source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Randall L. PARKS, Defendant-Appellant.
    No. 73-2786
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 7, 1974.
    Rehearing Denied March 20,1974.

      Lacy Mahon, Jr., Jacksonville, Fla., for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., J. Worth Owen, Asst. U. S. Atty., Pensacola, Fla., Scott P. Cramp ton, Meyer Rothwacks, Asst. Attys. Gen., John P. Burke, Richard B. Buhrman, Attys., Tax Div. Dept, of Justice, Washington, D. C. for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

       Rule 18, 5th Cir; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

I

Randall L. Parks appeals from the district court’s judgment of conviction for evading and defeating his income tax in violation of 26 U.S.C. § 7601. Parks challenges the sufficiency of the Government’s evidence which resulted in the jury’s verdict of guilty. Further, he alleges that the Government’s proof departed impermissibly from the method of proof delineated in its bill of particulars and trial brief. Finally, Parks contends that the trial court erred in admitting into evidence an admission of his accountant which tended to show that he was aware of his tax liability.

II

During the years in question, 1966 and 1967, Parks operated a trailer park and rented apartments in Pensacola, Florida. For the tax year 1966, appellant reported a negative net taxable income of $2,036.39 and in 1967, a net taxable income of $8,555.77. For each year, the appellant reported a tax liability of zero.

To prove its ease of tax evasion against Parks, the Government utilized the bank deposits and cash expenditures method of proof. Under this method the Government must demonstrate that the taxpayer has a business of a lucrative nature and that during the tax years in question, the taxpayer made regular periodic deposits of money in bank accounts in his own name or in accounts over which he exercised control. Where the annual deposits exceed exemptions and deductions, the balance represents taxable income to the taxpayer. We have previously approved this method of proof. See Escobar v. United States, 388 F.2d 661, 667 (5th Cir. 1967), cert. denied, 390 U.S. 1024, 88 S.Ct. 1141, 20 L.Ed.2d 282 (1968); Holbrook v. United States, 216 F.2d 238, 240 (5th Cir.), cert. denied, 349 U.S. 915, 75 S.Ct. 605, 99 L.Ed. 1249 (1955).

Viewing the evidence in a light most favorable to the Government, the jury verdict is amply supported by the facts. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The Government’s evidence established that appellant’s income for 1966 amounted to over $26,000.00 and in 1967 to over $39,000.00. This resulted in a tax liability of $6,341.86 for 1966 and $5,963.92 for 1967. At trial appellant and his wife attempted to show that they entered the tax years under scrutiny with a substantial amount of cash on hand. This position was taken despite the fact that appellant had inconsistently informed IRS agents during their investigation that he had never carried over $1,000 in cash on hand at any one time. Whether appellant’s allegations were to be given credence was a question for the jury. By its verdict, appellant’s attempted cash-on-hand defense was rejected.

Appellant’s final two contentions are equally without merit. The Government’s bill of particulars informed appellant adequately of the facts which it intended to prove and the evidence subsequently submitted for the jury’s consideration did not vary from the essential facts delineated in the bill of particulars or its trial brief. Furthermore, admissions of a taxpayer’s agent within the scope of his employment, here an accountant, are admissible against the taxpayer in a tax evasion prosecution. See Hayes v. United States, 407 F.2d 189, 192 (5th Cir. 1969).

Accordingly, the judgment of conviction is affirmed.


author: . PER CURIAM:

text:
    Ernest L. GARNER, Plaintiff-Appellant, v. LOUISIANA STATE BOARD OF EDUCATION et al., Defendants-Appellees.
    No. 73-3233
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 7, 1974.
    Rehearing Denied March 5, 1974.
    Ernest L. Garner, pro se.
    William J. Guste, Jr., Atty. Gen., William C. Roberts, Asst. Atty. Gen., William T. Reeves, Jr., Sp. Counsel, Baton Rouge, La., for defendants-appellees.
    Before COLEMAN, DYER and RONEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part. I.

   . PER CURIAM:

This is a teacher employment case which has been litigated in the state courts, to and through the court of last resort." The aggrieved vocational technical teacher then attempted to renew the litigation, in the federal courts, asserting grounds which were, or might have been, litigated in the state court proceedings. The District Court dismissed the complaint. We affirm under the authority of Frazier v. East Baton Rouge Parish School Board, 5 Cir., 1966, 363 F.2d 861.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael B. BETHANY, Defendant-Appellant.
    No. 73-3085
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 7, 1974.

      M. Gabriel Nahas, Jr., Houston, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5th Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5th Cir. 1970, 431 F.2d 409.

   PER CURIAM:

Confronted with a thirteen count indictment involving marijuana violations, Michael B. Bethany pled guilty to one count of possession with intent to distribute 90 pounds of marijuana and obtained a dismissal by the Government of the remaining twelve counts. He now appeals the validity of his conviction and the failure of the court to reduce his sentence from four years confinement and a special parole term of not less than two years.

First, he challenges the sufficiency of the factual basis supporting his plea. Rule 11 of the Federal Rules of Criminal Procedure prohibits the court from entering a judgment upon a plea of guilty “unless it is satisfied there is a factual basis for the plea.” Contrary to appellant’s argument, this requirement does not demand a “written, sworn, and filed stipulation of evidence,” but only that the court make an inquiry “factually precise enough and sufficiently specific to develop that [defendant’s] conduct on the occasions involved was within the ambit of that defined as criminal.” Jimenez v. United States, 487 F.2d 212, 213 (5th Cir. 1973). Here the District Court sufficiently complied with the rule by questioning the defendant and hearing the Government’s summarization of the investigation report.

Second, appellant contends that the count of the indictment to which, he pled guilty is “erroneous” in that it not only alleges possession of a controlled substance with intent to distribute in violation of 21 U.S.C.A. § 841(a)(1), but goes further and conjunctively adds 18 U.S.C.A. § 2, a procedural statute which authorizes punishment of an aider and abettor as a principal. The indictment having admittedly alleged a crime is not rendered ineffective because of the additional recitation of the procedural statute. It is the statement of facts in the indictment and not the statutory citation that is determinative of validity. “Error in the citation . . . shall not be ground for . reversal of a conviction if the error . . . did not mislead the defendant to his prejudice.” F.R.Crim.P. 7 (c); see United States v. Hutcheson, 312 U.S. 219, 229, 61 S.Ct. 463, 85 L.Ed. 788 (1941); Williams v. United States, 168 U.S. 382, 389, 14 S.Ct. 1188, 25 L.Ed. 309 (1897). Appellant has alleged no prejudice.

Third, the appellant asserts that he understood that his undercover services in narcotics investigations would entitle him to probation. Appellant’s attorney informed the court, however, that the agreement with the United States attorney was that the Government (1) would accept a guilty plea on one count and dismiss the remaining twelve counts, and (2) would inform the probation officer responsible for the pre-sentence investigation of appellant’s cooperation with the Government. The attorney further stated that no promises of probation or of recommendations for leniency were made, and that appellant understood the nature of the agreement. The plea bargain was performed. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

Having declined the opportunity offered by the court to withdraw his plea and let the Government proceed, Bethany’s attorney asserted a reconsideration of the proposed sentence under Rule 35, F.R.Crim.P. The District Judge stated that he had taken appellant’s undercover services and other favorable factors into consideration in the sentence. A Rule 35 reduction of a valid sentence is within the broad discretion of the District Court. See Lott v. United States, 309 F.2d 115, 126 (5th Cir. 1962), cert. denied, 371 U.S. 950, 83 S.Ct. 504, 9 L.Ed.2d 498 (1963); Beitel v. United States, 306 F.2d 665, 672 (5th Cir. 1962).

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Pedro PEREZ, Defendant-Appellant.
    No. 73-2770
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 6, 1974.
    Rehearing Denied March 6, 1974.

      Lawrence E. Hoffman, Miami Beach, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., Scott P. Crampton, Meyer Roth-wacks, Asst. Attys. Gen., Richard B. Buhrman, Patrick J. Sheedy, William A. Whitledge, Attys., Tax Div. Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Pedro Perez appeals from a judgment of conviction after a jury found him guilty on four counts of an indictment, covering the calendar years 1966, 1967, and 1968 and 1969, respectively, charging the wilful making and subscribing of income tax returns, under penalties of perjury, which he did not believe to be true and correct as to every material matter, in violation of 26 U.S.C. § 7206. The evidence shows that Perez failed to disclose on his returns that he was engaged in a gambling enterprise (“boli-ta”) for four consecutive years and that he derived a substantial income from that enterprise, which was unreported.

Appellant makes the following assignments of error:

1. He contends that he was denied a fair and impartial trial because the Government was permitted to amend its bill of particulars by increasing the amount of income it intended to prove, after the trial had commenced and that the Government adduced testimony in support thereof. A bill of particulars may be amended at any time, and the decision to allow an amendment is within the discretion of the trial court, which decision will be reversed only on a showing of prejudice or clear abuse of discretion by the trial court. United States v. Theriault, 5 Cir., 1973, 474 F.2d 359; Mitchell v. United States, 5 Cir., 1968, 404 F.2d 609. We find neither prejudice to the defendant nor abuse by the trial court in allowing the amendment.

2. Appellant contends that despite two admonitions by the trial judge, a witness testified to an unindicted crime or criminal tendency by the accused. The witness testified that appellant said “if he or his writers would get picked up he had enough connections that he .would or was sure that he could fix the case.” The trial judge immediately instructed the jury to disregard the response as it was entirely unrelated' to the proceedings. Any possible prejudice to defendant was cured by the trial judge’s admonition to the jury.

3. Appellant contends that the prosecution became aware .of perjury on the part of Government witnesses and did not forthwith reveal this fact to the court and jury. The witness testified that he had never spoken to an agent of the Government and particularly that he had never discussed the facts of the case with such an agent. On redirect examination of the witness the Assistant United States Attorney attempted to refresh his memory relative to a prior conversation between the witness and himself. The Assistant United States Attorney later explained to the court in a bench conference that he thought the witness was confused, and informed the court that he had talked with the witness on the previous day. Thus the Government fully met its duty of disclosure.

4. Finally, appellant contends that the proof failed to demonstrate a substantial profit from a gambling enterprise. The evidence shows that in one year alone, 1969, appellant’s profit was at least $50,000, which was unreported on his return.

Affirmed.


text:
    R. John GENINS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-2598
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 7, 1974.
    Rehearing Denied March 12,1974.

      R. John Genins, pro se.
    Scott P. Crampton, Asst. Atty. Gen., John G. Truelson, Meyer Rothwacks, Attys., Tax Div. Dept, of Justice, Washington, D. C., John W. Stokes, Jr., U. S. Atty., Julian M. Longley, Jr., William D. Mallard, Jr., Asst. U. S. Attys., Atlanta, Ga., Richard W. Perkins, James H. Boz-arth, Attys., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appel-lee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

The issue' on this appeal is whether the sole shareholder of a corporation, which owns a 50-percent interest in a partnership, may be held liable under section 6672 of the Internal Revenue Code of 1954 for failure to pay over withholding and FICA taxes due from the partnership. The district court held in the affirmative. We agree.

The Internal Revenue Service assessed the taxpayer-appellant a penalty of $915 under 26 U.S.C. § 6672 for withholding and FICA taxes due from Ramsey Services. Prudential Investments, Inc. was a 50-percent partner in Ramsey Services; the taxpayer was the sole shareholder of Prudential. There is no dispute that Ramsey Services owed the taxes. But the taxpayer contends that he is not liable. Neither he nor Prudential paid any wages of Ramsey Services, he argues, and therefore he is not a “person required to collect, truthfully account for, and pay over” the tax under section 6672. But the term “person” is not so narrowly construed. The fact of actual payment of wages is not critical. Persons within the scope of section 6672 include those who exercise control over payment of business funds. See Brown v. United States, 5 Cir. 1972, 464 F.2d 590, cert. denied, 410 U.S. 908, 93 S.Ct. 962, 35 L.Ed.2d 270; Liddon v. United States, 5 Cir. 1971, 448 F.2d 509, cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117; Pacific Nat’l Ins. Co. v. United States, 9 Cir. 1970, 422 F.2d 26, cert. denied, 398 U.S. 937, 90 S.Ct. 1838, 26 L.Ed.2d 269. The taxpayer in the instant case clearly exercised this control. He was authorized to draw checks on the partnership account, and he made cash withdrawals to repay a loan made by the taxpayer’s wife to Prudential, which in turn had loaned the money to Ramsey Services. Nor may the taxpayer hide behind the corporate facade of Prudential. Prudential is no more than the alter ego of the taxpayer for purposes of this appeal.

Affirmed.

      . “Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over. . . . ” 26 U.S.C. § 6672. The taxpayer does not contend on appeal that the failure to pay the tax was not “willful”.

      . “The term ‘person,’ as used in this subchap-ter, includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.”
      26 U.S.C. § 6671(b).


author: BY THE COURT:

text:
    Linda STOUT, by her father and next friend, Blevin Stout, et al., Plaintiffs-Appellees, v. JEFFERSON COUNTY BOARD OF EDUCATION, Defendant-Appellant, United States of America, Intervenor.
    No. 73-3348.
    United States Court of Appeals, Fifth Circuit.
    Jan. 25, 1974.
    Maurice F. Bishop, Birmingham, Ala., for defendant-appellant.
    Thomas R. MeEniry, Bessemer, Ala., Norman Chaehkin, Jack Greenberg, New York City, U. W. Clemon, Birmingham, Ala., for plaintiffs-appellees.
    Wayman G. Sherrer, U. S. Atty., A. Lattimore Gaston, Asst. U. S. Atty., Birmingham, Ala., Brian K. Landsberg, Paul F. Hancock, Attys., Education Section, Civil Rights Div., J. Stanley Pot-tinger, Asst. Atty. Gen., Dept, of Justice, Washington, D.C., for other interested parties.
    Before THORNBERRY, CLARK and GEE, Circuit Judges.
   BY THE COURT:

The basic plan for desegregating the schools administered by the Jefferson County Board of Education was approved by this court in 1972. Stout v. Jefferson County Board of Education, 466 F.2d 1213. In that opinion we directed the district court to reconsider certain attendance zones, and by our opinion of July 18 last, 483 F.2d 84, we affirmed the court’s order, entered during the pendency of the prior appeal, modifying the Graysville and Edgewater attendance zones and directed that the court retain jurisdiction over the action for a time. The opinion noted that “. . . the other zones remanded in 466 F.2d 1213, are not now before us. . ” One of these now is.

Reconsidering these zones as directed, Judge Pointer received plans, took evidence at a hearing conducted on July 27 and 28 last and entered his order of August 7 establishing a plan for, inter alia, the Brighton area. This area had been a subject of our prior decision (466 F.2d at 1216) and is the subject of the instant proceeding, though no appeal was taken from the August 7 order.

That order, insofar as is generally material here, sought to establish a uniform white student ratio of at least sixty percent in the three high schools of Brighton, Hueytown and Midfield by means of “double zones” lying between Brighton and Midfield and between the Brighton zone and the Hueytown zone. White students in these zones were assigned to Brighton, originally intended as an all-black facility. Black students were assigned to Midfield or Hueytown.

During the first school week of this scholastic year, the County Board noted an extreme shortfall in actual white enrollment in the Brighton facilities under that projected. The magnitude of the discrepancy suggests a boycott by white students. Acting swiftly, if not precipitately, after what appears to have been only four days of school, the Board presented to Judge Pointer a petition to modify the Brighton-Midfield-Hueytown area portion of the court’s August 7 order. In broad outline, the new plan contemplated converting the Brighton schools to special learning facilities and the reassignment of their regular students to other schools. After an extensive hearing before the court on September 6, the petition for modification was denied by an order which also noted deficiencies in compliance with the court’s order of August 7 and directed compliance in specific particulars. The Board appeals.

We have been favored with no record. It is agreed in the briefs that the hearing on this petition to modify was held in chambers, that no court reporter was present, and that no transcript of the proceedings exists. Nor has the Board availed itself of the procedures provided for use by appellants in these circumstances. Indeed, the preceding factual statement has been pieced together from points of agreement in the briefs and from prior opinions of this court. This we have done in an attempt to make our action herein intelligible but not as a comprehensive factual statement. We review the district court’s decision under the standard of abuse of discretion. See e. g. Lee v. Macon County Board of Education, 482 F.2d 1253 (5th Cir., 1973). Appellant, by failing to comply with Rule 10 F.R.A.P., has not shown, and indeed cannot show, any abuse of discretion by Judge Pointer.

His concern for this troubled district has recently been noted by this court in its July 18 last opinion. Left to speculate, we can only conclude, if anything, that his conscientious care persists.

Affirmed.

      . The Board’s brief, for example, compares an actual white enrollment of 75 students at Brighton Elementary with a projection of 505.

      . We are advised by the briefs that school opened on August 29, a Wednesday, with a holiday on Monday, Labor Day. The Board’s petition for modification is dated September 5.

      . F.R.A.P. 10(c) provides:
      (c) Statement of the Evidence or Proceedings When no Record Was Made or When the Transcript is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within 10 days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the district court in the record on appeal.

      . For the results of a failure to provide a sufficient record in other types of cases, see Hemming v. United States, 409 F.2d 11 (5th Cir., 1969); Green v. Aetna Ins. Co., 397 F.2d 614 (5th Cir., 1968).


author: STEPHENSON, Circuit Judge.

text:
    UNITED STATES of America ex rel. John Lee FEATHER, Petitioner-Appellant, v. Don R. ERICKSON, Warden South Dakota State Penitentiary, Defendant-Appellee.

    Nos. 73-1453 to 73-1459 and 73-1541 to 73-1543.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1973.
    Decided Dec. 7, 1973.
    Rehearings and Rehearings En Banc Denied Jan. 8, 1974.
    L. R. Gustafson, Britton, S. D., for petitioner-appellant.
    Walter W. Andre, Asst. Atty. Gen., Pierre, S. D., for defendant-appellee.
    Before HEANEY, ROSS and STEPHENSON, Circuit Judges.

       Consolidated with;
      U. S. ex rel. LaVerne Black Thunder v. Erickson,
      U. S. ex rel. Ambrose St. John v. Erickson. U. S. ex rel. James R. Keeble v. Erickson. U. S. ex rel. Curtis Small v. Erickson. U. S. ex rel. Roman V. Derby v. Erickson. U. S. ex rel. Joseph Day v. Erickson. U. S. ex rel. Arnold La Framboise v. Erickson.
      U. S. ex rel. Clarence Walker v. Erickson. U. S. ex rel. Theodore Duane Wynde v. Erickson.

   STEPHENSON, Circuit Judge.

These consolidated habeas corpus appeals turn upon the issue of whether alleged criminal activity took place within “Indian Country.” 18 U.S.C. § 1151. We hold that the alleged crimes were committed within the confines of the Sisseton-Wahpeton (Lake Traverse) Indian reservation and therefore the State of South Dakota was without jurisdiction to convict appellants who are all enrolled Indians of the Sisseton-Wahpeton Indian tribe. The district court orders denying the writs of habeas corpus must be reversed.

“[A] 11 land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent * * * ” is “Indian Country.” 18 U.S.C. § 1151. Any Indian who commits certain specified crimes within Indian Country is subject to the exclusive jurisdiction of the United States. 18 U.S.C. § 1153.

The individual appellants were all convicted of crimes by a South Dakota State district court and are now incarcerated at the South Dakota State Penitentiary. The facts of the respective cases are not here important. The parties agree that if the crimes were committed in Indian country the federal district court had exclusive jurisdiction-. Appellants seek release claiming they were wrongfully tried by the state court for offenses over which only the federal courts had jurisdiction.

This court has previously had occasion to rule on the issue of whether the land within the original boundaries of the Lake Traverse reservation remains Indian country for 18 U.S.C. § 1151 purposes. DeMarrias v. State of South Dakota, 319 F.2d 845 (8 Cir. 1963). In DeMarrias this court adopted the trial court’s opinion and determined that Congress had restored the reservation land to the public domain and thereby removed it from the category of Indian country. See DeMarrias, supra affirming 206 F.Supp. 549 (D.S.D.1962). For reasons that will become evident we find it necessary to depart from the holding in DeMarrias.

The Lake Traverse reservation was established by treaty between the United States and the Sisseton-Wahpeton Sioux Indians in 1867. 15 Stat. 505. The reservation was said by Congress to be “permanent.” 15 Stat. 505, 506 (Art. III).

Following the pattern as established in the General Allotment Act of February 8, 1887 the “surplus” land within the Lake Traverse reservation was opened to non-Indian settlers after allotments were made to individual members of the Sisseton-Wahpeton tribe. Act of March 3, 1891. 26 Stat. 989, 1036. The area opened for settlement by the 1891 Act included all of the reservation that had not been previously allotted to tribe members. The essential provisions of the 1891 Act reflect the agreement reached between the government and the Indians on December 12, 1889 whereby the Indians agreed to “cede, sell, relinquish, and convey” the surplus lands to the United States. 26 Stat. 1036 (Art. I). In turn, the lands were opened for settlement:

* * * the lands' by said agreement ceded, sold, relinquished, and conveyed to the United States shall immediately * * * be subject only to entry and settlement under the homestead and townsite laws of the United States * * * 26 Stat. 1039 (§ 30).

President Benjamin Harrison formally proclaimed the lands opened for settlement. 27 Stat. 1017.

We must answer this question: Did the 1891 Act either on its face, or alternatively, when considered with the contemporaneous and subsequent legislative history, manifest Congressional intent to diminish the Lake Traverse reservation boundaries ?

We have these guidelines: (1) Intent to abrogate treaty rights is not lightly imputed to Congress. Menominee Tribe of Indians v. United States, 391 U.S. 404, 413, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); (2) Congress having once established a reservation, all tracts remain a part of that reservation until separated therefrom by Congress. United States v. Celestine, 215 U.S. 278, 285, 30 S.Ct. 93, 54 L.Ed. 195 (1909); Seymour v. Superintendent, 368 U.S. 351, 359, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962). Indeed, Congressional intent to disestablish the reservation must be either expressed on the face of the Act or be clearly discernible from the “surrounding circumstances and legislative history.” Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 2258, 37 L.Ed.2d 92 (1973); United States ex rel. Condon v. Erickson, 478 F.2d 684, 689 (C.A.8, 1973); (3) Opening an Indian reservation for settlement by homesteading is not necessarily inconsistent with its continued existence as a reservation. Seymour, supra. See also Condon, supra; City of New Town, North Dakota v. United States, 454 F.2d 121, 125 (C.A.8, 1972); (4) The well-preserved general rule is that Indians are to be left free from state jurisdiction and control. McClanahan v. State Tax Commission of Arizona, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); Condon, supra at 689 of 478 F.2d and citations. Federal jurisdiction is preferred. McClanahan, supra.

The case before us is not unlike Seymour, Mattz and Condon. The overall climate of legislative activity concerning Indian reservations during the period from 1887 through 1910 received its primary impetus from the General Allotment Act. See Cohen, supra at 78-80 (§§ 11-13). The 1891 Act, by its express terms, refers to the General Allotment Act of 1887. Just as in the beforementioned three cases, the reservation here was not sold to the government outright but merely opened for settlement under the homestead laws and the 1887 general allotment plan. Allotment and homesteading do not suggest congressional purpose to terminate the reservation. Seymour, supra.

Appellee leans upon a phrase extracted from section 30 of the 1891 Act. The phrase “, and be subject to the laws of the state wherein located” is read by appellee to confer state jurisdiction upon the entire portion of land opened to homesteading. Appellant argues a misplaced comma and contends that only school lands, sections sixteen and thirty-six, are subject to state jurisdiction. Appellant’s argument is more plausible in light of the general pattern adopted by Congress in making specific grants of these numbered sections in each township to the states. See, e. g., 33 Stat. 319, 323; 35 Stat. 458, 459; 35 Stat. 460, 461; Condon, supra at 687 n. 5 (specifically granting said sections to the states) and 28 Stat. 314, 319; 28 Stat. 326, 332; 31 Stat. 672, 676 (using the same language as the instant statute but no comma placed before the “and” of the “subject to state law” clause). We do not read this clause as a clear indication of congressional intention to terminate the Lake Traverse reservation. Seymour, Mattz, Condon, all supra.

The Mattz case makes clear that congress, during the legislative years surrounding the 1891 Act “was fully aware of the means by which termination could be effected.” Mattz, supra 412 U.S. at 504, 93 S.Ct. at 2257 & n. 22. Clear language such- as that discussed in Mattz expressing intent to discontinue the Lake Traverse reservation is nowhere to be found in the 1891 Act here involved.

Nothing that can be gleaned from the legislative history or subsequent legislative enactments can be fairly said to shed any further light upon the intent of the Congress regarding the reservation boundaries. The Committee reports on the 1891 Act and reports on similar bills that were not enacted do not discuss the proposed boundaries. The only direct reference to the boundaries of the reservation subsequent to the 1891 Act came from President Harrison in his proclamation opening the lands “within the Lake Traverse Reservation” to settlement. (emphasis supplied) 27 Stat. 1017. This reference is by no means conclusive.

Unlike the subsequent legislative treatment in New Town the later congressional enactments here are not “admittedly inconsistent and confusing.” New Town, supra at 125 of 454 F.2d. Accord, Condon, supra at 688 of 478 F.2d; Seymour, supra 368 U.S. 351, at 427 n. 12 of 82 S.Ct. Unlike Mattz we have here no evidence that “the House was generally hostile to continued reservation status of the land in question.” Mattz, supra at 499 of 412 U.S., at 2255 of 93 S.Ct. Those decisions on closer factual situations found the reservations not to have been diminished.

We must view as significant the fact that our search of the legislative documents subsequent to the 1891 Act unearths no telltale language as to the lawmaker’s will concerning the boundaries of the Lake Traverse reservation. The significance lies, of course, in the test to be applied. That is, congressional expression or clear implication diminishing the reservation boundaries.

Finally, we think it noteworthy that the South Dakota Supreme Court, while interpreting an Act similar to the Act in issue here, has recognized the principles established in Seymour and New Town and denied state jurisdiction in an analogous situation. State v. Molash, 199 N.W.2d 591 (1972).

Congress established the Lake Traverse reservation as a “permanent” reservation in 1867. Since that time Congress has not through clear expression or by innuendo shown an intention to disestablish.

The result we reach today is, of course, contrary to the result we reached in 1963. DeMarrias, supra. The more recent teachings of the United States Supreme Court and of this Court, set out. above, have been premised upon legislative enactments and history analogous in all material respects to the instant case. To reach a different result in this ease would be, we think, to ignore the clear impact of the decisions discussed above. We therefore now hold that the body of legislative documents concerning the Lake Traverse Indian reservation does not, against the glare of Seymour and the more recent judicial guidance in Mattz, Condon and New Town, demonstrate congressional intention to disestablish the reservation.

The boundaries of the Lake Traverse Indian reservation remain as they were established in 1867. The scene of the alleged crimes is, therefore, within Indian country. South Dakota had no jurisdiction to try appellants. The writs of habeas corpus should have been granted.

Reversed and remanded for proceedings consistent with this opinion.

      . Two of the appellants claim tribal authority to deal with the crimes committed (forgery). 18 U.S.C. § 1152. Forgery is not one of the specified crimes within 18 U.S.C. § 1153.

      . The case had a long prior history before reaching our court. State v. DeMarrias, 79 S.D. 1, 107 N.W.2d 255 (1961), cert. denied, 368 U.S. 844, 82 S.Ct. 72, 7 L.Ed.2d 42; DeMarrias v. State of South Dakota, 206 F.Supp. 549 (D.S.D.1962). See also Application of DeMarrias, 77 S.Ct. 294, 91 N.W.2d 480 (1958).

      . 24 Stat. 388. For an excellent general discussion of the General Allotment Act see Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 2253-2254, 37 L.Ed.2d 92; F. Cohen, Handbook of Federal Indian Law (1942) at 78-79, 207-217.

      . The 1891 Act also made provision for some additional allotments to the Sisseton-Wahpe-ton tribe as reparations for their loyal service to the country during the 1862 Sioux uprising. 26 Stat. 989, 1037, 1039. See also the preamble to the original treaty of 1867. 15 Stat. 505; S.Ex.Doe.No.66, 51st Cong., 1st Sess. (189) at 1.

      . The relevant portion of section 30 states: “That the lands by said agreement ceded, sole, relinquished, and conveyed to the United States shall immediately, * * * be subject only to entry and settlement under the homestead and town-site laws of the United States, excepting the sixteenth and thirty-sixth sections of said lands, which shall he reserved for common school purposes, and he subject to the laws of the State wherein located * * * .” 26 Stat. 1039 (§ 30) (emphasis supplied.)

      . H.Rept.No.2325, 51st Cong. 1st Sess. (1890); S.Rept.No.1510, 51st Cong. 1st Sess. (1890).

      . S. g., S.Rept.No.661, 51st Cong. 1st Sess. (1890); H.Rept.No.2271, 51st Cong. 1st Sess. (1890); S.Ex.Doc.No.66, 51st Cong. 1st Sess. (1890).


author: TUTTLE, Circuit Judge:

text:
    J. B. NEWELL and Mrs. Gladys Reed, mother and next friend of Miss Paulette Virginia Reed, a minor, Plaintiffs-Appellees, v. HAROLD SHAFFER LEASING CO., INC., Harold Shaffer, Individually, and Harold Shaffer, d/b/a Harold Shaffer Leasing Company, Defendants-Appellants.
    No. 73-1706.
    United States Court of Appeals, Fifth Circuit.
    Feb. 8, 1974.

      Rae Bryant, Gulfport, Miss., for defendants-appellants.
    George Shaddock, Donald W. Cumbest, Pascagoula, Miss., Ben H. Harris, Jr., Howell, Johnston, Langford, Finkbohner, Johnstone, Adams, May, Howard & Hill, Mobile, Ala., for plaintiffs-appellees.
    Before TUTTLE, DYER and MORGAN, Circuit Judges.
   TUTTLE, Circuit Judge:

This is an appeal in a diversity personal injury action by the defendants from the district court’s denial of their motion for directed verdict and for judgment notwithstanding the verdict. The accident giving rise to this lawsuit occurred on November 16, 1968, when a truck driven by Bobby Gene Ferrell struck the rear end of Newell’s vehicle, where Reed was a passenger. Newell and Reed sued Harold Shaffer Leasing Co., Inc., Harold Shaffer, Individually, Harold Shaffer, d/b/a Harold Shaffer Leasing Co. and Ferrell; however, since service of process was never obtained on Ferrell, the suit was dismissed against him. The complaint alleged that under the doctrine of respondeat superior the defendants were liable for the plaintiffs’ injuries suffered when the truck bearing the name of one of the defendants struck their vehicle. The case proceeded to trial against Harold Shaffer Leasing Co., et al., resulting in a jury verdict of $30,000 for Newell and $4,000 for Reed. We affirm.

The following sequence of events was established at the trial. Immediately after the collision Newell left his car and talked with Ferrell, the driver of the truck. Newell noticed that written on the side of the truck was “Harold Shaffer Leasing Company, New Orleans, Louisiana,” which name Newell wrote down on a piece of paper. Ferrell exhibited to Newell an insurance policy which was taken out of the cab of the truck. Newell copied from the insurance certificate the policy number and the name of the insureds which were “Harold Shaffer Leasing Company” and “Fiat Roosevelt Motors, Inc.”

After the accident Newell had his vehicle repaired. Apparently without his solicitation Newell received in the mail an insurance draft for his expenditures in repairing his automobile. This check, sent to Newell from an insurance company, bore the name “Shaffer Leasing Co., et al.” as the insureds. The check specified the date of loss as November 16, 1968, the date of the accident in question, and was for the exact amount of the repair cost to Newell’s vehicle resulting from this accident. There was no proof at trial regarding who instituted the payment of this insurance draft. Newell returned the cheek to the insurance company. The defendants made a motion for a directed verdict at the close of the plaintiffs’ presentation of evidence which was denied. Thereafter, the defendants rested without presenting any witnesses and the court submitted the case to the jury which returned a verdict for the plaintiffs.

The appellants’ principal position in their motion for directed verdict was that they were not liable under the doctrine of respondeat superior, because there was no evidence that the offending truck was owned by either of them, or, that the driver was an employee who was furthering their business at the time of the accident. Nonetheless, the district court concluded that the appel-lees had introduced the following circumstantial evidence which sufficed to create a jury question on the agency relationship: (1) the truck had the name of “Harold Shaffer Leasing Company” written on its side; (2) the truck driver showed Newell a liability insurance policy taken from the truck which noted “Harold Shaffer Leasing Company” as one of the insureds; and (3) a liability insurer forwarded a draft to Newell which named the insured as “Shaffer Leasing Co., et al.” and was for the exact amount of the repair cost to his vehicle.

The contentions of the appellants here are that the district court erred (1) in refusing to direct a verdict for them; (2) in admitting into evidence the copy of the insurance draft; (3) in allowing the jury to consider permanent injuries of Reed; and (4) in permitting this jury verdict evidencing bias and prejudice to stand. The latter three assertions are clearly without merit and can be readily dismissed; whereas, the appellants’ initial argument does raise a substantial question whether plaintiffs’ witnesses, together with any presumptions that this evidence raised, warranted the district court’s submission of the agency issue to the jury. Nevertheless, our examination of this record and the Mississippi law regarding proof of agency persuades us that there was sufficient circumstantial evidence on the agency relationship to send this case to a jury.

Court Properly Submitted Agency Issue to Jury

Although the appellants did not present any evidence at trial refuting the agency relationship, in their pleadings and during trial the appellants denied that Ferrell was their agent, servant and employee acting within the scope of his employment at the time of this collision. Therefore, this matter was in dispute throughout. In the absence of evidence by the appellees which would create a material issue of fact of this relationship, the appellants would have been entitled to a directed verdict. However, the court determined that the appellees had presented sufficient circumstantial evidence to create a factual issue to be resolved by the jury. The principal eases relied on by the district court in refusing to direct a verdict for the appellants and for submitting this case to the jury were Jack Cole Co. v. Hudson, 409 F.2d 188 (5th Cir. 1969); Bynum v. Mandrel Industries, Inc., 241 So.2d 629 (Miss.1970); Hobbs v. International Paper Co., 203 So.2d 488 (Miss.1967); Merchants Co. v. Tracy, 175 Miss. 49, 166 So. 340 (1936).

Only recently Jack Cole Co. v. Hudson, supra, occasioned this Court’s consideration of Mississippi law regarding the sufficiency of evidence to create a factual issue on agency relationships. In that case plaintiff’s vehicle was struck by a large yellow-colored truck which did not stop to render aid. The only further description given by a witness to the collision was that it was a tractor-trailer van type, with the tractor portion painted yellow and the words “Jack Cole” painted in large letters over the cab on the front of the aluminum covered trailer. No one could give a more precise description either of the truck or its driver, or, testify as to what printing appeared on the tractor, if indeed there was any printing on it at all. The other supportive evidence of the agency relationship was that Jack Cole owned tractors and trailers, all of which were aluminum-colored and bore signs reading “Jack Cole Company,” and that Jack Cole’s trucks had permits to, and frequently did, travel that portion of Highway 11 where the accident occurred. The record reflected that no truck had been stolen on the day of the accident and that there were several side roads available for the hit and run driver to pull off the main highway to evade the search for him after the accident. In affirming the submission of the case to the jury, this Court concluded:

“Mississippi seems to follow the rule generally recognized elsewhere, that where a defendant’s name appears on a commercial vehicle involved in an accident, there is a rebuttable presumption that the vehicle is owned by the defendant and that the operator of the vehicle is an employee of defendant, and was, at the time of the accident, engaged in the scope of his employment and in the furtherance of the business of the master. Merchants Co. v. Tracy, 175 Miss. 49, 60, 166 So. 340, 343; Jakup v. Lewis Grocer Co., 190 Miss. 444, 200 So. 597; West v. Aetna Ins. Co. of Hartford, Conn., 208 Miss. 776, 45 So.2d 585.” Jack Cole Co. v. Hudson, 409 F.2d 188, 192 (5th Cir. 1969).

Thus, the clear import of the decision was that where the name on a commercial vehicle involved in an accident is shown,

“a prima facie case has been established by the party in whose favor the rebuttable presumptions of ownership, agency, and scope of employment have arisen; however, such presumptions disappear if ‘strong and clear’ . or ‘positive and unequivocal’ . . ., or ‘uncontradicted or invulnerable’ . . ., or ‘clear and undisputed’ . . ., evidence is produced showing that the contrary is true.” Jack Cole Co. v. Hudson, 409 F.2d 188, 192 (5th Cir. 1969).

Jack Cole certainly substantiates the district court’s actions here in submitting this question of agency to the jury, where the plaintiff proved the name on the side of the commercial truck and where the defendant offered no evidence whatsoever to rebut the presumptions from this evidence.

The appellants claim Jack Cole is not determinative of the issue because the decision incorrectly interpreted the Mississippi law on this point. More specifically, their argument is that the Mississippi cases cited by this Court above do not support the rule of law propounded in Jack Cole. The appellants contend that Jack Cole holds that under Mississippi law when ownership of a commercial vehicle is established, i. e. by the circumstantial evidence showing the defendant’s name was on the side of the truck, then the presumptions arise (1) that the driver of the vehicle is an employee of the defendant and (2) that at the time of the accident the employee was operating the vehicle in the scope of his employment.

Contrary to Jack Cole, the appellants assert that Mississippi law requires direct proof of an agency relationship, and does not follow the majority rule that circumstantial proof of ownership, i. e. the name on the side of a commercial truck, is prima facie evidence that the truck was being driven by an agent within the scope of his employment. It is admitted that if the agency relationship is shown by direct evidence, then the presumption arises that the agent was driving in the scope of his employment. But appellants’ objection is that circumstantial proof of ownership does not establish both (1) the existence of the agency and (2) the operation within the scope of employment. Therein lies the alleged misconception of the Mississippi law as expounded by this Court in Jack Cole.

The fallacy of the appellants’ argument is that Jack Cole is the law of this Court as to what the Mississippi law is dealing with this subject. We are bound by this Court’s prior decisions on what is the law of a state in a diversity ease, just as we are bound by prior decisions of this Court on what is federal law. Stare decisis requires that we follow our own earlier determination as to the law of a state in the absence of any subsequent change in the state law. Here there has been none. Moreover, consideration of the Mississippi cases cited by appellants convinces us that the law of the State of Mississippi was correctly announced in the Jack Cole case. The principal authority for the argument by appellants is the following language in Merchants Co. v. Tracy, supra, 166 So. at 343:

“The majority rule in this country is that proof of the ownership of the automobile is prima facie evidence that it was being driven by the agent or servant of the owner and in the course and furtherance of the master’s business. This court does not follow that rule. We have held that the plaintiff must show the relationship of master and servant as existing at the time of the injury directly and not by presumption. Woods v. Clements, 113 Miss. 720, 74 So. 422, L.R.A. 1917E, 357, cited and approved in Woods v. Franklin, 151 Miss. 635, 118 So. 450; Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318; Southern Bell Telephone & Telegraph Co. v. Quick, 167 Miss. 438, 149 So. 107, and Atwood v. Garcia, 167 Miss. 144, 147 So. 813.” (Emphasis supplied).

This quotation read in a vacuum does appear to indicate that Mississippi law requires direct proof of an agency relationship and will not condone agency presumptions based only upon a showing of ownership by circumstantial evidence, such as a name on the side of the truck. On the other hand, this quote considered in context of the entire facts in that case, and viewed in light of additional language in the Merchants Co. opinion, acquired a different meaning completely. In fact, an analysis of the entire Merchants Go. decision supports the rule of law that presumptions of agency relationship and scope of employment in the operation of commercial trucks can arise simply upon a showing of the ownership of the vehicle by circumstantial evidence.

To illustrate, the truck in Merchants Co. struck plaintiffs’ vehicle and did not stop. The plaintiff driver testified that the truck was red with a big “M” in a circle painted on its side. Later that night the driver called Merchants Co. to inquire whether one of its trucks was out oú a specific route. The Manager answered “yes,” but hung up when told of the accident and when further asked what color the truck was. One witness testified that he heard a noise at the foot of the hill, that immediately thereafter a truck with a big “M” on it passed his' home, and that the truck was the property of the Merchants Co. which ran by his home every few days delivering goods. Another witness observed a red truck with a big “M” being loaded that night and saw it later near the scene of the accident. Other testimony confirmed that the Merchants Co. had a red truck with a big “M” in the vicinity of the accident on the night in question. The defendant claimed that the court should have directed a verdict on the basis that the proof failed to show that it owned the truck in the collision, that the truck was being operated by its agent at the time of the accident, and that the truck was being operated in the scope of the employment at the time of the accident.

Affirming the submission of the agency issue to the jury, the Mississippi Supreme Court concluded in Merchants Co., supra, 166 So. at 342, 343:

“We are of the opinion that the court properly submitted all these questions of fact to the jury upon specific and proper instructions. It will be observed that the appellee’s witnesses were positive that the truck involved in the collision was a red one; two of the witnesses stated that it was appellants’ truck; three of them testified that it carried appellants’ insignia, the big M in a circle.- Two other witnesses testified that on the date of this accident the appellant was operating a red truck in and out of Magee. The evidence is circumstantial, but when we consider the fact that a truck of this description, which had been loaded from the warehouse of appellant at Magee, was driven North from Magee toward Mendenhall and was tracked to within one mile of the scene of the collision, we think reasonable men of fair intelligence would be justified in reaching the conclusion that the truck was owned by the appellant, and this is especially, true in view of the fact that the truck involved was a commercial truck, and the Merchants Company was using such a truck for the purpose of delivering its goods to its customers in Mendenhall and north thereof.
“Was the jury warranted in finding from these facts that the truck was being driven by the agent or servant of appellant? On this question we would be confronted with difficulty if the instrumentality was an -automobile instead of a commercial truck. .” (Emphasis supplied).

Finally, after the portion of the decision quoted by the appellants regarding direct proof of agency relationships, the Mississippi court continued:

“In Woods v. Clements, and the other cases approving it, a consideration of the question of the difference between commercial trucks or passenger busses operating for hire and automobiles generally used by the majority of our citizens was not before the court. We think there is' quite a difference in the consideration of circumstantial evidence as applied to the one in the contradistinction to the other. We think that we have demonstrated that the circumstances here warranted the jury in finding that the truck was being driven by the servant of the master in the course and furtherance of the master’s business.” (Emphasis supplied).

Contrary to appellants’ assertion, it appears the Merchants Co. opinion, when reviewed in its entirety, expressly permits proving by circumstantial evidence agency relationship and scope of employment, when commerical trucks are involved as opposed to commercial or private automobiles. The decision allowed the proof of the ownership of a commercial truck by circumstantial evidence to create a factual issue regarding the agency relationship for the jury. In addition, the court in Merchants Co. expressly stated that there was only circumstantial evidence presented on the proof of the agency relationship; nonetheless, the court found no error in the-submission of that case to the jury. This holding is totally inconsistent with the rule of law that the appellants attribute to Merchants Co., i. e., that agency relationships must be proved by direct evidence in Mississippi. The Merchants Co. court may imply that direct proof remains necessary as to accidents concerning vehicles other than “commercial trucks and busses for hire,” which we need not decide now, but it also embodies the rule, not contravening prior Mississippi cases, that agency may be proved by circumstantial evidence when commercial trucks are involved. Moreover, two recent Mississippi Supreme Court cases support our analysis of the holding in Merchants Co. See Hobbs v. International Paper Co., 203 So.2d 488 (Miss.1967), and Bynum v. Mandrel Industries, Inc., 241 So.2d 629, 631-632 (Miss.1970).

"Bound by these cases in this diversity suit, we determine that, at least when commercial trucks are involved, the Mississippi law allows agency relationships to be proved by circumstantial evidence. Moreover, when the circumstantial evidence of a defendant’s name on an offending commercial truck is shown, rebuttable presumptions arise that the truck is owned by the defendant and that the operator of the truck is an employee of defendant, and was, at the time of the accident, engaged in the scope of his employment.

In an alternative contention, the appellants assume for the sake of argument that the Mississippi Supreme Court in Hobbs v. International Paper Co., supra, held that circumstantial evidence could be considered in determining the existence of an agency relationship. However, Hobbs is distinguished because the name “Tillman” on the door of the truck was not the only circumstantial evidence, but instead other testimony showed that after the accident Tillman attempted to give a bill of sale for the truck to Gilmore and that Tillman bought a license tag for the truck in Gilmore’s name. Contrariwise the appellants urge that in the case at bar there was only one item of circumstantial evidence, the name on the door of the truck, “Harold Shaffer Leasing Company.” It is pointed out that the insurance policy gave as insureds not only the Shaffer name, but also “Fiat Roosevelt Motors, Inc.” This, asserts the appellant, creates the possibility Fiat Roosevelt Motors was the owner and negates any circumstantial evidence in favor of the alleged agency to be drawn from this policy. In addition, the name of the insureds on the draft that was issued appeared as " “Shaffer Leasing Co., et al.”; similarly this implied other parties were involved. These two items arguably could support or negate the existence of the appellant as the owner of the truck.

Even so, we do not feel that this case falls short of establishing circumstances which would make it possible to submit the agency issue in this case to the jury. It is nothing short of amazing that the plaintiffs did not employ discovery devices at their disposal to further clarify this matter. Also, it would have been very simple for the defendants to submit evidence that could have conclusively established that Ferrell was not their agent acting within the scope of his employment if such had been the fact.

But under the present posture of the evidence, we are compelled to agree with Jack Cole that a showing of a defendant’s name on a commercial truck, accompanied by the potentially corroborative evidence relating to the insurance draft and the exhibition of the insurance policy to Newell, is sufficient under Mississippi law to raise the presumptions that the driver was an agent of this company operating the vehicle within the scope of employment. The weight of the insurance policy and draft was for the jury. Therefore, the testimony of Newell about the name on the side of the offending truck, together with permissible inferences that could be drawn from the insurance company’s response to the accident, and together with the presumptions that this evidence raises, warranted the district court’s submission of the agency issue to the jury. ■

The only remaining problem concerns the structure of the decision as currently east against “Harold Shaffer Leasing Co., Inc., Harold Shaffer, Individually, and Harold Shaffer, d/b/a Harold Shaffer Leasing Co.” The case was properly submitted to the jury against “Harold Shaffer, d/b/a Harold Shaffer Leasing Co.,” since the name of the truck and the insurance policy was “Harold Shaffer Leasing Company” and the name on the insurance draft was “Shaffer Leasing Co., et al.” However, there was no evidence involving a corporation by the name of “Harold Shaffer Leasing Co., Inc.” or a “Harold Shaffer, Individually,” and the court should have directed a verdict in favor of those defendants.

Court Correctly Admitted Insurance Draft In Evidence

On this appeal the appellants contend that the trial court improperly admitted in evidence a draft received from an insurance company (not named) for the precise amount which the plaintiff New-ell had been billed for repair of damages to his automobile. This draft identified the date of the accident as the date on which Mr. Newell was struck by the truck in question. It also showed as the named insured “Shaffer Leasing Co., et al.” The only objection made at the time of trial to the introduction of this draft was that it would inject the fact of the existence of insurance into the case and that the issuance of such a draft by the same insurance company whose policy had been shown to the plaintiff would not be relevant to the issue of agency or ownership.

During the entire colloquy with the trial court the draft was dealt with as if it had named only “Shaffer Leasing Co.” and the further designation “et al.” was not mentioned. No objection was made on the ground that the inclusion of the suggestion that there were other insureds would cast such doubt upon the otherwise permissible inferences as to make the evidence inadmissible. It is only on appeal that the appellant now argues that the presence of these added symbols indicating possible other ownership destroys the value of the draft as evidence in the case.

In view of the fact that no objection was made to the admission of the draft in evidence on the particular point which is now relied upon by the appellants we must consider the case as if the draft showed on its face only that “Shaffer Leasing Co.” was the named insured. Such an objection was properly overruled, because it is clear that several Mississippi decisions support the proposition that such a draft may be admitted for the sole purpose of bearing on the issue of ownership and agency. Luke Construction Co. v. Jernigan, 252 Miss. 9, 172 So.2d 392, 393 (1965); Long-Bell Lumber Sales Corp. v. Perritt, 178 Miss. 194, 172 So. 747, 749 (1937); Pan American Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480, 482 (1930).

As to the matter of bringing insurance coverage into the case, the appellant cannot complain of this because the existence of the insurance was initially brought to the jury’s attention by appellants’ cross examination of Newell at which time Newell testified that he was shown an insurance policy by Ferrell, the driver of the truck. No objection was, or could be, made to this evidence because it was brought out by defendants’ counsel. Moreover, the trial court properly instructed the jury to consider the insurance evidence only in determining the question of agency and not to give it any weight in determining liability or damages.

The judgment is affirmed as to Harold Shaffer, d/b/a Harold Shaffer Leasing Co. and reversed as to Harold Shaffer Leasing Co., Inc. and Harold Shaffer, Individually.

      . The Mississippi cases prior to Merchants Co. holding that agency relationships must be proved by direct evidence had involved either commercial or private automobiles as the offending vehicles, and not commercial trucks. See Southern Bell Telephone & Telegraph Co. v. Quick, 167 Miss. 438, 149 So. 107 (1933) (commercial auto); Atwood v. Garcia, 167 Miss. 144, 147 So. 813 (1933) (private auto); Slaughter v. Holsomback, 166 Miss. 643, 147 So. 318 (1933) (private auto); Woods v. Franklin, 151 Miss. 635, 118 So. 450 (1928) (private auto); Woods v. Clements, 113 Miss. 720, 74 So. 422 (1917) (private auto). This appears to clarify why the Merchants Co. court stated that it would have been presented with difficulty had the offending instrumentality been an automobile instead of a commercial truck.


author: GODBOLD, Circuit Judge:

text:
    Allan A. RYAN and Lee Leachman, Comprising a Partnership known as Ankony Farm, Plaintiffs-Appellants, v. Coy GLENN, Defendant-Appellee.
    No. 72-3048.
    United States Court of Appeals, Fifth Circuit.
    Feb. 8, 1974.

      C. Michael Malski, Amory, Miss., Robert D. Patterson, Aberdeen, Miss., for plaintiff s-appellants.
    William S. Turner, Aberdeen, Miss., Fred M. Bush, Jr., Tupelo, Miss., for defendant-appellee.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   GODBOLD, Circuit Judge:

In October 1963 Glenn purchased from Ryan and Leaehman, partners d/b/a Ankony Farms, a one-half interest in a 15 months old Aberdeen Angus bull, Ankonian Jupiter, for $125,000. Glenn made payments on the purchase price to-talling $106,250, including interest. He refused to pay the balance of $33,144.84, and Ryan and Leaehman sued him for this amount. As a defense and as a counterclaim for the amount he had paid, Glenn alleged fraud in the inducement of the contract. At the conclusion of the trial the court denied motion by Ryan and Leaehman for directed verdicts in their favor on their claim as plaintiffs against Glenn and on Glenn’s claim against them.

By a general verdict and answers to written interrogatories, F.R.Civ.P. Rule 49(b), the jury found the issues in favor of defendant Glenn. The court denied with written opinion plaintiffs’ motion for a judgment n. o. v., 344 F.Supp. 198 (N.D.Miss.1972), and entered judgment denying to plaintiffs recovery of the balance and granting to Glenn under his counterclaim the $106,250 he had paid. The plaintiffs appeal, and we affirm.

I. Fraud

The issue of the fraud which Glenn claimed to have been practiced upon him was described in the pretrial order, in the judge’s charge to the jury, and in Interrogatory No. 1, as whether Leach-man represented to Glenn that Ankonian Jupiter would be a good breeding bull and would be the ideal bull for Glenn’s breeding program. By its general verdict and its answer to Interrogatory No. 1 the jury answered this issue in the affirmative.

The position of Ryan and Leaehman is that the fraud issue was improperly submitted to the jury, for two reasons. First, under Mississippi law, the statements alleged to have been made by Leaehman that Ankonian Jupiter would be a good breeding bull and would be the ideal bull for Glenn’s breeding program, were not actionable representations because they were mere words of commendation expressing the opinion of the speaker. Second, the statements were as a matter of law not false.

Statements of fact may be actionable misrepresentations. Statements of opinion, and mere “puffing,” “trade talk” or “dealer’s talk,” may be actionable but under circumstances discussed below. Stribling Brothers Machinery Co. v. Girod Co., 239 Miss. 488, 124 So.2d 289 (1960); Thomas v. Mississippi Valley Gas Co., 237 Miss. 100, 113 So.2d 535 (1959). An alleged misrepresentation may, however, contain elements of both fact and commendation or opinion. Where a statement sued on “involves an admixture of fact and opinion, wherein it cannot be determined what is of fact and what is of opinion, nor where fact has ended and opinion has begun,” it is not actionable as fraud. Bullard v. Citizen’s National Bank, 173 Miss. 450, 160 So. 280 (1935).

It is not necessary for us to decide whether the statements by Leaehman were fact, an “admixture” of fact and opinion, or entirely opinion, nor whether they should be characterized as mere “puffing.” Even if they were mere “trade talk,” or wholly or partially opinion, the statements were nevertheless actionable if Leaehman, the utterer, had superior access to knowledge concerning the subject matter of the statements. Thomas v. Mississippi Valley Gas Co., supra; Deshatreux v. Batson, 159 Miss. 23, 131 So. 346 (1930).

In Stribling Machinery, supra, the alleged misrepresentation was made by a salesman of heavy machinery to an operator of boats and barges.

Girod [the buyer] testified that he asked Watkins, appellants’ salesman, to recommend what it would take to repower one of his boats, so it could pull one or two barges up the river with a good load; and Watkins recommended this particular marine engine, stating it was what he needed. Girod said that, relying on this, he bought the marine engine which Watkins recommended.

124 So.2d at 293. The Mississippi Supreme Court held that the evidence did not support recovery, that the words were words of general commendation and nothing more than opinion, therefore they were not actionable. The court did not reach the question of unequal access to information. Superior knowledge by the seller had been alleged but presumably was not proved. In Thomas v. Mississippi Valley Gas Co., supra, the statements were that particular gas air conditioning units would perform as well or better than any electrically operated unit. The court held these representations not actionable because they were “puffing”, mere general commendations of property sought to be sold. The evidence disclosed that the appellant and his architect made a trip to the plant of the manufacturer in another state and investigated the air conditioning units at first hand, receiving full information about them. • The court referred to the nonactionability of merely commendatory sales talk and then said:

Applying this principle to the factual business transaction in which the question most often arises, the rule is well settled that mere general commendations of property sought to be sold, commonly known as “trade talk,” “dealer’s talk,” “seller’s statement,” or “puffing,” do not amount to actionable misrepresentations where the parties deal at arm’s length and have equal means of information and are equally qualified to judge of the value of the property sold. To such statements the maxim of “caveat emptor” applies.

113 So,2d at 538. Thus the court made clear that “trade talk” misstatements are unactionable only if the parties have dealt at arm’s length and have equal access to information.

Bullard v. Citizens Nat. Bank, supra, arguably gives support to appellants’ position that Leachman’s statements were nonactionable as a matter of law. A bank officer allegedly represented to a widow with little business experience that bonds which it purchased for her were “gilt-edged and as good as gold” and that the ultimate payment on them was guaranteed by surety companies. The Mississippi Supreme Court held the latter statement to be a representation of fact and thus actionable. It held the former statement nonactionable. The court declined to analyze the cases from other jurisdictions stating that some cases considered such an assertion as the former to be fact and others considered it to be opinion, and rested its conclusion upon the observation that at most the statement was an admixture of fact and opinion and that it was impossible to determine where fact ended and opinion began. The court did not comment upon the allegations of superior knowledge by the bank’s officer. If Bullard is considered to stand for the proposition that commendatory opinion is not actionable where there is allegation and proof of unequal access to information concerning the subject matter, we think that the Mississippi Supreme Court would not follow it. Our conclusion is buttressed by the full and careful statement of reasons filed by the experienced Mississippi District Judge in his order denying motion for judgment n. o. v. He stated the rule to be that “mere expressions of opinion may not support a charge of fraud where the means of information are equally accessible,” and that, conversely, liability could arise where the utterer of an opinion possesses special learning or knowledge on the subject, and that the principle that one may not rely upon opinionative matter is applicable only where the matter in question is as much within the knowledge of one party as the other or open equally to both parties for examination and inquiry. And, finally, he stated his belief that the state courts of Mississippi would apply these principles. 344 F. Supp. at 201.

Whether Leachman possessed knowledge to which Glenn had no access was a controverted factual issue. We review the sufficiency of the evidence to carry to the jury the fraud issue under the federal standards of Boeing v. Shipmon, 411 F.2d 365 (C.A. 5 1969). There was evidence that an expert breeder in the position of Leachman, who had known Ankonian Jupiter from calving and was familiar with his ancestry, could tell with reasonable certainty whether the bull, at the age at which he was sold to Glenn, was a good breeding bull. There was contrary evidence from plaintiffs’ expert that the only way to determine the bull’s worth as a sire was to wait and see the quality of his calves, and if this were accepted the historical knowledge possessed by Leachman concerning Ankonian Jupiter was unrelated to the bull’s breeding qualities and thus was not superior knowledge. The evidence was adequate under Boeing.

The court did not err in denying the motion for a directed verdict couched on the theory that Leachman’s statements were as a matter of law not actionable.

Appellants’ second argument also must be rejected. It is, in substance, that what Leachman uttered were mere statements of opinion about future events, and the element of futurity prevents what was said from being actionable. We are referred to no Mississippi cases in point. The general authority relied upon by appellants, Annot, 51 A. L.R. 46 at 145-146, provides that the general rule that misrepresentations must relate to a present fact and cannot ordinarily be predicated upon statements forecasting future events, is subject to the same exception of unequal access to knowledge. Id. at 81. And the reason for the exception is equally applicable.

II. Rescission

The court submitted to the jury the issue of rescission by Glenn, under the general verdict and by this Interrogatory:

Did Glenn disaffirm the sales contract for the bull Ankonian Jupiter as soon as he had the opportunity to learn the material facts through the exercise of diligence expected of a reasonable per-i son under the circumstances ?

The jury answered “Yes”. Plaintiffs say rescission was not a jury issue. Again we examine the contention under Boeing standards. The action relied upon as rescission consists of a dinner-table conversation at a livestock exhibition in late 1966 or late 1967 in which Glenn stated to Leachman that Ankonian Jupiter never should have been sold to him (Glenn), that the bull should have been a steer (i. e. emasculated rather than used for breeding), and that he had no intention of making the final payment for Ankonian Jupiter. And, Glenn testified, on that occasion he offered to give the bull back.

We do not consider it a condition precedent to rescission that at the time Glenn offered the bull back he contemporaneously demand the return of the purchase money he had paid. The idea of rescission is restoration of the status quo. The refusal to pay more and a tender of the property purchased, plus at a later time and within the statute of limitations the filing of a suit (here the counterclaim) seeking return of purchase money paid, seems to us sufficient. No Mississippi authority to the contrary is cited to us except a general statement from Ware v. Haughton, 41 Miss. 370 (1867): “* * * the idea of rescission involves the additional and distinguishing element of a restoration of the status quo, that is, an offer by the moving party to restore all that he has received under it, with a demand for the similar restoration to him of all that he has paid or given under it. * * *” But at a later point the same case says: "* * * And he (the purchaser) must put the other party in status quo, by an entire surrender of possession, and of everything he has obtained under the contract.” (Emphasis added.)

Also, appellants say that as a condition precedent to rescission Glenn was required to tender fruits of interim use of the property sold and that he failed to do so. There was evidence rising to Boeing standards that Glenn acquired no profits and benefits from interim use but rather suffered losses.

Rescission must be within a reasonable period of time after discovery of the facts on which it is based, Whittington v. H. T. Cottam Co., 158 Miss. 847, 130 So. 745 (1930), and reasonable dispatch is a case-by-case factual matter. In his statement of reasons the trial judge reviewed the evidence bearing on that inquiry. We restate it briefly. Glenn bought the one-half interest in Ankonian Jupiter in October 1963. The bull was not turned over to Glenn until April 1964 at which time he was two years old and of breeding age. In the interim Ryan and Leachman had showed him as a prize bull at the Chicago International Livestock Exhibition. During 1964 Glenn used Ankonian Jupiter for breeding purposes. The first word Glenn had of possible deficiencies in the bull was in late 1964 when he employed a new cattle manager, who stated to Glenn his opinion that the bull would not be a good breeding bull because he was too small in size, his ancestors were too small, and he was reputed to be possessed of an undesirable genetic factor. Glenn continued to use Ankonian Jupiter as a herd sire during 1965 and 1966, and then discontinued using him, He advertised him as a herd sire from 1965 to some time in 1968. Glenn testified that he wanted to give the bull “a chance to work out”, that is, to see if his calves would measure up to expectations and would bring good prices in the market. The first calves were sold at auction March 1 and September 30, 1966, and the second crop was sold in December 1967. Glenn testified that he did not realize the calves were inferior until the second crop was sold. Glenn was himself untrained in the cattle business, but at least from 1964 on he had a knowledgeable cattle manager.

We agree with the analysis of the District Judge in his statement of reasons that Glenn was not as a matter of law required to rescind as soon as he heard the opinion of his new cattle manager, and that the jury was entitled to conclude that a reasonable person in Glenn’s position could wait to determine whether the manager’s opinion was valid by seeing the actual calves and observing how they sold in the market. Also bearing on this issue of the reasonableness of Glenn’s waiting for the on-the-hoof facts was that he had purchased two other high priced bulls from Ryan and Leachman that had proved satisfactory and that Ankony Farms enjoyed an excellent reputation in the Aberdeen Angus cattle industry.

These same facts dispose of appellants’ parallel argument that by retaining and using the bull after 1964 Glenn waived his right to rescind.

III.

We have considered the claims concerning damages and the charge to the jury on damages. None has merit.

Affirmed.

      . For earlier opinions in this case see 52 F.R.D. 185 (N.D.Miss.1971); 336 F.Supp. 555 (N.D.Miss.1971); 344 F.Supp. 198 (N.D.Miss.1972).

      . A separate point is whether commendatory opinion becomes actionable when the parties are not equally qualified to judge the value of the property sold. In view of our conclusion concerning access to information we do not discuss this point at length. See quotation infra from Thomas v. Mississippi Valley Gas Co., 237 Miss. 100, 113 So.2d 535 (1959).

      . Similarly, it was also a factual question proper for jury determination whether Glenn, who was a novice in the cattle business but when he talked to Leachman was accompanied by his then farm manager, was as qualified as the prestigious Ankony Farms to judge the worth of Ankonian Jupiter as a breeding bull for the Glenn herd.

      . Obviously there is some element of futurity in many representation situations, so that the concept of nonactionability for forecasts of future events has to be applied with care. For example, in Thomas v. Mississippi Valley Gas Co., supra, the representations related to air conditioning units to be later furnished and installed in a building to be constructed. The units would not be called upon to perform until a future time. (And indeed in many situations might not even exist when the representations were made.) The Mississippi Supreme Court did not even refer to futurity.

      . The use of the term “disaffirm” in the Interrogatory was not objected to. Throughout the charge that term and “rescind” were used as synonyms.

      . When suit was filed Ankonian Jupiter had died, so it was no longer possible for Glenn to put the plaintiffs back in possession of the property. But this was three years after the statement in Chicago which the jury could, and did, find was a sufficient tender of the bull, during which time the plaintiffs had not ■availed themselves of the tender offer.

      . Appellants contention comes up in the context of whether a directed verdict should have been granted to plaintiffs on the counterclaim. The point now asserted of no contemporaneous demand for the return of money was not made to the trial judge when the oral motion was made. The court charged the jury:
      “As soon as he learns or has an opportunity to learn what the facts are, what the true facts are, he must act, certainly within a reasonable time, to notify the other party that he is rescinding the sale, he is dis-affirming the contract, that he is tendering back what he got in the sale, the consideration he got — here it would be the bull — and that he will not recognize the contract to any further extent.”
      There was no objection to this instruction as insufficient.

      . Which might tend to cause some of his calves to be red rather than the more desirable black color.

      . There was evidence that the usual breeding life of a bull is about ten years. Ankony Farms retained the unsold half interest in the bull and was entitled to his possession and services in alternate years, but never exercised that right, nor did it ever secure semen from him for breeding purposes.


author: RIVES, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Earl Bobby BETNER, Defendant-Appellant.
    No. 73-1986.
    United States Court of Appeals, Fifth Circuit.
    Feb. 8, 1974.

      Joseph E. Wilkerson, Atlanta, Ga. (Court-appointed), for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Eugene A. Medori, Jr,, Anthony M. Arnold, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.
    Before RIVES, WISDOM and MORGAN, Circuit Judges.
   RIVES, Circuit Judge:

Betner was adjudged guilty on a jury’s verdict after trial under an indictment which charged that he “knowingly and intentionally did unlawfully distribute about 4.75 grams of heroin hydrochloride, a Schedule I narcotic drug controlled substance, in violation of Title 21, United States Code, Section 841(a)(1).”

Since the indictment charged unlawful distribution, it did not require proof that Betner sold or aided and abetted in the sale of the heroin. United States v. Johnson, 5 Cir. 1973, 481 F.2d 645, 647. The evidence was sufficient to support the jury’s verdict.

Nonetheless, the case must at least be remanded because the district court failed to conduct a full and thorough investigation before ruling on the objection of Betner’s counsel to the panel of jurors selected to try the case. The objection was based on a conversation between members of the jury panel and a member of the United States Attorney’s staff.

The pertinent part of the written record is extremely brief, consisting entirely of the following :

“MR. WILKERSON [Betner’s Attorney] : I would also like to enter an objection to the present panel of jurors based on the fact for the past recess the District Attorney’s office has had opportunity to discuss and converse with the jurors, thereby prejudicing them against the defendant.
“MR. GAFFNEY [Assistant U. S. Attorney who prosecuted Betner]: I have been in my office during the entire period.
“THE COURT: Motion overruled. I assume that the conversation Mr. Smith [Assistant U. S. Attorney who prosecuted an earlier case] had has been with respect to the results of the previous ease.
“MR. SMITH: That is what we have been discussing. This case wasn’t mentioned at all to anyone to my knowledge. As a matter of fact I don’t even know, I know Mr. Saganar [Attorney for a codefendant of Bet-ner], this case was not mentioned at all, the other case was discussed or the one which they were on.
“THE COURT: * * * Okay, bring in the panel.
“MR. WILKERSON: I want to make sure—
“THE COURT: If it’s of any assistance I will submit to counsel for the defendant my list of the jurors in the Elizabeth Faye Jones case. Do you want that?
“MR. WILKERSON: I’d like to make sure it’s entered in the record my objection.
“THE COURT: I think the reporter just took it down.
“(Whereupon, the jury panel was brought into the courtroom.)” (R. pp. 5-6.)

The peremptory and almost casual overruling of Betner’s objection to the panel of jurors may be supplemented by the statements of his appointed counsel both in brief and upon oral argument. In brief counsel stated:

“Appellant submits that on the 16th day of March, 1973, a U. S. Attorney, M. Robert L. Smith,, without permission or direction of the Court, conversed and fraternized with members of a jury outside the hearing of the Court for an extended period of time during a one and one half hour recess; these said jury members being about to be seated for the trial of the Appellant herein. Counsel for Appellant objected to these prospective jurymen being seated, stating in open court that they had been prejudiced against the Defendant Betner, Appellant herein. [Page 5 of Transcript, Lines 2-18]. Said motion was overruled by the Court. The Appellant now appeals that ruling.
“It is the contention of the Appellant that the fraternizing by the U. S. Attorney’s office with the jury created, intentionally or unintentionally, a relationship or common ground between the office of the U. S. Attorney and the jurors. Further, that this fraternizing and conversation created a spirit of friendship and cooperation between the office of the U. S. Attorney and the jurors and that this resulted in prejudice to the Appellant herein.
“As a result of the conversation and fraternization as set out above, said conduct being admitted by the U. S. Attorney’s office [Page 5 of Transcript, Lines 10-18] the Appellant’s trial was unduly and unnecessarily prejudiced * *

The appellee’s brief took the following position:

“Defense counsel was content to let the matter rest there, and sought no clarification of the alleged extraneous transaction. The Court asked all counsel if there were any questions that should be propounded to the jury ‘touching on its legal qualifications.’ (R. 7). The panel roll was called and a jury was selected, without appellant’s counsel seeking any inquiry into the possibility that any members of the jury had spoken with Mr. Smith. Mr. Smith had stated that the substance of his remarks had been addressed towards the Elizabeth Faye Jones case, and nothing else. The defense made no effort to obtain the list of jurors in that case, which the Court offered. (R. 6).”

Upon oral argument appellant’s counsel challenged that position and insisted that the jury was chosen prior to the long recess, and that government counsel conversed and fraternized with members of the jury during most of that period.

Appellee’s counsel on oral argument conceded that he had not participated in the trial and had no knowledge or information other than that disclosed by the record. Apparently that is true also of counsel who prepared the appellee’s brief. In view of the ambiguous state of the record, and the failure of appellee to challenge the statements of appellant’s counsel, we have no reason to doubt the accuracy of those statements and accept them.

The district court’s investigation went no further than to ascertain that the ease on trial was not mentioned. This was insufficient. True, in Remmer v. United States, 1954, 347 U.S. 227, 229, 74 S.Ct. 450, 451, 98 L.Ed. 654 (rehearing granted, 1955, 348 U.S. 904, 75 S.Ct. 288, 99 L.Ed. 710), the conversation was “with a jury during a trial about the matter pending before the jury.” 347 U.S. at 229. On the other hand, in Turner v. Louisiana, 1964, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, the Court reversed the judgment of conviction and remanded the case even though there was “no showing that either deputy had talked with any member of the jury about the case itself.” 379 U.S. at 469, see also p. 473. In Pekar v. United States, 5 Cir. 1963, 315 F.2d 319, it was “not contended that the attorney mentioned the case on trial,” 315 F.2d 320, but this Court held it reversible error for the district court to deny the defendant’s motion for mistrial because during a recess an Assistant United States Attorney conversed with a juror' about the juror’s bonding business. There, Judge Tuttle, writing for this Court, said:

“ * * * the language used by the Supreme Court in Mattox v. United States, 146 U.S. 140, at page 150, 13 S.Ct. 50, at page 53, 36 L.Ed. 917, sets the standard. ‘Private communications possibly prejudicial, between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.’ ”

315 F.2d at 322.

Of course, however, each case must depend upon its own facts. We do not set down a rigid per se rule automatically requiring the reversal of a conviction for any communication between jurors and attorneys or other third persons. Compare Gonzales v. Beto, 1972, 405 U.S. 1052, 1054, 92 S.Ct. 1503, 31 L.Ed.2d 787, Justice Stewart concurring.

In the present case, as in Remmer, supra, 347 U.S. at 229, “We do not know from this record * * * what actually transpired, or whether the incidents that may have occurred were harmful or harmless.” In such a case we think the rule should be the same, however the claimed error may be preserved — that is, by objection to the jury panel, by motion for mistrial, by motion for new trial, or otherwise. We should “require such further proceedings to be had as may be just under the circumstances.” 28 U.S. C. § 2106.

The duty of the trial court at the time when jury misconduct is alleged was well stated by Judge Goldberg speaking for the majority in United States v. McKinney, 5 Cir. 1970, 429 F.2d 1019, 1026:

“Implicit in these cases is the assumption that when jury misconduct is alleged in the defendant’s motion for new trial, the trial judge has a duty to take the following actions: he must conduct a full investigation to ascertain whether the alleged jury misconduct actually occurred; if it occurred, he must determine whether or not it was prejudicial; unless he concludes that it was clearly not prejudicial, he must grant the motion for new trial; if he concludes that it did not occur or that it was clearly not prejudicial, he must spell out his findings with adequate specificity for meaningful appellate review.”

In that case we remanded the case to the district court with specific directions for an evidentiary hearing and adequate fact findings.

In the present case only three witnesses testified on behalf of the Government, an FBI chemist and two members of the Atlanta Police Department. So far as we are advised all three would be available for another trial. No witness was offered on behalf of Betner. The transcript of testimony comprises only 216 typed letter size pages. After so many months of delay, the type of evidentiary hearing which should have been held when the objection was made at Betner’s trial on March 16, 1973 would consume a long time, involve many witnesses, some of whom would probably have dim recollections, and lead to a result which would be open to further controversy. Other reasons also make reversal and remand for a new trial the more appropriate remedy. A new trial will obviate the possibility of the additional appeal envisioned by Judge Godbold dissenting in McKinney, supra, 429 F.2d at 1033, and will moot any doubt about the fairness of Betner’s trial.

The judgment of conviction is therefore reversed and the case is remanded for a new trial.

Reversed and remanded.