Opinion
No. 4139.
May 15, 1929.
Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.
Hymie Winner was indicted for conspiring to commit an offense against the United States. From a judgment [ 28 F.2d 295] overruling a demurrer to the indictment, defendant appeals. Affirmed.
George N. Murdock, of Chicago, Ill., for appellant.
Geo. E.Q. Johnson, U.S. Atty., of Chicago, Ill.
Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges.
Appellant and three others were indicted for a violation of section 37 of the Criminal Code (18 USCA § 88). A demurrer to the indictment was overruled, and the correctness of this ruling presents the only question before us.
The indictment is assailed because, so it is asserted, the object of the conspiracy did not constitute an offense against the United States. Section 50, title 35, of the United States Code (35 USCA § 50), reads:
"Every person who, in any manner, marks upon anything made, used, or sold by him for which he has not obtained a patent, the name or any imitation of the name of any person who has obtained a patent therefor without the consent of such patentee, or his assigns or legal representatives; or
"Who, in any manner, marks upon or affixes to any such patented article the word `patent' or `patentee,' or the words `letters patent,' or any word of like import, with intent to imitate or counterfeit the mark or device of the patentee, without having the license or consent of such patentee or his assigns or legal representatives; or
"Who, in any manner, marks upon or affixes to any unpatented article the word `patent,' or any word importing that the same is patented, for the purpose of deceiving the public, shall be liable, for every such offense, to a penalty of not less than $100, with costs; one-half of said penalty to the person who shall sue for the same, and the other to the use of the United States, to be recovered by suit in any district court of the United States within whose jurisdiction such offense may have been committed."
The indictment charges defendant with conspiring to do that which is condemned by the above quoted section. Upon the authority of Taylor v. U.S. (C.C.A.) 2 F.2d 444, United States v. Hutto, 256 U.S. 524, 41 S. Ct. 541, 65 L. Ed. 1073, we hold that to do what is condemned by this section is such an offense as is defined in section 37 of the Criminal Code.
The judgment is affirmed.