in which the cylinder fits and around which he [it] rests." "In the opening in the bottom, a tube is fitted, which may be made of tinned iron [tin plate], glass, wood, leather, etc." "Near the upper end of the tube is placed a vessel containing the menstruum [liquid solvent], the surface of which must be somewhat lower than the end of the tube. A syphon is now introduced into the liquid and in the tube, air sucked through the tube, so that the liquid will commence to flow through the syphon into the tube, which is thereby filled. The column of menstruum [liquid] thus obtained acts pressing and dissolving upon the substance to be extracted. It penetrates it, and arrives, laden with the soluble matter contained in the substance, at the lower end of the apparatus, often in a syrupy consistence." "In order to control the apparatus, stop or continue the operation, the tube is provided with a cock which may be closed if necessary, or the upper end of tube may be closed after removing the syphon."

This court concurs in opinion with the Circuit Judge that the plaintiff's contrivance is not new, and, that if it were new, there would be grave doubt whether it involved any invention. 22 Fed. Rep. 841. As the plaintiff's contrivance had been anticipated in the German publication half a century before, it is unnecessary to decide whether, if new, it would have been patentable.

Decree affirmed.

BALDWIN v. THE STATE OF KANSAS.

ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.

No. 1154. Argued December 17, 1888. — Decided January 14, 1889.

The plaintiff in error was convicted of murder in a state court in Kansas. The Supreme Court of that State affirmed the judgment. On a writ of error from this court, it was assigned for error that the jurors were not sworn according to the form of oath prescribed by the statute of Kansas, nd that, therefore, the jury was not a legally constituted tribunal, and so the defendant would be deprived of his life without due process of law, and be denied the equal protection of the law. The statute did not

Opinion of the Court.

give in words the form of the oath, but required that the jury should be sworn" to well and truly try the matters submitted to them in the case in hearing, and a true verdict give, according to the law and the evidence." The record did not state the form of the oath administered, but the journal entry stated that the jurors were "duly" sworn "well and truly to try the issue joined herein," and the bill of exceptions stated that the jury was sworn" to well and truly try the issues joined herein." The verdict also recited that the jury was "duly sworn" in the action. The record did not show that at the trial before the jury, any title, right, privilege, or immunity under the Constitution of the United States was specially set up or claimed. No objection was taken to the form of the oath at the trial, nor at the making of motions for a new tria! and for an arrest of judgment before the trial court. The point was first suggested in the Supreme Court of the State: Held,

(1.) The recitals in the record, as to the swearing of the jury, were not to be regarded as an attempt to set out the oath actually administered, but rather as a statement of the fact that the jury had been sworn and acted under oath;

(2.) The objection could not be considered, because it was not taken at the trial.

The question whether the evidence in the case was sufficient to justify the verdict, and the question whether the constitution of Kansas was complied with or not in certain proceedings on the trial, were not Federal questions which this court could review.

The writ of error was dismissed for want of jurisdiction.

THE case which was claimed to raise a Federal question is stated in the opinion.

Mr. B. P. Waggener and Mr. W. D. Webb for plaintiff in

error.

Mr. S. B. Bradford, Attorney General of the State of Kansas, for defendant in error.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is a writ of error to the Supreme Court of the State of Kansas. William Baldwin was proceeded against, in the District Court of the Second Judicial District of Kansas, sitting in and for Atchison County, by an information charging him with the crime of murder. On a trial before a jury, he was found guilty. A motion for a new trial was denied; and the

Opinion of the Court.

judgment of the court was rendered that he be confined at hard labor, in the penitentiary of the State, for one year from January 11, 1886, and until the governor of the State should by order direct his execution, at which time, as specified in such order, not less than one year from that date, he should be hung. He removed the case by appeal to the Supreme Court of the State, and it affirmed the judgment, in December, 1886. An application for a rehearing was denied in July, 1887. The case is brought here by him. The decision of the Supreme Court of Kansas is reported as State v. Baldwin, 36 Kansas, 1.

The errors assigned here are (1) that the jurors were not sworn according to the form of oath prescribed by the statute of Kansas, and that, therefore, the jury was not a legally constituted tribunal, and so the defendant will, under the judgment of the court, be deprived of his life without due process of law, and be denied the equal protection of the law; (2) that the evidence on which the judgment was founded was so inadequate to show that the defendant was guilty of the crime of murder, that the judgment amounts to a denial to the defendant of the equal protection of the law.

As to the question of the oath administered to the jurors, the journal entry at the trial states that, issue being joined upon a plea of not guilty, there came a jury of twelve good and lawful men, whose names are given, "having the qualifications of jurors, who being duly elected, tried, and sworn well and truly to try the issue joined herein," the trial proceeded. The bill of exceptions states that "a jury was empanelled and sworn to well and truly try the issues joined herein."

The statute of the State of Kansas provides (Compiled Laws of Kansas, c. 82, art. 11, § 208; c. 80, art. 15, § 274,) that “the jury shall be sworn to well and truly try the matters submitted to them in the case in hearing, and a true verdict give, according to the law and the evidence." The statute does not give in words the form of the oath. It is contended that the record affirmatively shows that the oath required by the statute of Kansas was not administered to the jurors, but that