author: MOORMAN, Circuit Judge.

text:
    GRAND TRUNK WESTERN RY. CO. v. HEATLIE. SAME v. DREW. SAME v. WHITE.
    Nos. 5762-5764.
    Circuit Court of Appeals, Sixth Circuit.
    April 15, 1931.
    F. T. Harward and Victor Spike, both of Detroit, Mich. (Gilbert W. Hand, of Bay City, Mich., on the brief), for appellant.
    T. J. Bresnahan and E. H. Groefsema, both of Detroit, Mich., for appellees.
    Before DENISON, MOORMAN, and HICKENLOOPER, Circuit Judges.
   MOORMAN, Circuit Judge.

These suits were heard together in the court below and were argued together in this court. They were brought to recover damages under the Federal Employers’ Liability Act (45 USCA §§ 51-59) for injuries to James White and for the deaths of Ernest Drew and Walter Heatlie, occurring in a collision of two of appellant’s east-bound freight trains at the village of Morrice, Mich. Drew was engineer, Heatlie fireman, and White a brakeman on train 484 which left Battle Creek for Durand, on the morning of the day of the collision. At Bellevue, 13 miles east of Battle Creek, the crew received an order to let train 486, a train of the same class, which had left Battle Creek later in the morning, pass, and then proceed. This was done. At Lansing, 31 miles east of Bellevue, train 486 took coal, leaving the coal dock to proceed on its run at 4:45 a. m. Train 484, traveling in the rear, arrived at the coal dock a few minutes later and left at 5:07 a. m., 22 minutes after 486. From Lansing to Morrice is approximately 31 miles. When train 486 arrived at Morrice, it stopped on the main track, and a few seconds thereafter 484 ran into its rear end, killing Drew and Heatlie, and injuring White. Between Lansing and Morrice there was no station at which an operator was on duty at night, and the safety of the. trains, while being run between those points, depended upon the observance of operating rules 91 and 99. Rule 91 provided that “trains must keep not less than ten minutes apart unless the preceding train has arrived at the station ahead”; and rule 99, “when a train is moving under circumstances in which it may be overtaken by another train, such action must be taken as may be necessary to insure full protection; lighted fusees, red or yellow as the case may require, must be thrown off at proper intervals.” On the trial of the cases the court submitted to the jury the single issue whether or not the rear brakeman on train 486, Given, observed rule 99 by throwing off lighted fusees at proper intervals. Upon this issue the jury found for the plaintiffs and returned verdicts for damages, upon which judgments were entered.

The main error assigned on these appeals is the refusal of the trial court to direct verdicts for the defendant. The argument in support of this assignment is based upon several related propositions of law, all of which rest essentially upon the broad proposition of lack of substantial evidence. The contention of appellant is that the proofs show that Given put out lighted fusees at proper intervals, some seven or eight, between Lansing and Morrice, and that the fog was so dense it was not possible for Drew, Heatlie, White, and conductor Marks, riding on the engine of 484, to see them. It is said that the only testimony to the contrary is the negative testimony of White. White testified that he was sitting on the fireman’s side of the engine between these points looking ahead through the front glass or leaning out of the side looking ahead, and that he did not see any fusees. He also stated that a lighted fusee could have been seen through the fog for the distance of a thousand feet in front of the engine. The credibility of this latter statement was impaired by contradictory admissions made on cross examination. Upon this latter hypothesis, and in the light of other evidence as to the density of the fog, it is argued that White’s testimony does not rise to the dignity of evidence.

Given testified that he put the fusees out from the rear steps of his caboose, but the fog was so dense he could not see whether they stuck in the ground or ties, or even whether they continued to burn after they reached the ground. His testimony as to putting them out was corroborated in some measure by one or two other witnesses,' yet we cannot subscribe to the view that White’s testimony, considered in the light of the other evidence, did not present a question for the jury. It has been held quite broadly in some jurisdictions, it is true, that evidence of the failure of witnesses to hear train signals does not make.a ease for the jury as against positive and affirmative testimony that the signals were given. We have never accepted that doctrine unqualifiedly, but have held that where a witness is in a position where he would normally hear, his failure to do so presents an issue as to the existence of the fact. Detroit Southern R. Co. v. Lambert (C. C. A.) 150 F. 555; Baltimore & O. R. Co. v. O’Neill (C. C. A.) 186 F. 13. In the present eases White testified to facts which would have enabled him to see the fusees if they had been placed on the track. This testimony, with his further testimony that he did not see them, raised an issue, in our opinion, as to whether they were put out. In reaching this conclusion we do not overlook the question of visibility, the contention of defendant being the fog was so dense that however much White may have looked, and however many fusees may have been placed on the track, he could not have seen them. On this point White testified on direct examination that a burning fusee could have been seen for a thousand feet in front of the engine, bufón cross-examination admitted making prior statements to the effect that the distance would not have been further than 200 f«et. It is insisted that these former admissions, partially reiterated on cross-examination, discredited the direct testimony as a matter of law. We cannot agree that they did. Rochford v. Pennsylvania Co., 174 F. 81 (6 C. C. A.); Chicago N. O. & T. P. R. Co. v. Rimmer, 37 F.(2d) 668 (6 C. C. A.).

But plaintiffs did not rely solely upon the testimony of White as to the density of the fog and the visibility of lights. Blum- ' berg, a drover riding on the caboose of train 484, said that immediately after the wreck he could see 'a man walking away from him at a distance of 200 or 250 feet. Another witness, Yreeland, was in her home 400 feet from the depot. She heard the crash, and shortly after saw her neighbor 200 feet away run into his house. The witness went down to the wreck and could see it 400 feet before she reached it. There was evidence showing the denseness of the fog did not abate for half an hour after the collision. Twenty minutes after it occurred, Mackey, a farmer, looking through his bedroom window saw the depot and the depot lights 400 feet away. The fusee gives a brighter and stronger light than a lighted lantern or marker on a caboose, and just before the collision White saw the markers on the caboose of 486, 200 or 250 feet away. Seouten, the conductor on train 486, a witness for appellant, testified that within 15 minutes after the collision he went to the front part of his train, that his engine was about six car lengths from the order board at the station, and that when he got to the head end of his train he could see the order board, which was red against him. Being recalled the following day, however he corrected his testimony, stating that the east end of his train was considerably farther west of the order board, and that he could not see the board when he reached his engine. Again, Taylor, a watchman at a station about two miles from Morriee, testified that he was 15 feet from the track when the caboose of No. 486 passed, and that he could see Given on the end of the caboose displaying an unlighted fusee in his hand.

The foregoing evidence tends to show that if lighted fusees had been put out, they could have been seen by the crew of 484. White'testified that he was constantly looking out and saw none. Accordingly, on this issue, that is, whether Given put out the fusees as required by rule 99, the evidence was for the jury. Begert v. Payne, 274 P. 784 ( 6 C. C. A.).

The contention that the verdicts are against the weight of the evidence cannot be considered, as this court can go no further than determine whether there -is substantial evidence to support them. Nor is it the province -of this court to determine whether the verdicts are excessive. That' question lay with the court below upon the motion for a new trial. Detroit T. & T. Co. v. Pratt (C. C. A.) 2 F.(2d) 193; N. Y., L. E. & W. R. Co. v. Winter’s Adm’r, 143 U. S. 60,12 S. Ct. 356, 36 L. Ed. 71; Southern Ry. Carolina Division v. Bennett, 233 U. S. 80, 34 S. Ct. 566, 58 L. Ed. 860. In the Drew ease the court made it a condition of the overruling of the motion for a new trial that plaintiff accept a reduced verdict. This she did. We find no abuse of discretion in the refusal to require a further reduction in that ease or any reduction in the other cases. Drew was a young man with a life expectancy of 28 years, earning more than $3,000 a year. He had a wife and five minor children. Heatlie was 25 years of age, having an expectancy of more than 38 years. He was steadily employed as a fireman, with prospects in due course of being promoted to the more lucrative position of engineer. He had three children. Computations were made of sums which, at 5 per cent, interest, the principal to be used as necessary and consumed at the end of the expectancy, would produce an annual income equal to what eaeh of these men might reasonably have been expected to contribute to his family, and it is not inaccurate to say that such sum does not, in either case, exceed the judgment given. This leaves out of consideration the care, instruction, advice, and guidance that they might reasonably have been expected to give their children. Norfolk & W. R. Co. v. Holbrook, 235 U. S. 625, 35 S. Ct. 143, 59 L. Ed. 392. The verdict in the White ease concededly cannot be justified upon the sole basis of compensation for total disability at the rate at which White was being paid. He was, however, 25 years of age, in good health, steadily employed, and had the usual prospect of promotion with increased wages. He lost a foot, part of one hand, was terribly scalded, underwent seven operations — three general and four local — and his suffering was frightful. At the time of the trial, more than a year after the accident, he wa's an invalid. It was expected that at best he would be an invalid or semi-invalid for two more years. His physician thought he would never be able to engage in a gainful occupation. The trial court saw the man and was of opinion that the damages were not excessive. We have no reason to believe that the court abused its discretion in not requiring him to remit a part of the verdict as a condition td the overruling of the motion for a new trial.

The judgments are affirmed.


source: Caselaw Access Project

author: COTTERAL, Circuit Judge.

license: Public Domain

text:
    REYNOLDS v. UNITED STATES.
    No. 320.
    Circuit Court of Appeals, Tenth Circuit.
    April 1, 1931.
    T. H. Davidson, of Muskogee, Okl., for appellant.
    W. E. Rampendahl, Asst. U. S. Atty., of Muskogee, Okl.
    Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.
   COTTERAL, Circuit Judge.

The appellant complains of a conviction and sentence upon an indictment which charged him with the unlawful possession of' whisky in Seminole county, Okl., where prior to statehood the aet was prohibited by federal' law.

One of the assignments of error challenges the validity of the Aet of June 30,. 1919, 41 Stat. 4 (25 USCA § 244), on which the indictment was based. But the act was-upheld by this court in Hodges et al. v. United States, 36 F.(2d) 356. That decision is undoubtedly sound, and we adhere to it.

The remaining assignments of error are predicated on certain proceedings which occurred at the trial alleged to have been prejudicial to the appellant, alleged error in the-charge to the jury, and the refusal of a motion for a new trial.

The sheriff of Okfuskee county and two deputies testified that they visited the home of defendant near Seminole and found a quantity of whisky in his garage. The defendant testified he had no knowledge of whisky on the premises. His witness Bill Grammar testified he obtained the whisky at Holdenville, took it to defendant’s garage when he was absent, and he had not seen the defendant since 1927. At this point the court stated it was probably his duty to warn the' witness as to his immunity, and, pursuant to agreement of the defendant’s attorney, the court advised the witness that, if he incriminated himself, it would be the duty of the court to direct the officers after he left the stand to take him into custody,1 and then inquired of -him whether he wished to testify he took the whisky to the place. The witness then repeated his statement, and gave other details of the transaction. At the close of his testimony, the court said: “Have him taken into custody either for possession and transportation of whisky or perjury, whichever the facts warrant.”

A portion of the charge was to the effect that “any statement of the court made to •counsel or to any of the witnesses during the trial of this case are not to he considered by the jury,” that Grammar was guilty under his own statement of perjury or violating the prohibition laws, and that he was warned he would be held for investigation, but that was not to prejudice the defendant’s case.

No exception was taken to the trial incidents, the charge, or the overruling of a motion for a new trial. Generally, errors in trial proceedings not saved by exception will not be reviewed on appeal. But where the life or liberty of a defendant is at stake, they may be considered, when serious and fatal to his rights. Wiborg v. United States, 163 U. S. 632,16 S. Ct. 1197, 41 L. Ed. 289; Gillette v. United States (C. C. A.) 236 F. 215; Edwards v. United States (C. C. A.) 7 F.(2d) 357; Crawford v. United States, 212 U. S. 183, 29 S. Ct. 260, 53 L. Ed. 465, 15 Ann. Cas. 392; Brasfield v. United States, 272 U. S. 448, 47 S. Ct. 135, 71 L. Ed. 345; Feinberg v. United States (C. C. A.) 2 F.(2d) 955; Lamento v. United States (C. C. A.) 4 F.(2d) 901; Bogileno v. United States (C. C. A.) 38 F.(2d) 584. We may assume that the errors assigned in this case are of a character to invoke our determination.

Numerous cases are cited to show that the action of the court' was prejudicial 'to the defendant, especially in discrediting Grammar as a witness. The citations to the decisions of the state courts are not authoritative because of the restricted powers of the trial judges. The federal courts have decided that it is error under some circumstances for a trial court to order the arrest of a witness for eontempt or perjury, in the presence of the jury. See Rutherford v. United States (C. C. A.) 258 F. 855; Mc-Nutt v. United States (C. C. A.) 267 F. 670; Di Carlo v. United States (C. C. A.) 6 F. (2d) 364. But no' such proceeding occurred in this case. When Grammar testified it was obvious to the jury that the witness was guilty of possessing whisky, or of perjury in order to exculpate the defendant. The trial judge was careful to express no opinion either way, and discharged only a plain duty when he ordered the witness committed for an offense “whichever the facts warrant.” The jury was not advised of any fact it did not already know, and no prejudice arose from restating it. Error is not disclosed in the proceedings.

The charge to the jury was not erroneous in the reference to the warning given the witness. It was in fact agreed to by defendant’s counsel. We are impressed that in other respects the eharge was fair to the defendant and affords no ground for reversal.

The ruling on a motion for a new trial is- not by general rule assignable as error. But in any event it was properly denied, as it was based on the same grounds as the objections which have been considered.

The judgment in this case is accordingly affirmed.


author: PER CURIAM.

text:
    MARSHALL FIELD & CO. v. UNITED STATES.
    No. 247.
    Circuit Court of Appeals, Second Circuit.
    March 2, 1931.
   The opinion of the District Court was as follows:

Libel against the United States, as owner of the Army Transport Antigone, instituted by cargo owners of the S. S. Gaelic Prince under the enabling Act of March 3, 1927 (Private Law No. 453, 44 Stat. 1808, c. 411), grows out of a collision between the Antigone and the Gaelic Prince on the evening of October 9,1919, in Ambrose Channel near Buoy No. 10, located at a bend in the channel. The channel is about 2,000 feet wide. There is some disagreement as to the precise scene of the accident in relation to the easterly and westerly limits of the channel. The only witnesses of the collision were the officers and crews of the two ships.

The Antigone was a twin serew steamer of 9,835 tons and about 499 feet in length. The Gaelic Prince was a single screw steamer of 6,506 tons and about 450 feet in length. The Antigone, proceeding from her pier at Hoboken to sea, had entered the channel from the north. The Gaelic Prince was coming into the harbor on a voyage from Yar Eastern ports. The vessels sighted one another when the Antigone was somewhere between Buoys No. 13 and 14, and the Gaelic Prince in the vicinity of Buoy No. 8, each vessel at that time proceeding at a speed of from nine and a halieto ten knots per hour; they were, then, in different reaches of the channel.

The version of the libelants is in substance as follows: The Antigone was proceeding, when sighted, on her own port side of the channel, the Gaelic Prince at that time being on her own starboard side of the channel. Witnesses on the Gaelic Prince testified to hearing a one-blast signal from the Antigone indicating a port to port passing, at about the time she was sighted near Buoy No. 14. The Gaelic Prince answered with one blast, ported her helm slightly, and slowed her engines to half speed. As the Antigone rounded the bend in the channel at Buoy No. 10, her red and green lights and her range lights became visible on the bridge of the Gaelic Prince, whereupon the Gaelic Prince reaffirmed the previous port to port passing arrangement by again sounding a single blast. The vessels were then about a quarter of a mile apart, both on the easterly side of the channel; that is, the starboard side of the Gaelic Prince. The Antigone then swung to her port suddenly, closing in the red and showing only her green light. The ships being then only two lengths apart, the Gaelic Prince blew a signal of two blasts, hard astarboarded her helm, and went full speed ahead. The Antigone, however, swung to her starboard and collided with the Gaelic Prince, the stem of the Antigone striking the starboard side of the Gaelic Prince just forward of the bridge, and tearing away plates in the way of No. 2 hold.

The version of the respondent contradicts that of libelants’ in important particulars. Respondent claims that the Antigone was proceeding on her own starboard side of the channel when the Gaelic Prince was sighted close to the southwesterly bank and on the Antigone’s own side of the channel; that the first signal of the Antigone was not a single blast, but two blasts sounded when she was in the vicinity of No. 10; that when the Antigone had steadied on the lower reach on a course parallel to the Staten Island-West Bank range which marks the center of the channel, and on her own starboard side, the Gaelic Prince blew a crossing signal of one blast which the Antigone answered with one blast, directing her course to starboard; that the vessels were then in a position to pass each other safely port to port, but that the Gaelie Prince suddenly blew two blasts and swung directly across the course of the Antigone; that the Antigone then reversed her engines and blew three blasts on her whistle; and that the Gaelic Prince continued to swing to her port and was then struck on her starboard side by the stem of the Antigone.

The issues involved are simple when abstracted from the mass of conflicting testimony: (1) Was it negligence, under the circumstances, for the Antigone to attempt a starboard to starboard passing? (2) Did she commit a positive breach of duty by her conduct after the Gaelie Prince failed to assent to her signal ? (3) Was any initial negligence of the Antigone insulated by subsequent negligence on the part of the Gaelie Prince?

Any of three conclusions as to the culpability of the vessels is possible under the conflict of testimony. It could be found that the Antigone was solely at fault, or that the Gaelie Prince was solely at fault, or that the negligence of both vessels contributed to the collision. The last alternative it is not necessary to consider. The present suit is against the owner of the Antigone alone. The Gaelie Prince is not a party. Her cargo stands in a better position than the vessel itself. A vessel libeled by the cargo of an injured vessel is liable to the full amount of the damage, even though, as between the vessels themselves, each is responsible for a moiety of the damage. The New York, 175 U. S. 187, 20 S. Ct. 67, 44 L. Ed. 126; The Atlas, 93 U. S. 302, 315, 317, 23 L. Ed. 863; see The Beaconsfield, 158 U. S. 303, 307,15 S. Ct. 860, 39 L. Ed. 933. And as stated in these eases, the same rule applies to a libel in personam and to an action at law; each of the joint tortfeasors is liable to the party injured for the full amount of the damage, regardless of their liability inter sese. It is unnecessary, therefore, to decide whether the situation calls for a division of the damages as between the two vessels.

Yet, as proctors for respondent contend, the navigation of the Antigone cannot be considered except in relation to the navigation of the Gaelic Prince. Respondent maintains that the maneuvers of the Antigone were predicated upon and compelled by the position of the Gaelie Prince on the westerly side of the channel. Our first inquiry, therefore, is to resolve the disputed questions of fact regarding the relative position of the two vessels.

There is some conflict of testimony regarding the position of the Antigone when the vessels first came in sight of. each other. The pilot of the Antigone, Wood, testified ten years after the accident that he was on his own starboard side of the channel. He had previously testified, however, at an investigation by an Army Board shortly after the collision that he was on the east side of the channel, his own port side, and that, at the time, he knew he was On the wrong side of the channel. His earlier testimony is confirmed by that of one of the lookouts on the Antigone who testified that prior to rounding Buoy No. 10, the Antigone had passed within 200 feet of an anchored vessel on her own port side of the channel, and is strengthened by the statement of her fourth officer that after rounding the bend, on a starboard helm, the Antigone was on her port side of the channel. The Antigone’s contention that she blew a signal of two blasts lends support to the conclusion that she was on her own port side of the channel, as in that position an invitation from her for a starboard to starboard passing would be understandable, although contrary to the statutory rule of navigation. I find that the Antigone was on her own port side of the channel from the time she was first sighted by the Gaelie Prince, at least until the port to port passing signals were exchanged.

The Ambrose Channel is a narrow channel under article 25 of the Inland Navigation Rules (30 Stat. 101, c. 4 [33 USCA § 210]). The La Bretagne (C. C. A.) 179 F. 286; The Amolco (C. C. A.) 283 P. 890; The Munaires (C. C. A.) 1 F.(2d) 13. That article provides : “In narrow channels every steam-vessel shall, when it is safe and practicable, keep to that side of the fair-way or mid-channel which lies on the starboard side of such vessel.” This is a statutory rule which has long been enforced rigidly. The Victory and The Plymothian, 168 U. S. 410,18 S. Ct. 149, 42 L. Ed. 519.

The Antigone, however, seeks to defend her conduct in blowing a two-blast signal for a starboard to starboard passing on the ground that it would not have been “safe and practicable” to do otherwise. This argument she advances upon her theory that the Gaelic Prince was on the extreme westerly side of the channel, the Gaelic Prince’s port side. The truth of this disputed question is not of vital concern. The exception to the statutory requirement (article 18, rule 1 [33 USCA § 203]) of a port to port passing finds its proper application not in convenience but in necessity. The theory of respondent not only admits, but insists upon the feasibility of a port to port passing at the time when the single blast signals were exchanged. If the port to port passing was possible at the later time it must follow that it was even more feasible when the vessels were at a distance of two miles from each other. Proper navigation, therefore, required the Antigone to signal for a port to port passing. Even assuming that the Gaelic Prince was on her own port side o.f the channel, in violation of a statutory duty, nevertheless her first signal to the Antigone, at a time when a port to port passing was possible, was a single blast; this call for port to port passage was proper and susceptible of execution in the circumstances.

According to the Antigone's own story, she did not receive from the Gaelie Prince an assent to the two blast signal. Nevertheless, she failed to slacken her speed. This, in itself, is negligent navigation. The Antigone alone could not determine what course the other vessel should take. When a vessel signals for a starboard to starboard passing, she, in effect, merely extends an invitation for an agreement thereto to the other vessel. Yamashita Kisen Kabushiki Kaisha v. McCormick Inter. S. S. Co. (C. C. A.) 20 F.(2d) 25; The New York (C. C. A.) 86 F. 814. If the other steamer fails to assent, or if the course of the latter is uncertain, the signaling vessel is bound to stop. The New York, 175. U. S. 187, 20 S. Ct. 67, 44 L. Ed. 126; The Munaires (C. C. A.) 1 F.(2d) 13; A. H. Bull S. S. Co. v. U. S. (C. C. A.) 34 F.(2d) 614, 616. As was said by the Court of Appeals of this circuit: “A vessel which has signaled by two blasts that she intends passing to starboard instead of to port, and gets no assenting response, is in duty bound to stop, reverse, and, if necessary, come to a standstill, until the course of the other vessel has been ascertained with certainty, and the risk of collision removed.'' The Munaires, 1 F.(2d) 13, 15. See also The Bilbster (C. C. A.) 6 F.(2d) 954; The Sabine Sun (C. G. A.) 33 F.(2d) 42.

Even if the distance of the vessels was so great as not to require a reversal of the engines, the situation required at the least a slackening of speed, until a definite arrangement was consummated.

Respondent argues, however, that even if the Antigone be found guilty of these breaches of duty, her culpable conduct was a condition rather than a cause of collision. It asserts that a supervening negligence of the Gaelic Prince in failing to maneuver properly in accordance with the port to port passing arrangement was the proximate cause of the collision.

There is irreconcilable conflict in the testimony as to what occurred shortly before the collision. The burden of proving sole negligence on the part of the Gaelie Prince is upon respondent. The Antigone’s conduct was the initial cause of the catastrophe. Even though a subsequent port to port passing was possible it made scant allowance for a margin of error. If the Antigone had ported her helm immediately and signaled for a port to port passing when she first sighted the Gaelie Prince, or if she had slowed her engines when she blew a signal of two blasts, the necessity of passing at close quarters would have been avoided. Sinee the Antigone culpably violated the rules initially re-, spondent must show “not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.” The Pennsylvania, 19 Wall. 125, 136, 22 L. Ed. 148; Lie v. San Francisco & Portland S. S. Co., 243 U. S. 291, 37 S. Ct. 270, 61 L. Ed. 726; The Sabine Sun (C. C. A.) 33 F.(2d) 42, 45. There is a presumption in favor of the vessel, the management of which is sought to be impugned by the vessel guilty of initial negligence. The City of New York, 147 U. S. 72, 85,13 S. Ct. 211, 37 L. Ed. 84; Yamashita Basen Kabusbiki Kaisha v. McCormick Inter. S. S. Co., supra at 27 of 20 F.(2d).

I am of the opinion that respondent has failed to prove such negligence on the part of the Gaelic.Prince as will absolve respondent from liability. The story of the Antigone's pilot, Wood, sounds improbable. He stated that at the time the Gaelic Prince blew her two blast signal (after the port to port passing had been agreed to previously) he saw her red light. He also said that at this time the vessels were about a length apart. In this estimate of distance he is corroborated by MeCabe, the fourth officer of the Antigone. The estimates of distance from the bridge of the Gaelie Prince do not exceed two lengths. If Wood’s statement that he saw the Gaelie Prince’s red light is correct, she was somewhere off the Antigone’s port bow, since the vessels were proceeding in opposite directions. The angle of collision was between forty five and ninety degrees. This means that the Gaelie Prince must have swung, according to Wood’s story, across the bow of the Antigone, which at the same time was swinging herself under a port helm, though the Antigone reversed her engines upon hearing the double blast her way must have been considerable, judging from the force of the collision. The Gaelic Prince claims to have changed from half speed to full speed ahead on both engines as she starboarded her helm. There is no reason to doubt this. The story we are asked to believe, then, is in substance this: that in the short space of from one to two ship lengths, the Gaelic Prince could swing sufficiently to come from a position on the Antigone’s port bow across the bows of the Antigone, so as to meet the stem of the Antigone with her own starboard side at right angles, thq Antigone at the same time, under a hard aport helm keeping her port bow toward the Gaelic Prince. The story sounds improbable. A vessel does not steer like an automobile. She must go a considerable distance before she leaves her course. I find that respondent has failed to sustain the burden imposed upon it by its initial negligence. Even

Robert E. Manley, Acting U. S. Atty., Horace M. Gray, Sp. Asst, to Atty. Gen., of New York City, for the United States.

Bigham, Englar, Jones & Houston (T. Catesby Jones and William J. Nunnally, Jr., both of New York City, of counsel), for appellee.

Carter, Ledyard & Milbum, of New York City (J. M. Richardson Lyeth and Rush Taggart, both of New York City, of counsel), amicus curia.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

PER CURIAM.

Deeree affirmed on opinion Felow.


text:
    PHARR v. UNITED STATES.
    No. 5697.
    Circuit Court of Appeals, Sixth Circuit.
    April 15, 1931.

      L. E. Gwinn, of Memphis, Tenn., for appellant.
    J. A. Wharton, Sp. Asst. to Atty. Gen. (Lindsay B. Phillips, U. S. Atty., and Herbert L. Harper, Asst. U. S. Atty., both of Memphis, Tenn., and Nugent Dodds, Sp. Asst. to Atty. Gen., on the brief), for the United States.
    Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.
   MOORMAN, Circuit Judge.

Appellant was a dealer in cotton and a customer of the Union & Planters’ Bank & Trust Company, of Memphis, Tenn., a member bank of the Federal Reserve System. Beauchamp was a vice president of the bank in charge of its cotton department. The two were jointly indicted, Beauchamp as principal and appellant as aider and abettor, for misapplying the funds and credits of the bank. Beauchamp entered a plea of nolo contendere and was sentenced to imprisonment. Appellant pleaded not guilty, and was tried and convicted on each of the nineteen counts of the indictment. On this appeal he assigns numerous errors, the first of which is that the trial court should have directed a verdict of not guilty.

The several counts of the indictment may be considered in three groups. All of them relate in part to a pre-existing indebtedness of appellant to the bank. The indebtedness arose in this way: In the spring of 1923, the Memphis bank, through New Orleans, New York, and Boston banks, advanced money to appellant to buy cotton to fulfill contracts he had made in Germany. The cotton was bought and shipped, but upon its arrival in Germany was rejected — apparently for good cause. Upon the rejection of the cotton the out-of-town banks demanded their money. Beauchamp1, acting for the Memphis bank, paid it and took over the securities held by those banks. The securities consisted of the cotton itself, which in the meantime had declined in value $50 or $60 a bale. Appellant was without means to pay this indebtedness, and to sell the cotton, if it could be sold, would result in a loss of more than $500,000, and perhaps wreck the bank. With the hope that appellant could earn enough to take up the indebtedness, Beauchamp, without consulting the finance committee or the higher officers of the bank, agreed to furnish him the money to buy low-grade cotton. It was in pursuance of this plan, presumably, that appellant drew the drafts alleged to have resulted. in the misapplications charged.

Prior to June 11, appellant, in carrying out his arrangement with Beauchamp, had bought considerable cotton and issued drafts therefor on New Orleans banks. When these drafts, with bills of lading attached, arrived in New Orleans, there was no money in the banks to pay them. In order to raise the necessary funds appellant drew drafts through the New Orleans hanks on his Memphis office which were forwarded to the Memphis hank for collection. He had no credit or funds in the Memphis hank, and as the drafts had no cotton back of them Beauchamp had no color of excuse for paying them. The cotton had then reached New Orleans, and had been stored in warehouses and warehouse receipts issued to the banks holding appellant’s drafts. Knowing this, Beauchamp and appellant hit upon the plan of borrowing the warehouse receipts, giving trust receipts therefor to the New Orleans banks, and using the warehouse receipts as collateral on other drafts. This they did, with the result that on June 11 and 13 appellant drew three drafts through Beauchamp’s bank on the French American Banking Company, New York, and the Equitable Trust Company, New York, aggregating in amount $263,498.-59, and attached thereto the warehouse receipts. Beauchamp immediately credited the drafts to appellant’s account, and paid cheeks which he drew on the account to take up the drafts ip New Orleans. The warehouse receipts were not released by the New Orleans banks until two- weeks later. Between June 13 and 27 appellant sold the cotton, and upon the release of the receipts attached them to other drafts. The three drafts drawn on the Nc-w York concerns were never presented for payment and were never paid by appellant. They form the bases of counts 8, 9, and 10.

Counts 1, 2, 3, 4, 5, 6, 7, 16,17,18, and 19 form a second related group. Nine of them relate to payments of drafts drawn on E. F. Hutton &'Co., New York, and the other two to drafts drawn on Blythe & Bonner, New York, all between July 30 and October 12. All of these drafts had attached to- them bills of lading for cotton. They were never forwarded for collection nor intended to be forwarded. The cotton was of low grade, some of it not marketable at all, and in some cases not shown, to have been in existence. Typical of most of these transactions is the one covered by. count 3 in which the draft for $43,-842.60 was secured by 260 bales of cotton that actually cost $10,388.08. There was no record on the books of appellant showing he had ever owned or dealt in the cotton supposedly pledged as collateral to the drafts involved in counts 6 and 7, amounting to more than $45,000. The cotton purporting to be back of the draft involved in count 5, amounting to $42,500.00, was found in Bremen, Germany, at the time the bank was liquidated, having been shipped there by appellant, consigned to himself, and undisposed of. All the drafts, with the exception of those involved in counts 16,17, 18, and 19, were charged off by the bank as losses. The last-mentioned drafts were taken up by new drafts issued on the same cotton, and these were also- charged off as losses. The misapplications were alleged to have occurred upon the payment of the original drafts.

The remaining counts, 11, 12, 13, 14, and 15, which we designate as group 3, involve drafts aggregating $81,733.60, covering the period from March 6 to 15, 1924, inclusive. These drafts were drawn by appellant in New Orleans upon himself, accepted and credited to his account in Memphis by Beauchamp, and the credits cheeked out. While each of them appeared on its face to be secured by cotton, there was in fact no cotton behind any of them, so far as was shown by appellant’s . books, and none was found by the liquidating agent of the bank.

Pharr was insolvent on June 11, 1923. He and Beauchamp both- knew this. Both knew the drafts which the bank paid were either not secured at all or were not sufficiently secured, and both resorted to artifice and deception to make it appear on the books of the bank that the transactions were regular. That it was necessary to resort to these deceptions to get the money seems obvious when it is remembered that appellant then owed the bank more than a half million dollars and had no assets or property except an equity ,in his home. The evidence tends to show, it is true, that at some point in the course of his dealings with the bank he gave to it such additional security as he could by pledging this equity in his home with his wife’s equity in a plantation, the two, as he claims, being worth $125,000. This, however, is not important, for it does not appear that any substantial sum, if indeed any sum, was ever realized from the sale of these equities, and in any event, the cotton back of the drafts, plus the equities, fell far short of affording adequate collateral, as both appellant and Beau-champ must have known.

It is claimed that there was no misapplication of the funds because the- proceeds of the drafts were used to pay the old indebtedness due the bank. We do not find from our examination of the record that the funds withdrawn on any single draft were turned back in toto to the bank in part payment of the indebtedness existing prior to June 11; nor do we find that in every ease or a majority of the eases they were not. The government seemed content to rest its case upon the ground of withdrawal of the funds upon fictitious and false collateral, regardr less of the disposition. It is stated by counsel for appellant, and not denied by the government, that appellant’s indebtedness to the bank in the end, after all the drafts aggregating $598,910.82 had been paid, was less than his indebtedness on June 11. The record is not clear as to that, nor does it show what disposition was made of the proceeds of all the drafts. It is certain that some of them were used to buy other cotton, and it is-perhaps true, too, that in the course of buying and selling appellant paid into the bank something more than the total amount of the drafts. Presumably these payments were made in part from profits and were in part a return of the funds obtained for trading. In view, however, of what seems to have been the substitution of a large part of the later indebtedness for a like amount of the old, it must have been that the entire proceeds of some of the drafts were applied to the old indebtedness. As to those drafts there was a mere substitution of one worthless piece of paper for another, and hence no misapplication. Robinson v. United States, 30 F. (2d) 25 (6 C. C. A.). In thus holding that the substitution of one worthless piece of paper for another does not amount to misapplication of funds we are hot to be understood as saying that such an act might not be punishable under 12 USCA § 592 as a falsification of records where the intent was to mislead, the officers of the bank or the agents of the comptroller into a false belief that the new paper was secured by adequate collateral, although it was known not to be so. As to those drafts where the proceeds were not applied on the old debt, but were used by appellant in his business, we do not doubt that there was a misapplication within the meaning of the statute. The record is too incomplete to permit of our determining which counts are brought by the proofs within the one or the other of these classes.

It is contended by appellant that, even though misapplication was proved, there was no evidence of an intent to injure or defraud the bank. It is said that it was appellant’s intention, if successful, to repay the money and to pay all the old indebtedness. Assuming this to be true, there was none the less a resort to false pretenses to get mon'ey from the bank which otherwise could not have been got. In the Robinson Case, 30 F. (2d) 25, 27, this court said: “When a bank officer misapplies the money of the bank, intends the misapplication, and for that purpose gets the money out of the bank by any kind of a false pretense, the inference of intent to injure or defraud, in the statutory sense, cannot he avoided” — citing Galbreath v. United States, 257 F. 648 (6 C. C. A.); and further: “It would not be controlling if the new loan were perfectly good and collectible, the deceit and fraud would remain.” . In the present ease the means used to take the funds out of the bank were so far beyond the bounds of legitimate banking as to imply an intent to injure or defraud; indeed, there seems no room to question the existence of this element of the offense as to those counts where the misapplication was shown.

Error is assigned to the conduct oí! counsel for the government in interrogating appellant about a plea of nolo contendere that he had entered to the indictment but had withdrawn. Counsel first asked appellant if he had not entered a plea of guilty. Appellant answered: “You say that I pleaded guilty,” to which counsel replied: “Yes, you entered the same plea that Mr. Beauchamp did.” Appellant then said: “I certainly have never pleaded guilty,” whereupon counsel replied: “You pleaded nolo contendere, didn’t you ?” Appellant then stated he understood that was a denial of guilt, to which counsel replied, as if he were surprised or questioned the veracity of appellant: “You understood that the plea of nolo contendere was a denial of guilt?” To this appellant answered: “A ■ denial of guilt.” Without having objected to the questions, counsel for appellant at this point intervened and requested the court to withdraw the jury and enter an order of mistrial. This motion was overruled after the court had instructed the jury to disregard the questions and answers. For all practical purposes, the p-lea of nolo contendere is one of guilt. United States v. Norris, 281 U. S. 619, 50 S. Ct. 424, 74 L. Ed. 1076. To have permitted the government to prove that appellant had entered such a plea and withdrawn it would have ■been reversible error. Kercheval v. United States, 274 U. S. 220, 47 S. Ct. 582, 71 L. Ed. 1009. Although the questions and answers referred to were not objected to, the motion to discharge the jury was made in time to raise the question of error. The effect of the examination was to bring home to the jury the equivalent of a confession of guilt. Whether a reversal is required depends on whether such a fixed impression was made on the minds of the jury as to influence its verdict. Standing alone without further interpretative reference, it might have been that the questions would not have been prejudicial; but both counsel for the government and the court elsewhere in the trial treated the plea of nolo contendere as one of guilt. Proof of Beauchamp’s plea had been made, and the court, in charging the jury that it could not convict appellant of aiding and abetting unless it found that Beauchamp, the principal, had violated the law, stated: “Presumptively Beauchamp did violate the law, for the record in this ease shows that in this very ease he entered a plea of guilty, or nolo contendere, and was sentenced by this court.” Moreover, counsel for the government, in his concluding argument, stated that Beauchamp, “indicted with” appellant, had “entered a plea * * * and served his sentence.” These statements served to emphasize the improper conduct of counsel, and in such circumstances we cannot think that the admonition of the court had the effect of removing the harmful impression made by the inadmissible facts. Because of this misconduct on the part of counsel, the judgment must be reversed.

As there must be another trial of the case, we deem it proper to call attention to other errors which should be avoided on the retrial. The references by counsel for the government, in his concluding argument, to the misfortunes of women, widows, and orphans resulting from the wrecking of the bank were in no sense pertinent to the presentation of the issues of the case, and were highly improper. The courts have uniformly condemned arguments of this character, the sole tendency of which is to defeat a fair trial. Again, we think the court erred in charging the jury that Beauchamp “presumptively” violated the law. This statement was made in defining the offenses with which appellant was charged, that is, the offense of aiding and abetting. Obviously, as the court said, unless the jury found that Beauchamp had misapplied the funds, it could not find that appellant had aided and abetted him. It was necessary that both facts be found. Beauchamp’s plea to the indictment was admitted in evidence without objection. Whether upon objection being made it should not have been received is a question not presented and therefore not decided; but see Kirby v. United States, 174 U. S. 47, 19 S. Ct. 574, 43 L. Ed. 890, hnd Havener v. United States (C. C. A.) 15 F.(2d) 503, In our opinion, even though admissible, it' carried no presumption of his guilt as against appellant.

Other errors assigned by appellant have been considered by the court, but found to be without merit.

For the reasons stated, the judgment is reversed, and the cause remanded for a new trial.


author: WILBUR, Circuit Judge.

text:
    HARRIS et al. v. UNITED STATES.
    No. 6283.
    Circuit Court of Appeals, Ninth Circuit.
    March 30, 1931.

      John L. McNab, George N. Crocker, and Louis L. Jaffe, all of San Francisco, Cal., for appellant.
    Anthony Savage, U. S. Atty., and Tom De Wolfe, Asst. U. S. Atty., both of Seattle, Wash.
    Before RUDKIN, WILBUR, and SAWTELLE, Circuit Judges.
   WILBUR, Circuit Judge.

The appellants, Harold Harris and Meyer Morris, appeal from a judgment and sentence imposed for a conspiracy to defraud and for the use of the mails to defraud. They were jointly indicted with Daniel A. Levy, who was convicted and has not appealed, Walter D. Forsyth and Ernest R. Heath, who were tried and acquitted, .Samuel C. Sugarman and Earl Sacks, who were not tried, and Ward Williams and Charles L. Gillis, against whom the ease was dismissed. The indictment contained six counts. One count was dismissed, appellants were convicted on each of the remaining five eounts and sentenced to thirteen months’ imprisonment upon each count, the sentences to run concurrently, and to pay a fine of $500.

The fraudulent scheme alleged, and developed by the evidence, was one for the sale of the stock of the General Mining, Milling & Power Company, a corporation organized under the laws of the state of Delaware with offices in New York City. It appears from the evidence that certain mines in the Mogollón mining district, N. M., known as the Mogollón mine, had been operated more than twelve years and had produced gold and silver valued at over $7,500,000. In 1926 practically all the known ore bodies had been exhausted. The equipment of the mines was removed in 1926-1927. The mining property was subsequently sold to W. A. Cochrane of New York, and was thereafter acquired by the General Mining, Milling & Power Com-1 pany, whose stock is involved in this ease. After 1927 apparently other exploratory work was undertaken so that E. D. Godfrey, a mining engineer who had worked on the property from October, 1924, until January, 1926, and who, under the employment by the General Mining, Milling & Power Company, was familiar with the situation in the latter part of 1928 and the first part of 1929, was able to state that in his opinion the value of the property and the equipment of the General Mining, Milling & Power Company, which will hereinafter be referred to as “the company,” was $275,000. It was capitalized for $3,500,000. In the latter part of 1928 and first part of 1929, this witness estimates that there were approximately 1,392,000 tons of ore available in the company’s mines at Mogollon; that the average value of this ore was $4.48 per ton, and that the average cost of removing the ore from the mines was between $5 and $6 per ton, so that an attempt to mine the entire ore body would result in a loss. There was, however, about 480,000 tons of this ore estimated to carry about $7.89 per ton. The gross value of this ore is $3,700,-000, and the net profit in mining the same would be about $900,000, but before the ore could be .mined at a profit it would be necessary to invest about $350,000 in capital. If this statement of the corporation’s mining engineer is correct, the value of the stock is about 7 cents a share, and it would be necessary to spend more than that amount per share in order to operate the plant successfully. By the expenditure of this additional amount ($350,000) the total amount invested would he $625,000, the total amount to be realized by the mining of 480,000 tons of ore would be $900,000, which would represent $275,000 more thaq the total investment, which would be 7 cents per share, or, to put it differently, people who purchased stock at 7 cents a share could, by obligating 'themselves or their company for indebtedness of slightly more than 7 cents per share, hope to recover the investment, plus the additional outlay, plus an amount equivalent to the original outlay. In other words, the stock had a potential value of 14 cents a share which could be realized by the expenditure of the large amounts of money needed to actually recover the values from the mine. In this brief statement we omit reference to the values of machinery, etc., which would be on hand at the conclusion of the operations.

Defendant Levy entered into a contract with Ward Williams wherein Williams, who claimed to have an option on stock of the corporation, gave an option to Levy for the purchase of 1,000,000 shares of the stock of the company at 40 cents per share. One hundred thousand shares of this stock was to be purchased before December 1, 1928, 100,000 before January 1, 1929, and 200,000 shares monthly thereafter. The option -was to expire if the minimum amount specified was not purchased and paid for within ten days after the date fixed for the completion of the purchase. Twenty thousand shares of this stock were turned over to Levy to cover expenses incurred in making the sales, the unexpended portion of which is to be returned in the event the 100,000 shares of stock were not sold. It was agreed that the balance of the stock of the company (2,500,000 shares) should remain unregistered and unissued until the fulfillment or cancellation of the agreement between Williams and Levy.

The fraudulent scheme charged in the indictment was one for the sale of this eorpo■rate stock at inflated values, by the manipulation of the price of the -stock on the San Francisco Mining Exchange and the Spokane Mining Exchange and the circulation of false reports concerning the mine through the mails. To effect this scheme it is alleged that the defendants organized the stock brokerage concern known as the Pulp & Paper Securities Company, another known as the West Coast Finance Company, another known as L. F. Pearson & Co., all located in the Dexter-Horton building, in Seattle. At this juncture we will not attempt to distinguish between the activities of these concerns or the various defendants, but will refer to them all as defendants.

The defendants made arrangements by which they would report to the Spokane Mining Exchange alleged sales of stock. These sales were reported in the regular bulletins of the Spokane Mining Exchange and were wired back to the defendants to circularize thousands of prospective investors; that these daily market reports purported to show activity on the floor of the Spokane Mining Exchange. Although these reports covered thousands of shares of stock, the actual sales made on the floor of the exchange were confined to 100 shares sold by defendant Gillis to an outsider, who resold the same on the exchange to defendant Gillis, who purchased for the defendants. Arrangements were also made to have the stock listed on the San Francisco Mining Exchange. This was done through defendant Forsyth. The method of operating in San Francisco was for Forsyth to give one broker a commission to buy a certain number of shares and another a commission to sell the same number. The purchase and sale price on the San Francisco Mining Exchange was fixed with reference to the prices furnished the Spokane Mining Exchange by the defendants. That is to say, the defendants sold and purchased - their own stock on the San Francisco Exchange at the prices they had furnished the Spokane Exchange at the particular time of the sale and purchase. By this method of fixing the market price a steady rise from the initial price of $1 per share to the price of $2.30 per share was shown by the reports. The only difficulty with this scheme was the fact that purchasers of stock might desire to realize profits shown by the market returns, and, as there was no real market for this stock, it would require the defendants to repurchase this stock at the advance price shown by the market returns. This hazard was largely eliminated by the failure of the defendants to deliver to the purchaser the stock they had purchased by falsely representing that it would take two or three weeks to secure the certificates from New York, and also by attempts to dissuade the purchasers from -selling the stock by representation that it was rising so rapidly in value that it would soon be worth $5 a share. By this means it was assured that very little stock would be offered by those who had purchased- the only available stock from the defendants. In order to1 make it appear that the stock was very active on the market, the reports were manipulated so as to show a large number of sales daily. As these, sales were all reported by the defendants to the exchange, of course they could be arranged in any manner that the defendants saw fit. But to save the telegraph tolls the defendants devised the scheme of .reporting to the mining exchange a single block of stock as sold at a single price, and when they issued purported copies to prospective purchasers the stock was subdivided into blocks purporting to have been purchased by a number of purchasers. In order to maintain the price arbitrarily fixed in the office of the defendants; instructions were given to the brokers in San Francisco and Spokane to purchase all stock offered on the floor of the exchange. Reports and statements concerning the value of a mine and its prospects were prepared and mailed by the defendants to their prospective purchasers. Throughout these reports the idea is presented in various forms that these properties had been continuously operated and are now being operated, and that they had produced $7,500,000 in values. In one circular it is stated that 1,500,000 tons of ore was blocked out and the value is given as $15,000,000, although, according to the engineer of the company, the value of the 1,500,-000 tons was less than the cost of mining. It is stated that assays show values running from $6 to $130 per ton, and the average value was $15 per ton. It is estimated that 7,-500 tons gross could be produced per annum, yielding a net profit of $750,000 per annum. Other misstatements were contained in the circulars mailed by the defendants, but they relied, in the advertisements and in their representations, upon the general proposition that here was an extremely attractive mine that had been in continuous operation for many years with large resources of ore, a completely equipped and operating plant, and a ready sale for its stock upon well-established mining exchanges at prices rapidly increasing in value. The man who was induced to buy the stock as an investment, and it was so represented, was thus assured that there was actual value behind the stock which would render him a fair profit on his investment, and the man who purchased for speculation was assured of a speedy turnover, whereas, in fact, there was no market whatever for the stock and there was no stock available for purchasers, except the small amount being manipulated by the defendants in the manner above 'stated. The evidence makes it perfectly apparent that as soon as the defendants withdrew their support from the artificially created market value of the stock it would immediately become worthless. That is to say, its intrinsic value of 7 cents per share would depend for realization upon a capital investment which there is little likelihood of securing, and, even if secured, this amount would be a small comfort to investors who had paid from $1 to $2.30 a share. That the scheme was one artfully designed to impose upon that portion of the public inclined to speculate upop market fluctuations of stock is obvious, and, when fortified by persistent representations of actual value exceeding the market value, the assurances of increased market value were well calculated to effect the object of the defendants. With this general statement of the facts developed by the evidence* we will proceed to consider the appellants’ assignment of errors.

At the close of the testimony a motion was made for instructed verdict, and the failure of tho court to instruct the jury to acquit the defendant was assigned as error. Appellants’ contention is largely based upon the theory that, if the scheme alleged in the indictment and shown by the evidence was fraudulent, they were innocent participants therein. Both appellants took the stand and testified that they believed that the method of operations, so far as they knew it, was bona fide, and that they acted in good faith. We will not undertake to distinguish between the three organizations under which the defendants operated other than to say that the L. F. Pearson Company, as shown by the written agreement between the defendant Levy and the appellants, was one of copartnership. The primary purpose of this copartnership was to manipxxlate the stock upon the stock-exchanges so that it would have an apparently steadily increasing market value. The appellants in charge of this scheme admit their purpose to create and maintain a stock market value by the method of reporting sales and by the purchase of stock offered for sale by any outsiders at the current market quotations. The defendants both testified that they believed the sales reported to them by Levy and Fitzpatrick, their codefendants, were actual bona fide sales made by them. They claim that as these sales were actually made or believed by them to have been made they were fully justified in reporting them as having been made upon the floor of the stock exchange, as this was in pursuance, they claim, of the usual practice. The jury were not required to believe the protestation of innocence of these defendants. In fact, the whole scheme centered around the establishment of an alleged stock exchange value which is in fact wholly fictitious. It appears that in reports of sales sent out by the appellants to prospective investors and to those who had already purchased stock, it was shown that 151,425 shares were sold on the Spokane Mining Exchange, whereas the only stock sold on this exchange was a block of 100 shares. The number of shares reported sold on the San Francisco Mining Exchange was 51,900 shares, whereas no shares were bought and sold upon that exchange. The actual number of shares sold by the defendants, according to their books, was 95,300 shares, while the total number of shares available for sale, that is, shares actually paid for by the defendants, was only 22,500 shares. It was part of the fraudulent plan, as alleged in the indictment and shown by the evidence, that certificates of stock for the shares sold were not to be delivered, if it could be avoided, and that purchasers should be persuaded to refrain from selling. Both appellants were active in these endeavors.

Appellant Harris prepared a prospectus and letter for mailing to those on a selected mailing list. Without attempting to analyze these communications other than to point out that they convey the idea of a valuable mining property operated by an experienced and capable organization directed by .responsible and honorable business men whose stock had a well-established market value which was rapidly increasing, and that the capitalization of the company was small compared to the assets, there is no suggestion in these communications that the mine had ever been worked out or abandoned or dismantled by its owners. These communications are as follows:

“In accordance with your request, I take pleasure in sending you, under separate cover, a booklet containing facts and data pertaining to the more permanent features of the corporation, such as financial structure, holdings, geology ¡ and developments.
“The properties embraced in General Mining, Milling & Power Company holdings have already produced upwards of $7,500,-000.00 of gold, silver, and copper. Ore is being mined, and, according to the management’s plans, a regular shipping schedule is to be inaugurated. Early dividends are certainly a logical expectation under these conditions.
“The stock of the General Mining, Milling & Power Company, listed in San Francisco and on the Spokane Stock Exchange, is in very strong demand, having a very large distribution. I want to call your attention to the fact that this security is fully paid, non-assessable, and carries full voting power-very important features that must impress you.
“L. F. Pearson & Company — in fact, all of us who are associated with the sponsorship of General Mining, Milling & Power stock, feel that in recommending this issue to our customers, we are rendering real service. It’s the best looking deal! have ever come across, and I’m sure that coming months will bear me out in all I have said and will say regarding the stock and its possibilities.
“General Mining, Milling & Power stock has been steadily advancing since its listing, to the present price of-. It is my opinion that this security will be selling, before very long, at $3.00 a share, or perhaps more.
“This is not an issue that will appeal to market scalpers. The character of the management assures real action at the mine. The natural sequence would be market activity which will reflect in dollars and cents the management’s experience, energy and ability, and the mine’s actual' and intrinsic merit. However, profit on General Mining, Milling & Power stock cannot be obtained in 34 hours, but only when and as production increases, giving added value to the stock. Therefore, after buying General Mining, Milling & Power, don’t expect miracles. Be loyal to your company by supporting the management in the carrying out of development plans which are designed to enable shareholders to make money by holding for greatly enhanced values, and dividends, which I believe are sure to come.
“The progress of the General Mining, Milling & Power Company is impressive. It is already at a stage which generally requires years to achieve. In other words, it is not a prospect, nor a promotion. The million and one-half tons of ore blocked out, and the hundreds of thousands of tons of rich unworked tailings,, are, in out opinion, sufficient to con-' vince you of the stability of the project.
“Two water power grants on White Water Creek are in themselves, we believe, of tremendous value. The development of this hydro-electric power will be a source of additional large profits to the General Mining, Milling & Power Company.
“The expensive equipment now on the properties is fully detailed in the prospectus. Assays which are on file at this office disclose values from $23.06 per ton to $131.52 per ton. The results, however great they may be, are only for those who become actively identified with the enterprise. You, I feel sure, will be one of those.
“Your General Mining, Milling & Power account is going to have my personal attention, I’m going to keep it right here before me, on my desk, so that I can give you the best of service, and handle correspondence myself, instead of turning it over to the Trading Department. For I realize that if I make you a substantial profit on your General Mining, Milling & Power transactions, you will be a regular customer of this firm, and that is what I am after.
“L. F. Pearson & Company, and all the other brokers who are sponsoring General Mining, Milling' & Power stock are creating a very large demand for this security, and naturally the price should advanee very rapidly.
“Your order will be executed at market through the Stock Exchange. The stock can be bought in lots of 100 shares and upwards. The commission is $2.50 per 100 shares.
“I feel that General Mining, Milling & Power at $3.00 would be cheap, but I’d rather see you buy at the present market, because the difference between what you pay now, and what you will most likely have to pay if you wait, would in itself be a profit well worth having.' At this point — take my advice — don’t hesitate — wire me your order at once.
“Pm determined to do all in my power to make you some money. So take my advice, and follow me through and I feel sure you will have good reason to be glad you did.
“Very truly yours,
“Manager, L. F. Pearson & Company.”
“L. F. Pearson & Company take pleasure in announcing that after a careful and thorough investigation covering a period of several months analyzing companies of various kinds we are now in a position to make a most attractive investment offer.
“This offer will appeal to you as being distinctly different from any other proposition in that the company is an operating concern, and its properties have a past production record of $7,500,000. 1,500,000 tons of ore are now blocked out, and upon most conservative assay we are advised that this ore has a value of almost five (5) times the capitalization of the company earnings conservatively estimated based on present operations, and ore blocked out warrant very substántial early dividends.
“The purchase of stock of the General Mining, Milling & Power Company gives you an opportunity to become identified with an operating, mining and milling company, with vast holdings of water power capable of developing twenty thousand (20,000) horse power, that has taken considerable time and money to develop. The character and calibre of the company’s management is such that successful,- economical operation is a foregone conclusion. The management is made up of men who have made an outstanding success for over fifty (50) years, nationally known and rated the highest credit. These men constitute the management of John Simmons Company, 110 Center street, New York City.
“L. F. Pearson & Company feel particularly proud of the fact that it is to participate in the distribution of an issue of such outstanding merit, and looks upon this distribution as an opportunity to make hundreds of friends among those who will welcome an opportunity to become interested in a stock which* within a comparatively short time, should enhance greatly in value. This stock is listed in San Francisco and on the Spokane Stock Exchange.
“A comprehensive booklet, containing a full description of the properties embraced' in the holdings, excerpts from state and U. S. Government reports, maps and other interesting details, is now being prepared.
“Inasmuch as the current edition of the descriptive booklet will be small, it is suggested that you fill out and return the enclosed card at once, providing you want a chance to go over the details of an exceptional and very unusual security. Your sending for the booklet implies no obligation whatever.
“Respectfully,
“L. F. Pearson & Company,
“Dexter Horton Building,
“Seattle, Washington.
“November 21,1928.”

Without further discussion of the evidence it is sufficient to say that there was ample evidence to go to the jury upon the question of the guilty participation of the appellants in the conspiracy alleged in the indictment. In this connection it should be stated that the account boobs of the three organizations were introduced in evidence and brought here as exhibits. Defendants objected to an expert testifying with relation to- the facts shown by these books, upon the ground that the books were the best evidence. The objection was sustained, although, under the well-established rule, such evidence was proper. Lewis v. U. S. (C. C. A.) 38 F.(2d) 406. In view of the fact that these boobs are presented without any effort to- summarize their contents, without the advantage of expert testimony concerning them, we might well decline to consider a claim of the insufficiency of the evidence on appeal, for the burden on appeal is on the appellant to show the insufficiency of the evidence to justify the verdict. It is true that this court, in the exercise of its appellate power, might submit such books to experts. Such a course is unusual, and, in view of the presumptions against the appellants, entirely unnecessary. We do not base our conclusion, however, upon this presumpi tion, but upon affirmative evidence called to our attention by the parties.

Appellants objected to the sufficiency of the indictment and presented the-ir objection to the trial court on motion in arrest of judgment and assigned the denial of that motion as error. Neither the appellant nor the appellee seemed to have any difficulty on appeal in stating the purport of the indictment. In the briefs of both appellants and appellee it is stated that the gist of the indictment is a manipulation of stock prices on the San Francisco and Spokane Stock Exchange, and the circulation of false reports through the mails concerning fictitious and fraudulent stock transactions, and to this appellee adds the statement that part of the fraudulent scheme was to fail to deliver the stock purchased by the investors and the conversion of the proceeds therefrom. It is sufficient upon a motion in arrest of judgment if the indictment substantially states the elements of the crime charged. Cyc. of Fed. Proc., § 2433; Banta v. U. S. (C. C. A.) 12 F.(2d) 765; Gibson v. U. S. (C. C. A.) 31 F.(2d) 19.

The indictment covers twenty-two pages of the transcript and appellants’ analysis thereof thirteen pages of their brief. In view of the substantial agreement between the parties as to the nature of the offense charged, we need only say that the indictment is clearly sufficient to charge a crime.

Appellants assign as error the ruling of the trial court admitting a letter written by defendant Levy to Richard Sheffield on June 28, 1928. As this evidence was clearly admissible as to defendant Levy, the objection of appellants to its introduction, on the ground that the evidence was incompetent and in no way connected with the issues, was properly overruled. If the appellants desired to limit the effect of this evidence to de* fendant Levy, they should have requested an instruction to that effect. Robinson v. U. S. (C. C. A.) 33 F.(2d) 238.

The government offered the testimony of N. H. Seil for the purpose of showing a telephonic conversation between N. H. Seil, who is a broker in Seattle, with defendant Heath, who was acquitted, in which the witness stated to Heath that he would not handle transactions of that kind through his office, that is to say, a transaction for the purchase and sale of the same amount of stock of the corporation on the same day. The question was not objected to, and for that reason the motion to strike out was properly denied. Moreover, the evidence is clearly admissible against the defendant Heath.

The witness Epstein, the president of the San Francisco Mining Exchange, was called in the first instance by the government, to identify lists of the reported- sales of the San Francisco Mining Exchange in the months of October and December, 1928, and January, 1929. He was recalled by the defendants and testified that there was nothing in the rules of the San Francisco Exchange to prevent a broker giving an order to another broker to sell certain stock and approximately at the same time give another order to another broker to buy the same stock, and that this is the usual and customary procedure. In rebuttal, John Swenson testified for the government that Mr. Epstein had told him on April 21, 1930: “That if as president of the San Francisco Exchange, he knew one broker sold certain stock through another broker and immediately after said sale procured a third broker to repurchase it, the practice would not be permitted.” The evidence of witness Epstein for the defense was directed principally to the question of operations of defendant Forsyth in San Francisco. It was, however, offered in behalf of all the defendants. If the rules of the stock exchange were as Epstein testified them to be, it would not in any wise alter the guilt of the appellants, who had originated and co-operated in the scheme of misrepresenting to the public the market value and salability of the mining stock in question. A wash sale, whether or not it was permitted by the rules of the exchange, would, under the circumstances disclosed by the evidence, be equally effective to carry out the scheme of the defendants. Its only possible relevancy would be to sustain the contention of defendant Forsyth that he was acting in the usual and customary way. Forsyth was acquitted.

The bill of exceptions, which is in narrative form, makes it uncertain as to whether or not the objection to Swenson’s testimony was interposed before the testimony was given. The government contends that the objection was made after the testimony was adduced in that regard. In ease of doubt the record would have .to be construed favorably to the ruling of the trial court and thus to sustain the judgment, but we find no assignment of error based on this ruling, and, in the absence of such assignment, the ruling cannot be considered by us.

Frank Hammond, a witness called for the defense, testified that, as receiver for the West Coast Finance Company, a certain book which is marked Defendants’ Exhibit A-43 had come into his possession. He testified: “This exhibit is a securities guide of stocks used for trading on the New York Produce Exchange.” The court refused to admit this book in evidence, on the ground it was incompetent. Thereupon appellants “offered to show by the book rejected that the stock of the General Mining, Milling & Power Company was listed on the New York Produce Exchange during the year 1929, and that there was a market there during the year 1929 for the sale of stock of the mining company and that that condition continued throughout the year 1929 and through the early part of the year 1930. This offer of proof by the said"defendants was rejected by the court and an exception allowed and entered in favor of the defendants Harris and Morris to the ruling.” The book in question has not been forwarded to this court with the exhibits. The offer does not disclose the alleged market prices, nor is it clear from the record just why the evidence was rejected. The appellants rely upon the rule stated by the Supreme Court in Virginia v. West Virginia, 238 TJ. S. 202, 212, 35 S. Ct. 795, 800, 59 L. Ed. 1272, as follows: “It is unquestioned that, in proving the fact of market value, accredited price-current lists and market reports, including those published in trade journals or newspapers which are accepted as trustworthy, are admissible in evidence. Cliquot’s Champagne, 3 Wall. 114, 141,18 L. Ed. 116,120; Fennerstein’s Champagne, 3 Wall. 145,18 L. Ed. 121; Chaffee v. TJ. S., 18 Wall. 516, 542, 21 L. Ed. 908, 912; Sisson v. Cleveland & Toledo Ry., 14 Mich. 489, 90 Am. Dee. 252; Cleveland & Toledo Ry. v. Perkins, 17 Mich. 296; Whitney v. Thaeher, 117 Mass. 523; Fairley v. Smith, 87 N. C. 367, 42 Am. Rep. 522; Moseley v. Johnson, 144 N. C. 257, 56 S. E. 922, 929; Nash v. Classen, 163 Ill. 409, 45 N. E. 276; Washington Ice Co. v. Webster, 68 Me. 449; Harrison v. Glover, 72 N. Y. 451. We need not stop to review the decisions that are cited with respect to the extent of the preliminary showing of authenticity that is required (Whelan v. Lynch, 60 N. Y. 469,19 Am. Rep. 202; Norfolk & W. R. Co. v. Reeves, 97 Va. 284, 33 S. E. 606; Fairley v. Smith, supra). • *

The first question presented is whether or not the above statement of the witness is sufficient foundation for admitting the guide book. In Whelan V. Lynch, 60 N. Y. 474,19 Am. Rep. 202, dealing with the admissibility of shipping and price current list, cited by the Supreme Court, as above stated, and also referred to by Wigmore in his work on Evidence, vol. 3, § 1703, it was said: “The court was also in error, I think, in admitting the Shipping and Price Current List as evidence of the value of the wool, without some proof showing how or in what manner it was made up; where the information it contained was obtained, or whether the quotations of prices made were derived from-actual sales, or otherwise. It is not plain how a newspaper, containing the price current of merchandise, of itself, and aside from any explanation as to the authority from which it was obtained, can be made legitimate evidence of the facts stated. The accuracy and correctness of such publications depend entirely upon the sources from which the information is derived.”

We would probably be justified in holding that without more substantial evidence as to the authenticity and reliability of 'the publication offered in evidence it was properly excluded, but in this case there was a much more cogent reason for excluding it. It appears from the evidence that the defendants were in a position to control the entire issue of stock of the company, defendant Levy having an option upon a million shares and an agreement that the balance would be neither issued nor registered. It is obvious that during the period covered by the conspiracy there could be no market value thereof in New York City, regardless of the entries which might have appeared in the excluded book. Moreover, it appears from the evidence that the defendants were prepared to carry on in New York a similar campaign to affect the reports of the New York Stoek’Exehange. The telegram from the appellants signed L. P. Pearson & Co., directed to E. O. Fitzpatrick, president of the West Coast Finance Company, at Port Angelus, Washington, states: “Eastern pool operations on general now strongly organized. Will undoubtedly commence operations immediately after the first of the year. Should undoubtedly result in substantial appreciation of market prices; therefore advise that you be prepared to benefit through this information.”

In view of the proof before the court with reference to the utter unreliability of the reports of the Spokane Mining Exchange and the San Francisco Mining Exchange as showing market value of stock of this corporation, it is manifest that, without further proof than the general statement that a book found in the custody of the defendants was a securities guide of stocks used for trading on the New York Produce-Exchange, there is an insufficient foundation for the admission thereof, as it also appeared from the evidence that the intrinsic value of the property owned by the mining company did not exceed 7 eents per share, and there is no showing of any change in value during the continuance of the conspiracy. The appellee supports the ruling of the trial court in excluding this evidence by claiming that the conspiracy terminated on January 14th and erroneously asserting that the offer did not cover the whole of the year of 1929, but the foregoing quotation shows the offer covered the entire year of 1929. The appellee also contends that the market value of the stock in 1929 is immaterial, for the reason that the conspiracy charged is not based upon actual loss suffered by those defrauded by reason of the fact that the property was worth less than they paid for it, but on the proposition that the scheme was designed to obtain money from investors which they would not part with except for the fictitious values established on the Spokane and San Francisco Stock Exchanges, and misrepresentations made in connection therewith. In view of the showing of the government, however, that the mining properties were of so little value, as disclosed by its witnesses, it would undoubtedly be proper for the defendants in rebuttal to show that the property itself was more valuable than claimed by the government’s witnesses. The showing of market quotations of stock in New York, however, would not rebut the evidence offered by the government with relation to the actual and intrinsic value of the stock, and furthermore, as we have said, the publication was properly rejected because, under the circumstances disclosed by this ease, no proper foundation was laid for the admission of the book offered by the defendants to prove the market value of the stock.

Appellants offered to prove that John A. Swenson, post office inspector assigned to investigate charges against the defendants, had on October 23, 1929-, long after the filing of the indictment in this ease (March 27, 1929), written a letter to W. A. Coehran, president of the company, stating that it was hoped that' the case against the defendants could be brought to trial soon after the first of the year 1930’, and that he would be glad to have the company withhold any steps for a general sales campaign until that time, “since the defendants in the ease are going intake as great a comfort as they can out of anything done by you.” Defendants offered to prove by the witness that the purpose of the letter was to have the stock “redrawn” (withdrawn) from the market, to the end that it would appear that it had no market value, and that, because of the action of the government agents, the market for this stock was deliberately destroyed. The offer to prove was elaborated by the additional offer, “and that as result of 'said letter the market for the disposition of this stock was destroyed by the action of the Government itself.” If the defendants had desired to present to the jury these alleged activities of this witness, it could have been done on his cross-examination, when he testified for the government, to show his interest in the case. This was not done. Proof that the market value of the stock had been destroyed by the witness long after the indictment would not tend to prove that the defendants were not guilty of the conspiracy to obtain money by false pretenses, which was fully accomplished before the indictment in March, 1929. It is doubtful if the offer should be construed to- be any broader than an offer of the letter itself, for certainly the offer to show that as result of the letter the market had been destroyed would be an offer to prove a mere conclusion. However that may be, the objection to the offer was properly sustained.

Appellants present forty-nine assignments of error with relation to the instructions to the jury given and refused by the trial court. It is first claimed that the entire charge was argumentative-, misleading, and discriminatory. The charge covers thirty pages of the transcript. ¥e have read this charge with care, and in its entirety it is eminently fair. The jury were carefully instructed that they were the sole judges of the facts, that the court intended to refrain from expressing an opinion on the facts, and that, if in the course of the instructions it did so, such opinion was not binding on the jury. Throughout the instructions, the court, after informing the jury that the good faith of the defendants was a vital question in the ease, couched his instructions in the form of questions. The apparent purpose of these questions was to call the attention of the jury to certain factors in the ease without intimating to the jury the view of the court as to- the effect of the answer to the question. One quotation will illustrate the nature of the questions : “Did they cause reported sales on the Spokane Stock Exchange for block of stock or cause to be split up in smaller denominations and listed in the literature sent out for the purpose of showing an increased number of investors'?”

Now, it was admitted by the defendants that they had done exactly the thing which the court asked the jury to- consider, as hereinbefore stated. The court would have been justified in stating directly to the jury that in his opinion the evidence showed that they did what in fact they admitted that they did do. At the conclusion of twelve of these questions the court said: “These are matters for your consideration and upon which you must conclude to determine the plan or scheme under which the defendants operated and the intent, purpose and motive prompting it.” It is clear from this conclusion that the answer to these questions was left entirely to the jury. Thereafter three other questions were asked. These were directed especially to the question of the guilt of the defendant Levy.

There was no assignment of error based upon the claim that the instructions were argumentative or misleading or discriminatory. While an objection to the instructions upon the ground that as a whole they were argumentative may be considered without an assignment of error, this case does not present a situation where the court would be either justified or required to consider the question without an assignment of error. However, as we have said, the instructions were, as a whole, fair.

Assignments 8 to 29 are argued together under the heading “Numerous erroneous instructions were given by the court and certain requested instructions were erroneously refused.” Assignment No. 29 is based upon the refusal of the court to give the following instruction: “I instruct you that no defendant can be guilty of making a false and fraudulent representation because he expresses an opinion. The expression of an opinion can never be a false and fraudulent representation. A defendant who represented that it was a good investment; a defendant who represented that in his opinion the stock would increase in value; a defendant who represented that it would become a profitable investment, is either expressing an opinion or is making a statement of a future event, and in neither instance is he guilty of making a false pretense or a false representation.” This instruction was properly refused. It does not state the law correctly. If the defendants in this ease stated that stock worth 7 cents was a good investment at $2.30, and they knew at the time the statement was made that the stock was not worth more than 7 cents, the representation is clearly fraudulent under the circumstances of this case, where the buyers have no independent knowledge of any of the facts with relation to the distant mine. Sacramento Suburban Fruit Lands Co. v. Nelson (C. C. A.) 36 F.(2d) 929; Sacramento, etc., v. Melin (C. C. A.) 36 F.(2d) 907. The court gave an instruction upon this subject which the appellants complain of in their brief. We find no exception to the giving of this instruction nor any assignment of error based upon the giving of the instruction, and the instruction was more favorable to the appellants than they were entitled to, for in conformity with the request of the appellants the jury were instructed that expressions of opinions were not false and fraudulent representations.

Assignments of error as to instructions given, Nos. XII, XIII, XIV, XVI, XX, and XXVI, are argued together. Appellants say: “The instructions seem to rest the guilt of the defendants upon the reporting and circularizing of sales ‘at advancing prices’ when advances in prices were caused and ‘inspired’ by the defendants themselves rather than by any ‘new discoveries in the mines’ or ‘added intrinsic value to the stock’. The court paid no heed whatsoever to the fact that a representation of advancing prices is a representation of advancing prices and nothing more nor less.” This indicates the general line of the argument of the appellants directed against the instructions given.

It is difficult to epitomize the instructions thus objected to. Their general purport is that a mere belief on the part of the defendants in their power to arbitrarily advance stock market quotations was not sufficient to establish good faith where the purpose was to arbitrarily advance such market values without reference to any increase in the intrinsic value of the stoek. We see no objection to this instruction. It amounted to little more than informing the jury that appellants’ belief in their ability to successfully defraud the public was not a defense to the charge of conspiring to obtain money under false pretenses.

Assignment of error XXIV to an instruction give by the court on the subject of intent is not well taken. The instruction was proper. Agnew v. U. S., 165 U. S. 36, 53, 17 S. Ct. 235, 41 L. Ed. 624. The gist of the instruction was that the jury might infer a man’s intent from his acts.

Assignment of error No. XXV deals with the interrelation of the five counts of the indictment charging mail frauds with the sixth count charging a conspiracy to violate section 215 of the Penal Code (18 USCA § 338). The gist of the instruction to the jury was that, if it found that a conspiracy existed as specifically charged in count 6, and if such conspiracy involved a plan or scheme to defraud, and if the conspirators used the mails in carrying out the conspiracy, those joining in the conspiracy would be guilty of the. overt acts by coconspirators in pursuance thereof, whether or not they immediately participated therein. Appellants’ claim of error is thus stated: “Thus the court practically directed the jury to find the defendants guilty on 'one or all’ of the substantive counts if they found them guilty of the conspiracy.”

We think this criticism is not justified. It is fundamental in the law of conspiracy that, when the conspiracy is shown to exist, all conspirators are responsible for the acts of their coconspirators in carrying out the conspiracy. Belden v. U. S. (C. C. A.) 223 F. 726; Robinson v. U. S. (C. C. A.) 33 F.(2d) 238. Moreover, appellants testified that they engaged in a mailing campaign and themselves committed the various overt acts charged.

In the instructions to the jury the court called attention to the argument, which is not set out in the record, to the effect that the parties were operating under a pool which was legal. The court correctly instructed the jury that there was no evidence of any pool formed by the defendants with the purchasers of stock.

The appellants seek to take advantage of certain instructions or statements by the court in its charge to the jury which related specifically to the conduct of the defendant Levy, who is not appealing. The court asked the jury to consider whether or not the plan conceived by Levy in the organization of the Pulp & Paper Securities Company and the West Coast Finance Company and the securing of local persons as trustees “was a scheme to camouflage the public and lull investors into a feeling of security because of the reputation of local men, or was his plan at its inception bona fide, and, if so, .why was the stock placed on the Spokane and San Francisco Exchanges and not on the Seattle Exchange, where the offices were located and it is shown an exchange was operated — or, was his purpose to have distance lend enchantment?”

' The attention of the court was called to the instruction by the exceptions to the charge in which it was claimed that there “was no evidence that there was any mining-exchange in Seattle or any testimony that there was any exchange on which mining stock could be listed outside the city of San Francisco and Spokane.” Appellant Morris," on his cross-examination, had testified that the stock “was not listed on the Seattle Exchange so that no sales could be made here except privately.” It was a reasonable inference from this testimony that that stock could have been listed on the Seattle Exchange if parties had desired. The court, however, accepted counsel’s statement made in the exception and withdrew that portion of the charge and instructed the jury to disregard it. Even if there was any error in giving the instruction, it was cured by its prompt withdrawal.

'In the charge to-the jury the following passage occurs to which appellants object: “If Levy was acting in good faith, why did he dictate letters on important matters and have Helma Campbell, his stenographer, sign instead of signing them himself? Why did he dictate a letter March 26th, 1928, and send advertising matter to 'The Star’, Toronto, Canada, offering a block of Pulp & Paper Securities at attractive prices in the name of his stenographer, Miss Kennedy, and direct her to simulate a male handwriting?”

The exception to this instruction by defendant Levy, and concurred in by the appellants, is as follows: “Mr. Dore: In calling the attention of the jury to why Levy dictated letters and did not sign them himself, having them signed by Helma Campbell — why the letter that went to the newspaper in Canada was signed with a simulated handwriting of a girl or lady stenographer in the office.”

It. will be observed that in the exception it is not claimed that the implied statement of the court was not borne out by the evidence, namely, that defendant Levy had his stenographer sign important matters instead of signing them himself, and had her offer stock of the Pulp & Paper Securities Company in her own name, signed in simulated handwriting. We may therefore assume that the ground of the exception indicated by the court was the mere fact that the court had called attention in this manner to such evidence. In view of the fact that the court left all questions of fact wholly to the determination of the jury, and that the comment of the court was justified by the evidence, we cannot say that the instruction was either erroneous or prejudicial as to the appellants. The most that can be said of the instruction is that the court felt that the methods of de.fendant Levy shown by the evidence in regard to the matter in question were worthy of the attention of the jury in arriving at its verdict.

Judgment affirmed.