author: GILBERT, Circuit Judge

text:
    LEVIN et al. v. UNITED STATES.
    (Circuit Court of Appeals, Ninth Circuit.
    May 11, 1925.)
    No. 4310.
    1. Criminal law @=>200(1) — Making false income tax return held not same offense as perjury, within rule prohibiting double jeopardy.
    Making false income tax return under oath, ■which, under Revenue Act 1918, § 253, is misdemeanor, is not same offense, within constitutional prohibition against double jeopardy, as perjury, under Criminal Code, § 125 (Comp. St. § 10295), though both arose from same transaction.
    2. Perjury @=>7 — Perjury may be committed in making out false income tax return.
    Perjury, as defined in .Criminal Code, § 125 (Comp. St. § 10295), may be committed in making of false income tax return.
    3. Perjury @=>!l(3) — May be committed, even if false statement is never filed or used.
    Perjury, as defined in Criminal Code, § 125 (Comp. St. § 10295), may be committed by falsely swearing to written statement required by law, even if statement is never in fact filed or used.
    4. Criminal law @=>16! — Constitutional inhibition is not against double punishment for one offense, but against double jeopardy for same offense.
    Constitutional inhibition against double .jeopardy is not against double punishment for one offense, but against double jeopardy for same offense.
    5. Criminal law @=>204 — Rule as to waiver of immunity from second jeopardy stated.
    Constitutional immunity from second jeopardy is personal privilege, which may be waived, and waiver may be either express or implied, and is always implied when there is failure to raise' objection at first opportunity, and objection comes too late when raised for the first time on motion in arrest of judgment.
    6. Criminal law @=>393(2) — Searches and seizures @=>7 — In absence of application for return of l;ooks surrendered to internal revenue agent and of motion to suppress, admission of books did not violate Fourth or Fifth Amendments.
    Where defendants’ books were- seized under search warrant without objection, after defendants had voluntarily permitted internal revenue agent to inspect them, and no application for their return, motion to suppress, nor objection that books tended to incriminate defendants was made, admission of books in evidence did not violate Const. Amends. 4, 5.
    7. Criminal law @=>695(5) — Defendants’ objection that oral testimony of book entries was not best evidence waived objection to admission of books.
    In prosecution for making false income tax return and for perjury, under • Revenue Act 1918, § 253, and Criminal Code, § 125 (Comp. St. § 10295), defendants’ objection, that testimony by their former bookkeeper as to entries-in their books was not best evidence, waived objection that admission of books in evidence-violated Const. Amends. 4, 5, and defendants-were not prejudiced by admission of books.’
    8. Criminal law @=>895 — Objection to introduction of testimony unlawfully obtained may be-waived, and waiver may be established by conduct amounting to estoppel.
    Objection to introduction of testimony unlawfully obtained may be waived, and whiver of constitutional privilege may be established by conduct amounting to estoppel.
    9. Criminal law @=>369(2) — Refusal to strikeout testimony of attempt to bribe revenue officer relating to returns for other years held not error.
    In prosecution under Revenue’ Act 4918, § 253, for making out false return for year 1920, where there was evidence that internal revenue officer, investigating defendant’s tax returns for years 1917, 1918, and 1919, was requested by one of defendants to include in false income tax return an audit of years 1920 and 1921, refusal to strike out officer’s testimony relating to offer of bribe was not error.
    10. Partnership @=>175 — One partner cannot be prosecuted for crime committed by copart-ner, but all partners may be equally guilty, if partnership engages in unlawful business.
    One partner cannot he prosecuted for crime committed by copartner, but if partnership, with knowledge of all its members, engages in unlawful business, all are equally guilty.
    11. Internal revenue @=>47 — Sentencing individual partners, under indictment charging them as members of partnership with making false income tax return, held not error.
    Under indictment charging that defendants, as members of partnership, made false return-of income tax, in violation of Revenue Act 1918, § 253, sworn to by one of them, it was not error to impose separate sentences on individual partners, instead of imposing penalty on-partnership itself, where all partners participated or acquiesced in making return, in absence of demurrer to indictment for duplicity, motion to quash, or objection to consolidation of all indictments for trial.
    12. Criminal law @=>889 — Court’s refusal to-receive incomplete verdicts not.error.
    Court did not err in refusing to receive verdicts, as being incomplete in not finding “guilty” or “not guilty” as to certain counts, and in directing jury to find verdicts of guilty or not guilty as to each'count; such failure to return verdicts as to certain counts not amounting to acquittal.
    In Error to the District Court of the United States for the Southern Division of the-Northern District of California; John S. Partridge, Judge.
    Joseph Levin and others were convicted of making false income tax returns and of perjury, and they bring error.
    Affirmed.
    The plaintiffs in error were convicted as charged under four indictments, which were consolidated for the -purpose of the trial. The first indictment in the first count charg'ed Joseph Levin with violation of the provisions of the Revenue Act of 1918 in making under oath a false income tax return for the year 1920 and filing the same with the internal revenue collector. 'In the second count he was charged with perjury as defined by section 125 of the Criminal Code (Comp. St. § 10295), in that he made under oath a false • income tax return for the year 1920. In the second indictment Joseph Levin, M. C. Lev-in, Jennie Devin Meyers, and S. A. Devin, doing business under the firm name of M. Devin & Sons, were charged in the first count with making and filing with the collector of internal revenue a false return of the income of said firm for the year 1920, which was sworn to by Joseph Levin. In the second count Joseph Levin was charged with perjury in swearing to the said partnership return of income. In the third indictment M. C. Levin was charged in the first count with making under oath a false return of his income tax for the year 1920 to the collector of internal revenue, in violation of the Revenue Act of 1918. In the second count he was charged with perjury under section 125 of the Criminal Code in making a false oath as to his return. In the fourth indictment S. A. Levin was likewise charged in the first count with making a false return under oath, and in the second count with perjury in making the oath.
    In imposing sentence, Joseph Levin, on his conviction under the first count of the first indictment, was sentenced to be imprisoned for 30 days in the county jail and to pay a fine of $1,000, and upon his conviction on the second count of that indictment he was sentenced to imprisonment for one year and one day in the United States penitentiary. Under the second indictment Joseph Levin was sentenced on the first count to be imprisoned' one year in the county jail and to pay a fine of $10,000, and on the second count to be imprisoned for the period of one year and one day in the United States penitentiary,' the judgment of imprisonment on that count to run consecutively with that imposed under the first indictment; and under the first count of that indictment M. C. Levin was sentenced to be imprisoned for one year in the county jail and to pay a fine of $10,000, and S. A. Levin was sentenced to be imprisoned six months in the county jail and to pay a fine of $10,000. .Under the third and fourth indictments M. C. Levin and S. A. Levin were each sentenced-to be imprisoned under the first counts thirty days in the county jail and to pay a fine of $1,-000, and under the second counts each was sentenced to imprisonment in the United States penitentiary for one year and one day.
    Edgar C. Levey and Harry A. Encell, both of San Francisco, Cal. (John L. McNab and Bert Schlesinger, both of San Francisco, Cal., of counsel), for plaintiffs in error.
    Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.
    Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
   GILBERT, Circuit Judge

(after stating the facts as above). The imposition of sentences on the second counts of the indictments is assigned as error for the reason that the defendants had already been convicted on the first counts, and in those counts the transactions embraced the identical transactions set out in the second counts. There was no demurrer to the joinder of the two counts in either of the indictments, and no demand was made that the government elect that on which it would prosecute. No objection was made to the instructions by which both counts were submitted to the jury. The question now presented was first raised on motion in arrest of judgment, where the point was made that a trial and conviction on the second counts of each indictment put the defendants in jeopardy for a second time for the same offense. Section 253 of the Revenue Act (40 Stat. 1085) declares that any one who willfully attempts in any manner to defeat or evade the tax imposed by this title shall be guilty of a misdemeanor. Perjury, as defined in the Criminal Code, is made a felony, and its elements are the taking of a false oath in any ease in which a law of the United States authorizes an oath to be administered that the affiant will testify the truth, or that any written declaration or certificate by him subscribed is true, and the affiant “-willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true.”

There can be no question but that perjury so defined is an offense which may be committed in making out a false return to an income tax statement. The question here is whether both offenses were committed by the defendants, as charged in the indictment. In Morgan v. Devine, 237 U. S. 632, 35 S. Ct. 712, 59 L. Ed. 1153, the court, while holding that two offenses, the one of breaking into a post office, and the other of stealing property belonging to the Post Office Department, may be committed, and separately charged and punished, said: “This court has settled that the test of identity of offenses is whether the same evidence is required'to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense, where two are defined by the statutes.” In Gavieres v. United States, 220 U. S. 338, 31 S. Ct. 421, 55 L. Ed. 489, the court quoted from the opinion of Judge Gray in Morey v. Commonwealth, 108 Mass. 433: “A single act may be an offense against two statutes; and, if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.”

In Burton v. United States, 202 U. S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 392, it was said: “It must appear that the offense charged, using the words. of Chief Justice Shaw, ‘was the same in law and in fact. The plea will be vicious, if the offenses charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in fact.’ ” In Carter v. McClaughry, 183 U. S. 365, 395, 22 S. Ct. 181, 193, 46 L. Ed. 236, the court said: “The offense of conduct unbecoming an officer and a gentleman is not the same offense as conspiracy to defraud, or the causing of false and fraudulent claims to be made, although to be guilty of the latter involves being guilty of the former.” And it seems clear in principle that there can be no objection to making one act or one transaction the violation of two statutes, if each offense embraces an element not embraced in the other. This is not a case where two offenses are defined in a single statute. The offenses here charged are distinct in law. The first is an attempt to defeat or evade the tax imposed by the Revenue Act. The second is a crime against justice. In order to convict the defendants of an attempt to defeat or evade the Income Tax Law, it would not have been essential to show that they had in fact made oath to an income tax return; nor, to sustain the charge of perjury, would it have been essential to prove that there was an attempt to defeat or evade the Income Tax Law.

Perjury may be committed by falsely swearing to a written statement made as required by law, even if the statement is never in fact filed or used. Noah v. United States, 128 F. 270, 62 C. C. A. 618. And it has been held that, in order to convict a defendant of an attempt to defeat or evade the Income Tax Law, it is not necessary to show that he did in fact verify the false income tax return. Emmich v. United States (C. C. A.) 298 F. 5. In that case the defendant was charged with an attempt to defeat the Income Tax Law and with perjury in making out his return. The charges were, as in the present case, consolidated for trial. There was an acquittal on the perjury count, but a conviction on the charge of attempting to defeat the Income Tax Law.

But the contention that the defendants were twice placed in jeopardy for the same offense is answerable on other grounds. The constitutional inhibition is not ¿gainst double punishment for one offense, but against double jeopardy for the same offense. It is uniformly held that the constitutional immunity from second jeopardy is a personal privilege, which may be waived, that the waiver may be either express or implied,, that it is always implied when there is failure to raise the objection at the first opportunity, and that it comes too late when raised for the first time on motion in arrest of judgment. 16 C. J. 285; People v. Stoll, 143 Cal. 689, 77 P. 818; State v. Houghton, 45 Or. 110, 75 P. 887; State v. White, 71 Kan. 356, 80 P. 589, 6 Ann. Cas. 132; Blocher v. State, 177 Ind. 356, 98 N. E. 118; People v. McGinnis, 234 Ill. 68, 84 N. E. 687,. 123 Am. St. Rep. 73; Ex parte Hall, 94 N. J. Eq. 108, 118 A. 347; White v. State (Okl. Cr. App.) 214 P. 202.

The plaintiffs in error cite Morgan v. United States (C. C. A.) 294 F. 84, Reynolds v. United States (C. C. A.) 280 F. 3, Grafton v. United States, 206 U. S. 333, 350, 27 S. Ct. 749, 151 L. Ed. 1084, 11 Ann. Cas. 640, and United States v. Torres (D. C.) 291 F. 138. It does not appear in those eases whether or not there was waiver of the constitutional privilege, except that in Reynolds v. United States it was held, without the citation of authority, that the objection might be raised on motion in arrest of judgment. That ruling is not in harmony with generally accepted doctrine, and we think it. is unsustainable in principié. If two counts-of an indictment charge a defendant with but a single offense, one alleged as a misde-mea nor, the other as a felony, the defendant ought not to be permitted to refrain from asserting his constitutional privilege until after a verdict of the jury, and then by motion in arrest of judgment raise the objection of double jeopardy and escape the severer penalty which might be imposed upon the second count.

Error is assigned to the rulings of the trial court in admitting in evidence certain entries in the books of the defendants. A former bookkeeper of the defendants was called by the prosecution to give oral secondary evidence as to the entries. An objection was sustained to the testimony on the ground that the books were the best evidence. Thereupon the witness was called upon to testify from the books, the books being present in court. Objection was made on the ground that the books had been obtained by force from the defendants under the provisions of a search warrant, and that their use in evidence would be violative of the provisions of the Fourth and Fifth Amendments. The search warrant under which the books had been taken from the defendants’ possession was issued upon an affidavit of an internal revenue agent, in which he deposed that the books were being used as the means of committing fraud against the revenues of the United States in a manner specifically set forth in the affidavit, and had been used in preparing false returns of income. The affidavit further stated that on the day on which the affidavit was made two of the defendants offered and gave the affiant a bribe of $5,000, with the understanding that he should make a report to his superior officers that no additional tax over the amount paid on their original return was due from the defendants.

No objection was made to the sufficiency of the affidavit, and counsel for the defendants offered the warrant in evidence. No objection was made to the evidence on the ground that the books would tend to crim-inate the defendants nor was a motion made at any time that the evidence therein be excluded or that the books be returned to the defendants. The books were taken on the search warrant without objection by the defendants, and they remained in the possession of the officers of the revenue department until they were offered in evidence on the trial of the ease in hand. The trial court overruled the objections on the grounds, first, that the constitutional amendment with regard to the income tax, and the statutes enacted in pursuance thereof, rendered the books books of account between the defendants and the United States, and hence they were not within the protection of the Fourth and Fifth Amendments; second, that objection having been made by the defendants to oral testimony offered by the prosecution that the books were the best evidence, they could not subsequently object to the introduction of that which they had demanded by their objection; and, third, that having consented to the production or examination of the books for the purpose advantageous to them of showing that the books tallied with their income tax statements, the defendants could not subsequently object to their introduction in evidence in order to prove that the entries were false.

In Adams v. New York, 192 U. S. 585, 24 S. Ct. 372, 48 L. Ed. 575, it was held in substance that there is no violation of the protection of the Fourth and Fifth Amendments in admitting in evidence in a criminal trial papers found in the execution of a valid search warrant prior to the indictment, and that the purpose of those amendments was to protect against compulsory testimony from the defendant against himself in a criminal trial and to punish wrongful invasion of the home of a citizen or the unwarranted seizure of his papers and property. The doctrine of that case has not been modified by any subsequent decision. In Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, it was held that the rule in Adams v. New York does not justify the retention of papers seized in violation of the protection given by the Fourth Amendment, where before trial an application has been made in the cause by the accused for their return to him.

In Johnson v. United States, 228 U. S. 457, 33 S. Ct. 572, 57 L. Ed. 919, 47 L. R. A. (N. S.) 263, a bankrupt had surrendered his books to a trustee, and these were thereafter used against him in a criminal trial over his objection. Said the court: “A party is privileged from producing the evidence, but not from its production. ” ■ M * If the documentary confession comes to a third hand alio intuitu, as this did, the use of it in court does not compel the defendant to be a witness against himself.” In Perlman v. United States, 247 U. S. 7, 38 S. Ct. 417, 62 L. Ed. 950, it was held that one who voluntarily and to serve his own interests has produced his papers as part of his testimony in an equity suit, in which they are impounded as exhibits, is not subjected to an unreasonable seizure or compelled to bear witness against himself, within the meaning of the Fourth and Fifth Amendments, by the delivery of such exhibits to the district attorney and their use in evidence in a prosecution of the owner for perjury alleged to have been-committed in the testimony.

The defendants rely upon Internal Revenue Agent v. Sullivan (D. C.) 287 F. 138, and United States v. Cooper (D. C.) 288 F. 604. In the Cooper Case books and papers had been lawfully obtained by the Internal Revenue Department as permitted by the statutes. Subsequently an. indictment was found, and the accused filed an application for the return of the books and papers, and for an order to restrain the use thereof on the trial of the indictment. On a demurrer to that petition the court ruled that upon the facts pleaded in the petition the petitioners-were entitled to an order that the books be returned to them; but, in view of the fact that a number of affidavits had been filed on behalf of the prosecution indicating that the books and papers had been voluntarily delivered by the defendants, the court set the petition down for hearing on the facts. This was done evidently upon the theory that, if it were shown on the hearing that the documents had been voluntarily delivered to the Internal Revenue Officer, the petition would be denied. In the Sullivan Case an internal revenue agent applied for an order requiring the defendant to produce his books and papers pertaining to his income. He declined to produce his individual books and papers, on the ground that to do so might tend to criminate him, and might furnish evidence to the prosecution on an indictment then pending against him for defrauding the government in the purchase of army supplies. The motion was denied without prejudice to its renewal after a trial under that indictment.

Neither of those decisions meets the question of the right of the accused to invoke the protection of the Fourth and Fifth Amendments against the use of books and papers which he has surrendered to an internal revenue officer, and where he has filed no application for their return to him, and has made no motion for .their suppression as evidence against him, and they are offered in evidence under such circumstances as those indicated in the record in the ease at bar. Here an internal revenue agent, who qualified as an expert accountant, had been permitted free inspection of the books prior to the issuance of the search warrant, and had acquainted himself with their contents, so that the government was in possession of oral evidence to prove all that was sought to be obtained from the books to sustain the indictments. The government was halted in the production of such oral testimony by the defendants’ objection that the books were the best evidence. No objection was made on the ground that the books might tend to incriminate the defendants, as was the case in Arndstein v. McCarthy, 254 U. S. 71, 41 S. Ct. 26, 65 L. Ed. 138, nor was the evidence thus acquired obtained by wrongful access to or possession of the books, as was the ease in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319.

Again, it seems clear that the defendants, by objecting to the oral testimony on the ground that the books were the best evidence, knowing as they did that the books were in court, and knowing the manner in which they had been brought there, must be held to have demanded the introduction of the books. “With certain exceptions an individual may waive constitutional provisions intended for his benefit.” 6 R. C. L. 93. The exceptions are eases where a question of public policy or of public morals is involved. No such question is involved here. The objection to the introduction of testimony, even if unlawfully obtained, may be, and often is, waived, and the waiver of a constitutional privilege may be established by conduct amounting to an estoppel. Thus the constitutional right to a jury trial in eases of misdemeanor may be waived. Hallinger v. Davis, 146 U. S. 314, 13 S. Ct. 105, 36 L. Ed. 986. “And in the administration of the criminal law constitutional rights have been held waivable in common with mere irregularities.” 8 R. C. L. 69; Oborn v. State, 143 Wis. 249, 126 N. W. 737, 31 L. R. A. (N. S.) 966; State v. Vanella, 40 Mont. 326, 106 P. 364, 20 Ann. Cas. 398; Brown v. Epps, 91 Va. 726, 21 S. E. 119, 27 L. R. A. 676.

Immunity from search and seizure may be waived. Dillon v. United States (C. C. A.) 279 F. 639; Windsor v. United States (C. C. A.) 286 F. 61. And the constitutional right to be confronted'by the witnesses against him may be waived by the defendant. Diaz v. United States, 223 U. S. 442, 32 S. Ct. 250, 56 L. Ed. 500, Ann. Cas. 1913C, 1138. The objection which was made to the admission of the oral testimony concerning the entries in the books was sustainable only on the theory that it was not the best evidence, and that the books themselves were available as evidence. If as a matter of fact the books were not available for evidential purposes, the prosecution was entitled to the introduction of the secondary evidence, which it proffered, and which it had lawfully obtained: In view of that fact, it cannot be said that the defendants have been prejudiced by the admission of evidence which the government was unquestionably entitled to introduce in the one form or the other.

Error is assigned to the denial of the defendants’ motion to strike out testimony concerning the bribe said to have been offered by two of the defendants to the officer who was investigating the tax returns of all the defendants for the years 1917, and 1918, and 1919. It is contended that the testimony was irrelevant, for the reason that the indictments related only to the tax returns for the year 1920. But there was evidence that the officer was requested by one of the defendants to include in a false income tax report an audit, also, of the years 1920 and 1921. The court, in instructing the jury, charged them that it made no difference whether or not they found that the guilty knowledge of the defendants pertained to the year 1920, and that they were entitled to take into consideration the evidence of the bribe in determining the question whether or not the defendants made false returns as to the year 1920. No exception was taken to the charge. The evidence as to the offer of the bribe was clearly admissible as to the two defendants who made it, and no objection was interposed that it was inadmissible against the other defendant by reason of his nonparticipation in the offer. The motion to strike out was properly denied.

It. is urged that no separate sentence should have been imposed upon the defendants under the first count of the indictment against the partnership; that the penalty should have been directed against the partnership itself in the nature of the fine and not against each individual member. Section 253 of the Revenue Act contemplates that the offense may be committed by “any individual, corporation, or partnership, or any officer or employé of any corporation or member or employé of a partnership.” Undoubtedly, if the prosecution is in possession of facts to prove that each member of a partnership participated in making a false return of the partnership income, all may be joined in an indictment. Here there was no demurrer to the indictment against the partnership for duplicity, no motion to quash, and no objection to the consolidation of all the indictments for trial. And no assignment of error presents the contention which is now made.

Our attention is not directed to any failure of evidence to connect each of the members of the partnership with the offense which is charged. It is true that one partner cannot be prosecuted for crime committed by his copartner; but if a partnership, with the knowledge of all its members engaged in an unlawful enterprise or business, all are equally guilty, and in the ease at hand it is reasonable to assume, from all the circumstances, that each member of the firm participated in making the partnership false return, or at least acquiesced in it, so that it became the act of all.

The contention is made that the trial court erred in refusing to receive the verdict of the jury as rendered, and in directing the jury to find verdicts on other counts in the indictment. The jury returned into court and said that they had agreed upon a verdict. The court said: “Gentlemen, these verdicts are not complete.' You should find a verdict in each case as to each count. * * * Your verdict should be amended, so that it reads ‘Guilty’ or ‘Not guilty’ as to each count.” The jury retired, and later returned with their verdicts upon all the counts. The record does not show as to what counts verdict was omitted on the jury’s first entry into court. There is no merit in the contention that as to those counts the-failure to return a verdict amounted to an acquittal, for no verdict was received by the court until the jury had completed their deliberations. The eases cited by the defendants (Jolly v. United States, 170 U. S. 401, 18 S. Ct. 624, 42 L. Ed. 1085, and Selves-ter v. United States, 170 U. S. 265, 18 S. Ct. 580, 42 L. Ed. 1029) have no application to the facts in the present ease.

Also without merit is the contention that the evidence was insufficient to warrant the conviction of the defendants. There was no motion for a directed verdict of acquittal, and no objection was made to the submission to the jury of all the charges against all the defendants. Notwithstanding the failure thus to present the question to this court, we have looked into the evidence, and we think there was sufficient to go to the jury on the question of the guilt or innocence of each of the defendants.

We find no error. The judgments are affirmed.


source: Caselaw Access Project

author: ROSE, Circuit Judge.

license: Public Domain

text:
    UNGERLEIDER et al. v. UNITED STATES.
    (Circuit Court of Appeals, Fourth Circuit.
    May 9, 1925.)
    No. 2354.
    1. Intoxicating liquors ©=>249 — Officer searching automobile without warrant held to have reasonable grounds for search.
    Prohibition officer, who searched automobile for intoxicating liquor without warrant, held to have reasonable grounds for search.
    2. Criminal law ©=>736(1) — Admissibility of evidence discovered on search of automobile without warrant held question fo'r court, and not for jury.
    In prosecution for conspiracy to violate National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.), admissibility of evidence discovered by prohibition agent in automobile, claimed to be incompetent because search without warrant was unreasonable, held question for court, and not for jury.
    3. Jury ©=>131 (10) — Action of court in personally interrogating jurors on their voir dire examination held not improper.
    Action of court in requiring counsel to submit to him questions they intended to ask jurors on their voir dire examination, and in personally interrogating jurors on such examination, held not improper.
    4. Criminal law ©=>1166'/2 (6) — Insufficient inquiry into aims of secret organizations, to which some of prospective jurors belonged, held not to present anything for review.
    Assignment of error that there was not sufficient inquiry into aims of secret organizations, to which somqs of persons examined as to their fitness for jury service belonged, did not present anything for review where no members of such organizations served on jury.
    5. Jury ©=>97(3) — Persons contributing to Anti-Saloon League held not disqualified as jurors in prosecution for conspiring to violate National Prohibition Act.
    Persons contributing to Anti-Saloon League held not disqualified as jurors in prosecution for conspiring to violate National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138% et seq.), where each of them stated that he could and would give as fair consideration to such a case as to any other.
    , In Error to the District Court of the United States for the Northern District of West Virginia, at Wheeling; William E. Baker, Jndge.
    Louis Ungerleider and another were convicted of conspiring to violate the National Prohibition Act, and they bring error.
    Affirmed.
    Howard D. Matthews, of Wheeling, W. Va. (Handlan, Garden & Matthews, of Wheeling, W. Va., on the brief), for plaintiffs in error.
    T. A. Brown, U. S. Atty., and T¡ M. Mc-Intile, Sp. Asst. U. S. Atty., both of Parkers-burg, W. Va., for the United States.
    Before WOODS, WADDILL, and ROSE, Circuit Judges.
   ROSE, Circuit Judge.

The plaintiffs in error, Louis Ungerleider and Albert Dupke, were defendants below and will be so styled here. They were .convicted upon, an indictment charging them with having conspired to violate the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138%, et seq.). We shall not discuss in detail each of their twenty-seven assignments of error. Some of them were formally abandoned in the argument at our bar. Sometimes,- two or more of them ráise what is in essence the same question, while a number of them are, in our view, unimportant.

The ease against the .defendants was that a federal prohibition agent received information that a Nash ear bearing a certain number was delivering liquor in Glen Elk, a town or village in the neighborhood of Clarksburg. He thereupon went there and, about 4 o’clock in the afternoon of an April day in 1924, saw the ear in question with both the defendants in it on a street; but, as he was on foot, he was at that time unable to come up with it. A little later, he returned to his house in Clarksburg, and while there, or in the vicinity, he had a talk with a truck driver for a wholesale grocer in that city. The truck driver had shortly before seen the two defendants sitting in the ear'in question talking together in front of his place of einployment. They presently drove their car into an alley alongside the grocery warehouse and which led to the garage in which the grocery truck was kept. The driver of the latter started to put his truek away, but found that the defendants’ ear blocked the alleyway. He stopped his truek 10 or 15 feet in the rear of it. One of the defendants lowered the back curtain but did not get it all the way down, leaving an uncovered space of about 3 or 4 inches.. Through this, the truek driver saw the defendant Ungerleider unscrew the back of the seat, take out a glass bottle partly wrapped in newspaper and having red contents. Six or eight packages were taken out of the seat and put into a grip. The truek driver then backed out of the way of the defendants, and they in turn backed their car out of the alley and went away.

The truck driver was through his work for the day and went home, meeting the prohibition agent, whom he brought back to town with him in his car. They saw the defendants’ ear on Main street in front of the courthouse. No one was in it at the time. The prohibition agent went to it. When he was within three or four feet of it, he says he detected the odor of alcohol. He got into it and found a secret compartment, opened it, and saw bottles of moonshine liquor therein. In somewhere from three quarters of an hour to an hour, the defendants came to the car and were put under arrest. The car was searched. It was found that it contained two secret compartments which would hold in the aggregate somewhere from 250 to 350 quarts. There were in them at the time some 80 bottles, each wrapped in a newspaper and each of them containing moonshine liquor.

The only evidence offered on behalf of the defendants was that of some persons who said they came very close to the ear or stuck their heads in it and did not detect any odor of alcohol. Defendants contend that the search of the ear by the prohibition officer made as it was, without a warrant, was unreasonable; that no testimony as to what the search disclosed was admissible; and that the evidence that others could not detect the odor of alcohol raised an issue as to the reasonableness of the search, which should have been left to the jury. Independently of whether there was or was not any detectable odor of alcohol, the facts detailed show that the prohibition officer had reasonable grounds to search the car. Carroll v. United States, 45 S. Ct. 280, 69 L. Ed. -, decided by the Supreme Court March 2, 1925; Ash v. United States (C. C. A.) 299 F. 277; and Milam v. United States (C. C. A.) 296 F. 629. Whether the evidence was admissible was a question to be determined by the court, and not by the jury. Steele v. United States, 45 S. Ct. 417, 69 L. Ed. -, decided by the Supreme Court April 13,1925.

The defendants complain that when the jurors were examined on their voir dire, the judge personally interrogated them, requiring counsel to submit to him any questions they wished asked. No authority tending to show that there was any error in the action of the court has been brought to our attention. The practice is one which has been followed in many districts from time out of mind. It not only saves much time, but has other manifest advantages.

Error is assigned that there was not sufficient inquiry as to the aims and objects of the Ku Klux Elan, of the Invisible Empire, and of the Sons of Liberty, to one or another of which organizations some of the persons examined as to their fitness for jury service belonged. As, however, none of them who were members of any of these organizations ultimately served on the jury, there is nothing to review. It is said that two or three persons who were finally accepted admitted that they had contributed to the Anti-Saloon League. Each of them, however, stated that he could and would give as fair consideration to the case of one accused of violating the Prohibition Law as he would to one charged with the breach of any other statute. No ground for disqualification was disclosed.

Affirmed.


author: LEWIS, Circuit Judge.

text:
    KANSAS CITY LIFE INS. CO. et al. v. CHICOT COUNTY DRAINAGE DIST. et al.
    (Circuit Court of Appeals, Eighth Circuit.
    April 6, 1925.)
    No. 6694.
    Drains <®=>91 — Evidence held to establish that lands were of such elevation and so located that they would receive no benefits.
    Evidence helé to establish that lands subject to drainage assessment were of such elevation and so located that they would receive no benefits.
    Appeal from the District Court of the United States for the Eastern District of Arkansas; Jacob Trieber, Judge.
    Suit by the Kansas City Life Insurance Company and others against the Chicot County Drainage District of Chicot County, Ark., and others. Prom a'deeree of dismissal, plaintiffs appeal.
    Reversed and remanded, with directions.
    J. H. Carmichael, of Little Rock, Ark. (Prank W. McAllister, of Kansas City, Mo., and G. W. Hendricks, of Little Rock, Ark., on the brief), for appellants.
    G. B. Rose, of Little Rock, Ark. (D. H. Cantrell, J. P. Loughborough, and A. W. Dobyns, all of Little Rock, Ark., on the brief), for appellees.
    Before SANBORN and LEWIS, Circuit Judges, and POLLOCK, District Judge.
   LEWIS, Circuit Judge.

This is a suit to enjoin the collection of assessments in the sum of $171,175.00, made by the Chicot County Drainage District as special benefits to 10,320 acres of land in Chicot county, Ark. It was brought by a receiver appointed by the court below of the property of Sunny Side Company, owner of the land, and by Kansas City Life Insurance Company, owner of more than $200,000.00 in bonds or notes secured by mortgage on tbe land, a foreclosure suit brought by the mortgagee being then pending in said court. It is alleged that the drainage system which the drainage district proposed to construct with money to be raised by assessments on lands within the district would be of no benefit whatsoever to the 10,320 acres, and that to compel payment of the amount assessed, or any part thereof, on these lands would result in taking property of plaintiffs without compensation and in confiscation, in' violation of plaintiffs’ rights, that the assessments made or about to be made would be prior in right or lien to the mortgage.

The answer pleads two defenses: First, that numerous drainage operations in Lincoln and Desha counties were about to precipitate upon the lands in Chicot county a prodigious volume of water, rendering the lands of plaintiffs unfit for' cultivation and incapable of local drainage, and that the plan of defendants provided for taking care of this water and would result beneficially to plaintiffs’ lands to the extent of the assessments; second, that the lands were assessed in the manner required by the Act incorporating the district and the assessments confirmed more than thirty days before the bringing of this suit, by reason of which plaintiffs were precluded from any relief.

On final hearing the court, in dismissing the bill, said:

“So the question we are called upon to determine is whether the facts in this case show that there is no benefit either direct or indirect to the land in controversy, or if indirect, that it is so remote that it is purely speculative.” Kansas City So. Ry. Co. v. Boad Imp. District, 256 U. S. 658, 41 S. Ct. 604, 65 L. Ed. 1151; Valley Farms Co. v. County of Westchester, 261 U. S. 155, 43 S. Ct. 261, 67 L. Ed. 585; Kansas City Ry. v. Road District, 266 U. S. 379, 45 S. Ct. 136, 69 L. Ed. -.

And thereupon the court held that the facts did not overcome the presumption arising from the assessments, that the lands would receive benefits. The case made by plaintiffs on the facts was not that all of the 10,320 acres would not receive benefits, but that parts of the tract would not receive benefits, some being at too high an altitude and some too low to be at all affected by the proposed improvement; and we think that claim was clearly established and that the court fell into error when it denied plaintiffs any relief.

It appears that a very,large territory adjoining and north of Chicot county that had found drainage outlets into the Mississippi Biver has been cut off by a levee constructed along the west bank of the river. Thereupon the territory north, said to cover Desha and a part of Lincoln counties, formed drainage districts which will carry the accumulated waters south on to Chicot county, and the drainage district with which we are concerned was organized to rid itself of those waters. The president of the board of commissioners of the district stated its purpose in his testimony :

“This district was not organized for the purpose of draining anybody’s land, but for the purpose of establishing two great systems of ditches, for the purpose of taking care of the water that will practically ruin all the land in Chicot county, if it is not carried on through, and also to enable us to drain into this system later on through other drainage districts. It is not a system to-drain anybody’s land in particular; just to construct two big arteries. * * * The purpose of this district-is to take care of the great volume of water that is brought down the ditches from the counties above us, and incidentally to take care of our rainfall too.”

The proposed system makes provision for gathering the waters in the northerly part of the district into several artificial ditches of large proportions and emptying them into Lake Macon. The area, including that in Desha and Lincoln counties, thus to be drained into Lake Macon is said to be about 650 square miles, and the discharge into Lake Macon will be at times about 12,000 second feet. It is proposed by the plan to conduct .the waters on to the south from Lake Macon by dividing them there in two equal proportions, approximately 6,000 second feet to be taken through a ditch southwesterly to the Bceuf' Biver, the remainder to Lake Chicot, some twelve miles to the south, through a ditch which now connects the two lakes but which is to be greatly enlarged and a control of the flow installed at the outlet of Lake Macon. The present outlet of Lake Chicot to the south now has a capacity of 500 second.feet which is to be enlarged under the plan to 2,400 second feet; and that flow emptied into the Bceuf Biver lower down, because the river would not retain it higher up. In this way the regulated inflow and outflow of Lake Chicot will cause the surface of its waters to fluctuate in elevation between 114 and 118, counting from the Memphis datum. That is the plan. Of course it does not contemplate very exeep-tional years of extreme floods and breaking of levees, which have at times swept over the lakes and inundated the whole country thereabout. Lake Chicot is about 20 miles long, 3,000 feet wide, and is in the shape of a crescent, with its two horns extending easterly to the levee along the western bank of the Mississippi River. There are about 16,000 acres within the crescent, and the lands here involved compose the greater part of that tract. In seeming contradiction they are referred to as lying on an island, and as lying within the hed of a lake. They are said to be on an island because they are almost' completely surrounded by the lake and river, and they are said to be the bed of a lake because they form a basin, there being a gradual decline in elevation from the rim of the lake and from the western hank of the river, causing the center of the tract to be several feet lower than its outer boundaries. There are two small lakes in or near the center and also considerable swamp land covered with timber. There are about 7,000 acres of cultivatable land in the tract in question, which lies next to the rim of the lake and the river, around the center. Counting from the Memphis datum, about 3,280 acres of the 7,000 is 128 or more in elevation. The "lake, under conditions as they have heretofore existed, does not ordinarily rise above 119. Its minimum has been about 114, and that is substantially the elevation of the lowest lands within the crescent. There is some conflict in the testimony as to what elevation the waters of the lake would have to reach in order to overflow on its easterly side, appellants’ witnesses putting it at 128 and appel-lees’ witnesses contending that at some places the lake bank is lower, permitting overflow at 121.4. Witnesses who have been familiar with the situation for many years and who had lived upon and cultivated these lands testified that there were some 3,000 acres in the tract that were not affected by high water, that there was unusually high water in 1920 and only about 70 acres were lost from cultivation on that account. One of them testified that he had known the place intimately for 20 years, that during that time the highest water was in 1912, a levee broke; but there was a considerable portion of these lands not under water, that he drove over the plantation in a buggy, whereas he went from Lake Village to Montrose, a distance of 12 miles across country, in a skiff, that in 1916 another levee broke and the water was almost as high as in 1912, lacking a few inches, but it did not interfere with cultivation and practically all of the cultivatable land was worked. This testimony was un-contradicted. There is also testimony strongly indicating that elevations westerly toward the Bosuf River from the lake are lower than the overflow points on the easterly side of the lake and that because of this, flood waters coming from the north would overflow the country west of the lake and never reach a height in the lake to overflow its easterly banks. Ordinarily, high water in Lake Chi-cot does not stand above 119, and its minimum level is 114. It did, however, reach 128 in 1912 and 121 in 1921, but no one testified that he had ever seen the lake overflow on its easterly side. Flood waters can only reach the lands in question by overflow from the lake or by breaking through the levee along the westerly bank of the river.

It is contended that when the system is put through it will permit the drainage of the lower lands on the east side of the lake into the lake. We do not see how that may be so, inasmuch as the proposed plan will not reduce the waters in the lake to a lower minimum level than they now have, nor how the swamp lands in the tract could receive any benefit if protected from overflow by the system. There are drainage ditches leading from some of the lower lands into the lake, but when the waters in the lake- reach those levels the ditches are closed. On the whole, we are convinced from this record that much of the land lies at such elevation that the system when completed will be of no benefit, to it. The accumulated waters, if they passed over the lake, would not reach it. As to the remainder of the tract, the physical situation is such that we think the facts do not afford a basis for intelligent decision. Those lands may need the proposed protection, which the higher lands do not need, from the accumulated waters which the system is designed to handle through the lake; and the system may provide a way by which the remaining lands or a part of them may be improved by drainage into the lake. Whether those advantages or either will be thus brought about does not appear from the record. There is to be no substantial change in the minimum elevation of the lake, and we doubt the claim that the system will afford a means of draining into the lake the swamp and low lands'that have an elevation of 114.

When appellees offered proof under their second defense the court announced it would disregard such proof. Counsel for appellees now insist that the tendered proof, rejected by the court and not in the record, would have barred this suit in toto under the provisions of the State statutes as construed by the State supreme court. Bush v. Road Imp. Dish, 141 Ark. 254, 216 S. W. 690; House v. Road Imp. Dist., 158 Ark. 344, 251 S. W. 12. We express no opinion on the point, the necessary facts are not before us, but as the decree must be reversed we direct that the offered proof be admitted. If the second defense is found to be good the bill will be dismissed, of course. If not, collection of the assessments on the 3,000 or so acres of the higher land will be enjoined, which will require an ascertainment of a proper description of that land, in such way as the court may direct. As to the remainder of the tract, excluding the 3,000 acres, the ease will be open for further proof as the parties may be advised on all issues.

It is so ordered.


author: SANBORN, Circuit Judge.

text:
    QUAGON v. BIDDLE, Warden of Penitentiary.
    (Circuit Court of Appeals, Eighth Circuit.
    April 30, 1925.)
    No. 6742.
    1. Habeas corpus <§=>54 — Allegations in petition for writ of habeas corpus held mere conclusions of law, required to be disregarded in absence of allegation of supporting facts.
    Allegations, in petition for writ of habeas corpus by Indian being confined to federal prison after conviction for rape under Criminal Code, § 328 (Comp. St. § 10502), that court convicting him had no" jurisdiction of him or of the offense nor any right to sentence him, and that neither he nor Indian upon whom offense was alleged to have been committed was subject to its jurisdiction, and the place where offense was committed was not within Indian reservation, held mere conclusions of law, required to be disregarded in absence of any pleading of essential facts which were conditions precedent to deduction of such conclusion.
    2. Indians <@=>38(2) — Essentials to jurisdiction of District Court to try Indian for offense of rape, stated.
    Under Criminal Code, § 328 (Comp. St. § 10502), it is essential to jurisdiction of District Court to try Indian for offense of rape only that he committed the offense on another Indian within the territorial jurisdiction of the court and within the limits of an Indian reservation; fact that defendant and his victim were not citizens of the United States, or that the offense was committed .on land allotted to victim’s mother, being insufficient to deprive court of jurisdiction. •
    3. Courts <§=>2 — Test of jurisdiction Is not right decision, but right to enter upon inquiry and make some decision.
    Test of jurisdiction is not right decision, but right to enter upon inquiry and make some decision.
    4. Habeas corpus <§=>4-T-W'rit of habeas corpus cannot be made to perform office of writ of error.
    Writ of habeas corpus cannot be made to perform office of writ of error.
    5. Courts <@=>356 — Consideration of evidence referred to in briefs of counsel held unwarranted, in absence of agreed statement or other record of evidence approved by trial judge.
    On appeal from order dismissing petition for writ of habeas corpus, evidence referred to in briefs of counsel cannot be considered in absence of agreed statement or other record of such evidence approved by judge who heard motion and made order pursuant to equity rule 77 or otherwise.
    Appeal from the District Court of the United States for the District of Kansas; John C. Pollock, Judge.
    Petition by Charles Quagon for writ of habeas corpus, to be directed to W. I. Biddle, as Warden of the United States Penitentiary at Leavenworth, Kan. Prom an order of dismissal, plaintiff appeals.
    Affirmed.
    Lee Bond, of Leavenworth, Kan., for appellant.
    Alton H. Skinner, Asst. U. S. Atty., of Topeka, Kan. (Al. F. Williams, U. S. Atty., of Topeka, Kan., on the brief), for appellee.
    Before SANBORN and LEWIS, Circuit Judges.
   SANBORN, Circuit Judge.

This is an appeal from an order of dismissal of the petition of Charles Quagon for a writ of habeas corpus. The record in this court upon which the appellant asks a reversal of the order of dismissal consists of the petition of Mr. Qu agon for the writ, Exhibit A to the petition which is a copy of the indictment for the offense of which he was found guilty, Exhibit B to the petition which is a copy of the commitment of the petitioner by the United States District Court of the Western District of Wisconsin, the court which tried him, to the penitentiary at Leavenworth, and the motion of W. I.' Biddle, the warden of the penitentiary, to dismiss the petition for the writ on the ground that it does not set forth facts sufficient to entitle the petitioner to its issue. The only question presented to this court, therefore, by this appeal is whether or not the petition and its two exhibits set forth facts sufficient to invoke the jurisdiction of the court below to grant the writ.

The offense charged against Mr. Quagon in the indictment was that he, an Indian of the Chippewa Tribe, on July 15, 1916, in the state of Wisconsin and within the limits of Lac Courte Oreilles Indian Reservation, committed the offense of rape upon an Indian who was a member of the Chippewa Tribe in violation of section 328 of the Criminal Code (U. S. Comp. St. § 10502). That statute provides that any Indian committing the crime of rape against the person of an Indian within the boundaries of any state of the United States and within the limits of any Indian reservation-shall be subject to the same laws, tried in the same courts, and in the same manner, and be subject to the same penalties as any other Indian committing any such crime within the exclusive jurisdiction of the United States. In his application for the writ the petitioner alleged his indictment, trial, conviction, sentence, and commitment to the penitentiary by the United States District Court of the Western District of Wisconsin, and then averred that that court had no jurisdiction of the petitioner or of the offense, that it had no right to sentence the petitioner, that at the time the offense was alleged to have been committed neither he nor the Indian upon whom the offense was alleged to have been committed was subject to the jurisdiction of the court that tried him, that they were citizens of the United States, that the Lae Courte Oreilles Indian Reservation consisted of land allotted to the different Indians and which is used and occupied by them for the purpose of agriculture, and that the land or farm upon which the offense is alleged to have been committed belonged to and was the land of the mother of the Indian upon whom the offense was committed, that it had been allotted to her by the United States government, and that it “was not within said Indian reservation, or not a part of said Indian reservation to such an extent as to give said court jurisdiction over offenses committed thereon.”

The allegations in this petition that the court which tried Mr. Quagon had no jurisdiction of him or of the offense, that it had no right to sentence him, that neither he nor the, Indian against whom the offense was alleged to have been committed was subject to its jurisdiction, and that the land on which the offense was committed “was not within said Indian reservation, or not a part of said Indian reservation to such an extent as to give said court jurisdiction over offenses committed thereon,” were averments of mere conclusions of law. They were not averments of issuable facts and must be disregarded in deciding the question whether or not the petition stated facts sufficient to authorize the court below to issue the writ. It was indispensable to the efficacy of these conclusions of law in this pleading that the essential facts which were conditions precedent to the deduction of these conclusions, if there were any such facts, should be set forth in the petition so that the court could perceive whether or not they warranted these conclusions, and this was not done. Little York Gold-Washing & Water Co. v. Keyes, 96 U. S. 199, 202, 203, 24 L. Ed. 656; Alexander v. Bryan, 110 U. S. 414, 420, 4 S. Ct. 107, 28 L. Ed. 195. We therefore lay aside these conclusions of law.

The remaining allegations of the petition are that Mr. Quagon and his victim were citizens of the United States, that the Lae Comte Oreilles Indian Reservation consisted of land allotted to 'the different Indians, and that the land or farm on which the offense was committed was the land of the mother of Mr. Quagon’s victim allotted to her by the United States. But the facts here averred are not inconsistent with the jurisdiction of the federal court in Wisconsin of the offense charged against Mr. Quagon in the indictment or of the petitioner himself. The only facts essential to that jurisdiction were that the petitioner was an Indian, that he committed the offense of rape upon another Indian within the state of Wisconsin, within the Western District of Wisconsin, and within the limits of the Indian reservation. The act of Congress did not restrict the jurisdiction of the federal court that tried Mr. Quagon to Indians who were not citizens of the United States, or to offenses committed upon Indians that were not citizens of the United States, or to offenses that were committed upon land that was not owned by or allotted to the mothers of the victims, and the averments in the petition on these subjects were insufficient to warrant the conclusion that the United States District Court of the Western District of Wisconsin had no jurisdiction of the petitioner or his offense at the time of his trial. The indictment, which is made a part of the petition, alleged every fact requisite to invoke the exercise of the jurisdiction of that court, that Mr. Quagon was an Indian of the Chippewa Tribe, that he committed the offense on an Indian of that tribe on July Í5, 1916, within the limits of Lae Courte Oreilles Indian Reservation in the Western District of Wisconsin. A comparison of these averments with the statute cited demonstrates the fact that they brought the case of Mr. Quagon within the jurisdiction of the federal court in Wisconsin and imposed upon that court the duty ,to try that ease. The test of jurisdiction is not right decision, hut the right to enter upon the inquiry and make some decision. Foltz v. St. Louis & S. F. Ry. Co., 60 F. 316, 318, 8 C. C. A. 635; King v. McAndrews, 111 F. 860, 864, 50 C. C. A. 29.

And a writ of habeas corpus cannot be made to perform the office of a writ of error. It may not be invoked to review or avoid an erroneous judgment of a court of competent jurisdiction. It challenges the jurisdiction of the court alone and is available only to relieve a prisoner from the restraint imposed by a judgment or order that is absolutely void on the ground that the court was without the power to make it. In re Debs, 158 U. S. 564, 600, 15 S. Ct. 900, 39 L. Ed. 1092; In re Nevitt, 117 F. 448, 449, 54 C. C. A. 622. And our conclusion is that the court below was right in its decision that the petition for the writ did not state facts sufficient to sustain the conclusion that the court that tried Mr. Quagon had no jurisdiction to try, convict, and sentence him and in its dismissal of the petition.

Counsel for the petitioner submitted this ease to this court on a brief and argument founded on a statement, in that brief, that at the hearing of the motion to dismiss the petition for the writ several witnesses testified to various facts, that these facts were conceded to exist by both petitioner and respondent in the arguments and briefs at that hearing, that certified copies of patents were introduced in evidence at that hearing, and that a complete transcript of the evidence was before the court below and was considered by it before it ordered the dismissal of the petition for the writ. We have not considered and cannot consider the testimony and evidence to which reference is made in this brief and in the brief of counsel for the respondent, because no agreed statement or other record of this evidence, approved by the judge who heard the motion and made the order pursuant to equity rule 77 or otherwise, has been presented to this court. The order, judgment, or decree of a judge who heard and decided a case on testimony and documentary evidence should not be reversed by an appellate court without a- statement of such evidence and testimony, or of the facts established by it, • authenticated by the judge whose order, judgment, or decree is challenged.

The order of dismissal of the petition for the writ must be, and it is, affirmed.


author: FOSTER, Circuit Judge.

text:
    VICKSBURG, S. & P. RY. CO. v. SCHAFF et al.
    (Circuit Court of Appeals, Fifth Circuit.
    April 2, 1925.)
    No. 4187.
    1. Parties <§=»45 — Allowance of intervention generally discretionary with court.
    Generally, allowance of intervention in pending suit is discretionary with court, though there are cases where right is absolute.
    2. Equity <s=o46 — Equity will exercise jurisdiction, though plaintiff may have another remedy, if such other remedy is not as practical as equitable remedy.
    Equity will exercise jurisdiction, even when plaintiff has another remedy, if that remedy is not as practical and efficacious to the ends of justice and its proper administration as is the remedy in equity.
    3. Gourts <§=»264(3) — Court held to have jurisdiction of issue raised by intervention challenging propriety of order disposing of property, regardless of diversity of citizenship.
    In railroad receivership proceedings in federal court, where petition for leave to intervene challenged propriety of order disposing of property under its control, held, court had jurisdiction regardless of diversity of citizenship.
    4. Receivers <Si=5>f78>-Lessor of railroad property held to have absolute right to intervene in receivership proceedings of lessee and question order disposing of property.
    Lessor of railroad property held to have absolute right to intervene in receivership proceedings of lessee in federal court, and there question propriety of order disposing of lease, and of property on which lien for funds due from lessee was claimed.
    Appeal from the District Court of the United States for the Dallas Division of the Northern District of Texas; James C. Wilson, Judge.
    In the matter of the receivership of the Missouri, Kansas & Texas Eailway Company of Texas; C. E. Sphaffi, receiver. From an order rescinding a prior order allowing intervention by the Yieksburg, Shreveport & Pacific Eailway Company, and- dismissing its petition for leave to intervene, petitioner appeals.
    Eeversed and remanded.
    J. Blanc Monroe, Monte M. Lemann, and Manning W. Heard, all of New Orleans, La. (Monroe & Lemann, of New Orleans, La., on the brief), for appellant.
    E. E. Milling, of New Orleans, La., and Alexander H. McKnight, of Dallas, Tex. (Joseph M. Bryson, of St. Louis, Mo., and Chas. C. Huff, of Dallas, Tex., on the brief), for appellees.
    Before WALKER, BRYAN, and FOSTER, Circuit Judges.
   FOSTER, Circuit Judge.

Appellant, the Vicksburg, Shreveport & Pacific Railway Company, hereafter referred to as intervener, is the owner of a line of railroad running from the Louisiana-Texas line at Waskom, Tex., to Shreveport, La., with the usual appurtenances, and terminal facilities at Shreveport. In 1899 the railroad, with terminal facilities, etc., was leased to the Sherman, Shreveport & Southern Railroad Company by three separate contracts denominated joint track lease, terminal contract, and traffic agreement; the said railroad company agreeing to pay all expenses of maintenance of the said track. These contracts were subsequently transferred to the Missouri, Kansas & Texas Railroad Company of Texas. In September, 1915, a receiver was appointed to the Missouri, Kansas & Texas Railroad Company by the District Court for the Northern District of Texas, and the receiver took over the property covered by the said contracts with intervener and continued to operate it as part of the railroad under receivership. In September, 1922, the entire property of the Missouri, Kansas & Texas Railroad Company was sold under decree of the court. The order of sale contemplated the transfer of the three contracts above referred to, with the proviso that the purchaser might have one year in which to decide whether he would retain the contracts or not. The sale was made to one Greenman, representing William Edenborn. Before the deed issued, intervener filed a petition in the receivership proceedings against the receiver and Edenborn, setting up that it had not been made a party to the cause; had received no notice of the proposed sale; that the contracts sought to be transferred by the order of sale and subsequent deed were not assignable to the purchaser; and that the receiver was indebted to the intervener in the sum of $50,000 for under maintenance of the railroad, for which intervener was "entitled to a privilege on the funds in the hands of the receiver and to priority of payment. The prayer was for leave to intervene, that the contracts be decreed nontransferable, for a return of the property, for a judgment for $50,000 to be paid by preference out of any funds in the receiver’s hands, and for postponement of the confirmation of the sale pending a decree 'on the intervention.

The District Court entered an order on the petition allowing the filing of the intervention and ordering service on the receiver and Edenborn. Edenborn answered, declined the contracts, and tendered the property back to the intervener. The receiver answered, objected to the allowance of the intervention! on various grounds, and prayed that the order allowing it be recalled. A hearing was had solely on the pleadings. The order allowing the intervention was rescinded and the petition was dismissed. From that order this appeal is taken.

It is contended by the appellees that it was discretionary with the court to allow the intervention; that the intervener has an adequate and ample remedy on its claim for damages in some other court and some other proceeding; that the receivership proceedings should not be burdened with the trial of an extraneous issue; and, consequently, that the judgment rescinding the order allowing the intervention and dismissing the petition was right.

It may be conceded that usually the allowance of an intervention in a pending suit is discretionary with the court, but there are exceptions, and in some cases the right to intervene is absolute. Credits Commutation Co. v. U. S., 177 U. S. 311, 20 S. Ct. 636, 44 L. Ed. 782; Central Trust Co. v. Chicago, R. I. & P. R. Co., 218 F. 336, 134 C. C. A. 144; U. S. v. Northwestern Development Co., 203 F. 960, 122 C. C. A. 262; Western Union Tel. Co. v. U. S. & Mex. Tr. Co., 221 F. 545, 137 C. C. A. 113.

Also, it is a fundamental rule that a court of equity will exercise jurisdiction even when a plaintiff has another remedy, if that remedy is not as practicable and efficacious to the ends of justice and its proper administration as the remedy in equity.

The intervention challenged the propriety of an order of the court disposing of property under its control. Therefore the court had jurisdiction regardless of diversity of citizenship. When the intervention was filed, intervener’s property was still in the custody of the receiver and under the jurisdiction of the District Court for the Northern District of Texas, and, consequently, no .other court had jurisdiction to consider a suit for its return. Minnesota Co. v. St. Paul Co., 2 Wall. 609, 17 L. Ed. 886.

Furthermore, whether the intervener is entitled to recover for the under maintenance of the property while it was being operated by the receiver or not, a lien is claimed on the funds of the receiver, and no other court could decree a payment out of those funds.

Intervener might establish his claim to damages by a suit at law and in some other court, but it is not probable there would be any personal liability of the receiver, and in the last analysis recovery would have to be out of the assets of the receivership. If they were distributed to other creditors,' a realization on any judgment that might be obtained would be practically impossible.

We think, under the circumstances disclosed in this ease, appellant had the absolute right to intervene in the receivership pro-eeedings; that the intervention was timely and the order allowing the intervention was proper; that the order thereafter dismissing the intervention was wrong.

The judgment appealed from is reversed, and the ease remanded for further proceedings not inconsistent with this opinion.

Eeversed and remanded.


author: HUNT, Circuit Judge.

text:
    THE FELIX TAUSSIG. DIAMOND-O NAVIGATION CO. v. MYSTIC S. S. CO.
    (Circuit Court of Appeals, Ninth Circuit.
    May 4, 1925.
    Rehearing Denied June 1, 1925.)
    No. 4448.
    1. Collision @=»91 — Failure of river steamboat to keep to right side and pass ocean steamer port to port in narrow river channel held justified by facts.
    Failure of river steamboat to keep to the right side and to pass ocean-going steamer, proceeding up narrow river channel, port to port, as required by Rules of Navigation, art. 25, helé justified by the facts, making compliance with such rule unsafe and impracticable.
    2. Collision @=>98 — River steamboat should have repeated signals on failure of ocean steamer approaching in opposite direction to respond.
    Where river steamboat, about to leave narrow channel, had signaled to ocean steamer proceeding up the river that she intended to pass steamer to starboard, instead of port, but received no assent or signal from steamer, she should, as a precautionary act, have repeated her signals.
    3. Collision @=>102 — Vessel held not liable, notwithstanding negligence, in view of evidence showing fault of other vessel sole cause of collision.
    River steamboat, which signaled to ocean steamer proceeding up river that she intended to pass' ocean steamer to starboard, instead of port, and who proceeded without repeating signals on failure of ocean steamer to respond, helé not liable for damages sustained in collision, in view of evidence showing that sole cause of collision was fault of steamer in not obeying whistles blown by river steamboat and heard by ocean steamer’s lookout.
    4. Collision @=>105 — Evidence held to prove sole cause of collision in river channel was negligence of ocean steame'r in not obeying signals from river steamboat.
    Evidence held to prove that sole cause of collision between river steamboat and ocean steamer in narrow channel of river was steamer’s negligence in not obeying whistles of river steamboat heard by steamer’s lookout, but not reported by him to pilot.
    Appeal from the District Court of the United States for the District of Oregon.
    Lihel by the Diamond-0 Navigation Company against the Mystic Steamship Company, as claimant of the steamship Felix Taussig, her tackle, apparel, etc. Decree for claimant, and libelant appeals.
    Eeversed and remanded.
    The following plat is furnished as illustrative of the matters set forth in the opinion:

    Erskine Wood, of Portland, Or., for appellant.
    M. B. Meacham and Wilbur, Beckett & Howell, all of Portland, Or., for appellee.
    Before EOSS, HUNT, and EUDKIN, Circuit Judges.
   HUNT, Circuit Judge.

This was a libel in rem against the steamship Taussig by the Diamond-0 Navigation Company for damages resulting from a collision in the Columbia river, about off the town of Kalama, Wash. The libel was filed by the Diamond-0 Navigation Company, not only for its own damages, but as bailee for damages to cargo which was on the barge, and most of which was lost. Upon the trial it was stipulated that proof of any damages should be postponed until the question of liability was decided. The' District Court held there was no liability, and the Diamond-0 Company appealed.

The facts are as follows:

On a clear, dark night in May, 1924, the Felix Taussig, an ocean-going steamer 395 feet long and 55 feet beam, drawing 17 feet forward and 19% feet aft, under speed of between 9 and 10 knots an hour, was proceeding up the Columbia river from Astoria to Portland, Or., in charge of a licensed Columbia river pilot. The tide was running down and fairly strong. The Diamond-O, a Columbia river steamboat of stern paddle wheel type, 151 feet long and over 27 feet wide, with an oil barge lashed on her starboard beam, was going down the river carrying cargo. The oil barge was about 140 feet long and 30 feet wide; the bow of the barge projecting ahead - of the bow of the Diamond-O. About opposite Kalama, in a bend of the river, there is a dredged ship channel; the elbow of the bend being about opposite the municipal dock at Kalama. The lower reach of the ship channel is marked by the Kalama channel range, and the upper reach by the Kalama channel south range. These ranges intersect off the end of the municipal dock..

The Diamond-0 sighted the Taussig when the vessels were about 2% miles apart; the Diamond-0 then being opposite Ahles Point, above Kalama. The Taussig was then coming up on the Kalama channel range. After sighting the Taussig, the navigator of the Diamond-0 concluded that the vessels would pass at the bend, drew off to the left-hand side of the channel, intending to pass starboard to starboard, and took a course which would carry the vessel out of the dredged channel, but into water of ample depth for her accommodation. This move was undertaken for the reason that it would give the ocean ship the entire channel, and also because it was deemed the safe course for the steamboat, in that, if the steamboat, with her tow, continued to go down on the right-hand side to make a port to port passage, and the vessels should meet in the bend, the steamboat would cross the bow of the steamer, and might be caught between the steamer and the Kalama doeks. When at a point a short distance above the Kalama municipal dock, but below the railroad dock, and just about the time she was leaving the dredged channel, the Diamond-0 blew two blasts to the Taussig. The Taussig was then in the Kalama channel range below the bend just beginning to swing on the channel south range, the vessels then being about half a mile apart.

When the Diamond-0 blew two blasts the Taussig blew one blast, but the single blast of the Taussig was exactly simultaneous with the first of the two blasts from the Diamond-O. The pilot of the Diamond-0 did not hear the Taussig’s single blast, while the pilot of the Taussig heard only the second of the two blasts from the Diamond-O. The pilot of the Taussig mistook the second blast of the Diamond-0 for an answer to his one blast. The lookout on the Taussig failed to report to the bridge the two whistles from the Diamond-O, although it appears he knew of the simultaneous blowing. The Diamond-0 continued on her course, which was taking her further out of the dredged channel. Immediately after hearing the one blast, the Taussig swung to the starboard or Oregon side, to follow the signal as her pilót understood it. The situation then became critical, and the Taus-sig put her helm hard aport and gave full astern orders. The Diamond-0 held her course and speed, which was a little less than the Taussig’s, until the continued swing, of the Taussig toward her alarmed her pilot, whereupon he reversed, but about half a minute thereafter collision occurred, and the barge was cut in two by the stem of the steamer. No danger signals were blown by either vessel. The point of collision was between 500 and 600 feet out of the dredged channel, in the shoal water toward the Oregon side, and about abreast of the municipal dock at Kalama.

It was the opinion of the District Court that the vessels were approaching head on, or nearly so, and that the Diamond-0 violated article 25 of' the Rulés of Navigation, which is as follows: “In narrow channels every steam vessel shall, when it is safe and practicable keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel.”

In endeavoring to ascertain who was to blame- for putting the vessels in the position where collision ensued, these facts are to be considered: From tbe intersection of tbe Kalama ranges to the Kalama municipal dock is a distance of 350 feet, and 300 feet between the channel range and the harbor lines. In the lower part of the bend there appear to be 300 feet between the Kalama channel ranges and the harbor line. With docks and possible small craft tied to the docks, and the possibility of the ocean steamer sheering on either side of the range, and of what is called an overrun in making a turn, the space left for the Diamond-0 with her barge to pass would have made a port to port passage dangerous. The Diamond-0 had also to consider the current, and the danger of not being able to get back into the channel, but of sliding into the docks.

A disinterested pilot of many years’ experience on the Columbia river was asked what would be a proper passage, where a towboat coming down the river from Ahles Point toward Kalama meets an ocean-going ship coming up, and it appears they would meet somewhere in the vicinity of the intersection of the ranges, say at Kalama. Witness answered that he would give the ocean ship a starboard signal and go next to the sand, thus giving the channel to the steamer. He added: “On account of the channel coming up close to the shore, and specially at night coming down, a man with a tow, if he would take to the port side, would throw him too close to the docks there. The bend of the river, the way the river makes the bend there, it would throw him too close. He has plenty of room outside, and he always aims to take the outside next to the sand.”

One of the witnesses for claimant, a master and pilot of many years’ experience on the Columbia river, said that, if the Diamond-0 was where the chart shown him indicated she was at the time she blew two whistles, it would not have been safe for her to go to the right, and all that she could do was to go over to the Sand Island side, although in his opinion, if the whistles had been blown when the Diamond-0 sighted the Taussig (abreast of Ahles Point), she should have kept to the Washington side. Witness did not regard the vessels as being in the position of head on, and gave it as his opinion that it was bad practice to cut across the bow of any ship coming up. Upon the assumption that the positions of the vessels were as marked upon the chart, witness said that he would begin to haul over toward Sand Island, as did the Diamond-O. Several witnesses for libelant testified to the same effect.

While it is impossible to fix precisely when the Diamond-0 sounded her whistles, we gather from the evidence that it was as she was going down the left side, and just before she hauled out of the dredged channel. Her pilot testified that when he first saw the Taussig he estimated that the vessels would pass at the bend; that as he came down he saw the starboard light and the mast light of the Taussig well open, and observed that the ship turned a little to the right as she came up to the Kalama channel range; that he expected an answer to his whistles, but kept his course, believing the Taussig would come on the ranges and keep the channel; that when the Taussig’s light came around, so he could see her masthead lights, she was still swinging; and that as she did not give any signal he knew something was wrong, so he stopped the Diamond-O, backed, and tried to pick up headway and to avert the collision.

Although it is a close question, our best judgment is that under the facts it was not safe and practicable for the Diamond-0 to keep to the right side and pass the Taussig port to port, and therefore we think that the Diamond-0 was justified in undertaking to proceed contrary to the general requirements prescribed by rule 25. But it is very clear that the vessels were about a half a mile apart when the Diamond-0 whistled and the coincident blast of the Taussig was given. At once, then, the practical situation became this: The Diamond-O, about to leave the channel, had signaled by two blasts that she intended to pass to starboard, instead of port, but got no assent or signal of any kind. What ought the Diamond-0 to have done? Persisted'in her course over into the shoal water, supposing that the Taussig would approach in the channel, or repeated signals and made certain that the Taussig had heard and understood? The answer is, as a precautionary act, she ought to have repeated her signals. The Victory, 168 U. S. 410, 18 S. Ct. 149, 42 L. Ed. 519; The Three Brothers, 170 F. 48, 95 C. C. A. 322. But, though the Diamond-0 may be criticized for not taking that precautionary measure, still, if it appears that her action in that respect did not contribute to the result, and that the immediate sole cause of the collision was negligence on the part of the Taussig, then the Taussig, and not the Diamond-O, should b,e held liable.

The evidence is that the two blasts of the Diamond-0 were heard by the lookout of the Taussig, and that at that time the Taussig was just below the ■ bend, commencing to swing on the ranges, probably a few feet off; her green light showing to the Diamond-O, and the pilot of the Taussig observing the side lights of the Diamond-O. At that time the vessels, by evidence and chart markings, must have been at least half a mile apart. Therefore, if the Taussig had obeyed the two whistles blown by the Diamond-0 and heard by the lookout, there would have been no collision, for she would have kept to the dredged channel, while the Diamond-O, keeping her course, passed out of the dredged channel to the shoal water.

Beyond question culpable lack of vigilance or misconception of his duties on the part of the lookout was the primary cause of the collision. Standing at the forecastle head just before the collision, the lookout saw the tug when the Taussig blew her whistle, and also heard two whistles from the tug, but made no report, because he supposed the pilot also heard the whistles. The following excerpt from the testimony of the lookout is important:

“Q. What lights were showing on the tug? A. I could only make out the two mast lights.
“Q. You didn’t notice the side lights? A. I never paid any attention to them.
“Q. What whistle did you hear from the tug? A. Two whistles.
“Q. At the time the first whistle was sounded, was there another sound? A. When the Felix Taussig blew one, and only one, the tug blew the first one at the same time.
“Q. The whistle from the Felix Taussig and the first whistle from the tug was simultaneous ? A. I don’t know that. * * s
“Q. Did you report those two whistles? A. Why, a pilot was aboard, sir, and I did not report it.
“Q. Answer the question, yes or no. A. No, sir.
“Q. Why didn’t you? A. Why, it was the understanding that the pilot heard the whistles as well as me.” .

In The Ariadne, 13 Wall. 475, 20 L. Ed. 542, the Supreme Court said: “The duty of the lookout is of the highest importance. Upon nothing else does the safety of those concerned so much depend. A moment’s negligence on his part may involve the loss of his vessel, with all the property and the lives of all on board. The same consequence may ensue to the vessel with which his shall collide. In the performance of this duty the law requires indefatigable care and sleepless vigilance. * * * It is the duty of all courts, charged with the administration of this branch of our jurisprudence, to give it the fullest effect whenever the circumstances are such as to call for its application.. Every doubt as to the performance of the duty, and the effect of nonperformance, should be resolved against the vessel sought to be inculpated until she vindicates herself by testimony conclusive to the contrary.” The Sunnyside, 91 U. S. 208, 23 L. Ed. 302.

The excuse offered by the lookout, that the pilot was in charge, cannot be accepted. A lookout must use his ears, as well as his eyes, and must report what he hears as well as what he sees. Suppose that in a thick fog a lookout hears the bell of a ship, or the sound of a fog horn in the distance; he cannot know what the pilot might do if he were informed concerning the sounds. His duty is to report. And in this case, if the lookout had reported that the Diamond-0 had blown two blasts, the pilot could, and as an experienced navigator doubtless would, have avoided - collision.

We therefore cannot perceive how the Taussig can escape responsibility for the negligence of the lookout, or how the case can be withdrawn from within the general rule that, where a'proven failure on the part of the lookout has directly contributed to the disaster, liability is upon the ship whose fault caused the damages. The Pennsylvania, 86 U. S. (19 Wall.) 125, 22 L. Ed. 148: The Westhall (D. C.) 153 F. 1010.

The decree is reversed, and the cause is remanded for proof of damages.

Reversed and remanded.