in favor of the company for compensation for the transportation of post-office inspectors upon the facts developed in this case.

(164 U. S. 100)

WHITE v. UNITED STATES.

(November 9, 1896.)

No. 375.

CRIMINAL LAW-RECORD-SENTENCE-EVIDENCE-
CRIMINAL PROCEEDINGS-INSTRUCTIONS
AS TO CHARACTER.

1. Where the record in a criminal case plainly shows what the offense is of which the defendant was convicted, and the language shows that the sentence was the judgment of the court, and of the law, pronounced upon the defendant on account of his conviction upon the indictment, there is a sufficient judgment for all purposes. Pointer v. U. S., 14 Sup. Ct. 410, 418, 151 U. S. 396, 417, followed.

2. Where, upon a trial, it becomes necessary to show that a certain person was in a jail at a certain time, a book kept by a county jailer in the discharge of his duty, containing the dates of receiving and discharging prisoners, is admissible in evidence, even though no statute provides for the keeping of such a book.

3. Where, in a criminal trial, the court tells the jury that they may consider the admitted fact that the defendant was a man of good character, and give it such weight as they think proper under all the evidence, and that defendant is entitled to a reasonable doubt, it is not error to refuse a request to charge that "the evidence of good character, when established by the evidence in a case, taken in connection with all the other evidence, may generate a reasonable doubt of the guilt of the defendants."

In Error to the District Court of the United States for the Northern District of Alabama.

J. A. W. Smith, for plaintiff in error. Asst. Atty. Gen. Whitney, for the United States.

* Mr. Justice PECKHAM delivered the opinlon of the court.

The plaintiff in error was indicted in the district court of the United States for the Southern division of the Northern district of Alabama for presenting false, fictitious, and fraudulent claims against the United States to one A. R. Nininger, a marshal of the United States for the Northern district of that state, for the purpose of obtaining payment of the fees of certain witnesses alleged to have been brought before a United States commissioner for that district, when in truth the witnesses had not attended, and the fees had not been paid. The defendant pleaded not guilty, and upon trial was found guilty as charged in the indictment. The defendant

was sentenced to be imprisoned in the Kings County penitentiary, at Brooklyn, N. Y., for the period of one year and one day, and to pay the costs of the prosecution. He sued out a writ of error from this court, and now assigns three grounds for a reversal of the conviction: First, that there was no judgment upon which the defendant could be properly sentenced; second, the trial court erred in receiving in evidence entries made in a book

In regard to the first objection, we think it not well founded. The objection seems to be that there is no statement in the sentence showing what the offense is of which the defendant is convicted, and also that the record shows no judgment, because the language used amounted only to a recital by the clerk ♬ as to what the court did, and not to a judgment *pronounced by the court as the judgment of the law. The record shows an indictment, arraignment, plea, trial, conviction, and the following recital:

"This cause coming on to be heard upon the motion in arrest of judgment, and after being argued by counsel pro and con, and duly considered by the court, it is ordered that the said motion be, and the same is hereby, denied."

"The defendant, Sandy White, having been convicted on a former day of this term, and he being now present in open court, and, being asked if he had anything further to say why the judgment of the court should not be pronounced upon him, sayeth nothing, it is thereupon ordered by the court that the said defendant, Sandy White, be imprisoned in Kings county penitentiary, at Brooklyn, New York, for the period of one year and one day, and pay the costs of this prosecution, for which let execution issue."

This, we think, was a sufficient judgment for all purposes. The record fully and plainly shows what the offense is of which the defendant was convicted, and the language used shows that the sentence was the judgment of the court, and of the law, pronounced upon the defendant on account of the conviction upon the indictment. Pointer v. U. S., 151 U. S. 396, 417, 14 Sup. Ct. 410, 418.

Second. The second alleged error consists in receiving in evidence upon the trial of the case the entries in a book kept by a witness who was the jailer of one of the jails in Alabama. Upon the trial it became necessary to show that one L. W. Andrews, admitted to be a colored man, was neither examined as a witness on the 6th of December, 1892, in Jefferson county, Ala., before one William H. Hunter, circuit court commissioner, nor was he there present on that day. Witnesses who were there and examined on that occasion testified on this trial that Andrews was not examined, and was not present before the commissioner on the day mentioned. The government then produced one James Morrow as a witness, who, being sworn, testified that he was jailer of Jefferson county, Ala., and that he had brought with him a book of; dates of receiving in and discharging prisoners from the county jail of that county. Het further testified that, according to the entries in the book, L. W. Andrews, colored, was placed in jail under a commitment of W. H. Hunter, United States commissioner, on the

28th day of November, 1892, and that he was in that jail on the 6th day of December, 1892, but that, independently of the record, witness had no distinct recollection of Andrews being in jail on that day. The witness further stated that the book was a book kept by him as jailer, and the entries therein as to said Andrews were made by him in his own handwriting, and that the book was kept by him because, as jailer, he was required to keep such a jail book. The defendant objected to the introduction in evidence of the book or the entries therein, on the ground that there was no law in Alabama requiring such a record to be kept, and it could only be used as a private memorandum to refresh the recollection of the witness. The court overruled the objection, and the defendant duly excepted. The witness then was allowed to and did read to the jury the entries in the book showing that Andrews was in jail on the 6th of December, 1892, and the defendant duly excepted to the ruling of the court allowing such entries to be read.

We think no error was committed by the trial court in thus ruling. It was not necessary that a statute of Alabama should provide for the keeping of such a book. A jailer of a county jail is a public officer, and the book kept by him was one kept by him in his capacity as such officer, and because he was required so to do. Whether such duty was enjoined upon him by statute or by his superior officer in the performance of his official duty, is not material. So long as he was discharging his public and official duty In keeping the book, it was sufficient. The nature of the office would seem to require it. In that case the entries are competent evidence. 1 Greenl. Ev. §§ 483, 484.

It is obvious that the nature of the office of jailer requires not only the actual safekeeping of the prisoners committed to his charge, but that, in order to the proper discharge of those duties, some list should be kept by him, or under his supervision, showing the names of those received and discharged, together with the dates of such reception and discharge. If there were a clerk whose duty it was to keep such a book, instead of the jailer, then the entries so made by that clerk would be evidence in and of themselves. But the jailer, who was a witness, testified that it was his duty to himself keep such book, and the entries were, therefore, within the rule in regard to official entries. The sections of the Criminal Code of Alabama cited below show the necessity for the keeping of such a book by the jailer. Sections 4537-4539, 4555 In speaking of entries in books which are evidence in and of themselves, Greenleaf, in section 484, supra, mentions many kinds of such entries, and among them he includes prison registers, and cites the cases of Rex v. Aickles, 1 Leach, Crown

Cas. 438, and Salte v. Thomas, 3 Bos. & P. 188, as authority. Those cases hold that the prison books are evidence to prove the period of the commitment and discharge of a prisoner, although the second case holds that the cause of the commitment cannot be thus shown, as the commitment itself is the best evidence of the cause. The same principle as to the admissibility of entries made by an official is held in Evanston v. Gunn, 93 U. S. 660, 665.

The ruling of the trial court was, therefore, correct.

As to the third ground, it appears by the record that the defendant offered to prove his good character for the last 20 years, whereupon the district attorney admitted bis good character. All the evidence being in, the defendant prayed the court to charge the jury as follows: "The evidence of good character, when established by the evidence in a case, taken in connection with all the other evidence, may generate a reasonable doubt of the guilt of the defendants." The court refused to give this charge, and the defendant excepted. The court, in his oral charge, said to the jury: "It is admitted in this case that the defendants are men of good character, the law presuming every defendant to have a good character; and the jury may consider such good character, and give it such weight as they see proper, under all the evidence in the case, that defendant is entitled to a reasonable doubt." Assuming that they request stated the proper rule in regard to evidence of good character, we are of opinion' that the charge as given to the jury by the trial court amounted, in substance, to the charge as requested.

When a jury has been properly instructed in regard to the law on any given subject, the court is not bound to grant the request of counsel to charge again in the language prepared by counsel; or, if the request be given before the charge is made, the court is not bound to use the language of counsel, but may use its own language, so long as the correct rule upon the subject requested be given. When the court told the jury it was admitted that the defendant was a man of good character, and that the jury might consider such good character, and give such weight to it as they saw proper, under all the evidence in the case, and that the defendant was entitled to a reasonable doubt, it was sufficient, although the court unnecessarily added that the law presumed every defendant to have a good character. The charge gave the jury the right to give weight enough to the evidence to generate a reasonable doubt of the guilt of the defendant, and a substantial compliance with the request was made, although not in the very words thereof.

The record reveals no error, and the judgment must be affirmed.

(164 U. S. 105)

PRESS PUB. CO. v. MONROE.
(November 9, 1896.)
No. 489.

JURISDICTION OF SUPREME COURT-CIRCUIT COURT
OF APPEALS DECISIONS-COPYRIGHT-
TEST OF JURISDICTION.

1. The supreme court has no jurisdiction to review, upon writ of error, the action of a circuit court of appeals in affirming the judgment of a circuit court rendered in a suit to recover damages for infringement of a copyright, where the plaintiff had claimed no right under the copyright laws of the United States, but had maintained the action wholly upon the right given by the common law.

2. In such case the test of the appellate jurisdiction of the supreme court is whether the case was one arising under the copyright law of the United States, or was one in which the jurisdiction of the circuit court wholly depended upon the parties being citizens of different states.

In Error to the United States Circuit Court of Appeals for the Second Circuit.

*This was an action brought in the circuit court of the United States for the Southern district of New York, by Harriet Monroe against the Press Publishing Company, for the wrongful publication of an unpublished manuscript.

The complaint alleged that the plaintiff was a citizen of the state of Illinois, and a resident in the city of Chicago; and that the defendant was a citizen of the state of New York, a resident in the city of New York, and a corporation created and existing by force of and under the laws of that state, and having its chief place of business in that city, and its business that of editing. publishing, selling, and distributing a newspaper called the World.

The complaint further alleged that prior to September, 1892, the plaintiff had composed and written out in manuscript, but had not published, a lyrical ode, the work of her intellect and imagination; that on September 23, 1892, a committee of the World's Columbian Exposition made an agreement with the plaintiff, whereby, for a good consideration, they were licensed by her to use the ode, for the sole purpose of having it read or sung, or partly read and partly sung, on the public occasion of the dedicatory ceremonies of that exposition in the city of Chicago, on October 21, 1892; that the general ownership of the literary production, with the right of unlimited publication after that date, remained in the plaintiff; that, during the 10 days preceding said 23d of September, she delivered to the committee the manuscript of the ode, for the purpose expressed in the agreement of license, and with the injunetion that the manuscript should be held secret, in order that the plaintiff's right of property should be preserved inviolate, and especially that premature publication should be avoided; and that the utmost care was taken, both by the plaintiff and by the committee, to prevent or forestall piratical attempts on the part of newspapers; but that the defendant, through its officers and agents, between September 14 and September 23, 1892, surreptitiously obtained from the rooms of the committee the manucript, or a copy thereof, and sent the same to

Its office in New York, and, disregarding a protest sent by the plaintiff by telegraph, published in its paper of September 25th the ode, with many errors, making portions of the poem appear meaningless, and with a grotesquely incorrect analysis, calculated to produce a false and ludicrous impression of the work; and that these wrongful acts of the defendant deprived the plaintiff of gains she would otherwise have received from the sale of the ode, and damaged her reputation as an author, and were a willful, wanton, and unlawful trespass upon her rights, and subjected her to shame, mortification, and great personal annoyance; and alleged damages in the sum of $25,000.

A motion by the defendant, at the commencement of the trial, to compel the plaintiff "to elect between the two causes of action set forth in the complaint," was denied by the court as immaterial, because the plaintiff's counsel declared in open court that "there is but oue cause of action stated in the complaint, to wit, literary piracy of a manuscript before publication, and a violation of a common-law right."

At the trial, the plaintiff introduced evidence tending to support the allegations of the complaint (except that no evidence of pecuniary damage was offered), and put in evidence a receipt, signed by the plaintiff, and in these terms:

"Received, Chicago, the 23d day of September, 1892, from the World's Columbian Exposition, one thousand dollars ($1,000), in full payment for ode composed by me. It is understood and agreed that said Exposition Company shall have the right to furnish copies for publication to the newspaper press of the world, and copies for free distribution if desired, and also may publish same in the official history of the dedicatory ceremonies: and, subject to the concession herein made, the author expressly reserves her copyright therein."

The plaintiff testified that portions of the ode consisted of lyrical songs intended to be set to music and sung by the chorus, and that the rest was to be read; that a musical composer was engaged to write the music for the portions to be sung, and she gave him permission to publish those portions, because it was necessary for rehearsals by the chorus, and they were published in connection with the music; but that she never, before the dedication day, gave any permission for the publication or public use of any other part of the poem.

The plaintiff also testified that in May, 1892, she applied to the librarian of congress for a copyright of the ode, and deposited with him a copy of its title only, and on October 22d, the day after the dedicatory ceremonies, and not be fore, deposited with him two copies of the ode. At the close of the whole evidence, the defendant moved the court to direct a verdict for the defendant, upon the grounds that the plaintiff had failed to show title to the ode; that she had disposed of her rights of property in the ode to the World's Columbian Exposition; that, in view of the contemplated publication in the newspapers, there could be no valid retention of any copyright; that any newspaper

publication was an infringement of the rights of the Exposition, and not of the plaintiff; and that the only reservation in the contract between her and the Exposition was of her copyright, and, in view of the fact that no copyright was taken out until after October 21st, there had been no infringement of her copyright; and upon the further grounds "that the plaintiff has failed to make out a cause of action, in that this is an action founded upon a statute which authorizes the maintaining of an action for damages occasioned to the plaintiff, and, in view of the fact that there is no evidence in this case of the plaintiff's having suffered damage, no cause of action has been made out"; and "that the statutes and constitution of the United States have taken away the commonlaw right, and all remedies, except under the statutes of the United States."

The court overruled this motion, as well as a subsequent motion to instruct the jury accordingly, and instructed the jury as follows:

The action is not an action of libel. It is an action to recover damages for the alleged violation of the plaintiff's copyright in her unpublished manuscript ode. It is an action for an injury to property.

"Copyright is of two kinds. The first is the common-law right of an author or proprietor of an unpublished manuscript to the possession and control of his or her manuscript, and to direct and control the circulation of the copies which he or she may make or cause to be made for his or her use, prior to the publication thereof. It is the original ownership of the manuscript, and of the copies which the author or proprietor has made for his or her use, before it is given to the public. Statutory copyright is the exclusive right granted by statute to the owner or proprietor of a printed book or other printed publication to publish, print, and sell copies of the book or publication, for a specific period of time. If the statutory formalities have been complied with, the right becomes complete upon the publication of the book.

"This case is not one of statutory copyright. While some of the preliminaries to the establishment of such a right had been taken, the right was not complete, and on September 24, 1892, did not exist. On that day a copy of the unpublished manuscript came into the possession of the defendant. It had not then been published, although typewritten copies had been made for the examination and use of the musical composer, and for the examination of the committee whose duty it was to approve the work. This circulation of copies did not amount to what the law calls 'publication.'

"The exclusive owner or proprietor of an unpublished manuscript has the exclusive right to its possession, and to direct and control its use, the same right which the owner of any other article of personal property has to its ownership and use. The trespasser upon that right is liable in damages."

The court further instructed the jury that the Exposition, by the terms of its contract

with the plaintiff, "had the legal right to distribute copies to the newspaper press, and for free publication, before as well as after the day of dedication"; but that, "subject to those concessions, the author reserved her other rights of copyright therein"; and that the plaintiff, upon the evidence in the case, might recover exemplary damages against the defendant.

The defendant excepted to the instructions given, and to the refusal to instruct as requested. The jury returned a verdict for the plaintiff in the sum of $5,000, and judgment was rendered thereon, which was affirmed by the circuit court of appeals. 38 U. S. App. 410, 19 C. C. A. 429, and 73 Fed. 196. The defendant thereupon sued out the present writ. of error, and a motion was now made to dismiss it for want of jurisdiction.

Geó.

John M. Bowers, for plaintiff in error. H. Yeaman and Henry S. Monroe, for defendant in error.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.

Of suits of a civil nature, at law or in equity, the circuit courts of the United States have original jurisdiction, by reason of the citizenship of the parties, in cases between citizens of different states, or between citizens of a state and aliens; and, by reason of the cause of action, "in cases arising under the constitution or laws of the United States, or treaties made or which shall be made under their authority," including, of course, suits arising under the patent or copyright laws of the United States. Act Aug. 13, 1888, c. 866, § 1 (25 Stat. 433; Rev. St. § 629, cl. 9). In order to give the circuit court jurisdiction of a case as one arising under the constitution, laws, or treaties of the United States, that it does so arise must appear from the plaintiff's own statement of his claim. Mining Co. v. Turck, 150 U. S. 138, 14 Sup. Ct. 35; Tennessee v. Union & Planters' Bank, 152 U. S. 454, 14 Sup. Ct. 654; Railway Co. v. Skottowe, 162 U. S. 490, 16 Sup. Ct. 869; Hanford v. Davies, 163 U. S. 273, 16 Sup. Ct. 1051.

From final judgments of the circuit court in civil suits an appeal or writ of error lies to this court, or to the circuit court of appeals. It lies directly to this court in any case in which the jurisdiction of the circuit court is in issue; and in such case the question of jurisdiction only is certified to and decided by this court. It also lies directly from the circuit court to this court in cases involving the construction or application of the constitution, or the constitutionality of a law, or the valid-, ity or construction of a treaty, of the United; States, or in which the constitution or a law of a state is claimed to be in contravention of the constitution of the United States; and in any of these cases the appellate jurisdiction of this court is not limited to the constitutional question, but extends to the determination of the whole case. Act March 3, 1891, c. 517, § 5 (26 Stat. 827, 828); Horner v. U. S., 143 U.

S. 570, 12 Sup. Ct. 522; Chappell v. U. S., 160 U. S. 499, 16 Sup. Ct. 397.

From final judgments of the circuit court in all other civil suits, an appeal or writ of error lies to the circuit court of appeals; and the judgments rendered thereon by the circuit court of appeals are final (unless this court, by writ of certiorari or otherwise, orders the whole case to be brought up for its decision) in all cases in which the jurisdiction of the circuit court "is dependent entirely upon the parties being aliens and citizens of the United States, or citizens of different states," as well as in cases arising under the patent laws or under the revenue laws. In all other civil actions (including those arising under the copyright laws of the United States), if the matter in controversy exceeds $1,000, besides costs, there is, as of right, an appeal or writ of error to bring the case to this court. Act March 3, 1891, c. 517, § 6.

This plaintiff in error, having been defeated in the circuit court, did not bring the case directly to this court, as one involving the construction or application of the constitution of the United States, or upon any other of the grounds specified in section 5 of the act of 1891. But it took the case, under section 6, to the circuit court of appeals, and, having been again defeated in that court, now claims, as of right, a review by this court of the judgment of the circuit court of appeals.

The judgment of the circuit court of appeals being made final in all cases in which the jurisdiction of the circuit court is dependent entirely upon the parties being citizens of different states, but not final in cases arising under the copyright laws of the United States, where the matter in controversy exceeds $1,000, the test of the appellate jurisdiction of this court over the case at bar is whether it was one arising under the copyright laws of the United States, or was one in which the jurisdiction of the circuit court wholly depended upon the parties being citizens of different states.

The complaint, alleging that the plaintiff was a citizen of Illinois, and the defendant a citizen of New York, and claiming damages in a sum of more than $2,000, showed that the circuit court had jurisdiction of the case by reason of the parties being citizens of different states. The plaintiff, in her complaint, did not claim any right under the constitution and laws of the United States, or in any way mention or refer to that constitution or to those laws; and, at the trial, she relied wholly upon a right given by the common law, and maintained her action upon such a right only. It was the defendant, and not the plaintiff, who invoked the constitution and laws of the United States. This, as necessarily follows from the foregoing considerations, and as was expressly adjudged in Mining Co. v. Turck, above cited, is insufficient to support the jurisdiction of this court to review, by appeal or writ of error, the judgment of the circuit court of appeals.

The jurisdiction of the circuit court having

been obtained and exercised solely because of the parties being citizens of different states, the judgment of the circuit court of appeals was final, and the writ of error must be dismissed for want of jurisdiction.

(164 U. S. 213)

UNITED STATES v. VERDIER. (November 16, 1896.) No. 49.

INTEREST CLAIMS AGAINST THE GOVERNMENT MUTUAL CLAIMS.

Rev. St. § 966, provides that interest shall be allowed on all judgments recovered in a circuit or district court "in all cases where, by the law of the state in which such court is held, interest may be levied under process of execution on judgments recovered in the courts of such state." Rev. St. § 1091, provides that no interest shall be allowed on any claim against the government prior to the rendition of judgment thereon by the court of claims, unless it be a contract expressly stipulating for the payment of interest. V., a postmaster in South Carolina, was at the close of his term of office, in 1869, indebted to the government in a certain sum, for which judgment was rendered against him in the district court of that state in 1871. His salary was not readjusted under acts of 1864 and 1866, authorizing the postmaster general to make such readjustments once in two years; but it was readjusted, and a sum larger than the judgment was allowed him as increased salary, under act of 1883, which provided for the readjustment of salaries not already readjusted under act of 1866. Held, that upon the final settlement of V.'s account, in 1877, he was properly charged with interest on the judgment, and denied interest on the increased salary allowed him; the fact that there were mutual claims being no reason for disregarding the statutes as to interest.

On Appeal from the Court of Claims.

This was a petition by the administrator of James R. Verdier, deceased, for the payment of a balance of $1,300.41, claimed to be due him upon a readjustment of his accounts as postmaster at Beaufort, S. C., from July 1, 1866, to April 30, 1869.

Upon a hearing in the court of claims, that court made the following findings of fact: "(1) James R. Verdier was a duly-qualified postmaster at Beaufort, S. C., from July 1, 1866, to the 30th day of April, 1869.

"(2) Upon his retirement from office he appeared as indebted to the United States, on the face of his postal accounts, in the sum of $929.20. June 28, 1870, an action was brought by the United States against him on his official bond, in the United States district court of South Carolina, to recover said sum; and July 5, 1870, the jury returned a verdict in favor of the United States for the sum of $1,063.20, which verdict was, upon motion of Verdier's attorney, set aside.

"October 31st, following, the attorney for sail Verdier consented that the case be submitted to the court, and upon said date the jury returned a verdict in favor of the United States against Verdier for the sum of $1,059.03; the costs were $36.80; total, $1,095.83. Judgment thereon was duly signed January 25, 1871. “(3) November 3, 1885, application was made