Opinion of the Court.

1878, p. 136. The present writ of error brings up for review that judgment of affirmance.

It appeared in proof that Calton, Tiberty and Cullen were residents of the Star Mining District in the Territory, and well acquainted with each other. On the morning the shooting occurred, Calton and Tiberty went to Milford, a small town near by, and there happened to meet Cullen. During the day they all indulged in strong drink, and became somewhat intoxicated. They were together during most of the time, and apparently upon friendly terms. About six o'clock in the afternoon the three started for home. They left Milford together in a wagon, Calton and Cullen sitting on the driver's seat, Calton driving, and Tiberty on a pile of ore sacks in the body of the wagon. They did not get far in the direction of their homes when Tiberty, leaving his bottle of liquor on the sacks, alighted from the wagon to get a whiplash that Calton had dropped. While he was on the ground a dispute, in some way not fully explained, arose between Cullen' and Calton about the possession of Tiberty's bottle of liquor. Subsequently, and while the latter was off the wagon, a struggle ensued between Cullen and Calton, during which they clinched, each one having hold of the other's throat in such manner as to satisfy Tiberty, who was a short distance away, that they were angry. At one time Cullen seemed to be pressing Calton against or over the dash-board. The latter finally released himself from the grasp of his antagonist, who was much the stouter man, and, jumping to the ground, took a loaded pistol from a bundle he had in the wagon, and fired at Cullen five shots in rapid succession. According to the statements of Tiberty the deceased did not move after the first shot, the defendant saying, immediately after that shot was fired, that he had killed him, and that he "might as well give him the rest." Calton and Tiberty returned to Milford with the dead body in the wagon, and the former surrendered himself to an officer of the law.

The penal code of Utah established by the act of February 18, 1876, provides that "every murder perpetrated by poison, lying in wait, or any other kind of wilful, deliberate, malicious

Opinion of the Court.

and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; or perpetrated from a premeditated design, unlawfully and maliciously to effect the death of any other human being other than him who is killed; or perpetrated by any act greatly dangerous to the lives of others, and evidencing a depraved mind, regardless of human life, is murder in the first degree; and any other homicide committed under such circumstances as would have constituted murder at common law, is murder in the second degree." Compiled Laws Utah, 1876, p. 585.

The same code further provides that: "Every person guilty of murder in the first degree shall suffer death, or, upon the recommendation of the jury, may be imprisoned at hard labor in the penitentiary for life, at the discretion of the court, and every person guilty of murder in the second degree, shall be imprisoned at hard labor in the penitentiary for not less than five, nor more than fifteen years." Compiled Laws Utah, 1876, p. 586.

It is clear that the authority given in the section last quoted, to substitute imprisonment at hard labor in the penitentiary for life for the penalty of death, when the accused is found guilty of murder in the first degree, depends upon a previous recommendation to that effect by the jury. Without such recommendation the court, in the absence of sufficient grounds for a new trial, has no alternative but to sentence the accused to suffer death. While in this case the jury were instructed as to what constituted murder in the first and second degrees, they were not informed as to their right, under the statute, to recommend imprisonment for life at hard labor in the penitentiary in place of the punishment of death. If their attention had been called to that statute, it may be that they would have made such a recommendation, and thereby enabled the court to reduce the punishment to im prisonment for life. We are of opinion that the court erred in not directing the attention of the jury to this matter. The statute evidently proceeds upon the ground that there may be cases of murder in the first degree, the punishment for

Syllabus.

which by imprisonment for life at hard labor will suffice to meet the ends of public justice. Its object could only have been met through a recommendation by the jury that the lesser punishment be inflicted, and it is not to be presumed that they were aware of their right to make such recommendation. The failure of the court to instruct them upon this point prevented it from imposing the punishment of imprisonment for life, even if, in its judgment, the circumstances of the case rendered such a course proper. It was well said in the dissenting opinion of Mr. Justice Henderson, in the Supreme Court of the Territory, that by the action of the District Court "the prisoner was deprived of a substantial right. The determination of the question as to whether he should suffer death or imprisonment was one of vital consequence to him. The jury to whom the statute commits the determination of that question, at least in part, were not informed of their duty and responsibility in the matter so as to require them to exercise their judgment and discretion in relation to it, and by the verdict they rendered the court had none." These views are in accordance with the fundamental rules obtaining in the trial of criminal cases involving life.

Other questions were discussed at the bar, but as the instructions relating to them are somewhat obscure, and as they may not arise upon another trial in the form in which they are now presented, we forbear a determination of them.

For the error indicated the judgment is reversed, with direc tions for a new trial, and for such further proceedings as may not be inconsistent with this opinion.

BROWN v. DISTRICT OF COLUMBIA.

APPEAL FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA.

No. 137. Argued January 8, 9, 1889. Decided March 11, 1889.

In view of the state of the art at the time of their issue, letters patent No. 101,590, granted to Turner Cowing, April 5, 1870, for " a wood pavement

Statement of the Case.

composed of blocks, each side having a single plain surface and one or more of the sides being inclined, and the blocks being so laid on their larger ends as to form wedge-shaped grooves or spaces to receive concrete or other suitable filling, substantially as set forth," are void for want of novelty.

The substitution of blocks of wood of a given shape for blocks of stone of the same shape in the construction of a pavement neither involves a new mode of construction, nor develops anything substantially new in the resulting pavement, and is therefore not patentable as an invention. Letters patent No. 94,062 to William W. Ballard and Buren B. Waddell, dated April 24, 1869, for improvements in street pavements, were granted for novelty in the method of making the blocks, and not for novelty in the blocks themselves, or in a wooden pavement constructed of them; and it required no invention, but only mechanical skill to produce this method, so far as it varies from other methods for a like purpose previously known.

Letters patent No. 94,063 to William W. Ballard and Buren B. Waddell for "an improved mode of cutting blocks for street pavements" are void because the thing patented required only mechanical skill, and involved no invention, and was not patentable.

THE case, as stated by the court in its opinion, was as follows:

Tallmadge E. Brown filed his bill in the Supreme Court of the District of Columbia on the 14th day of April, 1880, counting upon three patents alleged to have been infringed by the respondent, namely: Patent No. 101,590, issued to Turner Cowing, April 5, 1870, for "a new mode of constructing wood pavements for streets." The specification and claim are as

follows:

"The nature of my invention consists in providing and arranging blocks of a peculiar shape in manner to form wedgeshaped crevices for the reception of earth or gravel, and wherein such earth or gravel will be retained to act as a key to bind and confine the blocks in their place.

"Figure 1 represents a section of road paved with the blocks, complete. Figure 2 represents the straight side of a block, with the inclined side at E. Fig. 3 represents the top of a block, and also the section of the base D. Fig. 4 represents the straight side of a block, which is set next to the inclined side of the adjoining block.

Statement of the Case.

"In Fig. 1 letter A represents the top of the block, B the side, and E the crevice and gravel. The blocks should, of course, be placed so that the gravel spaces may extend lengthwise across the direction of the street or road, so that, besides wedging and holding the blocks securely, they may furnish a better foothold for animals drawing heavy loads.

"In the drawing the front edge of the pavement, as shown, represents the side next the curb or a section parallel to the curb.

"It is obvious that the wedge-shaped crevices may also be formed by setting the above-described blocks so that two vertical sides and two inclined sides come together alternately, as shown in Fig. 5; and it is equally obvious that two blocks having their vertical sides together may be replaced by a single block having two inclined faces, as shown in Fig. 6, without any material change of plan, and with a considerable saving of labor and expense in the construction.

"To construct my pavement, prepare the roadway by grading it to the proper form and ramming solid; then set the blocks as shown in Fig. 1, confining them permanently between the curbs of walks; then fill and ram the crevices with earth and gravel.

"I do not claim a wood pavement composed of wedgeshaped blocks, when the blocks are laid alternately on larger and smaller ends, 'so as to form a continuous surface of wood, but what I do claim, and desire to secure by letters patent of the United States, is:

"A wood pavement composed of blocks, each side having a single plain surface and one or more of the sides being inclined, and the blocks being so laid on their larger ends as to form wedge-shaped grooves or spaces to receive concrete or other suitable filling, substantially as set forth."

Patent No. 94,062, issued to William W. Ballard and Buren B. Waddell, August 24, 1869, for "improvements in street pavements," of which the following are the specification and claims :

"Figure 1 is a perspective view of a section of pavement embracing our improvement. Fig. 2 is a perspective view of