text:
    HOWES BROS. HIDE CO. et al. v. COMMISSIONER OF INTERNAL REVENUE.
    No. 2533.
    Circuit Court of Appeals, First Circuit.
    May 16, 1931.

      Robert A. Littleton, of Washington, D. C. (Mason, Spalding & McAtee, of Washington, D. C., on the brief), for petitioners for review.
    J. Louis Monarch, Sp. Asst, to Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., F. Edward Mitchell, Sp. Asst, to Atty. Gen., and C. M. Charest, General Counsel, and Percy S. Crewe, Special Attorney, Bureau of Internal Revenue, both of Washington, D. C., on the brief), for the Cbmmissioner.
    Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
   ANDERSON, Circuit Judge.

This appeal from the Board of Tax Appeals presents the question as to whether the Howes Brothers Company, the Howes Brothers Hide Company, and the Huntington Shoe 6 Leather Company may (all or any two of them) be affiliated within the meaning of the Revenue Act of 1918, c. 18, § 249 (b), 49 Stat. 1957, 1982, which reads:

“For the purpose of this section two or more domestic corporations shall be deemed to be affiliated (1) if one corporation owns directly or controls through closely affiliated interests or by a nominee or nominees substantially all the stock of the other or others, or (2) if substantially all the stock of two or more corporations is owned or controlled by the same interests.”

The Howes Brothers Company is a Massachusetts corporation, managed and dominated by the five Howes brothers. Its authorized capital stock is $3,999,099: First preferred, 7 per cent., series A, $600,000; series B, 6 per cent., $909,009; second preferred, $350,-000; common, $1,150,000. The first preferred stocks are callable at specified prices on 90 days’ notice. The Howes brothers own all the common and second preferred, and 37 shares 'of the first preferred. All classes of stock have like voting power; the five Howes brothers have thus a slight voting majority.

The hide company is essentially a holding company, with only common stock, 1,995 shares, all held by the five Howes brothers.

These two concerns have a common office in Summer street, Boston, and with the same' employees.

The Huntington Shoe & Leather Company has its principal office and place of business in Huntington, Lid. It had three classes of stock — first preferred, second preferred, and common. From and after April 22, 1918, only the common had voting rights. During 1918 and 1920, the common stock was held as follows:

1918 1920
Eldora W. Howes........ ..... 75 75
George C. Howes________ ..... 105 105
Henry S. Howes........ 10
E. P. Melson............ ..... 250. 125
C. A. Sawyer, Jr......... ..... 680 680
H. M. Webster.......... 125
Edna M. Webster........ ..... 40 40
Clarence A. Howell...... ..... 25 25
Helen B. Howes......... ..... 10
Other stockholders....... ...A 15 15
' 1,200 1,200
“The above stockholders bore the following relationship to the five Howes brothers: Eldora Howes, wife of George C. Howes; George C. and Henry Howes, two of the five Howes brothers; E. P. Melson, father of Edna Webster; C. A. Sawyer, Jr., nephew of Ernest G. Howes; H. M. Webster, brother-in-law of George C. Howes; Edna Webster, wife of H. M. Webster; Clarence A. Howell, employee of Howes Brothers-Company. The 680 shares of stock standing in the name of C. A. Sawyer, Jr., was purchased with funds advanced by the Hide Company, the advance being made either to Sawyer, G. C. Howes or both. Eldora Howes held 40 shares of first preferred, series A, in Howes Brothers Company, and Clarence A. Howell owns 100 shares of the same stock, while C. A. Sawyer, Jr., owned 50 shares of the Howes Brothers Company’s first preferred, series B, stock.
“Since its organization, the Huntington Shoe and Leather Company has been financed by the petitioners. At the close of 1918 the Huntington Company owed Howes Brothers Company "approximately $325,000 for leather purchased. At the close of 1920 the Huntington Company had received advances from Howes Brothers Company of $375,000, and from the Hifie Company of $150,000, in addition to approximately' $325,000 of leather from Howes Brothers Company. None of this indebtedness had been liquidated by the Huntington Company up to 1920, and only about $100,000 since then.”

The financial status of the three concerns is shown as follows:

Dec. 31, 1917 Dec. 31, 1918 Dee. 31, Dee. 31, 1919 1920
Howes Bros. Co. Surplus $957,680.09 .
Howes Bros. Hide Co. • surplus 196,620.95 359,618.34 540,576.44
Huntington Shoe & Leather Co. (deficit) (813.60) (192,385.80) (195,809.61) (341,591.86)
“The balance sheets also show that the assets of the Howes Brothers Company consisted almost entirely of cash, accounts receivable and liberty bonds.
“The Howes Brothers Company has never passed a dividend on its first preferred stock.”

In the years 1918 and 1920, the three companies filed a consolidated return; the commissioner denied the affiliation and determined a deficiency of $3,978.23 against the hide company for 1918, and a deficiency - of $25,035.72 against the Howes Brothers Company for 1920. If entitled to affiliation, the loss in the Huntington Company would absorb these deficiencies.

Unquestionably, the Howes brothers are the dominant, managerial, and economic power of the three concerns. In common phrase, the Huntington Company and the hide company are subsidiaries of the Howes Brothers Company. The three concerns are a business unit.

In business and in financial control they are clearly affiliated. Whether they are affiliated within the fair construction of the taxing statute is the only possibly doubtful question.

Considering first the Huntington Company: Its stock is, .to the extent of 1,035 shares out of 1,200 shares, owned by the Howes brothers or their entirely owned hide company. The Huntington Company is also larger ly in debt -to the Howes Brothers Company and/or the hide company. We think.it quite clear that the minority interests are, as this court held in Kile & Morgan Co. v. Commissioner, 41 F.(2d) 925, only negligible. More- ■ over, the minority stock is practically all held by' relatives, at least by marriage, or employees.

The main question is as to the minority holding of first preferred stock in the Howes brothers' corporation. This company issued these callable preferred stocks in order to get more cash for. their expanding and prosperous business. -Both the A and B series are callable on 90 days’ notice. None of the preferred stockholders have even attended a stockholders’ meeting in person. They have either neglected the meetings, or given their proxies to some one of the Howes brothers. Their practical business relation to the enterprise is very much like that of bondholders, at least during times of prosperity. During the years in question, the Howes Brothers Company and the wholly controlled hide company, one or both, could without apparent embarrassment have called all these preferred stocks and paid therefor out of available surplus.

It follows that, in a practical, financial, and business sense, the same interests controlled this corporation. The technical situation is not significantly different than in Commissioner v. Crescent Leather Co., 40 F. (2d) 833, 835, where this court, after analysis of the record said:

' “The Crescent Leather Company, through its president and treasurer, controlled by ownership, contract, and otherwise all the voting stock of the Buekman Tanning Company, the two corporations were entitled to be affiliated and file a consolidated return.”

These views accord with those of the Seventh Circuit in Great Lakes Hotel Co. v. Commissioner, 30 F.(2d) 1, and a decision by the Sixth Circuit in Commissioner v. Shillito Realty Co., 39 F.(2d) 830; 69 A. L. R. 1266. They are also in accord with the weight of the decisions of the B. T. A. See Appeal of Isse Koch & Co., 1 B. T. A. 624; Appeal of Hagerstown Shoe & Legging Co., 1 B. T. A. 666; Appeal of Midland Refining Co., 2 B. T. A. 292; Richfield Oil Co. v. Commissioner, 13 B. T. A. 1050; Wilshire Oil Co. v. Commissioner, 13 B. T. A. 1150; Gong Bell Mfg. Co. v. Com’r, 15 B. T. A. 152, 157; Atlantic City Electric Co. v. Commissioner, 15 B. T. A. 1084, 1086, 1089. The same doctrine .of adopting economic control as the test of the right to make affiliated returns was, in effect, followed by this court in Commissioner v. Crescent Leather Co., supra, and in Kile & Morgan Co. v. Commissioner, supra.

We do not overlook that there are court decisions, which, if not distinguishable on the faets, look the other way. Those decisions are Commissioner v. Adolph Hirsch & Co., 30 F.(2d) 645; Ice Service Co. v. Commission er, 30 F. (2d) 230, both in the Second Circuit, and United States v. Cleveland, etc., R. R., 42 F.(2d) 413, where Judge Mack, in the Sixth Circuit, makes a detailed review of the history of the legislation, and cites most of the pertinent authorities. Compare Goldstein Bros. Amusement Co. v. White, Collector, 33 F.(2d) 787 (D. C. Mass. Dist.). In dicta, possibly in decision, these eases may be inconsistent with the view that we reach. We think them not clearly consistent with the manifest purpose of Congress to treat an economic and business unit as also one for tax purposes. Our result is just, whether it makes for or against the government as to the amount of taxes. Certainly there is no controlling decision of the Supreme Court the other way. We think that both on principle and on the weight of authority our conclusion is correct.

The general result is that we hold the conclusions of the Board of Tax Appeals in the instant ease unwarranted. We think these three corporations were entitled and required to make a consolidated return.

The orders or decisions of the Board of Tax Appeals are vacated, and the eases are remanded for further proceeding not inconsistent with this opinion.


source: Caselaw Access Project

author: WALKER, Circuit Judge.

license: Public Domain

text:
    MISSISSIPPI VALLEY TRUST CO. v. BUSSEY.
    No. 5993.
    Circuit Court of Appeals, Fifth Circuit.
    May 20, 1931.
    Robert W. Shackleford, of Tampa,. Fla., and J. B. Daggett, of Marianna, Ark., for appellant.
    McKinney Barton and Sam H. Mann, Jr., both of St. Petersburg, Fla. (McKinney Barton, Sam H. Mann, Jr., and Bussey, Mann & Barton, all of St. Petersburg, Fla., on the brief), for appellee.
    Before FOSTER, SIBLEY, and WALKER, Circuit Judges.
   WALKER, Circuit Judge.

The appellant, the owner of notes aggregating $44,000 made on April 24, 1919, by T. J. Hannah and Ida B. Hannah to William M. Fitch, and secured by the makers’ mortgage or deed of trust on land in St. Francis county, Ark., which notes and mortgage or deed of trust were transferred to appellant, .brought this action at law against the appellee, who under the terms of a warranty deed to said land made to him by T. - J. Hannah and Ida B. Hannah on May 14, 1919, assmned the payment of the above-mentioned notes, and also the notes secured by a second mortgage or deed of trust of the same land, to recover the balance on the first-mentioned notes remaining unpaid after the foreclosure of the mortgage securing them and the application on the debt evidenced by those notes of the proceeds of the sale of the mortgaged land. By his sixth plea the appellee — after alleging that C. E. Turley, to whom the mortgaged land was conveyed in September, 1919, assumed the indebtedness mentioned in said two mortgages or deeds of trust; that W. C. Bonner, H. W. Bonner, B. H. Bonner, and J. C. Bonner, as a partnership of J. H. Bonner & Sons, to whom the mortgaged land was conveyed on April 30, 1921, assumed and promised to pay the indebtedness described in the two above-mentioned mortgages or deeds of trust — alleged:

“That on or about July 27,1923, there was due and owing to the plaintiff upon the debt and mortgages described in the declaration, the interest payments which had become due on April 24, 1923, aggregating approximately $3600.00, and that on or about said date, the plaintiff, Mississippi Valley Trust Com-j pany, made an agreement with J. H. Bonner & Sons under the terms of which the payment of said interest was extended, so that the same should become due and payable in three installments of $1200.00 eaeh, due respectively on September 1, 1923, October 1, 1923, and November 1, 1923, and waived the default in the payment of the indebtedness described in the said mortgage trust deeds. That in consideration of said extension agreement and waiver, the said J. H. Bonner & Sons executed to S. H. Mann as Trustee for the Mississippi Valley Trust Company a certain chattel mortgage covering 38 head of mules, 7 head of horses, all farming utensils, all crops of cotton and com and other produce, said property being located North of Heth, St. Francis County, Arkansas, on the lands of the said J. H. Bonner & Sons, and the said chattel mortgage securing three notes for $3600.0.0, and the debt held by Mississippi Valley Trust Company, and which was a lien on the lands of J. H. Bonner & Sons. A certified copy of said chattel trust deed is attached hereto and made a part hereof and marked ‘Defendant’s Exhibit 4.’
“The extension hereinabove referred to was given and the agreement for extension (set out above was made without the knowledge or consent of this defendant, and the defendant states that by reason of the facts and things just above alleged, he has been released from the indebtedness sued upon.”

The appellant filed a demurrer to the sixth plea. That demurrer was overruled. By replication the allegations of that plea were put in issue. Upon the conclusion of the evidence the court directed a verdict in favor of the defendant. Errors are assigned on the overruling of the demurrer to the sixth plea, on -the court’s ruling on objections to evidence mentioned below, and on the action of the court in directing a verdict in favor of the defendant.

The allegations of the sixth plea do not show that the appellant, at the time it made the alleged agreement extending the time of payment of interest, had knowledge or notice that J. H. Bonner & Sons had assumed the indebtedness secured by the two above-mentioned mortgages or by either of those mortgages. Those allegations are consistent with the appellant, when that agreement was made, having been without any knowledge or information as to what, if any, relation to the mortgaged land J.*H. Bonner & Sons had. By assuming the debt secured by the mortgage, eaeh succeeding grantee of the mortgaged land became directly and primarily liable to the mortgagee or his assignee for the debt evidenced by the notes aggregating $40,000, and the relation of J. H. Bonner & Sons, after they became so liable, towards the mortgagor, or. appellant, as well as between themselves, was that of principal to surety for the payment of the debt evidenced by those notes, with a result that if thereafter the appellant, while being the owner of those notes and with knowledge of the relation of principal and surety between J. H. Bonner & Sons and the appellee, and without the consent of the latter, extended the time of payment of the principal or interest of the debt evidenced by those notes, thereby it discharged the surety, the appellee. This is so because the creditor, by so giving time to the principal debtor, puts it out of the power of the surety to have the same remedy he would have had but for such extension. Union Mutual Life Ins. Co. v. Hanford, 143 U. S. 187,12 S. Ct. 437, 36 L. Ed. 118; Slottow v. Hull Inv. Co. (Fla.) 129 So. 577. Unless the creditor, the appellant, knew or was informed, at the time it agreed with one other than the mortgagors for an extension of the time of payment of the debt secured by the mortgage, of the relation of principal and surety between that person and the appellee, the latter was not discharged by the making of such agreement. This is in accordance with the general rule that, in order for a surety to be discharged by the acts of the creditor or obligee, the latter, when he becomes a party to conduct relied on as effecting a discharge, must have knowledge or notice of the existence of the relation of principal and surety. Pratt v. Conway, 148 Mo. 291, 49 S. W. 1028, 71 Am. St. Rep. 602; Insley v. Webb, 41 A. L. R. 274, 302, note; Wilson v. Foot, 11 Metc. (Mass.) 285; McCloskey v. Indianapolis Mfg., etc., Union, 67 Ind. 86, 33 Am. Rep. 76; Mullendore v. Wertz, 75 Ind. 431, 39 Am. Rep. 155; Scott v. Scruggs (C. C. A.) 60 F. 721; 50 C. J. 111. The fact that J. H. Bonner & Sons arranged for an extension of the time of payment of the debt secured by the mortgage was consistent with their being in no way obligated to pay that debt, ©ne might be interested in procuring such extension who had bought the property subject to the mortgage, without obligating himself to pay the debt thereby secured; or if he was a general creditor of the mortgagors, he might have had a substantial interest in keeping his debtors from losing their equity in the mortgaged property. Shepherd v. May, 115 U. S. 505, 6 S. Ct. 119, 29 L. Ed. 456. A creditor’s agreement to extend the time of payment of the principal or interest of the debt owing to him may be brought about by one who in no way is obligated for the payment of that debt, and, in procuring such extension, is influenced only by a benevolent desire to postpone the enforcement of it against the debtor. By reason of the allegations of the sixth plea failing to show that appellant, at the time it agreed to the alleged extension, had knowledge or notice of the existence of the relation of principal and surety between J. H. Bonner & Sons and the mortgagors or the appellee, that plea failed to show that the alleged extension had the effect of discharging the mortgagors or their immediate grantee, the appellee.

Evidence adduced in the trial showed the following: T. J. Hannah and Ida B. Hannah executed two deeds of trust, both dated April 20, 1919, and covering the same land, one, called the first mortgage or deed of trust, being given to secure the debt evidenced by the above-mentioned notes aggregating $44,000, and the other, called the second deed of trust, being given to seeure notes evidencing an indebtedness other than that evidenced by the notes aggregating $44,000. The appellant became the owner of the notes aggregating $44,900, and also of some of the notes secured by the second deed of trust. By the terms of the second deed of trust it was to stand as security, not only for the debt evidenced by the notes other than those evidencing the indebtedness aggregating $44,-000, but for all sums advanced for the payment of taxes, liens, insurance, or interest on the debt secured by the first deed of trust. On April 23, 1923, a member of the firm of J. H. Bonner & Sons saw an official of the appellant with reference to the principal and interest that would be due on the first and second mortgages or deeds of trust on April 24, 1923, and stated that they could not pay that amount the next day, but could do so inside of sixty days. Thereupon that official stated that appellant would make no formal extension of the amount due, but that if the delinquent taxes on the mortgaged land were promptly paid appellant would take up from investors the interest coupons due April 24, 1923, and carry same until June 24, 1923. This was agreed to by the member of the firm of J. H. Bonner & Sons. That firm did not comply with that agreement. To secure the sum which was due April 24, 1923, which J. H. Bonner & Sons had agreed to pay as above stated, they, J. H. Bonner & Sons, on or about July 27, 1923, executed three notes, payable, respectively, September 1, 1923, October 1, 1923, and November 21,1923, and a chattel mortgage on live stock and farm implements and tools, to seeure those notes. At the time of the just-mentioned transaction appellant told J. H. Bonner & Sons that it would wait until the collateral notes matured, and would not foreclose if those notes were promptly paid at maturity, and would release the chattel mortgage when the notes secured thereby were paid. That was the only agreement made by the appellant relative to interest on the debts secured by the first and second mortgages being paid on any other date than April 24, 1923. The appellant Offered in evidence testimony to the effect that during the year 1919 appellant sold and transferred to others all of the above-mentioned notes aggregating $44,000, and secured by the first deed of trust, that those notes were repurchased by the appellant more than a year after the execution of the above-mentioned chattel mortgage, and that appellant paid to those who were the owners and holders of those notes on April 24,1923, the interest due thereon on that date. The court sustained objections of the appellee to that evidence. The evidence so offered and rejected tended to prove that at the time of the transaction alleged in the sixth plea nothing was owing to the appellant on the above-mentioned notes aggregating $44,000, as appellant was not then the owner or holder of any of those notes, and that no agreement for the extension of the time of payment of the principal or interest of the debt evidenced by those notes was made by the owner thereof. That evidence negatived the truth of material allegations of the sixth plea. The allegations of that plea having been put in issue, evidence tending to disprove material allegations of it was admissible. The rejected evidence, in connection with other evidence adduced, tended to prove that the extension agreement set' up by the sixth plea had reference to a debt other than that evidenced by the above mentioned notes aggregating $44,000, and sued on in this case, which were not owned by appellant when that agreement was entered into, that the debt the time of payment of which was extended by that agreement was one secured by the second deed of trust, no part of which debt was evidenced by the notes aggregating $44,000, or any of those notes, and that none of the owners of those notes at the time the alleged agreement was made was a party to any extension agreement. We corn elude that the court erred in excluding the evidence under consideration.

Because of the above-mentioned errors, the judgment is reversed, and the cause is remanded, with a direction that a new trial be granted.

Reversed.


author: PER CURIAM.

text:
    BESS v. UNITED STATES.
    No. 3157.
    Circuit Court of Appeals, Fourth Circuit.
    April 25, 1931.
    J. Raymond Gordon, of Charleston, W. Va., for appellant.
    James Damron, U. S. Atty., of Huntington, W. Va.
    Before PARKER and NORTHCOTT, Circuit Judges, and ERNEST F. COCHRAN, District Judge.
   PER CURIAM.

Appellant, who will be here referred to as defendant, was convicted after trial before a jury in the District Court of the United States for the Southern District of West Virginia, at Bluefield, at the January term, 1930, being charged with violation of section 3296 of the Revised Statutes of the United States (26 USCA § 404), and with transporting intoxicating liquors in violation of the National Prohibition Act, and was sentenced to three years’ imprisonment in the penitentiary, and a fine of $200. .

Federal and state prohibition agents had received information that the defendant was bringing a carload of liquor to Huntington, and would make a delivery of some of said liquor to a certain place in the city of Huntington at a certain time in the evening. At the time fixed, the prohibition agents went to the place where the liquor was to be delivered. One of the agents concealed himself in the house where the delivery was to be made, another agent outside of the house, and one in front of the house near where the car driven by defendant would stop. A few minutes after the officers arrived, the defendant drove up in a car fitting the description they Lad as of the ear in which the liquor was to be carried, and stopped in front of the house where the delivery was to be made. Immediately after the car was stopped in front of the house, the defendant got out of the car with two packages protruding from his pockets, and started to the house where the delivery was supposed to be made. The agent stationed near the ear immediately went to the automobile, the door of same being- open, and saw two one-gallon jugs on the floor near the seat of the automobile. The agent took the jugs from the car, and started following defendant in’the direction of the house. When defendant reached the house and went up on the porch, the agent stationed in the house opened the door and met him on the porch. The defendant was arrested and searched, and the packages in his pockets were found to be two quart bottles of whisky, and the jugs found in the automobile were also found to contain whisky. The ear was seized. The arrest of defendant, the seareh and seizure of the ear, and the seareh of the defendant after the arrest, all happened in a short space of time.

The question raised on appeal is that the search of the defendant was in violation of the Fourth Amendment to the Constitution of the United States, which prohibits unreasonable searches and seizures.

In a recent ease decided by this court, Fisher v. United States, 46 F.(2d) 994, decided January 31, 1931, this court dealt with a similar set of circumstances, and held that officers had a right to arrest one whom they had reason to believe was engaged in a commission of a felony, and that a search subsequent to an arrest under these circumstances was a proper search.

See, also, Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, C9 L. Ed. 543, 39 A. L. R. 790; Milam v. United States (C. C. A.) 296 F. 629; Ash v. United States (C. C. A.) 299 F. 277; Benton v. United States (C. C. A.) 28 F.(2d) 695.

In a recent' case decided by the Supreme Court of the United States, Husty et al. v. United States, 51 S. Ct. 240, 241, 75 L. Ed. -, decided February 24, 1931, the court said: ,

“The Fourth Amendment does not prohibit the seareh, without warrant, of an automobile, for liquor illegally transported or possessed, if the seareh is upon probable cause; and arrest for the transportation or possession need not precede the search. Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790. We think the testimony which we have summarized is ample to establish the lawfulness of the present search. To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act. Dumbra v. United States, 268 U. S. 435, 441, 45 S. Ct. 546, 69 L. Ed. 1032; Carroll v. United States, supra. It is enough if the apparent facts which have come to his attention are sufficient, in the circumstances, to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched. * * *
“Here the information, reasonably believed by the officer to be reliable, that Husty, known to him to have been engaged in the illegal traffic, possessed liquor in an automobile of particular description and location, the subsequent discovery of the automobile at the point indicated, in the control of Husty, and the prompt attempt of his two companions to escape when hailed by the officers, were reasonable grounds for his belief that liquor illegally possessed would be found in the car. The search was not unreasonable, because, as petitioners argue, sufficient time elapsed between the receipt by the officer of the information and the search of the car to have enabled him to procure" a seareh warrant. He could not know when Husty would eom"e to the car or how soon it would be removed. In such circumstances, we do not think the officers should be required to speculate upon the chances of successfully carrying out the search. * * * The search was therefore on probable cause, and not unreasonable; and the motion to suppress the evidence was rightly denied.”

Under the decisions of this court and of the Supreme Court of the United States above cited, the arrest of the defendant in this ease was justified as being the arrest of a man reasonably believed to be engaged in the commission of a felony, and the subsequent seareh of the defendant and the search of the automobile were both lawful, and the judgment of the court below is accordingly affirmed.


author: HICKENLOOPER, Circuit Judge. DENISON, Circuit Judge.

text:
    SUN RAY GAS CORPORATION et al. v. BELLOWS-CLAUDE NEON CO. et al.
    No. 5644.
    Circuit Court of Appeals, Sixth Circuit.
    May 12, 1931.
    Kwis, Hudson & Kent, Lloyd L.'Evans, and A. J. Hudson, all of Cleveland, Ohio, and George P. Seull, of New York City, for appellants.
    Harold Elno Smith, of Cleveland, Ohio, and William Bohleber, of New York City (Smith & Preeman, of Cleveland, Ohio, and Praneis H. Passett, of Dayton, Ohio, on the ■brief), for appellees.
    Before DENISON, HICKS, and HICKENLOOPER, Circuit Judges.
   HICKENLOOPER, Circuit Judge.

Appellants urge the invalidity of claim 1 of patent No. 1,125,476, for a “system of illuminating by luminescent [neon] tubes” (issued January 19, 1915, upon application of Georges Claude), upon the ground of insufficient disclosure in the specification upon the allegedly essential and all-important subject of pressure; and because the claim, printed in the margin, has used what is said to be a meaningless ratio as descriptive of the size of the electrodes. It is also claimed that the appellants’ tubes do not infringe, in that electrodes of the cap type are used, and these are said not to be “internal electrodes” nor to have been specifically “deprived of occluded gases,” and because the neon is said not to be “previously purified.” We shall consider first the contention of noninfringement.

It is true that Claude disclosed in his specification a method of purifying the neon gas “on the spot,” or when and as the tube was exhausted and then partially filled (to less than atomspherie pressure) with said gas, and that defendants do not use that method for securing a practically pure neon content for their tubes. But this method of purification was not, we think, of the essence of Claude’s invention. He was vitally interested in securing a pure neon content, and to this end it was probably necessary that he describe a method by which this could be accomplished. ■ He has described such a method. At that time neon gas was just coming into commercial production, as a by-product of the liquification of air, and the various pumping apparatus for producing vacuum were much less efficient than they are today. A practically complete vacuum can now be produced, and a substantially pure commercial neon can then be admitted to the tube, thus dispensing with the necessity of Claude’s scavenging process. We feel constrained to construe the words “containing previously purified neon” as descriptive only of the state or degree of purity of the neon gas after introduction into the tube and when such tube is ready for operation. In other words, the claim calls for the tube after complete construction and as ready for operation, and one descriptive element is a content of a substantially pure neon.

Viewed in the above light, the phrase “said electrodes being deprived of occluded gases” also operates to the same general end, although it is directed not so much to the initial purity of the neon as to the provision for a continuance of that purity and an avoidance of contamination through the subsequent release of occluded gases. Neither of the clauses above discussed may be regarded as requiring more than that, when completed, the tube shall contain, and shall continue to contain during operation, a substantially and operatively pure neon. It is therefore immaterial that the defendant does not use the methods disclosed by Claude for purifying its neon or for removing the occluded gases from the tube and electrodes.

We are also of the opinion that the dofendants’ electrodes are within the call of the claim for “internal electrodes.” It may well lie that the cap electrodes are an improvement upon the cylindrical type, open at opposing ends, and that the fact that there were, or might be, more useful designs and shapes for the electrodes than the cylindrical and plate types then in common use, may not have occurred to the mind of Claude, but we think that he intended to distinguish only between those electrodes (of carbon, graphite, or metal) which came into immediate contact with the gas, and which were directly connected with conductors for the electric current, and electrodes which were external to the tube, did not contact with the gas, and operated by induction. It is obvious that the defendant’s cap electrodes fall within the former and not the latter of the two types.

A somewhat more difficult question is presented by the contention that the disclosure upon the subjects of pressure and volume of the neon is wholly insufficient to enable one, even though as of that time to be considered skilled in the art, to practice the invention; and that, except as regards certain pressures, the ratio of at least 1.5 square decimeters of electrode surface per ampere is wholly meaningless. Both contentions are based upon the provisions of Rev. St. § 4888 (35 U. S. C. § 33 [35 TJSCA § 33]), that the specification shall contain “a written description of the (invention) * * * in such full, clear, eoneise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same; * * * and he [the applicant or patentee] shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery.” Definiteness is expressly required both in the description and the claims. But by the terms of the act also the specification is addressed to those “skilled in the art,” and a specification should be held sufficient if a mechanic skilled in such art, with the specification and drawings before him, 'and without the necessity of further experiment itself of an inventive nature, can construct and practice the invention of the patent. O’Reilly v. Morse, 15 How. 62, 118, 119, 14 L. Ed. 601; Tyler v. Boston, 7 Wall. 327, 330, 19 L. Ed. 93; Loom Co. v. Higgins, 105 U. S. 580, 585, 26 L. Ed. 1177; The Incandescent Lamp Patent, 159 U. S. 465, 474, 475, 16 S. Ct. 75, 40 L. Ed. 221; Minerals Separation, Ltd., v. Hyde, 242 U. S. 261, 271, 37 S. Ct. 82, 61 L. Ed. 286; Beidler v. U. S., 253 U.. S. 447, 453, 40 S. Ct. 564, 64 L. Ed. 1006; Eibel Co. v. Paper Co., 261 U. S. 45, 66, 43 S. Ct. 322, 67 L. Ed. 523; American Lava Co. v. Steward, 155 F. 731, 736 (C. C. A. 6), affirmed 215 U. S. 161, 30 S. Ct. 46, 54 L. Ed. 139; and Featheredge Rubber Co. v. Miller Rubber Co., 259 F. 565, 570 (C. C. A. 6), are a few of the many authorities establishing the rule of decision in such eases.

In some of the above authorities the claims were held void for vagueness or insufficiency of the description; in others the description was held adequate. The difficulty is not with the rule, but with its application, and in applying it due 1’egard must be given to the collateral principles that the claims measure the invention (Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 510, 37 S. Ct. 416, 61 L. Ed. 871, L. R. A. 1917E, 1187, Ann. Cas. 1918A, 959; Paper Bag Patent Case, 210 U. S. 405, 419, 28 S. Ct. 748, 52 L. Ed. 1122; McClain v. Ortmayer, 141 U. S. 419, 424, 12 S. Ct. 76, 35 L. Ed. 800), that such claims should be liberally construed so as to uphold and not destroy the right of the inventor, especially in the ease of a generic invention (Temco Co. v. Apco Co., 275 U. S. 319, 48 S. Ct. 170, 72 L. Ed. 298), and that a claim is not invalidated by the omission of that which is immaterial, well known, described in the specification, or easily supplied by one skilled in the particular art. That which is, and was understood to be, necessary to make the claim operative may then be implied therein, provided always that the description of the claim and specification is sufficient to meet the requirements of the phase of the rule first above discussed. Cf. Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 558, 18 S. Ct. 707, 42 L. Ed. 1136; Deering v. Winona Harvester Works, 155 U. S. 286, 302, 15 S. Ct. 118, 39 L. Ed. 153; Loom Co. v. Higgins, supra; Jones v. Evans, 215 F. 586 (C. C. A. 7); Crown Cork & Seal Co. v. Sterling Cork & Seal Co., 217 F. 381 (C. C. A. 6). In each such ease one must seek to determine, primarily, just what it was that the inventor conceived and sought to describe and patent (cf. Mossberg v. Nutter, 135 F. 95, 99 [C. C. A. 1]); and, if the claims when construed in the light of the specification and prior art disclose a meritorious invention, — a truly valuable advance step in the art, — courts will go as far as possible in upholding such claims. Cf. Permutit Co. v. Wadham, 13 F.(2d) 454 (C. C. A. 6); Cincinnati Cadillac Co. v. English & Mersick Co., 18 F.(2d) 542 (C. C. A. 6).

The prior art in the instant ease and the extent of the disclosure of the specification upon the subject of pressure are fully set forth in the opinions rendered upon other adjudications of the patent in suit. See Claude Neon Lights v. E. Machlett & Son, 27 F.(2d) 702 (C. C. A. 2); the same case on subsequent appeal (C. C. A.) 36 F.(2d) 574, 578; Claude Neon Lights v. American Neon Light Corp., 39 F.(2d) 548 (C. C. A. 2); Claude Neon Electrical Products, Inc., v. Brilliant Tube Sign Co., 40 F.(2d) 708 (D. C., Washington), reversed 48 F.(2d) 176 (C. C. A. 9); and the report of the special master in Electrical Products Corporation v. Neale, Inc., 48 F. (2d) 824 (D. C., So. Dist. Cal., Central Div.). Repetition in detail need not here be made. It is sufficient to say, as Judge Hand said in the second Maehlett Case, that the prior art “understood all that took place; the cathode drop, its effect upon the electrode, the resulting imprisonment of atoms of the gas, the consequent exhaustion of the gas and its final ratification to the point of non-conduction.”

Nor do we consider that Claude was the first to conceive that the use of electrodes of vastly increased surface area would reduce “sputtering” and volatilization of the electrodes, and thus conduce to a longer life of the tube by decreasing the imprisonment of atoms of the gas in the plating adjacent such electrodes. See patent to Moore, No. 755,-306, March 22, 1904. What Claude really discovered was that the conductivity of a pure neon gas, and its great resistance to chemical change when rendered luminous by electric current, were such as to peculiarly adapt it to use in Geissler tubes of the Moore type. Claude himself said in one instance: “I have succeeded beyond my expectations in the way of a utilization of neon, in simple Geissler tubes, similar to the Moore tube.” The subject of his patent was a luminescent tube. The change over the prior art — -the advance step — was the substitution and efficient maintenance, in a Moore tube, of neon in lieu of the commoner gases theretofore used (nitrogen and carbon dioxide). This substitution enabled him to employ a higher pressure (greater volume) of the gaseous content, which, neon also being more inert than the gases formerly used, dispensed with the necessity of periodic replenishment of the gas through a breather valve. The large tubes, the greatly enlarged electrodes, the increased quantity and pressure of the gas, possible only with neon, and the intrinsic nature of the neon gas itself, all contributed to an increased longevity and commercial utility.

But this step was not a mere substitution of materials theretofore recognized as available equivalents for such a purpose; it was-, a true combination, albeit of known or old; elements, co-operating to produce a new product which was available for an enlarged! commercial use because of its inherent properties and its longer life. It is immaterial that Claude apparently regarded the peculiar-orange-red color of the light emitted by neon,, when ignited, as a detriment (French patent, to Claude, No. 434,525, Feb. 6,1912), or that he may not have as fully understood, as is-the fact to-day, the principles underlying the-operation of his tube, the relationship between sputtering and current density or theeathode drop, the effect of pressure in the-determination of the most efficient operative-ratio between electrode surface area and current density, the part played by heat in thevolatilization of the electrodes, and the like. It would seem enough if he made a valuable-contribution to the art, even though' by a-. substitution of tbe material of which one element of those combined consisted, provided such substitution involved invention, as we think was the ease here. Smith v. Goodyear Dental Vulcanite Co., 93 U. S. 486, 496, 23 L. Ed. 952; Edison Electric Light Co. v. U. 5. Lighting Co., 52 E. 300, 308 (C. C. A. 2); Walker on Patents (6th Ed.) § 66; and compare, Corona Co. v. Dovan Corp., 276 U. S. 358, 369, 48 S. Ct. 380, 72 L. Ed. 610.

Construing the claim in the light of what has already been said, appropriate pressure to make the tube operative must be understood. The specification contains a somewhat ambiguous translation of the Drench “de l’ordre du millimetre de mereure” as indicating an acceptable or preferred pressure, but this is followed immediately by “that is to say at least ten times higher than in nitrogen tubes resulting in a provision of gas which is likewise more than ten times greater.” There is evidence indicating that the Moore tubes were operated at about two-tenths of a millimeter of pressure and this operating pressure of one or two millimeters seems to conform with the disclosures of the Drench patent to Claude, No. 424,190, May 6, 1911, where he says that, upon immersion of the carbon container in liquid air, “the internal pressure falls, for instance, to one or two millimeters due to the fact that the carbon will soon absorb the gases, that is, all of the oxygen, all of the nitrogen, and a portion of the neon and of the helium.” There is also evidence tending to prove that Claude was especially interested in illumination or volume of light, and that it is at pressures of one or two millimeters that the greatest intensity of lighting effect is obtained. Thus the appellants urge that foundation is laid for the argument that, if an operative pressure is to be implied, it cannot exceed 2 mm., and at that pressure the patent must fail for want of commercial utility, that a life of at least l,000„hours is required, and that at even two millimeters pressure the life of the tube would be far less than the minimum requirement for successful operation. No contention is made, however, that the tube was inoperative at these lower pressures, or that the use of neon at ten times the pressure of the commoner gases previously used did not greatly increase the life of the tube. The only contention is that it did not increase such life to at least 1,000 hours. Conceding that present day competitive conditions require a life of 1,000 hours, that Claude contemplated the use of say 2 mm. pressure, that at this pressure the life of the tube would be much less than 1,000 hours, and that the present great commercial utility of neon tubes is due almost exclusively to the later discovery by some one of the advantages of using pressures as high as 15 mm., or even 20 mm., the argument still falls far short of establishing invalidity. The invention of Claude was the primary one on which all subsequent developments were founded. The test is not that of commercial utility, but rather of operative utility and the forward step. The patent is entitled to that liberality of construction which is accorded generic inventions, and so construed we find no lack of utility in the sense of the Patent Act. The Telephone Cases, 126 U. S. 1, 535, 8 S. Ct. 778, 31 L. Ed. 863; Hildreth v. Mastoras, 257 U. S. 27, 34, 42 S. Ct. 20, 66 L. Ed. 112; Mergenthaler Linotype Co. v. Press Pub. Co., 57 D. 502, 505 (C. C., N. J.); Scott v. Fisher Knitting Machine Co., 145 F. 915, 922 (C. C. A. 2); A. B. Dick Co. v. Barnett, 288 F. 799, 801 (C. C. A. 2); McDonough v. Johnson-Wentworth Co., 30 F.(2d) 375, 380 (C. C. A. 8).

In this connection it is also to be observed that, although an operative pressure is to be implied when construing the claim, the pressure used by Claude and indicated by his specification (according to appellants’ contention) does not serve to limit the claim to that pressure and that alone. The Paper Bag Patent, 210 U. S. 405, 418, 28 S. Ct. 748, 52 L. Ed. 1122. The claim is silent as to pressure. There is thus no limitation, and any and all operative pressures are therefore included. The appellants failing in the defense of nonutility of a neon tube of one or two millimeters pressure, they must also be held to have failed in the defense that, under Kev. St. § 4888 (35 USCA § 33), the description is insufficient to permit one skilled in the art to practice the invention, for the specification at least teaches the construction of a tube of that pressure and kind. At best, the greatly increased pressure of the more modern device is but an improvement which does not invalidate the original patent.

Finally, it is claimed that at the indicated pressure of say, 2 mm., the ratio of 1.5 square decimeters of electrode surface area per empere of current, stated in the claim, is arbitrary and meaningless, and, since it was this pressure of not to exceed 2 mm. which Claude had in mind, the indicated ratio did not represent a “critical point,” above which all was good and below which all was bad, and this invalidated the claim. We do not deem it necessary, in order to uphold the claim, that the stated ratio designate a critical area, as was found by Judge Manton in the first Maehlett Case (C. C. A.) 27 F.(2d) 702, 706. It seems to us that an applicant for a patent may be partly arbitrary in the selection of a limitation above which he claims and below which he abandons his invention to the public. Minerals Separations, Ltd., v. Hyde, 242 U. S. 261, 37 S. Ct. 82, 61 L. Ed. 286, is expressly in point. Doubtless the Patent Office requires sueh limitation in many eases, while in others a greater indefiniteness has been allowed. See Mowry v. Whitney, 14 Wall. 620, 644, 20 L. Ed. 860; Tilghman v. Proctor, 102 U. S. 707, 729, 26 L. Ed. 279; Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 436, 22 S. Ct. 698, 46 L. Ed. 968; Eibel Co. v. Paper Co., 261 U. S. 45, 66, 43 S. Ct. 322, 67 L. Ed. 523; and other eases already cited. The rule upon which the appellant relies forbids only sueh limitations as are wholly arbitrary, that is, which in no true sense describe or define the nature of the invention and its departure from the prior art. Sueh is not the ease here. The ratio of 1.5 is descriptive of a vastly increased surface area of the electrodes over those used in the spectral tubes of the prior art, the only tubes theretofore employing a content of neon. At some pressures the ratio does indicate a “critical point.” At all pressures it is indicative of an important element of the invention. We have no serious doubts in this connection, but, if we had, we should feel constrained to resolve them'in favor of a finding of validity, in .consideration of the doctrine of Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 488, 20 S. Ct. 708, 44 L. Ed. 856.

The individual organizers and officers of the defendant Sun Ray Gas Corporation were made defendants, and were included in the injunction; but the accounting was not decreed as against them. Under the facts disclosed by this record, we are of the opinion that the injunction, at least, was proper. See Proudfit Loose Leaf Co. v. Kalamazoo Loose Leaf B. Co., 230 F. 120,140; D’Arey Spring Co. v. Marshall Ventilated Mattress Co., 259 F. 236, both decisions of this court.

Affirmed.

DENISON, Circuit Judge.

I concur; but, when we take together the specification and the publications which by reference it incorporates, the record indicates to me, in a fairly satisfactory way — though not as clearly as would be desirable — that the older gases were in familiar use in the spectral and similar tubes, at pressures averaging 5/10 of a millimeter; so that, multiplying by ten, Claude was contemplating and disclosing a use of perhaps 5 mm. If this view were correct, it would remove much' of the difficulty coming from a somewhat uncertain translation of a French idiomatic phrase; which probably, as sueh phrases do in English, takes variant meanings from variant contexts. This view, too, makes the stated ampere-eleetrode ratio indicate, not a critical point in any close sense, but an approximation, and suggests that, by including this ratio as an element of his claim, Claude has.only failed to inclose a fraction of his field..

       “1. A luminescent tube containing previously purified neon and provided with internal electrodes for illuminating said gas, said electrodes being deprived of occluded gases and having an area exceeding 1.5 square decimeters per ampere, to decrease the vaporization of the electrodes and prevent the consequent formation upon the walls of the tube, in proximity to said electrodes, of deposits containing said gas, whereby the luminosity of the tube is maintained constant for a very considerable period of time without a fresh introduction of gas.”


author: SPARKS, Circuit Judge. ALSCHULER, Circuit Judge.

text:
    UNITED STATES ex rel. CHERWONICK et al. v. SMITH, District Director of Immigration. UNITED STATES ex rel. POLJAK v. SAME. UNITED STATES ex rel. GINOVICH v. SAME.
    Nos. 4467, 4493, 4552.
    Circuit Court of Appeals, Seventh Circuit.
    April 29, 1931.

      Jose Carlos Soriano and William B. Rosczyk, both of East Chicago, Ind., for appellants.
    George E. Q. Johnson, 17. S. Atty., and Thomas Dodd Healy, Asst. U. S. Atty., both of Chicago, 111., for appellee.
    Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
   SPARKS, Circuit Judge.

Appellants Cherwonieks, aliens and citizens of Canada, applied for admission to the United States at Winnipeg, Canada, on March 18, 1925,. but were denied admission because they were not in possession of immigration visas. On June 15,1925, they entered the United States surreptitiously, at Detroit, Mich., without immigration visas and without submitting to inspection or effectuating a legal entry. They were arrested January 31, 1930, upon a warrant issued by an Assistant Secretary of Labor, charging them with being subject to deportation under the provisions •of the Immigration Act of May 26, 1924, in that they were not in possession of unexpired immigration visas at the time of entry. At a hearing before an immigration inspector, the charges were substantiated by the aliens’ own testimony, and on March 8, 1930, a warrant of deportation was issued directing their deportation to Canada. Thereupon a writ of habeas corpus was issued by the District •Court on petition of appellants. Upon the hearing, the District Court discharged the writ, and the appeal is from this order.

Two contentions are raised by appellants: (1) They are not subject to deportation under the Act of May 26, 1924, after being in the United States for more than three years prior to their arrest; and (2) they were not given a fair hearing.

Parts of two sections of the Act of May 26, 1924, are involved in this appeal, and they are as follows:

“Sec. 13. (a) No immigrant -shall be admitted to the United States unless he (1) has an unexpired immigration visa or was born subsequent to the issuance of the immigration visa of the accompanying parent ' s 43 Stat. 161, title 8, § 213 (a), USCA.
“See. 14. Any alien who at any time after entering the United States is found to have been at the time of entering not entitled under this Act to enter the United States, or to have remained therein for a longer time than permitted under this Act or regulations made thereunder, shall be taken into custody and deported in the same manner as provided for in sections 19 and 20 of the Immigration Act of 1917 * * •” 43 Stat. 162,. title 8, § 214, USCA.

Sections 19 and 20, above referred to. set forth the manner in which aliens shall be taken into custody and deported. 39 Stat. 889, 890, title 8, sections 155, 156, USCA.

Section 19 of said statute further provides : “At any time within three years after entry, any alien who shall have entered the United States by water at any time or place other than as designated by immigration officials, or by land at any place other than one designated as a port of entry for aliens by the Commissioner General of Immigration, or at any time not designated by immigration officials, or who enters without inspection, shall, upon the warrant of the Secretary of Labor, be taken into custody and deported.”

It is the portion of section 19 just quoted upon which appellants base their contention that they are not subject to deportation on account of having entered the United States more than three years prior to their arrest. With this contention, however, we are unable to agree. We find nothing in the Act of May 26, 1924, to warrant us in concluding that Congress intended to subject sections 13 and 14 of this act to the limitation of time as described in section 19 of the Act of 1917; but, on the contrary, we think the intention of Congress was quite the reverse. In the later enactment the words “at any time” are used, and certainly it cannot be said that this phrase is to be modified by the three years’ limitation contained in section 19 of the pri- or statute. United States ex rel. Grimaldi v. Ebey (C. C. A.) 12 F.(2d) 922, 923; Demetrius Philippides v. Commissioner, 51 S. Ct. 358, 75 L. Ed. —, decided March 23, 1931.

It must also be borne in mind that the later statute refers to an entirely different class of aliens from those described in the former act. It may be true, as appellants state, that their entry was in violation of section 19. They are not charged, however, under that section, but are charged under a different section with entering the United States without visas. Congress saw fit to place a more severe penalty upon that particular act, and it is not within our province- to question its wisdom in so doing. It is quite true, as suggested by appellants, that the statutes are to be construed as pari materia, but this fact will not warrant a substitution of the plain language of one for the other where the language of both may be given effect under a reasonable construction. The fact that the later act provides that the alien shall be taken into custody and deported in the same manner as provided for in sections 19 and 29 of the Act of 1917 lends no aid to appellants’ contention. This language refers only to the manner and method of taking into custody and deporting. If it should be construed to refer to more than this, it would indeed be difficult to arrive at the intention of Congress, for section 19 describes twelve different classes and more than one period of limitation. For entering as a pauper, the limitation is five years; for entering at the wrong time or place without inspection, the limitation is three years; and, for entering as an anarchist, there is no limitation. What reason there can be for applying the limitation applicable to entering without inspection to the offense of entering without a visa does not appear, other than the fact that both offenses are committed while entering. This does not seem sufficient to us to warrant such a broad construction. There are no doubt deplorable conditions surrounding many cases of deportation, but courts have no power to alter the plain provisions of the statute. Appellants chose their method of coming into the United States, and that method was premeditatedly in violation of our laws. They are therefore in no position to complain.

A perusal of the records convinces us that fair hearings were accorded appellants. Indeed, the facts are not controverted. United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 44 S. Ct. 54, 68 L. Ed. 221.

With relation to cause No. 4493, United States ex rel. Poljak v. Smith, District Director of Immigration, and cause No. 4552, United States ex rel. Ginovich v. Smith, District Director of Immigration, it has been stipulated by all the parties that the questions of law are the same as in No. 4467, United States ex rel. Cherwonick v. Smith, District Director of Immigration, and that the decision in the last-named cause will govern in Nos. 4493 and 4552.

There being no controversy as to the facts, the order of the District Court in each case is affirmed.

ALSCHULER, Circuit Judge.

While concurring in the opinion, the peculiar hardship incident to No. 4467, the case-of the Cherwonieks, prompts me to make some further comment thereon.

This alien woman undertook to join her husband, who had for some years been lawfully established here. She attempted to enter lawfully, but under the quota law was rejected. She then entered unlawfully, at an undesignated port, and without registration, bringing her four children, then aged from 4 to 19 years, and, joining her husband,, the reunited family remained undisturbed nearly five yéars, when complaint of the unlawful entry was made and deportation proceedings begun.

But for the Act of May 26, 1924, (8-USC § 214), I believe the three-year limitation of the Act of February 5, 1917, (8 USC § 155), would have barred the deportation. But the Act of 1924, providing that one entering without having an unexpired visa isdeportable “at any time after entering the-United States,” seems practically, but without directly so stating, to have done away with the three-year limitation of section 155-as applicable to such unlawful entries. Thus an alien entering the country without having-the visa would be deportable at any time — be it a day or a half century after entry. Infants brought here might, if undisturbed, remain indefinitely, grow to maturity, have-families, and be to all intents as thoroughly American as if bom here, and perhaps without having any suspicion of flaw In their title to citizenship, and then, upon complaint of some one who happened to know the facts,, find themselves subject to deportation.

To guard against a possible situation so-manifestly harsh, I believe there should be a reasonable limitation upon deportation for unlawful entries, particularly in cases where children are involved.

The extreme hardships thus possible under the guise of law might find some amelioration if one so deported might, after a reasonable time, apply for lawful admission. But along comes the Act of Congress passed March 4,1929, as amended June 24,1929 (8 USCA § 189), providing: “(a) If any alien has been arrested and deported in pursuance of law, he shall be excluded from admission to the United States * * * and if he enters or attempts to enter the United States * * * he shall be guilty of a felony and upon conviction * * * be punished by imprisonment for not more than two years or by a fine of not more than $1,099 • * * ”

If this means what it seems to say, then one who is for any cause deported is forever after barred from entry or attempting to enter, under penalty as for a felony. The practical effect upon these aliens is this: This woman, who in her overzeal to join her husband transgressed the law by entering the country without having a. visa, upon her deportation may never again enter the country; and the infant children, too young at the time to be chargeable with intentional transgression of law, upon their deportation will thereafter be likewise forever barred from entry. The statute is quite incongruous, in that it is operative only upon deportation, or departure after order for deportation, but not in case voluntary departure before order of deportation.

The record in this cause shows that after the hearing of the deportation proceeding the Department of Labor, through its officers, evidently realizing the special hardship here appearing, offered to consent that the aliens depart the country with right to make lawful application for entry. The woman, evidently under advice that the three-year limitation protected her against deportation, did not avail herself of this offer, and thereupon the order of deportation was made. I do not believe she or the children should be now penalized because she followed the advice, if this can be reasonably prevented.

With the termination of the habeas corpus unfavorably to them, control over the proceeding by the Department of Labor remains as if the habeas corpus proceeding had not been begun. While theré is no reason to believe that the Department will be less inclined after the habeas corpus than it was before, to accord the "aliens the humane privilege of voluntary departure with leave thereafter to apply for entry without prejudice because of the former breach of the law in attempting to enter, I nevertheless venture the suggestion that some such course be followed with these aliens. To make this effective under the acts of 1929 it would, I believe, be necessary to cancel the order of deportation, so that the aliens may depart without an order of deportation standing against them.

I earnestly hope and urge that upon the unfavorable termination of the habeas corpus the Department will cause its order of deportation to be canceled or withdrawn, and the aliens be permitted voluntarily to leave the country, with right thereafter to make application for entry according to law.

I am authorized by my colleagues to state that they concur in this recommendation.


author: PARKER, Circuit Judge.

text:
    FOUCH, Acting Com’r of Immigration, v. CUIMAN.
    No. 3062.
    Circuit Court of Appeals, Fourth Circuit.
    April 25, 1931.
    O. N. Forrest, Asst. U. S. Atty., of Baltimore, Md., for appellant.
    Erwin I. Feldman, of Baltimore, Md., for appellee.
    Jacob L. Morewitz, of Newport News, Va., amicus curias.
    Before PARKER and NORTHCOTT, Circuit Judges, and GLENN, District Judgjs.
   PARKER, Circuit Judge.

This is an appeal from an order discharging from custody one Teodoro Cuiman, an alien seaman and a citizen of Venezuela, held by the immigration authorities under a warrant of deportation. Cuiman’s last entry was at the port of New York on August 30, 1926. He has since been engaged as a seaman in eoastwise shipping on board American vessels. On March 29, 1930, he was arrested under a warrant issued by the Secretary of Labor and his deportation was ordered pursuant to the provisions of the Immigration Act of May 26, 1924. He sued out a writ of habeas corpus before one of the District Judges at Baltimore; and from an order directing his discharge the Acting Commissioner of Immigration at that port who had him in custody has appealed.

Section 19 of the Act of May 26, 1924, 43 Stat. 164 (8 USCA § 166), is as follows: “No alien seaman excluded from admission into the United States under the immigration laws and employed on board any vessel arriving in the United States from any place outside thereof, shall he permitted to land in-the United States, except temporarily for medical treatment, or pursuant to such regulations as the Secretary of Labor may prescribe for the ultimate departure, removal, or deportation of such alien from the United States.”

The Immigration Rules of July 1, 1925, provide: “Where a bona fide alien seaman, serving as such on a vessel arriving at a port of the United States, and permitted to enter temporarily the United States as a non-immigrant pursuant to subdivision (5) of section 3 of the Immigration Act of 1924, solely in pursuit of his calling as a seaman, engages in any other calling or occupation for hire or profit, or enters into the coastwise trade of the United States, or remains within the United States for more than 60 days after such entry, he shall be deemed to have abandoned his status as a non-immigrant within the meaning of said subdivision (5) of section 3 of the Immigration Act of 1924, and shall be taken into custody and deported at any time thereafter in accordance with the provisions of Section 14 of said Act.”

Section 14 of the Immigration Act of May 26,1924, 43 Stat. 162 (8 USCA § 214), provides as follows: “Any alien who at any time after entering the United States is found to have been at the time of entry not entitled under this Act to enter the United States, or to have remained therein for a longer time than permitted under this Act or regulations made thereunder, shall be taken into custody and deported in the same manner as provided for in sections 19 and 20 of the Immigration Act of 1917. * * *”

Cuiman was an alien excluded from admission into the United States under the immigration laws. As a seaman he was permitted to land temporarily under the regulations ; but he abandoned his status as a non-immigrant under these when he engaged in the coastwise trade. Sehmueker v. Martinez (C. C. A. 4th) 37 F. (2d) 315. This followed also from his remaining in the United States more than sixty days after entry. He was therefore subject to deportation under the express terms of section 14, quoted above.

It is argued that section 34 of the Immigration Act of «1917 (8 USCA § 166) places alien seamen in a-special class and that as to them the three-year limitation prescribed by that section applies, so that they cannot be deported unless proceedings for that purpose be instituted within the three-year period. The Supreme Court, however, has expressly decided the question thus presented contrary to the contention of petitioner, in the recent case of Philippides v. Day, 51 S. Ct. 358, 359, 75 L. Ed.-. In that ease the court, speaking through Mr. Justice Holmes, said: “ ‘Any alien’ in section 14 of the act of 1924 [8 USCA § 214] includes alien seamen on its face and by the definition in section 28, Id. (8 USCA § 224). It is obvious that the petitioner, whether he entered rightfully or wrongfully, remained in the United States longer than he was permitted to by the law. He deserted after the act of 1924 was in effect. The regulations under sections 15 and 19 of the act of 1924 (8 USCA §§ 166, 215) allowed only sixty days to alien seamen permitted to enter. If he entered without permission he was not entitled to more. It seems to .us too clear to need argument that the limitation of three years in section 34 of the act of 1917 does-not override or qualify the clear and definite terms of section 14 of the act of 1924. Those terms must prevail. Zurbrick v. Traicoff (C. C. A.) 38 F.(2d) 811. United States ex rel. Cateches v. Day (C. C. A.) 45 F.(2d) 142.”

It should be stated in fairness to the learned judge helow that the order discharging petitioner was entered prior to the foregoing decision of the Supreme Court, and in reliance upon the decision in Nagle v. Hansen (C. C. A. 9th) 17 F. (2d) 557. Nevertheless, there was error in the order, and the same must be reversed.

Reversed.


author: HICKS, Circuit Judge.

text:
    OHIO GALVANIZING & MFG. CO. v. MERCURY MFG. CO.
    No. 5558.
    Circuit Court of Appeals, Sixth Circuit.
    May 11, 1931.
    Niehol M. Sandoe and L. E. Varney, both of New York City (Emery, Booth, Varney & Whittemore and Manvel Whittemore, all of New York City, on the brief), for appellant.
    Carlton Hill and Charles W. Hills, both of Chicago, 111. (Charles W. Hills, Jr., and M. R. Chambers, both of Chicago, 111., on the brief), for appellee.
    Before DENISON, MOORMAN, and HICKS, Circuit Judges.
   HICKS, Circuit Judge.

Infringement suit based upon reissue patent No. 16,157, granted to Hinshaw, September 1, 1925, for a trailer truck and assigned to appellee. Claims 2, 5, 7, 8, and 10 are in issue. Claims 2 and 8 are printed in the margin. The defenses were: (1) That all claims are invalid; (2) that claim 10, if valid, is not infringed; (3) that the reissue patent is not supported by claims patentably different from those in the original application; and (4) that appellee is estopped to assert claims 2, 5, 7, and 8 against appellant. The District Judge held all claims valid and infringed.

We think it necessary to consider only the question of invention.

The claims are combination claims. In claim 2 the elements are: (1) A substantially rectangular T-iron frame having vertically disposed upper and lower flanges; (2) a flange extending horizontally inward at the side and end portions of the frame; (3) longitudinally extending connecting bars each having a horizontal flange and a vertical flange extending downward from such horizontal flange, the horizontal flange of said bars being connected to the horizontal flange at the opposite end portions of said frame; (4) caster wheel supports each connected with the horizontal flange of one of said bars and with the horizontal flange of the adjacent side portion of the frame and lying approximately in the horizontal plane of said flanges; and (5) a platform resting on the upper surfaces of said horizontal flanges.

Claim 5 has the additional element of caster wheels with bearings on the under side of its supporting plates.

The distinctive features of claim 7 are brackets “separately connected with the horizontal flanges at the opposite side -portions of said frame and extending obliquely downwardly and inwardly from the side portion with which each is respectively connected, a unitary axle having its under portions mounted in said brackets” and “wheels mounted on said axle between said brackets.”

Glaim 8 has the additional feature of a spacer sleeve on the axle between the wheels and hangers connecting the longitudinal bars and bearing upon the spacer sleeve for supporting the bars.

Claim 10 is for a frame comprising two U-shaped T-iron members connected at the end with the longitudinally extending bars.

Hinshaw’s object was to provide a light, strong truck with a low platform more con-' venient for loading, and yet having comparatively large wheels so that it might be more easily and quickly hauled.

Unquestionably, wheels, casters, axles, brackets, frames, and platforms are all old, even in trucks.

Caster plates having ball bearings are likewise old. (Reiehmann, No. 1,494,978, 1924.)

The prior art discloses various forms of trailer truck frames. These frames have been constructed of (1) timber with side and end sills morticed together; (2) of timber reinforced with metal; and (3) entirely of metal. Metal sills have been provided; some of tubular construction; others of channel iron; and still others of angle iron. They have been made of four pieces, as were the wooden sills, and joined at the corners, but in the Hinshaw trailer they were made in two pieces, U-shaped, and joined at the center of each end of the trailer. This particular two-piece feature was not new. The Standard Improved Truck Company of Chicago made such frames as early as 1915. .However, Hinshaw’s frame did embody one new feature— it was composed of T-iron (old in form) with the T-flange extending inwardly to support the platform. Such feature is found in modified form in patent to Richards, No. 754,610, 1904 (a vehicle frame) but not for the purposes of platform or floor support.

Longitudinally connecting bars are also old in trailer construction. If the frames or sills of the trailer were of timber, the bars were likewise of timber, but, if the frames were metal, the bars were of metal. Some of these bars were of unitary construction and centrally located, as in Koehler, No. 1,-221,997, 1917. Hinshaw supplied two bars located and arranged as described in claims 2 and 5, but their location, number, and arr rangement have their counterpart in the Standard Improved Truck Company’s trailer of 1915, above mentioned, and in Allen and Todd, No. 1,437,212, 1922, and Reiehmann, No. 1,494,077, 1919. The new thing in Hinshaw’s longitudinal connecting bar is that he used an angle iron (old in form) with the horizontal flange extending inwardly and the vertical flange downwardly. However, the Standard Improved Truck Company in 1918 effected the same purpose and result by the use of a channel iron for the longitudinal bars with the channel flanges extending outwardly.

In the prior art trailers were constructed with front wheels upon axles as in the ordinary vehicle, the frame resting upon bolsters ; others with a single caster wheel centrally located near the front of the frame; others with two casters having stem supports, one on either side of the median line; and still others with two casters supported by plates having ball bearings and attached to longitudinally connecting bars upon the inside and to the sill or frame upon the outside. All of these features appear collectively in Reiehmann No. 1,494,078, 1924, -and also in the Standard Improved Truck Company’s product of 1918, as illustrated by appellant’s blueprint Exhibit No. 1 and in its Exhibit No. 13, being an application to the Commissioner of Patents for a patent for “trailer truck.” It is clear that Reiehmann accomplished one of the purposes sought by Hinshaw; that is, he mounted a relatively large caster wheel close up under the platform.

The spacer sleeve and the hangers supported thereon and connecting with the longitudinal bars of the patent in suit are not new. The hangers appear in the Standard Improved Truck Company’s trailer above referred to (see appellant’s blueprint Exhibit No. 1) and the spacer sleeve is found in Peterson No. 1,143,134, 1915.

In the prior art construction, the brackets supporting the rear wheels extended downward vertically from the sill or frame. In Hinshaw, in order that they may not collide with objects past which the truck is moving, these brackets are made to extend downwardly, obliquely, and inwardly to the ends of the axle. The last feature, though old in practice, appears to be new in trailers, but to shorten the axle and connect it with the frame by a bracket extending downward obliquely instead of vertically is certainly nothing more than mechanical skill.

The T-iron frame with the T-flange extending inwardly and the angle iron connecting bar with the flange extending downwardly are, in addition to the obliquely extending brackets, the only novel features of the Hinshaw patent, but adding them to the combination of other elements already well known to the art, as was done by Hinshaw, does not constitute invention. This patent should be classified with the second group described in Hug v. Lakewood Engineering Co., 7 F.(2d) 98, at pages 99, 100 (C. C. A. 6). Hinshaw produced a trailer which was perhaps somewhat lighter and more easily operated, but this was an improvement in form and degree only. It was not invention. Railroad Supply Co. v. Elyria Iron & Steel Co., 244 U. S. 285, 37 S. Ct. 502, 61 L. Ed. 1136; Adams v. Galion Iron Works & Mfg. Co., 42 F.(2d) 395, 397 (C. C. A. 6).

The decree is reversed, with instructions to enter a new decree dismissing the bill.

       “2. A truck comprising a substantially rectangular T-iron fráme having vertically disposed upper and lower flanges, a flange extending horizontally inward at the side and end portions of the frame, longitudinally extending bars each having a horizontal flange, and a vertical flange extending downward from such horizontal flange, the horizontal flanges of said bars being connected to the horizontal flange at the opposite end portions of said frame, caster wheel supports each connected with the horizontal flange of one of said bars and with the horizontal flange of the adjacent side portion of the frame and lying approximately in the horizontal plane of said flanges, and a platform resting on the upper surfaces of said horizontal flanges.”
      *‘8. A truck comprising a substantially rectangular T-iron frame having a flange extending horizontally inward at the side and end portions thereof, brackets connected with the opposite side portions of said frame and extending downwardly and inwardly therefrom, an axle mounted in said brackets, wheels mounted on said axle, a spacer sleeve on the axle between said wheels, longitudinally extending bars each having flanges disposed horizontally and vertically, their horizontal flanges being connected with the horizontal flange at the end portions of said frame, hangers connected with said bars and adapted to bear against said sleeve for supporting said bars thereon, and a platform supported by the horizontal flange of said frame and by said bars.”


author: BINGHAM, Circuit Judge.

text:
    KELLEY v. UNITED STATES.
    No. 2540.
    Circuit Court of Appeals, First Circuit.
    May 16, 1931.
    Leo M. Harlow, of Boston, Mass. (Frederick Kavolsky, of FaE River, Mass., on the brief), for appellant.
    John Laurence Hurley, Sp. Asst. U. S. Atty., and Frederick H. Tarr, U. S. Atty., both of Boston, Mass. (William Wolff Smith, Gen. Counsel, and Bayless L. Guffy, Atty. Bureau of Internal Revenue, both of Washington, D. C. and B. B. Mulligan, Regional Atty., United States Veterans’ Bureau, of Providence, R. I., on the brief), for the United States.
    Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
   BINGHAM, Circuit Judge.

This is an action to recover on a contract of war-risk insurance for total disability. There is no dispute that the plaintiff was in the Navy from May 31, 1918, to October 1, 1919, when he was honorably discharged; and that he took out war-risk insurance, which was in force up to December 31, 1919, when the policy lapsed for failure to pay the premium.

At the close of the plaintiff’s evidence, the court directed a verdict for the defendant on the ground that the evidence was insufficient to .warrant the jury in finding a verdict for the plaintiff, and the plaintiff excepted. There are five assignments of error, all of which are based on the action of the court in directing the verdict.

The evidence tended to show that, after Kelley’s discharge and before December 31, ' 1919, as well as after, he was mentally impaired. On June 20, 1921, he met with a motorcycle accident, suffering a compound fracture of the fibula and extensive lacerations of the left lower leg, and went to the Union Hospital at FaE River, where he was •ugly and immodest toward the nurses. He was discharged from that hospital August 19, 1921. On December 25, 1922, Dr. Buck, under whose care he was whEe in the Union Hospital, wrote a letter stating he beEeved that the actions of KeEey, while in the hospital, “were early manifestations of a disordered mind.”

On January 23, 1922, Kelley was sent, by the Seeond district court of Bristol county, to the Taunton State Hospital, from which he was finally discharged September 30,1925, but during that time was out of the hospital once for about a year on trial and again for six months or more, having made his escape from the hospital. While there his trouble was diagnosed as “dementia praecox, insane and incompetent,” and Dr. Chambers, the superintendent, testified that a person- with that disease is not likely to recover, but may have periods of remission during which he can work, such periods varying according to the individual ease; that “some, after a period of hospitalization, may remain out of 'an institution the rest of their lives just getting by.”

Before he went into the Navy, Kelley worked at weaving, and, after being discharged from the Navy, worked for a while in 1920 in the Chace Mill ás a weaver, and also for five months in 1921 in the Granite Mill with his father, during which time the father testified he did his son’s work, neglecting his own, until he was taken El, and that two days later his son was discharged. There was no evidence disclosing why the plaintiff did no more work other than as above stated. In this respect the ease differs from Ford v. United States (C. C. A.) 44 F.(2d) 754; United States v. Godfrey (C. C. A.) 47 F. (2d) 126; and United States v. Sligh (C. C. A.) 31 F.(2d) 735, 736. In those cases there was direct evidence'that the insured did not work more than he did because he could not; and it was held that the fact that the plaintiff did some work was not controlling. In the Sligh Case the court said: “The term ‘total and permanent disability’ obviously does not mean that there must be proof of absolute incapacity to do any work at all. It is enough if there is such impairment of capacity as to render it impossible for the disabled person to follow continuously any substantially gainful occupation.”

That Kelley was under a total permanent disability when he was sent to the Taunton State Hospital on January 23, 1922, does not seem to be disputed, and the question is: Could the jury find from the evidence that before December 31, 1919, at which date the policy expired for nonpayment of the premium, “he could not follow continuously any substantially gainful occupation.”

In its brief the government suggests that the motorcycle aeeident may have caused Kelley’s insanity, but the jury, if it believed the plaintiff’s witnesses, could properly have found that his actions before December 31, 1919, evidenced the beginnings of the dementia prascox and were the result of mental impairment rather than of ugliness or natural idiosyncraeies.

As the jury could have found mental impairment before December 31,1919', they also could have found, if they believed the testimony of the father and the other witnesses, that, because of such mental impairment, after October 1 and before December 31, 1919, Kelley talked queer, often rushed to the window shouting “submarine, submarine,” burnt up his father’s caps in the kitchen range to get up steam, was not sociable with the rest of the family, was neglectful about his appearance or keeping clean, would go off by himself, went down town and hired men to work for him, went to the post office and stole blotters, and once into the attic and hid in a dark comer; that in some of his talks on different subjects there would be no sense; that he would jump on and off cars; that he would walk into a barber shop and would be “raving about stocks and bonds”; that boys in the neighborhood shunned him; that you could not interest him in conversation; and that he talked foolishly. If the jury believed this evidence, they could reasonably conclude that no one would employ him continuously; that he could not successfully do any work for himself; and that, in view of the later history of his case, this condition was permanent.

The judgment of the District Court is vacated, the verdict is set aside, and the case is remanded to that court for a new trial.


text:
    GALANOS v. UNITED STATES.
    No. 5859.
    Circuit Court of Appeals, Sixth Circuit.
    May 15, 1931.
    Chas. C. Stewart and Arthur E. Koch, both of Detroit, Mich., for appellant.
    Francis X. Norris, Asst. U.- S. Atty.y of Detroit, Mich. (Gregory H. Frederick, U. S. Atty., of Detroit, Mich., on the brief), for the United States.
    Before DENISON, HICKS, and HICKENLOOPER, Circuit Judges.
   PER CURIAM.

Appellant was convicted of perjury-(section 125, Criminal Code, section 231, tit. 18, USCA). He complains that a verdict of acquittal should have been instructed.

Koeotos and others had been on trial in the court below for conspiracy. Upon that former trial, Helen Gray was the chief witness for the prosecution. She had participated in the scheme, and defendants’ testimony indicated that Galanos and she, rather than defendants, were responsible. He was called as a rebuttal witness for the government, and denied the conduct in question. Upon cross-examination, and apparently to affect his credibility, it was sought to have him admit such an interest in Helen Gray’s protection as would indicate his association with her. After she had been held to bail by the commissioner as a material witness, in a still earlier related prosecution, she had been released upon a bond; and upon this cross-examination of Galanos he was asked:

“Q. Don’t you remember, to refresh your recollection, that when Helen Gray was being held as a witness and it was necessary to furnish a bond for her appearance to testify, that you made arrangements yourself for the making of a bond? A. I did not.
“Q. Don’t you know a certain peanut vendor, — I have forgotten his name, — that you got to come and sign the bond? A. I did not.
“Q. You state positively that you didn’t? A. Yes, sir.”

Upon the present trial the facts appear— practically without dispute — to be that the (later) defendants in the conspiracy case desired to procure this bond and had applied to a fellow countryman, Dukas, who was financially responsible, to get it for them; that Dukas proposed to get the bond from a surety company by furnishing indemnity to the company, and accordingly demanded from those defendants indemnification for himself; that what they could offer him was not sufficient; that at their request Galanos joined them in indemnifying Dukas; and that thereupon the bond was given, signed by Helen Gray as principal and the surety company as surety. Upon this state of facts, and particularly in view of the preceding effort in the cross-examination to have Galanos admit his acquaintance and dealing with the surety company agent, he was entitled to consider the question asked him as an inquiry whether he did not himself procure the surety company agent to give this bond; and his negative answer was literally true. Clearly he cannot be convicted of perjury merely because his literally accurate answer might have been somewhat modified in effect if he had been asked to state all the circumstances. Perhaps, if he had been asked specifically, he would have answered truly. The fact was that he did not “make arrangements” himself for the making of a bond, but that Dukas made this arrangement. Galanos participated with others in preliminary negotiations winch eventually led to the making of the bond. The testimony of Kocotos tends to show greater activity by Galanos in instigating the plan to get the bond, but even this does not indicate more than a joinder by Galanos with three others in indemnifying Dukas.

The same facts show the lack of falsity in his answer regarding the peanut vendor. No one of the parties involved was accurately entitled to this description, but it can by possibility have referred only to Kocotos, who was one of the group which indemnified Dukas for his act in procuring the bond from the surety company. Very plainly, Galanos did not “get [Kocotos] to come and sign the bond.” The defendants’ motion for an instructed verdict of acquittal should have been granted; and we reach this conclusion without finding it necessary to pass upon the question of materiality.

The judgment is reversed, and the case remanded for further proceedings.


author: BOOTH, Circuit Judge.

text:
    MEYERS v. UNITED STATES.
    No. 9049.
    Circuit Court of Appeals, Eighth Circuit.
    April 29, 1931.
    M. A. McGruder and R. A. Higdon, both of Sedalia, Mo., for appellant.
    Harry L. Thomas, Asst. U. S. Atty., of Kansas City, Mo. (William L. Vandeventer, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.
    Before VAN VALKENBURGH and BOOTH, Circuit Judges, and MUNGER, District Judge.
   BOOTH, Circuit Judge.

This is an appeal from a judgment of conviction under an indictment which contained two counts: One for unlawful sale of intoxicating liquor; the other, for maintaining a common nuisance. The jury found the defendant guilty on both counts.

In tMs court, motion is made to dismiss the appeal on the grounds that the appellant’s brief does not comply with rule 24 of this court, in that it (1) does not contain a detailed index; (2) does not contain any statement of the case; (3) does not contain a separate statement of eaqh assignment of error intended to be urged.

Inasmuch as the brief is only five pages long, absence of an index may be overlooked.

The brief does contain a statement of the case, consisting of a very few lines. We think the brevity, under the circumstances of the case, should not be penalized.

There is a separate statement of each assignment of error intended to be urged, and although strict compliance with the rule is not observed, yet we think a bona fide intention to comply is disclosed.

The motion to dismiss is accordingly denied.

The first assignment of error is that the court erred in not sustaining a demurrer to the evidence at the close of the ease. The only point raised here is that the indictment charged the sale and.the nuisance at South Ingram street in Sedalia, whereas the proof was that the location was at South Ingram avenue. Inasmuch as there is no showing that anyone was misled, we think the variance was not fatal. 31 C. J., p. 840, § 451, et seq.; Day v. United States, 28 F. (2d) 586 (C. C. A. 8); Mathews v. United States, 15 F.(2d) 139 (C. C. A. 8); see Cornett v. United States, 7 F.(2d) 531 (C. C. A. 8).

The remaining assignment of error contains several criticisms of the charge of the court to the jury. It is to be noted, however, that there were no exceptions taken to the charge, covering the criticisms now made, and therefore no assignment- of error could be made having an exception as its basis. We have examined the charge, however, and find no substantial merit in the criticisms.

The judgment is affirmed.