material both non-combustible and a nonconductor. It is clear that none of these English patents can be claimed as anticipations, since they all relate to the protection of land or submarine telegraph cables; and the use of paint, so far as it was used at all, was simply as a water-proof covering for a braided wire. There is nothing to indicate that the paint, as used by them, was applied in the manner indicated by the patent, or that it made the covering non-combustible, or was intended at all for that purpose. The most satisfactory evidence of the use of a non-combustible covering for electric wires is found in the testimony of Edwin Holmes, manufacturer of an electric burglar alarm, who states that when he first commenced using electric conductors "the wire was insulated by winding a thread, larger or smaller, as the case might be, around the wire, and that thread was covered with paint," and that all his wires were "insulated in that way until paraffine was substituted for the paint. The paint was applied by drawing the wire through a vessel containing the paint, and then through a piece of thick rubber or gutta-percha, which removed the surplus paint and left a smooth surface on the thread which covered the wire. He began to cover his wires in this way as early as 1860, and says that he accomplished his insulation "sometimes by cov. ering the wire with a thicker thread and two coats or more of paint; sometimes by a thread covering and a coat of paint, then another thread covering and a coat of paint on that." And upon being asked to describe the condition of the first coating of paint when the second coating of fibrous material and paint was put on, he said: "The first coat was partially dried, so as to keep its place, but would admit of an impression from the next covering of thread." On being called upon subsequently for an affidavit to be used on an application for a rehearing, he stated that his object was not to produce a noninflammable wire, and that the wire used by him was not non-combustible or noninflammable, and was no better adapted for electric light conduction than the paraffine-coated wire. He further stated that when the second layer of braid was laid on, the condition of the first layer was not such as to cause the threads of the second layer to force the paint into the interstices, and so load the wire with an abnormal quantity of paint, as is done in the process described in the Cowles patent. The substance of his testimony in this particular was that the coating of paint upon his first layer was allowed to harden before the second layer was applied, so that the application of the second layer would not cause the paint upon the first layer to be forced into the interstices of that layer or to ooze through the braiding of the second layer. Thomas L. Reed, another witness, gave a somewhat similar experiment of the method of insulating wires by passing the naked wire through a tub containing paint, then braiding it, and then immers ing it in a second tub containing paint, and finally passing it through jaws to scrape off the surplus paint and compress it. As this method of insulation, however, does not resemble so closely the Cowles patent as that employed by Mr. Holmes, it is unnecessary to notice it further. 66 Practically the only difference between the Holmes and Cowles insulators is in the fact that the coat of paint applied to the first braid in the Holmes process was allowed to dry before the second coat of braid was applied, and thereby the braid was not so thoroughly permeated with the paint as is the case in the Cowles patent. That the idea of applying the second coat of braiding upon the interposed insulating material, while such material was wet or unset, is not in itself a novel one, is evident from the English patents to Brown and Williams, to Duncan and to Henley, all of which describe a method for insulating conductors by applying a layer of fibrous material, a layer of insulating material, and a second layer of fibrous material upon the former, before the insulating material is set or hardened. Indeed, it is doubtful whether Cowles considered this feature of his process as of any great importance at the time he made his application, since he speaks of it only as a preferable" method, and says that he does not limit himself in this particular, "as the paint may be dried, o partially so, before the next layer of braid ing is applied." But, however this may be, the method described by Cowles differs only in degree, and not in kind, from that described by Holmes. In other words, it is a more thorough doing of that which Holmes had already done, and therefore involving no novelty within the meaning of the patent law. Indeed, we are not satisfied that the method employed by Holmes did not, for all practical purposes, saturate the first layer of braid as completely as if the second coat had been applied while the first was still wet. The process and the results in both cases are practically the same, viz., protection, insulation, and incombustibility. There were certain affidavits introduced which tended to show that the Holmes insulator was not incombustible; but, in view of the experiments made by Mr. Earle, the defendant's expert, by applying the same current of electricity to wires insulated by these different methods, we incline to the opinion that the method practiced by Mr. Holmes was nearly, if not quite, as efficient in this particular as the other. If his testimony be true, (and no attempt is made to show that it is not,) it is difficult to see, even if his insulator were not incombustible, that Mr. Cowles did more than make use of his process in a somewhat more efficient manner. In the case of Gandy v. Belting Co., 12 Sup. Ct. Rep. 598, (recently decided,) the patentee found that the canvas theretofore manufactured was unfit for use as belting by reason of its tendency to stretch, and to obviate this he changed the constitution of the canvas itself by making the warp threads heavier and stronger than the weft; in short, he made a new canvas, constructed upon new principles, and accomplishing a wholly new result. That case is not a precedent for this. It is true that the insulator used by Holmes was not intended to be, and perhaps was not known to be, incombustible, since this feature of its incombustibility added nothing to its value for protect ing a burglar-alarm wire, which carries a current of comparatively low tension; but, as already observed, the testimony indicates that the insulator employed by him was in fact nearly, if not quite, as incombustible as that made by the plaintiff under the Cowles patent. If this be so, and the two insulators are practically the same in their method of construction, it is clear that Cowles has no right to claim the feature of incombustibility as his invention, since nothing is better settled in this court than that the application of an old process to a new and analogous purpose does not involve invention, even if the new result had not before been contemplated. It was said by Chief Justice WAITE in Roberts v. Ryer, 91 U. S. 150, 157, that "it is no new invention to use an old machine for a new purpose. The inventor of a machine is entitled to all the uses to which it can be put, no matter whether he had conceived the idea of the use or not.' 99 In Pennsylvania Railway v. Locomotive Truck Co., 110 U. S. 490, 494,1 the adoption of a truck for locomotives, which allowed a lateral motion, was held not to be patentable, in view of the fact that similar trucks had been used for passenger cars. All the prior cases are cited, and many of them reviewed, and the conclusion reached that "the application of an old process or machine to a similar or analogous subject, with no change in the manner of application and no result substantially distinct in its nature, will not sustain a patent, even if the new form of result had not before been contemplated. The principle of this case was expressly approved and adopted in that of Miller v. Foree, 116 U. S. 22, 6 Sup. Ct. Rep. 204, and has been frequently applied in the administration of patent law by the circuit courts. Crandal v. Walters, 20 Blatchf. 97, 9 Fed. Rep. 659; Ex parte Arkell, 15 Blatchf. 437; Blake v. San Francisco, 113 U. S. 679, 5 Sup. Ct. Rep. 692; Smith v. Elliott, 9 Blatchf. 400; Western Electric Manuf'g Co. v. Ansonia Brass & Copper Co., 114 U. S. 447, 5 Sup. Ct. Rep. 941; Spill v. Celluloid Manuf'g Co., 22 Blatchf. 441, 21 Fed. Rep. 631; Sewall v. Jones, 91 U. S. 171. On the other hand, if an old device or process be put to a new use, which is not analogous to the old one, and the adaptation of such process to the new use is of such a character as to require the exercise of inventive skill to produce it, such new use will not be denied the merit of patentability. That, however, is not the case here, since the Cowles process had been substantially used by Holmes for the 14 Sup. Ct. Rep. 220. same propose of insulating an electric wire, and the discovery of its incombustible feature involved nothing that was new in its use or method of application. The utmost that can be said for Cowles is that he produced a somewhat more perfect article than Holmes; but, as was said by this court in Smith v. Nichols, 21 Wall. 112, 119, "a mere carrying forward, or new or more extended application of the original thought, a change only in form, proportions, or degree, the substi tution of equivalents, doing substantially the same thing in the same way by substantially the same means, with better results, is not such invention as will sustain a patent." It was held in this case that where a textile fabric, having a certain substantial construction, and possessing essential properties, had been long known and in use, a patent was void when all that distinguished the new fabric was higher finish, greater beauty of surface, the result of greater tightness of weaving, and due to the observation or skill of the workman, or to the perfection of the machinery employed. See, also, Morris v. McMillin, 112 U. S. 244, 5 Sup. Ct. Rep. 218; Busell Trimmer Co. v. Stevens, 137 U. S. 423, 11 Sup. Ct. Rep. 150, and cases cited. The decree of the circuit court is therefore affirmed. A protest against the payment of a duty of 60 per cent. on an importation of "cotton gloves mixed with silk * * * although the article is only liable to a duty of 35% less 10%, being composed of cotton and silk, cotton chief part, the duty of 60% being only legal where silk is the chief part, "shows that it was the importers' intention to object to the goods being classified under Act June 30, 1864, SS, as silk gloves, or Act March 3, 1865, § 3, as ready-made clothing of silk, or of which silk shall be the component material of chief value, and is a sufficient compliance with the statute. Act Feb. 26, 1845. It is not necessary that the protest should specify under what provision the goods were dutiable. In error to the circuit court of the United States for the southern district of New York. Reversed. S. G. Clarke and E. B. Smith, for plaintifs in error. Asst. Atty. Gen. Parker. for defendants in error. Mr. Justice BLATCHFORD delivered the* opinion of the court. This is an action at law, brought in the superior court of the city of New York, July 15, 1874, by Otto Heinze and Francis Gross, against Chester A. Arthur, collector of the port of New York, to recover $174.99, as duties paid under protest on gloves made of cotton and silk. The goods were entered at the custom-house of the port of New York, January 14, 1874, and the duties were paid the same day. 3. The provision of Act June 14, 1880, o. 218, (21 St. p. 198,) amending section 5 of Act Feb. 24, 1879, c. 97, (20 St. pp. 318, 319,) creating the northern judicial district of Texas, by providing that all prosecutions shall be tried in that division, to which process for the county in which the offenses are committed is by said section required to be returned, and that all writs and recognizances shall be returned to the division in which the prosecutions are to be tried, does not affect the authority of the grand jury for the district sitting at any place at which the court is appointed to be held to present indictments for offenses committed anywhere within the district. (chapter 28, 14 St. p. 385,) an appeal from against him for the same crime, waives such obthe judgments of the circuit courts injection. habeas corpus cases was allowed to this court; and by section 11 of the act of March 3, 1863, (chapter 91, 12 St. p. 764,) the same provision was made in relation to the judgments, orders, or decrees of the supreme court of the District as is now contained in section 846 of the District Revised Statutes. And, as section 764 of the Revised Statutes and said section 846 were contemporaneously enacted, it was assumed that striking out the restrictive words from section 764 should be allowed like effect upon section 846. The question of jurisdiction was not argued, and no reference was made to the act of March 3, 1885, regulating appeals from the supreme court of the District, (23 St. p. 443,) and providing that no appeal or writ of error should be allowed from its judgments or decrees unless the matter in dispute, exclusive of costs, should exceed the sum of $5,000, except in cases involving the validity of any patent or copyright, or in which the validity of a treaty or statute of, or an authority exercised under, the United States, was drawn in question. The act of March 3, 1891, was passed to facilitate the prompt disposition of cases In this court, and to relieve it from the oppressive burden of general litigation by the creation of the circuit courts of appeals and the distribution of the appellate jurisdiction. By sections 5 and 6, cases of conviction of a capital or otherwise infamous crime are to be taken directly to this court, and all other cases arising under the criminal laws to the circuit courts of appeals. Sections 13 and 15 refer to appeals and writs of error from the decis ions of the United States court in the Indian Territory, and the judgments, orders, and decrees of the supreme courts of the territories. No mention is made of the supreme court of the District of Columbia, and we perceive no ground for holding that the judgments of that court in criminal cases were intended to be embraced by its provisions. The conclusion is that we have no jurisdiction to grant the writ applied for, and the petition is therefore denied. (144 U. S. 263) LOGAN et al. v. UNITED STATES. CONSTITUTIONAL LAW-PROTECTION FROM MOB 1. The right of a citizen of the United States, in the custody of a United States marshal under a lawful commitment, to answer for an offense against the United States, to be protected against lawless violence, is a right "secured to him by the constitution or laws of the United States, " within the meaning of Rev. St. § 5508, making it a crime to conspire to injure, etc., any citizen in the free exercise or enjoyment of such right. U. 8. v. Cruikshank, 92 U. S. 542; U. S. v. Harris, 1 Sup. Ct. Rep. 601, 106 U. 8. 629; Civil Rights Cases, 3 Sup. Ct. Rep. 18, 109 U. S. 8, -distinguished. LAMAR, J., dissenting. 2. Defendant, by failing to object at the trial to the consolidation of indictments against others for an unlawful conspiracy with indictments 4. A plea of former jeopardy, which shows that the jury on a former trial was discharged, without defendant's consent, by the court on its own motion, after the jury, having been in retirement to consider their verdict for 40 hours, announced in open court that they were unable to agree, is bad on its face, as it shows good cause for the discharge. 5. On the trial of defendant for a crime punishable by death, where the jury is to find the punishment, jurors who state on their voir dire that they have "conscientious scruples in regard to the infliction of the death penalty for crime" may be challenged for cause by the government. 6. The provision of Rev. St. § 858, that the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in the courts of the United States "in trials at common law and in equity and admiralty" is not applicable to criminal trials, such trials not being embraced within the words "at common law." 7. The competency of witnesses in criminal trials in the federal courts in Texas is not governed by the statutes of the state passed since its admission into the Union, but by the common law, which was the law of Texas at the time of its admission. 8. At common law, and on general principles of jurisprudence, when not controlled by express statute giving effect within the state which enacts it to a conviction and sentence in another, such conviction and sentence can have no effect by way of penalty or of personal disability or qualification beyond the limits of the state in which the judgment is rendered. A conviction in North Carolina will not make the convict incompetent to testify in Texas. 9. A full pardon by the governor of Texas of a person convicted of crime therein, though granted after he has served out his term of imprisonment, takes away all disqualifications as a witness, and restores his competency to testify to any facts within his knowledge, even if they came to his knowledge before his disqualification was removed by the pardon. 10. The provision of Rev. St. § 1033, that when any person is indicted of any capital offense a copy of the indictment and list of the jurors and witnesses shall be delivered to him a certain time before the trial, is mandatory, and the failure to comply therewith is error. 11. In conspiracy only those actions and declarations of one conspirator are admissible against the others which are done and made while the conspiracy is pending, and in furtherance of its object. After the conspiracy has come to an end either by success or failure, the admissions of one by way of narrative of past facts are not admissible against the others, and in case of a conspiracy to injure prisoners while in charge of a marshal the admissions of one of the conspirators, after the conspiracy had ended by the attack on the prisoners, the killing of two of them, and the dispersion of the conspirators, are not admissible against his co-conspirators. 45 Fed. Rep. 872, reversed. In error to the circuit court of the United States for the northern district of Texas. Reversed. STATEMENT BY MR. JUSTICE GRAY. Four indictments, numbered in the record 33, 34, 35, and 36, on sections 5508 and 5509 of the Revised Statutes, (copied in the margin,1) were returned by the grand jury at January term, 1890, of the district court for the northern district of Texas, sitting at Dallas, in that district, against Eugene Logan, William Williams, Verna Wilkerson, and Clinton Rutherford, for conspiracy to injure and oppress citizens of the United States in the free exercise of a right secured to them by the constitution and laws of the United States, and for murder, committed in the prosecution of the conspiracy; and were forthwith transmitted to the circuit court. enjoying said right, then and there secured to them" by the constitution and laws of the United States, to-wit, the right to then and there be protected by said deputy United States marshal from the assault of" the defendants and other evil-disposed persons, “and the right then and there to be held in the power, custody, and control of said deputy United States marshal under and by virtue of said writs heretofore set forth, and the further right, while in said custody, to be secure in their persons from bodily harm and injury and assaults and cruelties until they" "had been discharged by due process of the laws of the United States;" and that the defendants, in pursuance of such combination and conspiracy, and in the prosecution thereof, on January 19, 1889, and in the night-time, went upon the highway in disguise, and waylaid and assaulted the said prisoners, while in the power, custody, and control of said deputy United States marshal, with loaded shotguns, revolvers, and Winchester rifles, and, in pursuance and prosecution of the conspiracy, feloniously, willfully, and of their malice aforethought, and from a deliberate and premeditated design to effect his death, did with those weapons kill and murder Epp Marlow, then and there in the peace of the United States Indictment 34 averred, in the first count, that on January 19, 1889, at Graham, in the county of Young, and that district, Charles Marlow, Epp Marlow, Alfred Marlow, George W. Marlow, William D. Burkhardt, and Louis Clift were citizens of the United States, and in the power, custody, and control of Edward W. Johnson, a deputy United States marshal for that district, by virtue of writs of commitment from a commissioner of the circuit court of the United States for the district, in default of bail, to answer to indictments for an offense against the laws of the United States, to-wit, larceny in the Indian country, within the exclusive juris-being (charging the murder in due technical diction of the United States; and that, while said Johnson held them in his power, custody, and control, in pursuance of said writs, the defendants, "together with divers other evil-disposed persons, whose names to the grand jurors aforesaid are unknown, did then and there combine, conspire, and confederate by and between themselves, with force and arms, to injure and oppress them, the said Charles Marlow. Epp Marlow, Alfred Marlow, George W. Marlow, William D. Burkhardt, and Louis Clift, then and there citizens of the United States of America, in the free exercise and enjoyment of a right, and because they were then and there exercising and "Sec. 5508. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, -they shall be fined not more than five thousand dollars, and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office or place of honor, profit, or trust, created by the constitution or laws of the United States. "Sec. 5509. If in the act of violating any provision in either of the two preceding sections any other felony or misdemeanor be committed, the offender shall be punished for the same with such punishment as is attached to such felony or misdemeanor by the laws of the state in which the offense is committed." By the laws of Texas, killing with malice aforethought, either express or implied, is murder; murder committed with express malice is murder In the first degree; the punishment of murder in the first degree is death, or imprisonment in the penitentiary for life; and the degree of murder, as well as the punishment, is to be found by the jury. Pen. Code Tex. 1879, arts. 605-609. form;) "contrary to the form of the stat ute in such case made and provided, and against the peace and dignity of the United States of America." The other counts in this indictment were substantially similar, except that some of them alleged the prisoners to have been in the custody of Thomas Collier, sheriff and jailer of Young county, under the writs of commitment from the United States commissioner; or alleged Alfred Marlow to have been the person murdered; or charged one of the defendants as principal and the others as accessories in the murder. Indictments 33 and 36 were substantially like 34. Indictment 35 added John Level and Phlete A. Martin as defendants, and (besides counts like those in the other indictments, omitting, however, the charge of murder) contained counts alleg. ing a conspiracy to obstruct the deputymarshal and the jailer in the execution of the writs of commitment, and, in pursu ance thereof, an attempt to take the prisoners from the jail on January 17th, and a murder of some of them on the highway on January 19, 1889. Five other indictments had been returned by the grand jury in February and March, 1889, and transmitted to the circuit court, against Logan, Martin, and other persons, (some of whom were not the same as in the other four indictments,) containing charges, in various forms, like those in the added counts in indictment 35. At October term, 1890, held at Graham, the following proceedings took place: On October 21, 1890, the district attorney moved that the nine indictments be consolidated and be tried together, because they charged cognate and kindred crimes, and presented parts and phases •268 of the same transaction. The defendants opposed the motion because the indictments set forth offenses of different grades, and were framed under different sections of the statutes, with different penalties and procedures. The motion was granted, and the indictments were all consolidated with No. 34, under the title "No. 34 consolidated;" and the defendants excepted. On October 22, 1890, the defendants, "excepting to the several indictments presented against them, and by order of this court consolidated, and now being prosecuted under case No. 34 on the docket of said court, charging said defendants with a conspiracy to injure and oppress Charles Marlow and others in the free exercise and enjoyment of rights secured to them by the constitution and laws of the United States, move the court to quash said indictments and dismiss this prosecution, for the following reasons: "(1) The said indictments are found and presented by a grand jury at the January term of the United States district court for the northern district of Texas, holding session at Dallas; and the allegations of said indictments show that the offenses therein charged were committed, if at all, in the subdivision of said district offenses committed in which are cognizable alone at the term of the district and circuit court to be held at Graham in said Young county; therefore this court is without jurisdiction. "(2) Said indictments charge these defendants with a conspiracy to injure and oppress Charles Marlow and others named in said indictments in the free exercise and enjoyment of their right secured to them by the constitution and laws of the United States, a right to be protected by a deputy marshal of the United States, in whose custody they were, under process of this court; and the said indictments are bad, because no such right as therein alleged is secured to said persons by the constitution and laws of the United States; and therefore this court has no jurisdiction. (3) Said indictments charge no offense against the laws of the United States, or within the jurisdiction of this court; but show upon their face, by the allegations thereof, that the offense committed, if any, was against the laws of the state of Texas, of which the courts of said state have exclusive jurisdiction." The court overruled the motion to quash the indictment, and the defendants excepted. On October 30, 1890, the district attorney moved the court for an order to set aside the former order of consolidation, so far as to separate the five earlier indictments; to confirm the consolidation of indictments 33, 34, 35, and 36; to sever Levell and Martin from their co-defendants; and to order the consolidated case to stand for trial against Logan, Williams, Wilker. son, and Rutherford. The court made an order accordingly, except that as to Williams the case was continued on his application, and with the consent of the district attorney. To this order no exception was taken by the defendants. Logan, Wilkerson, and Rutherford then severally pleaded "not guilty," and a trial was had, resulting, on November 22, 1890, in this verdict: "We, the jury, find the defendant Clinton Rutherford not guilty. The jury cannot agree as to Eugene Logan and Verna Wilkerson." The court ap. proved the verdict, and ordered it to be recorded; and also ordered that Rutherford be discharged from the indictment, and that Logan and Wilkerson stand committed to the custody of the marshal until further order. At February term, 1891, held at Graham, the court, on motion of the district attor ney, ordered to be consolidated with "No. 34 consolidated" an indictment, numbered 37, found by the grand jury in the district, court at Graham on October 29, 1890, and forthwith transmitted to the circuit court," charging Collier, Johnson, Levell, Marion Wallace, Samuel Waggoner, William Hollis, Richard Cook, and five others named, but not including Logan, with the same conspiracy, and, in pursuance thereof, with the attempt to kill on January 17th, and the murder on January 19th. No exception was taken to this order. On motion of the district attorney, suggesting the deaths of Williams and Collier, the indictments were dismissed as to them. The remaining defendants in indictment 37 "excepted to the several indictments" so consolidated, and made a motion to quash them on the second and third grounds stated in the former motion to quash. This motion was overruled, and these defendants excepted to the overruling of the motion, and then pleaded "not guilty." Logan and Wilkerson filed a special plea that they had once been in jeopardy for the same offense, in this: that at October term, 1890, of the court they were tried upon the same indictment, and for the same murder and conspiracy, by a jury; "that said jury were legally drawn, impaneled, and sworn, and, after hearing the evidence, argument of counsel, and charge of the court, retired to consider their verdict; that said jury were in their retirement about forty hours, when they announced in open court that they were unable to agree as to these defendants. Thereupon the court, of its own motion, and without the consent of these defendants, or either of them, discharged said jury from further consideration of this case, and remanded these defendants to the custody of the United States marshal; all of which will more fully appear by reference to copies of said verdict and the order of the court entered thereon, which are hereto attached. These defendants further state that there existed in law or fact no emergency or hurry for the discharge of said jury, nor was said discharge demanded for the ends of public justice; and for the purpose of this motion or special plea only these defendants aver and charge that the circuit court of the United States for the northern district of Texas, at Graham, at October term, 1890, had jurisdiction over and power to try and determine said cause." Annexed to this plea were |