That is a question for their determination. For obtaining $35 or more by false pretenses the punishment may be three years imprisonment. The punishment of an agent guilty of embezzlement may be a fine of $1,000 and imprisonment for ten years. It therefore makes quite a difference of which offense a defendant is convicted.

While the proffered instruction which the court refused referred to the first three counts, it is apparent that the first two counts were in mind, and that it was intended to bring to the attention of the court the difference between the two sets of counts, to the end that the jury might receive such instruction as would prevent the bringing in of an inconsistent verdict. In the light of what followed, we think it was reversible error for the court to omit such instruction.

The defendant introduced in evidence a record of the criminal court of New Hanover county, North Carolina, showing that at the March term, 1892, of the said court, in the case of the State against the said defendant, the question was submitted to the jury, "Is the defendant now insane?" to which the jury responded, "Yes;" that thereafter the court, on the 26th of April, 1892, rendered judgment upon said verdict that "the said defendant, John C. Davis, is now insane," and "that he be committed to the North Carolina Insane Asylum * * * until he is restored to sanity, when the same shall be certified to the solicitor of the proper district in order that proper steps be taken to secure the appearance of the said defendant to answer the original indictment in this action." It further appeared from the evidence adduced by the defendant, that upon the rendition of said judgment the defendant was committed to said asylum, "and there remained until early in the year 1907, at which time, when he was about to be discharged from said asylum, the defendant escaped therefrom, and was never thereafter returned." The testimony in behalf of the defendant further tended to show that at the time of his reception at said asylum, and while so confined therein, he was of unsound mind, suffering from a form of insanity known as paranoa. Evidence was also introduced by the de

fendant tending to show that he had ever thereafter been of unsound mind.

The evidence of the government, in rebuttal, tended to show that during the whole period the defendant was confined in said asylum and ever thereafter he was not insane, but was of sound mind.

Counsel for the defendant requested the court to instruct the jury that, because of the adjudication of insanity by the North Carolina court, the defendant must be presumed to have been insane at the time of the alleged commission by him of the offenses charged in the indictment before the jury, and that the burden was upon the government to overcome such presumption, by establishing, to the satisfaction of the jury beyond any reasonable doubt, that the defendant at the time of said alleged offenses had been restored to sanity and was then sane.

* * *

Upon this branch of the case, the court instructed the jury in part as follows: "There, instead of going to trial as he has here, a preliminary question was raised as to whether he was sane at the time, so that he could be tried. That is a course that may be taken. Here, the case itself is being tried, and it will be for you to say, on the evidence, whether or not he is guilty by reason of insanity, and if you find that he is insane, that you return a verdict in the form of 'Not guilty by reason of insanity.' In North Carolina the other course was taken, and it was found that he was of unsound mind. There is nothing in the record of that judgment to show that the form of his insanity was, or whether it was of a permanent or temporary character, so that the judgment itself does not enlighten us. We have got to find out, as best we can, from the testimony here, as to his condition. But you are bound, I think, to take it as a fact, because it was so adjudged, and I give you that as the law, that he was insane at the time of that adjudication; but that does not amount to a finding that he had any permanent type of insanity,-only that he was then insane. If you find from all the testimony that the type of insanity he had down there was permanent in its character, then the presumption of continuation attaches,

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*

and it would be like any other piece of evidence; it would have to be removed by proof. It would be presumed that he continued to be insane, until the evidence satisfies you beyond a reasonable doubt, that he had been restored to sanity." It is unnecessary to quote further from the charge.

The North Carolina court adjudged the defendant then insane. That the form of his insanity was not considered necessarily permanent is evident from the language of the court, for he was to be detained until "restored to sanity," when the proper officer of the State was to be notified. When "about to be discharged from said asylum," that is, when about restored to sanity, he escaped. We cannot assume from this record, as requested by the defendant, that the form of insanity from which he was then suffering was of a permanent or continuing character, and unless it was of such a character the defendant was not entitled to the instruction asked. Taylor v. Pegram, 151 Ill. 106, 37 N. E. 837; Kirsher v. Kirsher, 120 Iowa, 337, 94 N. W. 846; People v. Schmitt, 106 Cal. 48, 39 Pac. 204; Underhill, Crim. Ev. § 156; Wharton, Crim. Ev. 9th ed.¶ 730; 12 Cyc. Law & Proc. p. 389. This was the view of the trial court, and the instruction on this point was correct.

It is insisted that, inasmuch as the sentence under indictment No. 26,690 was to begin upon the day of the ending of the sentence on the judgment under the McKeown indictment, the judgment in the second case should also be reversed, there being no terminus from which the sentence under that indictment can be measured. This question is no longer an open one in this jurisdiction. Blitz v. United States, 153 U. S. 308, 38 L. ed. 725, 14 Sup. Ct. Rep. 924; Harris v. Lang, 27 App. D. C. 84, 7 L.R.A. (N.S.) 124, 7 A. & E. Ann. Cas. 141. Punishment under the second sentence commences when the first sentence is out of the way; whether by lapse of time or reversal of judgment is immaterial.

The judgment in No. 26,689 is reversed, and a new trial awarded.

The judgment is affirmed in No. 26,690.

INTERNATIONAL FOOD COMPANY v. PRICE BAKING POWDER COMPANY.

TRADEMARKS.

The word "Cream" is registerable as a technical trademark for baking powder. (Chief Justice SHEPARD dissenting.)

No. 634. Patent Appeals. Submitted March 15, 1911. Decided April 5,.

1911.

HEARING on an appeal from a decision of the Commissioner of Patents, dismissing an opposition to the registration of a trademark. Affirmed.

The facts are stated in the opinion.

Mr. A. C. Paul and Mr. Wm. G. Henderson for the appellant.

Mr. Archibald Cox for the appellee.

Mr. Justice VAN ORSDEL delivered the opinion of the Court:

This is an opposition by the appellant company, the International Food Company, to the registration of the word "Cream" as a trademark for baking powder by the appellee company, the Price Baking Powder Company. It was held to be entitled to registration by both the tribunals of the Patent Office. From the decision of the Commissioner, dismissing the opposition, this appeal was taken.

It appears that appellee has used the mark since 1866 in connection with "Dr. Price's" or "Price's Baking Powder." It is conceded that appellee was the prior user. Hence, the sole question here presented is whether or not the word "cream"

is registrable as a technical trademark for baking powder. This question has been before the courts, and in each instance it has been held to be a valid technical trademark. Price Baking-Powder Co. v. Fyfe, 45 Fed. 799; Albers Bros. Mill. Co. Acme Mills Co. 171 Fed. 989. See also Paul, Trade-Marks, sec. 64.

With the conclusion reached in these cases and in the opinion of the Commissioner of Patents, we find no reason to disagree. The decision of the Commissioner is affirmed, and the clerk is directed to certify these proceedings as by law required. Affirmed.

Mr. Chief Justice SHEPARD dissenting.

MILLER v. UNITED STATES.

CRIMINAL LAW; CHARGE TO JUBY.

1. While it is permissible for the trial court to caution the jury not to be influenced by the probable consequences of their verdict, as all responsibility after verdict is with the court, it is error for the court to put before the jury any considerations outside the evidence that may influence them and lead to a verdict not otherwise possible of attainment.

2. Statements in the court's charge to the jury in a criminal prosecution, to the effect that if they should find the accused guilty, the court would hear evidence upon the question of his motive, and might not send him to the penitentiary, although made to overcome the effect on the jury of remarks of counsel, constitute reversible error, especially when, following a verdict of guilty upon two out of thirty counts of the indictment, the accused is sentenced to the extreme penalty of the law for the crime charged. Mr. Chief Justice SHEPARD dissenting. (Citing Raymond v. United States, 25 App. D. C. 555; Pickford v. Hudson, 32 App. D. C. 480; Frisby v. United States, 35 App. D. C. 513.)

No. 2264. Submitted March 16, 1911. Decided April 5, 1911.