author: GRONER, Associate Justice.

text:
    SMITH v. HARRAH et al.
    No. 5369.
    Court of Appeals of District of Columbia.
    Argued June 8, 1981.
    Decided June 29, 1931.
    Wm. E. Richardson, of Washington, D. C., for appellant.
    Leo A. Rover, Daniel P. McDonald, John R. B.enney, and Daniel Dunning, all of Washington, D. C., for appellees.
    Before MARTIN, Chief Justice, and HITZ and GRONER, Associate Justiees.
   GRONER, Associate Justice.

Smith, plaintiff below, whom we shall call plaintiff, filed a bill in the Supreme Court of the District against one Charles J. Har-rah, in which he joined as defendants the Secretary of State and the Secretary of the Treasury. All the parties are citizens of the United States.

The bill alleges that during 1916, and prior thereto, the defendant Harrah operated in Cuba a railroad primarily for the transportation of sand; that in 1917 or thereabout the railroad was destroyed by the Cuban government, and in 1929 an agreement was entered into between Cuba and the United States for the appointment of arbitrators to determine Harrah’s interest in the property destroyed and the amount of damage sustained, and that this arbitration resulted in an award of $350,000, which was paid to the Department of State for the account of Harrah. The bill further charges that Har-rah’s railroad was unlawfully on plaintiff’s land, and that plaintiff is entitled to have a part of the award paid to him. In an amended bill, filed November 3,1930, plaintiff states his claim as follows: “That because of the fact that the aforesaid railroad was built in and upon the lands so owned by the plaintiff and by reason thereof, the right, title and ownership in and to the aforesaid railroad and the buildings, switches and appurtenances so built on said land so owned by the plaintiff thereby became and were fixtures or attachments to said land, and were thereby the property of the plaintiff, * * * and the said Harrah, by including the said property of the plaintiff in the amount for which he asked compensation for damages, thereby became liable to account and deliver to the plaintiff so much of said fund paid as indemnity as represented the value of the plaintiff’s property.”

Motion was made in the lower court to dismiss the bill and the amended bill, and this was granted; the lower court holding that the fund being then in the hands of the jSeeretary of State, who had discretion as to its disposition, the court was without jurisdiction. Since the ease was heard below, the certificate required under the law to be made by the Secretary of State to the Secretary of the Treasury, as to the person entitled to the fund, has been made, and the matter has passed beyond his control, and the fund is in the hands of the Secretary of the Treasury, ready for distribution.

In line with Orinoco Co., Ltd., et al. v. Orinoco Iron Co., 54 App. D. C. 218, 296 F. 965, 969, affirmed by the Supreme Court in Mellon, Secretary v. Orinoco, 266 U. S. 121, 45 S. Ct. 53, 69 L. Ed. 199, we think there is no longer any question that on a bill with proper averments the court, in the circumstances involved here, would have jurisdiction to inquire as to the parties entitled to' the fund, and to require it to be paid over to a receiver pending such orders as the court might make with relation thereto.

We proceed, therefore, to inquire whether the present bill meets this test. We think it does not, because it fails to charge facts sufficient to constitute a claim to an equitable lien on the fund involved and likewise facts as the result of which defendant Harrah might be regarded as a trustee ex maleficio. The allegations of the bill of complaint place the plaintiff, Smith, and the defendant Harrah at all times in antagonistic positions, nor is there anything which charges a trust relationship. The substance of the bill is that, because the railroad was built in part on plaintiff’s land, a portion of the award belongs to him, but there is nothing to show that he ever made any protest against the occupancy of his land, or that he ever asserted any right thereto against Harrah. Neither is there anything to show that he ever protested to the C,uban government or the government of the United States as to the destruction of the railroad, or asserted any claim growing out of the destruction before the arbitrators under the international agreement, or took any action of any kind at any time prior to the making of the award to establish either a claim to the property or a claim to the fund arising out of its destruction. He stood by for a period of nearly fourteen years without taking any steps or doing any act to protect his interests, if he had any. Presumably he knew that his government had entered a convention with the government of Cuba to determine the ownership of the railroad and the indemnity to be paid for its destruction, and presumably he knew also that the agreement provided that the Commissioner should determine if Harrah had a right to make claim as the owner of the railroad, and, in the event he had, what indemnification he should receive for the damage done, and it was not until the first question was decided in Harrah’s favor and the amount due determined that the plaintiff undertook to assert any rights or make any claim to the fund.

In these circumstances, we think the ease is clearly distinguishable from the Orinoco Case, supra. In that ease, the controversy grew out of the ownership of a fund of $385,-000 received by the Secretary of State from Venezuela, resulting from the action of Venezuela in canceling a concession to the Orinoco Company, Limited. This company had assigned its rights to the Orinoco Iron Company, and the latter had developed the property and expended a large sum of money in the operation. The award and settlement of Venezuela had been made at the instance of the Limited Company, but the basis of the claim of the Limited Company was the loss sustained by the Iron Company. After the award, the Iron Company brought suit as the beneficiary of what remained of the fund, and set out the fact of assignment to it of the concession, its investment, and its loss, and that the latter formed the basis for the award. In these circumstances, we held, “In view of this we are convinced that the iron company has a lien ex maleficio upon the’balance of the award in the treasury of the United States.” The present ease, as we have shown, is entirely different. There is no averment of confidential relationship or of contract between the plaintiff here and Harrah, nor averment that plaintiff ever asserted anywhere prior to the award any claim to any part of the property or the fund. There is therefore no claim that Harrah by fraud or the violation of a fiduciary relationship obtained the award, or any fact alleged through which to impress a constructive trust upon the property in favor of the plaintiff. There is not even in the bill an allegation that the plaintiff was the owner of the land when the destruction of the railroad occurred, nor enough otherwise to conclude that, even if he was, the fixtures placed on the land were not trade fixtures, removable by the company at will. The lack of equity, the laches of the plaintiff in sleeping on his rights, if he had any, the vague character of the allegations, failure to assert a definite fixed lien on the fund, all present such a case as we think is without equity, and which therefore make it our duty to affirm the decree of the lower court.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    McCORMACK v. HARRAH et al.
    No. 5368.
    Court of Appeals of District of Columbia.
    Argued June 3, 1931.
    Decided June 29, 1931.
    Wm. E. Richardson, of Washington, D. C., for appellant.
    Leo A. Rover, Daniel P. McDonald, John R. Benney, and Daniel Dunning, all of Washington, D. C., for appellees.
    Before MARTIN, Chief Justice, and HITZ and GRONER, Associate Justices.
   GRONER, Associate Justice.

This is a companion ease to No. 5369, 60 App. D. C. 258., 51 E.(2d) 314, and the two eases were heard at the same time, and we refer to the opinion in No. 5369 for a statement of the preliminary facts.

Appellant here, McCormack, is an engineer, and in 1917 was residing in Havana. Appellee Harrah, whom we shall call appel-lee, had formerly owned a railroad in Cuba, which was destroyed by the Cuban government in 1917. In 1929, arbitrators were selected by the government of the United States and Cuba to pass upon appellee’s claim for indemnity for the damages sustained by him in the destruction of the railroad. The bill alleges that as a result of this agreement it became necessary for appellee to submit expert engineering testimony covering the facts of his claim, and that he entered into an agreement with appellant that the latter should make the investigation and survey necessary to support the claim, that, in accordance with the agreement, appellant made the survey and investigation, devoting his exclusive time to the matter for a period of five months, and that, as a result of this, he rendered material aid and assistance in securing the award in favor of the claim. By an amendment to his bill, appellant sets out that appellee agreed “that he would pay him as a fee for his services and personal expenses 10% of whatever award was made in settlement of said claim, said 10% to be paid out of said award when it was disbursed.” The Supreme Court of the District sustained the motion to dismiss the bill on the ground that, the Secretary of State, in whose possession the fund was, not having then determined the amounts due and to whom due and certified the same to the Secretary of the Treasury, the court was without jurisdiction.

It was admitted at the bar that, since the decision of the lower court, the Secretary had acted, and that the money is now in the Treasury certified to be paid to Harrah, and the point made in the lower court that the bringing of the suit was premature is not urged here.

We think, under these circumstances, the ease should be retained. The purpose of the bill is to establish an equitable lien on the fund in the sum of $35,000, and prays for a receiver to hold the fund, and for an injunction against the disbursement of the fund until the interest of the claimant has been determined. We think the question for decision on the present pleadings is whether the bill shows that appellant has an equitable lien upon the fund, and, if he has, the cause should be remanded for trial on the merits, and this question we think should be answered in the affirmative on the authority of Barnes v. Alexander, 232 U. S. 117, 34 S. Ct. 276, 58 L. Ed. 530, and Ingersoll v. Coram, 211 U. S. 335, 29 S. Ct. 92, 53 L. Ed. 208. In the first of these, the court, quoting Wylie v. Coxe, 15 How. 415,14 L. Ed. 753, decided that a contract for a contingent fee, much the same as that claimed here, out of a fund awarded, constituted a lien upon the fund, and so in the Ingersoll Case, where there was an agreement for the employment of an attorney on a contingent fee to be paid out of the funds recovered, the Supreme Court held an agreement less specific in terms than this broad enough to establish an equitable lien. The allegations in plaintiff’s amended bill that he was to be paid 10 per cent, and that this 10 per cent, was to be received by him from and out of the award, is we think sufficient to bring his claim within the doctrine of the cases cited, and since, as we have already decided in No. 5369, the lower court would, in the circumstances named, have jurisdiction to control the action of the Secretary of the Treasury in the disbursement of the fund, we think it was error to have dismissed the bill.

Reversed and remanded for further proceedings not inconsistent with this opinion.


author: HITZ, Associate Justice.

text:
    CATTELL v. JEFFERSON.
    No. 5162.
    Court of Appeals of District of Columbia.
    Argued June 3, 1931.
    Decided June 29, 1931.
    Kate P. Johnson and Alfred D. Smith, both of Washington, D. C., for appellant.
    James S. Easby-Smith and F. W. Hill, Jr., both of Washington, D. C., for appel-lee.
    Before MARTIN, Chief Justice, and HITZ and GRONER, Associate Justices.
   HITZ, Associate Justice.

This is an appeal from an order in equity of the Supreme Court of the District of Columbia dismissing an amended bill for specific performance of a contract for the sale of lands in the city of Washington.

The contract was dated December 25, 1915; the amended bill was filed November 17, 1929; the motion to dismiss it, November 22, 1929; and the order dismissing it, after hearing, December 4, 1929, whereby á cause requiring fourteen years to get into court remained there two weeks.

The plaintiff below electing no further amendment, appealed to this court, bringing a single assignment of error in his reeord, stating in general terms that “the Court erred in granting the motion to dismiss the-amended bill of complaint on the grounds set forth in said motion.”

That motion set forth seven specific grounds; the order of dismissal renders no reason; while the memorandum opinion of the judge is apparently, though not expressly, based on one or more of the enumerated grounds of the motion.

In these circumstances the appellee’s brief in this court contains a motion to dismiss this appeal because the assignment of error is too general and does not comply with rule 5. section 9, requiring.that errors shall be separately and specifically stated.

This motion is argued at length in ap-pellee’s brief, though not mentioned in appellant’s, and no such motion appears to have been formally filed in this court or brought to the attention of the appellant.

While this assignment of error is not so specific as it might be, or as the rule contemplates, the view of the trial judge sufficiently appears from his memorandum opinion and his order, as brought up by the record, and laying to one side the long delay in bringing the suit which is somewhat unconvincingly explained in the bill, we pass to a consideration of the appeal on its merits.

The bill after the usual recitals of residence and citizenship alleges_, in substance, that on December 25, 1915, defendant and his now deceased wife contracted in writing to sell plaintiff all of square 608, in the District of Columbia, at the price of 4% cents per square foot.

That plaintiff owned lot 10 in said square, while the defendant claimed the remainder of the square by tax titles and adverse possession, and agreed to perfect his title by appropriate proceedings, for which purpose approximately $1,000 was paid by plaintiff, to be credited on the purchase price.

That defendant' has not instituted such proceedings, and, though often requested, still refuses so to do-, with intent to defraud plaintiff and to sell said lands to other persons.

That plaintiff agrees to buy and defendant to sell all lots in said square to which defendant may perfect title in the Supreme Court of the District of Columbia.

That plaintiff will furnish all money required by defendant’s attorney for clearing the title, sueh advances to be credited on the purchase price of such lots as to which title shall be established, while lots to which title shall not be established shall be excluded from the .sale.

The contract is filed as an exhibit and part of the bill, which prays for process, specific performance of the contract, and general relief.

The trial court held that specific performance would not lie because the bill shows that the necessary proceedings to clear the title had never been instituted, and with this position we agree.

The' bill does not pray for a conveyance of the title held by the defendant, but that the chancellor require him to perfect his title by proeeedingSj and then to convey the perfected title so acquired.

Specific performance, being not a matter of right but resting in discretion, will usually be denied against a vendor unable to comply with his contract for lack of title, although his lack of title may result from his own act, or, as here, from his omission to act. McCabe v. Matthews, 155 U. S. 550, 15 S. Ct. 190, 39 L. Ed. 253; Hennessey v. Woolworth, 128 U. S. 438, 9 S. Ct. 109, 32 L. Ed. 500; Halsell v. Renfrow, 202 U. S. 287, 26 S. Ct. 610, 50 L. Ed. 1032, 6 Ann. Cas. 189; Evans v. Neumann, 51 App. D. C. 300; 278 F. 1013; Ryan v. Martin (C. C.) 165 F. 765, 771; Smith v. Bangham, 156 Cal. 364, 104 P. 689, 28 L. R. A. (N. S.) 522; Ward v. Newbold, 115 Md. 689, 81 A. 793, Ann. Cas. 1913A, 919; 25 R. C. L. 245, par. 48.

As Justice Gray states the rule in Kennedy v. Hazelton, 128 U. S. 671, 9 S. Ct. 202, 203, 32 L. Ed. 576: “A court of chancery cannot decree specific performance of an agreement to convey property which has no existence, or to which the defendant has no title.”

The decree is affirmed with costs.

Affirmed.


author: HITZ, Associate Judge.

text:
    FISH v. HUDDELL et al.
    No. 5148.
    Court of Appeals of District of Columbia.
    Submitted May 7, 1981.
    Decided June 29, 1931.
    Thomas C. Bradley, P. H. Marshall, and Harry S. Barger, all of Washington, D. C., for appellant.
    James S. Easby-Smith and F. W. Hill, Jr., both of Washington, D. C., for appel-lees.
    Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.
   HITZ, Associate Judge.

This is an appeal from an order of the Supreme Court of the District of Columbia dismissing on motion an amended bill for in-junctive relief.

Appellant here, plaintiff there, elected to stand on his bill and brought this appeal.

In April, 1929, plaintiff was a member and business agent of local union No. 77, in this city, of the International Union of Operating Engineers.

About that time defendant Arthur M. Huddell, as general president of the International Union, suspended him as busmess agent, and for one year from membership in his local union.

By this action plaintiff claims’ he lost the usual rights and privileges incident to union membership, together with his salary of $75.-50 a week and the use of an automobile as business agent.

The bill contains many other allegations of interference with the affairs of plaintiff and his local union by Huddell and the other defendants under his orders and direction.

All of these acts are alleged to have been unlawful, and injunctive relief against them is sought.

The motion to dismiss was based on the failure of the bill to show that plaintiff had exhausted his remedies within the association before resorting to a court of equity.

And on this motion the trial court dismissed the bill with leave to amend.

Article 4, § 2, of the constitution of the International Union, provides:

“The General President shall' countersign all vouchers and cheeks for payment of moneys or for withdrawing funds from the bank. The General President shall have the power to appoint officers pro tern, and all committees not otherwise provided for, and to deputize any member in good standing to perform any of the duties of his office which time and distance may prevent him from performing personally. He shall have the direction and supervision of all Local Unions, with power to suspend either individual members or officers for incompeteney, negligence or failure in successfully carrying out their duties, and he shall designate the persons to fill the places of officers or members thus suspended who shall conduct the affairs of the Local under his direction. He shall be vested with the full discretionary power to issue charters or to suspend the charter of any Local Union not complying with the Rules and General Laws for the government of the International Union of Operating Engineers until such time as hearing is had as provided in Article VII, Section 6, which hearing, if demanded by the Local Union shall be had within thirty (30) days.
“He shall have full control of the work of the organization throughout the jurisdiction of the organization subject to the approval of the General Executive Board. He shall have power to appoint representatives in such localities as shall appear to be for the interest of the organization. The General President shall preside as chairman of the General Executive Board and shall make a full report to the said .Board of the work in his office at least every six months.”

Article 15, § 2:

“Local Unions or members have the right to appeal to the General Executive Board through the General Secretary-Treasurer from any decision rendered by the General President. The decision of the General Executive Board to be final and binding until changed by a convention.”

Defendant Huddell claims authority for his actions complained of under article 4, section 2, while plaintiff contends that he was not justified in his actions by that article and section, nor any other.

Thus we have squarely presented a question of internal management and administration of the affairs of the Union of Operating Engineers.

It is well settled that with such-management and administration the courts will not ordinarily interfere. 5 C. J. 1364, § 101, and cases cited.

Nor does the plaintiff bring himself within exceptions to the rule, because even then, as held by the trial court, he must show that he has first exhausted his remedies in the tribunals of his organization as provided by its constitution and general laws, particularly article 15, section 2. Dingwall v. Street R. Employees Amalgamated Assoc., 4 Cal. App. 565, 88 P. 597; Hickey v. Baine, 195 Mass. 446, 81 N. E. 201; Strempel v. Rubing (Super. N. Y.) 4 N. Y. S. 534; Whitty v. McCarthy, 20 R. I. 792, 36 A. 129.

Of the two successive appeals so open to the plaintiff he has availed himself of neither, but attempts to justify his failure to do so by allegations that defendant Huddell dominates the general executive board and that the convention of the International Union meets infrequently.

The first of these objections is based on an assumption in which the court cannot indulge, and the second is answered by the constitution and general laws of the organization to which the plaintiff voluntarily subscribed.

The decree is affirmed.

‘Affirmed.


author: FOSTER, Circuit Judge. SIBLEY, District Judge PER CURIAM.

text:
    SEABOARD OIL CO. v. CUNNINGHAM.
    No. 5976.
    Circuit Court of Appeals, Fifth Circuit.
    June 22, 1931.

      SIBLEY, District Judge, dissenting.
    Julian Hartridge, of Jacksonville, Fla., for appellant.
    R. A. Hendricks, of Miami, Fla. (Hendricks & Hendricks, of Miami, Fla., on the brief), for appellee.
    Before FOSTER, Circuit Judge, and HUTCHESON and SIBLEY, District Judges.
   FOSTER, Circuit Judge.

This is a suit to recover damages for malicious prosecution and false arrest. Demurrers to the complaint Were overruled, and issue was joined on a plea of not guilty. The ease was tried to a jury, and resulted in a verdict in favor of appellee for $5,318, on which judgment was entered. Error is assigned to the action of the court in overruling the demurrers.

Undoubtedly it is essential for the plaintiff, in an action for false arrest or malicious prosecution, to allege and prove both malice and want of probable cause, but malice may be inferred from want of probable cause. Stewart v. Sonneborn, 98 U. S. 187, 25 L. Ed. 116.

The declaration in five counts, with sufficient detail to identify the proceedings, substantially alleges that appellant, through an authorized agent, instigated three criminal prosecutions against appellee charging him with issuing worthless cheeks; that he was arrested and held to bail; that he waived preliminary examination in one cause and was remanded for trial; that he was acquitted by a jury in one ease and the other two were nolle prosequied; that he was damaged; and that the prosecutions were without probable cause and malicious.

It is contended that, because appellee waived examination and was committed for trial, probable cause was conclusively shown; and that the allegation that the prosecution was without probable cause and malicious is a mere conclusion of the pleader and insufficient.

While there are authorities to the contrary, the rule is well established that a general allegation that the prosecution was malicious and without probable cause is an averment of ultimate facts, and is sufficient. It is difficult to see how the pleader could allege specific facts- without attempting to negative every possible defense before it was raised, which he is not -required to do. General allegations of fraud or knowledge of the innocence of the accused would add nothing material to the complaint. Nor does the allegation that the appellee waived preliminary examination and was committed for trial destroy the general averment. That fact would be merely prima facie evidence of probable cause. Stainer v. San Luis Valley Land & Mining Co. (C. C. A.) 166 F. 220; 38 C. J. 464, § 127B. It was not error to overrule the demurrers.

Error is assigned to the refusal to direct a verdict for the defendant at the close of the evidence and to a certain portion of the charge given. These may be considered together.

The following facts appear without dispute: Cunningham was the proprietor of a gasoline filling station in Miami, Fla., conducted in the name of the Tamiami -Auto Supply, Ine. The management of the station was intrusted to Roy E. Shaw, an employee. Cunningham had another place of business across the street from the station. Shaw purchased all the supplies needed, and on his approval the bills were paid by Cunningham by cheek. Cunningham bought all his gasoline and other petroleum products from the Seaboard Oil Company. He was prohibited from buying from any one else by a condition of the-lease of the station. Gran-berry was the district manager of the Seaboard Oil Company. Keener was the local manager or agent. Huffman was the bookkeeper and Brooker was the tank wagon driver. Cunningham issued three cheeks, dated May 23, May 24, and May 25, 1929, on the Third National Bank of Miami, payable to the Seaboard Oil Company, signed by the Tamiami Auto Supply, Ine., by himself as general manager. These cheeks were in payment for supplies purchased, and were given to Brooker, who made the delivery. They were deposited by the Seaboard Oil Company in the Bank of Bay Biscayne. In the usual course of clearance payment was refused for want of sufficient funds. On or about May 25, 1929, Granberry and Keener consulted Menser, assistant county solicitor of Dade county, Ha., about the dishonored cheeks. On or about the 1st day of June Granberry and Keener also consulted Har-grett, a practicing attorney, about the same checks. A notice in statutory form was prepared by Hargrett and served on Cunningham advising him that the following checks had been dishonored, to wit, cheeks dated May 20, May 23, two on May 24, and four on May 25, 1929, for the following amounts respectively: $73.92, $133.34, $141.02, $23.50, $13.18, $120.74, $69.08, $7.74,' a total of $582.50. Thereafter, on June 3, 1929, Keener made affidavit before a justice of the peace charging Cunningham with violating section 7920, Compiled General Laws of Florida 1927. This charge was based on the check for $133.34, dated May 23, 1929. Cunningham was promptly arrested on this charge and held to bail for trial before the criminal court of Dade county. On June 8, 1929, Taylor, county solicitor, filed two informa-tions against Cunningham, based on the checks dated May 24, for $141.02, and May 25, for $120.74, charging ■ violations of section 7922, Compiled General Laws of Florida 1927. Cunningham was also arrested on these two informations. He was put on trial on one of the informations, and was acquitted by the jury, whereupon the assistant county solicitor nolle prosequied the other two charges.

Appellant, the Seaboard Oil Company, contends that, notwithstanding the termination of the prosecutions favorably to Cunningham, there was probable cause, and it acted upon the advice of counsel. However, appellee, Cunningham, contends that there was want of probable cause because he had an agreement with the Seaboard Oil Company to accept his cheeks, some of them postdated, and, if they were not paid when first presented, to hold them and redeposit them, when they would be paid. The evidence on these points is in conflict. We may briefly review it.

Shaw testified that he went to work for Cunningham about March 1, 1929; that on March 5 he had a conversation with Gran-berry about the financial condition of the Tamiami Auto Supply, Inc., and told him to "go easy with us until we get started”; that Granberry knew that they did not have funds and had had lots of cheeks turned down; that, if one was turned down, it would be redeposited and taken care of on the redeposit; that the three cheeks upon which Cunningham was prosecuted were given under the same understanding and agreement that the checks prior to that time had been given; that the checks turned down and redeposited were always made good; that there was no express agreement, but the Seaboard Oil Company had never stopped them from doing business in that way; that a cheek for part payment of the account had been sent to the Seaboard Oil Company at Jacksonville and had been refused; that, if the cheeks upon which Cunningham was prosecuted had been redeposited, they would have been paid in the usual manner; that Gran-berry knew that he only approved the bills and had no authority to draw cheeks; that Granberry had no right to make demand upon him for payment of the eheeks. In general, the testimony of Cunningham confirmed Shaw as to the method of doing business.

Granberry testified that he did not have any agreement with Cunningham or Shaw to accept checks in payment of merchandise and not as cash, to be redeposited if not paid; that all the credits went through the Jacksonville office; no one was authorized to extend eredit but himself; that they had threatened prosecution of Cunningham on account of prior cheeks, but no prosecution was ever instituted; that he had to discontinue to take checks and demanded cash; that Shaw had asked him not to do that, as it worked a hardship on them, and he would see that no more checks were turned down; that he had never knowingly taken a postdated cheek.

Keener and Huffman also testified that there was no agreement such as outlined by Shaw, and that neither of them had ever taken a postdated check.

Brooker, who made deliveries and received the checks, testified that he looked at each check to see if it was postdated; that he had never taken a postdated check; that ho would make deliveries in the morning and go across the street to Cunningham to get the check; that, if Cunningham was not there, he would return in the afternoon or the next day.

To rebut the testimony of Brooker and Hluffman, thirty-four cheeks were offered in evidence. Indorsements on the backs of these checks indicated that all except one had been postdated, as they were deposited prior to the date shown on the face. Twenty-six of these cheeks were dated from January 18 to March. 6. This last cheek was deposited on March 4, a day before Shaw had his conversation with Granberry. Seven of the cheeks were dated from March 5 to March 12, the day of the said conversation or subsequent thereto. One check was dated May 8, and apparently was not postdated. At any rate, it was not deposited until May 10. It was then dishonored and was redeposited May 17 and was paid May 20, the same date as the first check included in the notice of dishonor set out above. It was not shown whether the cheeks included in the said notice were postdated. However, it may be presumed that some of them were, as Granberry and Keener would hardly have complained to the county solicitor on May 25 about the nonpayment of a cheek dated that day or even a day or two before.

Evidence was offered to show malice. Shaw testified that Granberry made an appointment with him and Cunningham; that he kept it with Shaw, but declined to see Cunningham and said, “to Hell with Cunningham. I am going to give him the works.” Cunningham testified Granberry was present when he was arrested and took him to jail in his automobile. Granberry did not deny the above statement to Shaw, and said he took Cunningham and the arresting officer to jail, merely as an accommodation to the latter.

It is not disputed that both Hargrett and Menser, when consulted by Granberry and Keener, were told that the transactions with Cunningham were strictly cash and no credit at all was extended.' And they were not told of any agreement to accept checks and redeposit them if not paid when first presented. On cross-examination, Menser testified that, if he had been told of a custom to accept postdated checks and redeposit them, his advice would have been the same.

We may briefly review the law undei which Cunningham was prosecuted.

Section 7920 makes it a felony for any person to give any check, either in his own behalf or as an agent for another, in payment of goods or other thing of value, the title or possession of which is transferred upon the faith of payment of the check, and shall not, at the time of giving such cheek, have sufficient money for its payment on deposit with the bank upon which drawn, and shall not within twenty-four hours after written notice of the presentation and nonpayment of the check, make full and complete restitution by returning the consideration.

Section 7922 makes it unlawful for any person to simply draw or utter to another any cheek without there being sufficient funds on deposit, or to his credit, with the drawee named to cover payment of same upon presentation within a reasonable time after negotiation. This section has a proviso that it shall not apply to any check where the payee or holder has been expressly notified prior to •the drawing or uttering of same that the drawer did not have on deposit or to his credit with the drawee sufficient funds to insure payment.

Neither of these statutes by express words makes an intent to defraud an element of the crime. However, the general rule is that in all statutory crimes involving moral turpitude criminal intent is an implied, necessary ingredient. The rule is thus stated by Bishop: “Evil Intent. — A statute will not generally make an act criminal, however broad may be its language, unless the offender’s intent concurred with his act. * * * ” Bishop on Statutory Crimes (3d Ed.) § 132.

We are not advised of any decision of the Supreme Court of Florida construing the statutes above referred to differently to the general rule. On the contrary, it would seem that the rule is recognized as elementary. The court has held that no offense is committed where the drawer of the draft has reason to believe, from an existing contract or previous dealings with the firm upon whieh the draft is drawn, that it will be paid whether he at the time had sufficient on deposit or to his credit to insure such payment. Whitney v. State, 63 Fla. 53, 58 So. 230; Denton v. State, 66 Fla. 87, 62 So. 914; Wolfe v. State, 76 Fla. 168, 79 So. 449.

As applicable to the proviso of section 7922, it is elementary that personal knowledge is equivalent to express notice. 46 C. J. 540, § 9 (b).

While it is evident that, there was no express agreement between the parties as to the taking of postdated checks or to redeposit cheeks if not paid when first presented, an implied agreement would be sufficient, and could be shown by circumstances and a course of conduct. The rule is clearly stated by the Supreme Court in Webster v. Upton, 91 U. S. at page 68, 23 L. Ed. 384, as follows: “To constitute a promise binding in law, no form of words is necessary. An implied promise is proved by circumstantial evidence; by proof of circumstances that show the party intended to assume an obligation.”

The evidence was in direct conflict, but, if that were resolved in favor of Cunningham, it would support the conclusion that the Seaboard Oil Company had agreed to accept his cheeks with knowledge that they might not be good, and, if that condition existed, to extend credit until such time as they were paid on redeposit. In that contingency the act of Cunningham in giving the cheeks upon which he was prosecuted did not constitute an offense under either statute. Certainly there was no offense under section 7920. The three prosecutions were alleged in separate counts of the complaint. It was necessary to sustain the verdict that proof be made as to only one count.

In a clear case, on undisputed facts, probable cause is a question of law for the court. Brown v. Selfridge, 224 U. S. 189, 32 S. Ct. 444, 56 L. Ed. 727. But where the evidence is in substantial conflict or reasonable men may draw different conclusions from it, probable cause is a question for the jury. Of course, it is the duty of the court to instruct the jury as to what facts will constitute probable cause or want of it, leaving it to the jury to pass upon the credibility of the witnesses and find the facts. Sanders v. Palmer (C. C. A.) 55 F. 217; L. Bucki & Son Lumber Co. v. Atlantic Lumber Co. (C. C. A.) 121 F. 233; Blakely v. Greene (C. C. A.) 24 F.(2d) 676.

Advice of counsel is a good defense to an action of malicious prosecution or false arrest, whether there be probable cause or not. However, it is not available unless the defendant has fully and clearly, in good faith, stated to counsel all the facts bearing upon the guilt or innocence of the accused. 38 C. J. 432, § 28; 18 R. C. L. 47, § 29. Whether the defendant has fully and clearly stated the facts to counsel in seeking his advice is also a question for the jury, under proper charge of the court. Walton Trust Co. v. Taylor (C. C. A.) 2 F.(2d) 342; Daniel v. Pappas (C. C. A.) 16 F.(2d) 880.

The question presented to the jury was not whether appellant’s agent had consulted counsel, nor what advice counsel would have given on a full disclosure of all the facts. It was simply whether ail the facts were disclosed when seeking advice. It is undisputed that both Hargrett and Menser were told that the transactions were strictly cash. This was not true if the conflict in the', evidence was resolved in favor of Cunningham. And they were not told of an agreement to redeposit cheeks, a fatal omission, if there was such an agreement. As error is not assigned to the charge of the court on this point, we assume that the jury was correctly instructed as to the law.

It was not error to submit the case to the jury-

The portion of the charge objected to, as appears by the record, is as follows: “On the other hand, there is evidence here by the witness Shaw that he had some conversation with the manager of this defendant company, and that it-was understood that the plaintiff could give and they would accept checks that were drawn on the bank when there was not sufficient funds to pay it. To my mind, gentlemen, that is the important phase of this case for you to consider. The witnesses for the defendant deny that. They say there was no such agreement. There was no credit allowed by this defendant of any kind. Each delivery was a separate and distinct transaction, goods were delivered and at the time a cheek was given. Now, you must determine which one of those witnesses you are going to believe and which one is true. While the Court, under the law, is the judge of what is a probable cause of the issuance of a warrant, it is the providence of the Jury to pass upon the facts and that is the question I am submitting to you in this case. If you believe by a preponderance of the evidence that there was any understanding between this plaintiff and defendant that that defendant knew that there was not sufficient money in the bank to meet these cheeks and took them with that understanding, then when he made this affidavit there was probable cause. It is for you to determine whether or not it was the understanding between these people. You must believe that by a preponderance of the evidence. If you do not believe them by a preponderance of the evidence, then there was not probable cause and you should find for the defendant.”

This portion of the charge is rendered ambiguous by the apparent misplacement of the word "not.” We are not advised whether this was the result of a clerical error in transcription or a lapsus linguae on the part of the judge. The entire charge is not included in the record, as it might have been by order of the court, so we are in the dark as to whether the ambiguity was cured by the other portions of the charge. If the charge was actually given as above quoted, counsel for either side could have easily corrected it by calling the court’s attention to it specifically. Apparently this was not done. However, appellant cannot complain of the charge. Regardless of how the jury resolved the conflict of evidence, the charge was not prejudicial to appellant. Taking the view most favorable to appellant, we may disregard this technicality (Judicial Code, § 269 [28 USCA § 391]) and assume that the word “not” was verbally given in its proper place, and that the jury was in fact told that, if the agreement existed, there was not probable cause; but that, if there was no agreement, probable cause was shown. On that assumption the charge was not error.

Other assignments of error are immaterial and without merit and require no discussion.

The record presents no reversible error.

Affirmed.

SIBLEY, District Judge

(dissenting).

I dissent from the judgment of affirmance. The fourth count, if treated as one for malieious prosecution, does not sufficiently allege that the prosecution had terminated and favorably to the plaintiff, and the general demurrer to it on this ground should be sustained. If, as both sides contend and as I think, it was intended to be a count for false imprisonment, that part of it which alleges the personal malice of the agent of the defendant as an aggravation of the false imprisonment should have been stricken on the special objection that the corporation was not liable on account of this aggravation. Lake Shore & M. S. R. Co. v. Prentice, 147 U. S. 101, 13 S. Ct. 261, 37 L. Ed. 97. The verdict was expressly rendered on all four counts, and it is impossible to tell what influence the fourth count and the evidence submitted under it had in fixing its amount. A new trial is the necessary result of the errors in dealing with the fourth count. Bond v. Dustin, 112 U. S. 604, 5 S. Ct. 296, 28 L. Ed. 835; Wilmington Mining Co. v. Fulton, 205 U. S. 60, 27 S.Ct. 412, 51 L. Ed. 708; Gompers v. Buck’s Stove & Range Co., 221 U. S. 440, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Toledo Newspaper Co. v. United States, 247 U. S. 421, 38 S. Ct. 560, 62 L. Ed. 1186.

On Application for Rehearing.

PER CURIAM.

In the opinion of a majority of the court no ground sufficient to warrant the granting of a rehearing herein appears. The application for a rehearing is denied.


author: SPARKS, Circuit Judge.

text:
    SIEKERT & BAUM STATIONERY CO. v. STATIONERS LOOSE LEAF CO.
    No. 4479.
    Circuit Court of Appeals, Seventh Circuit.
    July 27, 1931.
    Alexander C. Mabee, Charles W. Hills, and Charles W. Hills, Jr., all of Chicago, Ill., for appellant.
    Ira Milton Jones, of Milwaukee, Wis., for appellee.
    Before ALSCHULER and SPARKS, Circuit Judges, and LINDLEY, District Judge.
   SPARKS, Circuit Judge.

This is a. patent infringement suit, and was instituted by appellee. The bill charges appellant with infringement of United States letters patent No. 1,184,979, issued to Henry C. Miller, May 30, 1916; and appellant in its answer pleaded invalidity and nonin-fringement.

The only claims in suit are 1 and 9, and the District Court found that they were valid and infringed by the structures which appellant had sold.

The claims in suit read as follows:

“1. A loose leaf binder comprising binder heads, and post members each formed of a flexible body having a socketed end to receive extension links and means associated with the other ends of the post members for extending or retracting the posts.”
“9. In a loose leaf binder the combination with a binder head, and a second hollow binder head of flexible posts having ends extensively connected with the hollow binder head, a plurality of extension links adapted for connection with each other and with the other ends of the flexible posts to form continuations thereof, and head members adapted for connection either with one of the extension sections or the ends of the posts to limit movement of the posts with respect to the first head.”

The devices found to infringe are manufactured by the Wilson-Jones Loose Leaf Company, of Chicago, 111., and are sold to the trade through dealers. Appellant was such a dealer. At the time this suit was instituted, appellee also filed an infringement suit in the same court against another dealer, by the name of H. H. West Company. The questions involved and presented in both suits were the same, and the suits were tried together, and the decrees are identical. Appeals were taken in both eases, separate records were transmitted, and the cases were docketed separately. By stipulation only one record was printed and both cases were heard upon the one printed record; and with the approval of this court it was agreed that all orders entered in this cause should be considered as entered in the other cause, which is numbered 4478.

The Wilson-Jones Company was not a party in either suit, but appeared and openly conducted both defenses. The trial court found the facts specially, and rendered its conclusions of law thereon as follows:

“1. Defendant has sold within the Eastern District of Wisconsin devices exemplified by plaintiff’s Exhibits 5, 5A, and 6, after the issuance of the patent in suit and prior to the filing of the Bill of Complaint herein.
“2. Said devices and each of them were manufactured by Wilson-Jones Company, and sold by it to defendant, and re-sold by the defendant as stated in finding of fact No. 1.
“3. Said Wilson-Jones Company has assumed control of the defense of this suit and is actively and openly defending the same.
“4. Flexible post binders manufactured by defendant and exemplified by plaintiff’s exhibits 5, 5A, and 6 contain two binder heads, both of which exert a clamping action on opposite sides of the body of loose leaf sheets placed therebetween.
“5. Devices of the character described and claimed in the patent in suit have largely supplanted flexible post binders and also rigid post binders with extension sections.
“6. Henry C. Miller, inventor of the patent in suit, was the first one to make a flexible chain post binder which was simple, capable of indefinite expansion, and at the same time permitted fine adjustment and clamping of the loose leaf sheets when inserted therein.
“7. No single one of the prior art structures constitutes anticipation of either claims 1 or 9 of the patent in suit.
“8. The structures manufactured and sold by defendant, plaintiff’s Exhibits 5, 5A, and 6, contain each and every one of the elements -of claims 1 and 9 of the patent in suit.
“9. Plaintiff has notified the Wilson-Jones Company of its ownership of the patent in suit and its claim of infringement thereof in 1916,1921, and 1928.
“10. The elements in the defendant’s infringing structure aforesaid and mentioned in claims 1 and 9 of the patent in suit cooperate to produce a new and useful result and one not found in any of the binders of the prior art.
“Conclusions of Law.
“1. The patent .to Henry C. Miller, No. 1,184,979, dated May 30th, 1916, is good and valid in law as to the claims 1 and 9 thereof.
“2. Defendant, Siekert & Baum Stationery Company, has infringed claims 1 and 9 of said patent by selling within the Eastern District of Wisconsin flexible chain post binders manufactured by the Wilson-Jones Company after the issuance of said patent and prior to filing the Bill of Complaint herein.
“3. No single one of the prior art structures constitutes anticipation of either claims 1 or 9 of the patent in suit.
“4. The structures manufactured and sold by defendant, Exhibits 5, 5A, and 6, contain each and every one of the elements of claims 1 and 9 of the patent in suit.
“5. The elements in the defendant’s infringing structures aforesaid and comprised in claims 1 and 9 of the patent in-suit cooperate to produce a new and useful result and one not found in any of the binders of the prior art.
“6. The flexible post binders manufactured by defendant as exemplified by plaintiff’s Exhibits 5, 5A, and 6 contain two binder heads both of which exert a clamping action on opposite sides of the body of loose leaf sheets placed therebetween.
“7. Wilson-Jones Company is a privy of the defendant in the above-entitled suit and is bound by the decree to be entered herein.
“8. Let judgment be entered accordingly.
“F. A. Geiger, District Judge.”

Incidental to the issues of validity there are contested matters relating to invention, anticipation, and commercial success; and under the issue of invention there are contested matters relating to aggregation, substitution, equivalency, and mechanical skill.

Appellant cited many patents as prior art which collectively cover each individual element contained in appellee’s device, but no one patent contained all of them. In fact, appellee admits that each element in its patent is old in the art, but it insists that its structure is a new combination of old elements which produces a novel and useful result, or an old result in a more facile, economical, or efficient way.

In determining whether or not the combination of elements in the present case is patentable we must be governed by two well-defined principles of law: (1) Where each element in the combination performs its function unaffected and unmodified by the action of the others, if there is no coaetion of these elements with one another, and if their combined result is the result of each element performing its function in its own way, unmodified by the others, each element contributing its share to the work, then such combination is a mere aggregation and is unpatentable. Richards v. Chase Elevator Co., 158 U. S. 299, 15 S. Ct. 831, 39 L. Ed. 991; Brinkerhoff v. Aloe, 146 U. S. 515, 13 S. Ct. 221, 36 L. Ed. 1068; Reckendorfer v. Faber, 92 U. S. 347, 23 L. Ed. 719; Everlasting Furniture Brace Co. v. Wittliff et al. (C. C. A.) 44 F.(2d) 129; Angier and Angier Corp. v. Nehring Electrical Works (C. C. A.) 45 F.(2d) 354. (2) It is not requisite to the patentability of a combination of old mechanical elements that each element should, in addition to performing its own function, modify the function performed by one or more of the other elements of the combination. It is sufficient if the combination of the old elements is new, and if the combined elements are capable of producing a novel and useful result or an old result in a more facile, economical, or efficient way. New York Scaffolding Co. v. Whitney (C. C. A.) 224 F. 452, and cases cited therein.

To appellant’s argument that the patented device in suit is an unpatentable aggregation of old' elements, appellee replies that the argument would be sound if in the combination in controversy there was no co-operation between the various elements of the claims which produced a new and useful result. This is essentially true, and, unless the combination of elements in their eorelation produces a different force, or effect,. or result, from the sum of that which is produced by their separate parts, the device is unpatentable. Reckendorfer v. Faber, 92 U. S. 347, 23 L. Ed. 719; Pelton Water Wheel Co. v. Doble (C. C. A.) 190 F. 760. In each case cited by appellee in support of its position there was a new result accomplished by the combination, and something more than the sum of that produced by the separate parts.

The individual elements of claim 9, which is more specific than claim 1, are: (1) A binder head; (2) a second hollow binder head; (3) flexible posts, having ends extensively connected with the hollow binder head; (4) a plurality of extension links adapted for connection with each other and with the other ends of the flexible posts to form continuations thereof; and (5) head members adapted for connection either with one of the extension sections or the ends of the posts to limit the movement of the posts with respect to the first head.

As each of these elements was admittedly old in the art at the time of filing the application for the patent in suit, we deem it unnecessary to set forth the citations relative thereto; but it is sufficient to say that one or more of the elements mentioned in the claims, in suit appeared in several of the cited structures, and in each instance where any element mentioned in the claims appears in the prior art it functions in all respects the same as it does in appellee’s patent, and we are unable to observe any new result whatever by virtue of tbe combination of elements.

Appellee readily admits that the extension sections, take-up mechanism, the flexible binder posts, and binder heads are all old separately; but it insists that the prior art fails to disclose any one structure combining these elements to produce the improved re*-sult accomplished by means of the binder of the patent in suit. What improved result was accomplished by means of the combination of old elements we are unable to discover. It is quite true that patentee’s efforts resulted in a new and useful combination, but that fact is not determinative of the question before us. The vital question with which we are concerned is what new use resulted from the combination; for, unless the combination produced a new and useful result, or the same result in a more facile or efficient manner to such a degree as to achieve invention, it is a mere aggregation, and hence unpatentable.

The Nott patent, No. 648,987, May 8, 1900, discloses binder heads, take-up mechanism for limited extension and retraction, and flexible binder posts. The Hoffman patent, No. 690,859, January 7, 1902, discloses binder heads with flexible posts passed into one head for connection with take-up mechanism, but lacks socketed ends on the posts for addition of extension sections. The Jones patent, No. 1,155,067, September 28, 1915, discloses binders, flexible posts, and a take-up mechanism in each binder, which provides a limited extension.» Appellant’s Exhibit V, a device made and sold as early as 1903 by appellee’s predecessor, discloses binder heads with no take-up mechanism, but it has the flexible posts which are fastened securely to the bottom binder, and the other ends of the posts engage the top binder in the same.manner as appellee’s device. These top sections of the flexible posts have socketed ends for connection with extension sections, thereby furnishing means for unlimited extension.

Each element mentioned in the last four exhibits is present in appellee’s patent, which was applied for November 5, 1915, and issued May 30, 1916. Each of said elements occupies the same relative position and performs the same function in appellee’s device as it does in the device in which it is originally found. Furthermore, they perform no-other functions, either separately or in conjunction with any other element. The combination of elements in their eorelation in the patent suit produces no different force or effect or result from the sum of that which is produced by their separate parts, and such new force, or effect, or result seems to be essential to appellee’s recovery under the rulings of the Supreme Court. Reckendorfer v. Faber, supra; Pelton Water Wheel Co. v. Doble, supra.

The mere fact that appellee’s combination of old elements resulted in a better and more convenient product does not of itself warrant the court in holding the patent valid. In Brinkerhoff v. Aloe, 146 U. S. 515, 13 S. Ct. 221, 224, 36 L. Ed. 1068, the court said: “ ‘To sustain a patent on a combination of old devices it is well settled that a new result must be obtained which is due to the joint and cooperating action of all the old elements. Either this must be accomplished or a new machine of distinct character and function must be constructed. * * * If several old devices are so put together as to produce even a better machine or instrument than was formerly in use, but each of the old devices does what it had formerly done in the instrument or machine from which it was borrowed and in the old way, without uniting with other old devices to perform any joint function, it seems that the combination is not patentable.’ ”

We are not unmindful of the presumption of validity which arises upon the issuance of a patent, nor of the evidentiary value of well-merited commercial success of the product; but neither the one nor both should be permitted to override a clear conviction of invalidity. Likewise, it is proper to consider appellant’s apparent acquiescence for a number of years in the validity of appellee’s patent, but such evidence cannot be persuasive unless the court be in doubt as to the invalidity.

We think the device in suit is a mere aggregation of old elements, and hence unpatentable. In view of this conclusion, it is not necessary to pass upon the other questions presented.

The decree of the District Court is reversed, with instruction to dismiss appellee’s bill of complaint for want of equity.


author: GARDNER, Circuit Judge. STONE, Circuit Judge

text:
    KROSKA v. UNITED STATES.
    No. 9002.
    Circuit Court of Appeals, Eighth Circuit.
    May 25, 1931.
    STONE, J., dissenting.
    Joseph P. Kolesky, of Minneapolis, Minn. (Richard Musenbrock, of Minneapolis, Minn., on the brief), for appellant.
    O. A. Blanchard, Asst. U. S. Atty., of St. Paul, Minn. (Lewis L. Drill, U. S. Atty., and Robert V. Renseh, Asst. U. S. Atty., both of St. Paul, Minn., on the brief), for the United States.
    Before STONE and GARDNER, Circuit Judges, and WOODROUGH, District Judge.
   GARDNER, Circuit Judge.

The appellant, David M. Kroska, was convicted under an indictment which charged that on the 28th day of June, 1929, in and upon the main highway, from a point to the grand jurors unknown, to the farm known as the Peter Kroska farm, located about two and one-half miles north of Avon, a more particular description of which is to the grand jurors unknown, in the county of Stearns, in the state and district of Minnesota, the defendant did then and there willfully, unlawfully, and feloniously transport in an Oldsmobile eoupé automobile intoxicating liquor, to wit, -moonshine whisky, the exact amount thereof to the grand jurors being unknown. His demurrer to the indictment and his motion to suppress certain evidence claimed by him to have been obtained under an unlawful search of his automobile were overruled, and these rulings of the lower court are here urged as error. In support of the demurrer, it is urged that the indictment was not sufficiently definite and certain, and did not sufficiently apprise the defendant of the nature and cause of the accusation against him. No demand for a bill of particulars was made. The indictment set forth the facts constituting the essential elements of the offense, and if defendant felt any uncertainty as to what was intended thereby, or feared that he might be taken by surprise by the production of evidence for which he was unprepared, he should have applied for a bill of particulars. The indictment was good as against the demurrer interposed. Myers v. United States (C. C. A.) 15 F.(2d) 977; McMillan v. United States (C. C. A.) 27 F.(2d) 94; Swafford v. United States (C. C. A.) 25 F.(2d) 581; Rinker v. United States (C. C. A.) 151 F. 755; Cochran v. United States (C. C. A.) 41 F.(2d) 193.

Defendant’s automobile was searched by two federal prohibition agents without a search warrant, certain intoxicating liquors found therein seized, and defendant was arrested without warrant in his home, the officer making the arrest having entered without invitation. A motion to suppress the use of any and all evidence obtained by virtue of the search and seizure by the federal prohibition agents of a certain Oldsmobile coupe, his person and his premises, was urged on the ground that the arrest and the search and seizure were violative of the Fourth Amendment to the Constitution of the United States, and, therefore, illegal. This motion, though filed and called to the court’s attention before the trial began, was not then passed upon, but was considered at the close of the ease, all testimony obtained by virtue of the search and seizure being received subject to the motion.

It appeared from the testimony of the prohibition agents who made the search and seizure that, while they were driving a Ford truck along a public highway in the vieinity of the Kroska farm, they observed a dark blue coupé automobile turn into the Kroska farm. The witness Rhoades testified:

“We proceeded on into the Kroska farmyard. I-saw this coupe in the yard as I drove in. It was by the side door, on the west side of the house, about three or three and a half feet, possibly four feet, from the house. The west side of the house would be the right hand side when you face the house from the highway. No one was in the coupe as I approached it. The motor was not running. The doors of the coupe were closed. I made particular observation of this coupe, after I drove into the yard. I parked the truck about twenty feet at the rear of the coupe, got out of the truck and walked toward the rear door, op south of the Kroska home. I walked towards the coupe and looked at it as I approached it. I noticed the rear deck of the coupe was raised up about three inches. I could see a part of a keg, and I then stooped over, and there was a ten gallon keg there. I could see that opening, and the keg, while I approached the ear. After I stooped over and observed that it was a ten gallon keg, I called Agent Peterson and told him to watch the ear, and I immediately went into the rear door of the farm home.”

The witness then testified that he entered the grade basement door of the house and passed through several rooms of the house, going upstairs, where he found the defendant and placed him under arrest. Continuing, the witness testified:

“When I returned downstairs the car was not in the same condition as when I saw it before I went in. Agent Peterson had the rear deck open, and was examining the keg. I made an examination of these kegs and found that they contained white moonshine whiskey.”

On being recalled, the witness testified, among other things, as follows:

“Q. Mr. Rhoades, going back to the time that you drove into the yard, as you approached this Oldsmobile coupe, about which you have testified, did you detect any odor about the yard there? A. Well, I stooped over about four feet from the car, and I detected a strong odor of moonshine whiskey, coming from the rear compartment of the coupe.”

On cross-examination, the witness further testified:

“The first time that I saw this ear — this coupe car in question here, was when I was driving on this road, and saw it turn — saw it in the Kroska yard about three or four city blocks away from me. After I saw the ear I proceeded into the Kroska farmyard. The car was moving along. I saw it from the rear. I kept right on going. * * * The coupe ear when I first saw it was about two hundred and eighty-seven feet from the house. It then turned and went around a bend, and I lost sight of it, but we kept right on going. I had noticed that car there not very long, about ten seconds. The ear was moving 'quite fast. Then we got into the yard. In the yard I saw a Ford truck parked near the garage, an Oldsmobile eoupe parked at the side entrance of the house, and a Ford touring car parked between the house and the garage, slightly to the side of the road going into the yard. * * * After I drove into the yard, I got out of the truck, started towards the rear door of the Kroska home. I stopped my truck from the Kroska home about four or five feet, right out almost in front of it — that is, to the side. I walked around the right hand side — the right hand side of the house — and as I approached this ear I noticed a keg, the rear deck partly open, and I stooped over, and at that time I received an odor of moonshine whiskey, and I called on Mr. Peterson, who guarded the car, and I went into the Kroska home.”

The testimony of the other prohibition agent was substantially the same as that of Rhoades. Neither of the officers saw defendant until Rhoades arrested him in the house. The record is absolutely barren of any evidence indicating why the prohibition agents went to defendant’s farm. There is nothing to indicate that they had any reason to suspect that defendant had on his premises any intoxicating liquor, so that the only evidence forming the basis of probable cause for the search which they made was such as was secured by them after they had entered upon the private premises of defendant. The car was parked within three or four feet of his home, and the agents, when they observed anything to arouse their suspicion, with reference to the contents of the car, were in defendant’s yard, within a few feet of his home. So far as appears from this record, they were trespassers. Section 40, title 27, USCA, provides that:

“When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law.”

In construing this statute, the Supreme Court of the United States, in Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 287, 69 L. Ed. 543, 39 A. L. R. 790, said:

“The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.”

The government relies upon this statute as authorizing the search and seizure in this case, while defendant asserts that they are violative of the Fourth Amendment to the Constitution, and that the admission of the evidence so secured violated the rights guaranteed him by the Fifth Amendment to the Constitution. In the Carroll Case, it was decided that federal prohibition officers had the right to search an automobile on the public highway without warrant, when the officers had probable cause, to believe such car was offending against the National Prohibition Act. Chief Justice Taft, in delivering the opinion, said, however, that:

“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search.”

If the search and seizure were violative of the Fourth Amendment to the Constitution, then the evidence secured thereby should have been suppressed, even though it was obtained -from an automobile. An unjustified search and seizure violates the Fourth Amendment, whatever the character of the property seized, whether it was in the home, in an office, or in an automobile, and whether taken by force, by stealth, or by fraud. The Fourth Amendment protects the citizen, whether innocent or guilty, against every unjustifiable intrusion by the government upon his privacy, and it has been said that these amendments confer, as against the government, “the right to be let alone.” ' The Fourth Amendment, however, does not prohibit the search without warrant of an automobile for liquor illegally transported, if the search is upon probable cause, and it has been held that to show probable cause it is not necessary that the officer should have had before him legal evidence of the suspected illegal act, but it is enough if facts have come to his attention of such a character as to lead a reasonably discreet and prudent man to believe that liquor is illegally possessed in the automobile to be searched. Dumbra v. United States, 268 U. S. 435, 45 S. Ct. 546, 69 L. Ed. 1032. The question, therefore, resolves itself into the inquiry: Did these officers, before they entered defendant’s private premises, possess such information as to lead a reasonably discreet and prudent man to believe that liquor was illegally possessed in his automobile? Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Silverthorne Lbr. Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319, 24 A. L. R. 1426; Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Byars v. United States, 273 U. S. 28, 47 S. Ct. 248, 71 L. Ed. 520; Gambino v. United States, 275 U. S. 310, 48 S. Ct. 137, 72 L. Ed. 293, 52 A. L. R. 1381; Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Go-Bart Importing Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 158, 75 L. Ed. 374; Husty v. United States, 282 U. S. 694, 51 S. Ct. 240, 75 L. Ed. 629; Day v. United States (C. C. A.) 37 F.(2d) 80, 81.

The prohibition officers had neither a search warrant nor a warrant for the arrest of defendant. It is quite generally held that where a defendant is lawfully "placed under arrest, then, as an incident to such arrest, he may be searched, as may also the place of his arrest. Here, however, with no previous knowledge of the facts or circumstances warranting even a suspicion that defendant was guilty of violating the National Prohibition Act, or that his automobile had been illegally transporting liquor, the officers entered his private premises. One of them, uninvited, entered his home, and, finding him upstairs, arrested him. The premises entered constituted the curtilage of defendant’s home [Temperani v. United States (C. C. A.) 299 F. 365; United States v. Di Corvo (D. C.) 37 F.(2d) 124; Turknett v. State, 36 Okl. Cr. 401, 254 P. 985; Russell v. State, 37 Okl. Cr. 71, 256 P. 758; Wolf v. State, 110 Tex. Cr. R. 124, 9 S.W.(2d) 350; Childers v. Commonwealth, 198 Ky. 848, 250 S. W. 106], and not an open field, as that term is used in Hester v. United States, 265 U. S. 57, 44 S. Ct. 445, 68 L. Ed. 898. It cannot well be claimed that this was a lawful arrest; in fact, it was flagrantly lawless so far as appears from the record, and the only facts or circumstances known by the officers which might lead a reasonably discreet and prudent man to believe that liquor was illegally possessed in the automobile were such as were obtained by them by reason of their lawless invasion of the premises constituting the curtilage of-defendant’s home. In other words, they were wrongfully upon the premises of defendant and were wrongfully searching his possessions at the very time they looked into the rear deck of the Oldsmobile coupé and obtained the information upon which the government seeks to justify the search and seizure. This court, in Day v. United States, supra, in an opinion by Judge Kenyon, said:

“Probable or reasonable cause is a belief fairly arising out of facts and circumstances known to the officer that a party is engaged in the, commission of a crime.”

The Supreme Court, in Byars v. United States, supra, said:

“Nor is it material that the search was successful in revealing evidence of a violation of a federal statute. A search prosecuted in violation of the Constitution is not made lawful by what it brings to light; and the doctrine has never been recognized by this court, nor can it be tolerated under our constitutional system, that evidences of crime discovered by a federal officer in making a search without lawful warrant may be used against the victim of the unlawful search where a timely challenge has been interposed.”

In Go-Bart Importing Co. v. United States, supra, in an opinion by Mr. Justice Butler, it is said:

“The first clause of the Fourth Amendment declares: ‘The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’ It is general and forbids every search that is unreasonable; it protects all, those suspected or known to be offenders as well as the innocent, and unquestionably extends to the premises where the search was made and- the papers taken.” •

Facts and circumstances known to the officers before entering defendant’s premises, sufficient to lead them, as reasonably discreet and prudent men, to believe that liquor was in his possession in his automobile, may have existed, but, if so, they are not reflected in this record.

But it is argued that the error, if any, in overruling defendant’s motion to suppress, was waived by him and rendered nonprejudicial by reason of the fact that he himself took the witness stand and admitted that he owned the automobile which had been searched and the intoxicating liquor found therein; and that this was the only evidence produced against the defendant whieh was secured by virtue of the unlawful search and seizure. It has already been observed that defendant timely filed his motion to suppress, and brought the matter to the attention of the court, and it was because of the procedure adopted by the court that the motion was not heard before the trial of the action; but as in Agnello v. United States, supra, the facts disclosing that the seareh and seizure violated the Fourth Amendment were not in controversy, but appeared from the testimony of the witnesses called to give the evidence. Defendant was not responsible for the rule of practice adopted by the court; and it cannot be allowed to prevail over his constitutional right. Gouled v. United States, supra.

While the defendant testified in his own behalf that he was the owner of the automobile, and that he was likewise the owner of the intoxicating liquor, having that day acquired it' on the premises, he denied having transported the liquor, denied having placed it in the automobile, and denied that the- cover of the rear deck of the automobile was open, but testified that it was closed and latched, ’and denied that the automobile had been used since the night before, when it was parked by him where it was then standing. The testimony of the prohibition agents has already been referred to. It included testimony to the effect that they had placed their hands upon the radiator of the ear, and that the motor was hot. Substantially all of the testimony of the government, including the testimony as to the temperature of the motor of the ear, was secured by virtue of the seareh and seizure, and defendant’s testimony was induced by the introduction of this illegal testimony, and as said by the Circuit Court of Appeals of the Fifth Circuit, in Cofei* v. United States, 37 F.(2d) 677, 679:

'“His testifying after the introduction of the shells in evidence by the government may have been induced by the introduction of the illegal evidence, and so he cannot be said to have voluntarily testified, or to have waived his objection to the illegal evidence thereby.” [9] It must be borne in mind that the charge here was illegal transportation of intoxicating liquor, and there was one vital bit of evidence secured by reason of the unlawful seareh and seizure and introduced against the defendant which he did not admit. That was the evidence, above adverted to, to the effect that, at the time of the search, the motor in the car was still hot. This was a physical fact which directly, and, if believed by the jury, conclusively disproved the testimony of the defendant to the effect that the car had not been used since the night before the seareh. The introduction of that evidence was prejudicial, and it was not waived by any testimony of the defendant.

It follows that it was prejudicial error to deny defendant’s motion to suppress the evidence secured by this unlawful search and seizure, and the judgment is reversed and the cause remanded, with directions to grant defendant a new trial.

STONE, Circuit Judge

(dissenting).

I agree with the majority that the indictment is sufficient. I am compelled to dissent from that portion of the opinion reversing the ease because of- the admission of evidence procured through thé seareh and seizure. Without expressing any opinion as to the lawfulness of the search and seizure, I think there was no reversible error (if error), because this record convinces me that no prejudice could possibly have resulted from reception of the evidence gained by the seareh and seizure.

Not only has it long been the judicial appellate practice to regard nonprejudicial errors as insufficient for reversal (Lancaster v. Collins, 115 U. S. 222, 227, 6 S. Ct. 33, 29 L. Ed. 373), but all federal appellate courts are under the statutory injunction to disregard errors, in criminal as well ás civil cases, where an examination of the entire record shows they “do not affect the substantial rights of the parties.” 28 USCA § 391. “The rule that harmless error is not reversible error is upheld as well in criminal eases * * * though, doubtless, the question of prejudice in such ease must be resolved in conformity with the strict principles of the criminal law.” Brown v. U. S., 142 F. 1, 4, Seventh Circuit. “In reviewing a judgment in an appellate court, the burden is on the plaintiff in error to show that error in the ad'mission of testimony was prejudicial” [Marron v. U. S., 18 F.(2d) 218, 219, Ninth Circuit; Simpson v. U. S., 289 F. 188, 191, Ninth Circuit; and to the same effect, Trope v. U. S., 276 F. 348, 351, this court; Rich v. U. S., 271 F. 566, 570, this court; Haywood v. U. S., 268 F. 795, 798, Seventh Circuit]. “Whether prejudice results from the erroneous admission of evidence at a trial is a question that should not be considered abstractly or by way of detachment. The question is one of practical effect, when the trial as a whole and all the circumstances of the proofs are regarded.” Williams v. U. S., 265 F. 625, this court. In determining this .“practical effect” of challenged evidence, some situations have arisen sufficiently often to give rise to certain rules of application, One such rule is that where the facts covered by the challenged evidence are, elsewhere in the trial, admitted by the defendant, testified to by him or his witness, or clearly estab-hshed by other evidence, there is no prejudice. This rule has been repeatedly announced and applied in the Supreme Court (Holt v. U. S., 218 U. S. 245, 251, 31 S. Ct. 2, 54 L. Ed. 1021, 20 Ann. Cas. 1138), in this court and in other circuits. This rule is accurately applicable to all of the evidence secured through the- search and seizure in the present case, as will now he shown.

This indictment and conviction was for the transportation, in an Oldsmobile coupé, of “moonshine whiskey” from a highway “to the farm known ás the Peter Kroska farm.” The main evidence for the government was by two prohibition agents. While driving along a highway which ran past the Kroska farm, these agents observed an Oldsmobile coupe turn into that farm about 287 feet from the Kroska house. At the time they saw the ear it was about three or four city blocks in front of them. The car passed out of their sight behind a bend in the farm roadway. They proceeded directly in to the farmyard after the ear, and found it parked in front of the farm house. They stopped their car behind the Oldsmobile. The rear deck of the Oldsmobile was raised several inches, revealing two kegs. The agents detected the odor of moonshine whisky, which they ascertained was leaking from one of the kegs. One of the agents guarded the ear while the other entered the house and found appellant, whom he arrested and brought out to where the car was. Appellant admitted owning the car, but denied having driven it in. Confronted with the fact that the motor of the car was still hot, he admitted he had driven the car in about two minutes before with the whisky in it, and said he had bought the whisky from an unnamed person and was going to deliver it to some “soft drink” places. The agents filled a bottle with whis-ky from one of the kegs and destroyed the remainder of the liquor. The preceding is the main evidence of the government’s ease in chief. There was extended cross-examination of the agents upon all of the above facts. Thereafter, appellant took the stand and also introduced several other witnesses, including his uncle, brother, and mother, who were at the place while the agents were there. Appellant testified as follows:

“After dinner, when we were ready for work, a Ford sedan drove in the yard, about one o’clock. I went outside, and I spoke to the fellow, a man that owed me money for some tires; his name was Jack Paulson. I spoke to him; he said he did not have no money, but he brought the liquor in, in place of the money. He brought two ten-gallon kegs. I told him I did not need the whisky, but as long as he brought it — well, I will take it off of his hands, if he did not have the money. It was placed in the Oldsmobile; it was in the back; the two kegs were across this way (indicating) towards the street; about that far from the rear (indicating). I smelt it; it was like whiskey, moonshine.
“By the Court:
“Q. What did he tell you it was; what did he say it was? A. Well, when I smelt of it, it was like moonshine. After these two kegs were placed in the rear of this ear I closed the cover clean down shut, and I turned the knob, so that it was closed.^ * * *
“And then he [one of the agents] asked me if the Oldsmobile coupe was mine, and I told him 'Yes.’ And then he asked me where did I get the liquor. I told him a man brought it out with a Ford sedan at one o’clock. He asked me what. I was going to do with it. I told him I was going to take it by the bam, towards evening.”

His uncle and his brother testified to seeing the kegs of whisky in the car at the time the officers were there. Appellant denied telling the officers that he had driven the car in shortly before, and said the car had not been driven since the night before. His other witnesses testified that the car had not been driven that day.

From the above outline of the evidence, several matters are clear. One is that there was no disputed issue of fact as to the two kegs of moonshine whisky being in the Oldsmobile car parked in front of the house, nor that the car and the whisky belonged to appellant. Appellant directly admitted that the car and whisky were his and that the whisky was in the ear. Another is that the sole disputed issue of fact for the jury to decide was whether appellant had transported the whisky in the car. He denied that the ear had been used that day. The agents testified they had closely followed it into the farmyard that afternoon.

In this state of the evidence, what prejudice was suffered by appellant through evidence based on information obtained by the search and seizure? The evidence so obtained was that the ear contained two kegs of moonshine whisky. Appellant and his witnesses voluntarily testified to those facts. There was never any dispute in the evidence about that. An examination of the numerous cases cited in the preceding footnotes will not reveal a single one stronger than the facts of this case, and most of them are not so strong. Aside from this unbroken line of authorities dealing with similar situations, it is impossible for me to conceive any prejudice from proof of an admitted and entirely undisputed fact.

But the majority opinion sets forth another piece of evidence. That is, that the agents testified to having examined the motor of the Oldsmobile and found it to be hot. I seriously question whether this information is -within the protection of the amendment but, solely for the purposes of argument, if it be conceded that it is, yet there remains the question of prejudicial or nonprejudiciai effect thereof. The only bearing of this evidence was upon the recent use of the car— the transportation. This evidence came solely from the two agents. The testimony of appellant and his witnesses was in direct denial, because they contended the ear had not been used since the night before. Therefore, whether the motor was hot or not depended solely upon the credibility of the two sets of witnesses. These same agents swore positively that they had seen this car turn into the farm roadway about three or four city blocks ahead of them; that they were traveling toward it at the time; that they followed, without stopping their own ear, into the farmyard and found this car, which they had just seen, parked in front of the house, which was about 287 feet from where it had turned off of the road into the farm. The entire evidence of the agents shows that the only reason they turned into the Kroska farm was to follow this car which was only a few hundred feet ahead of them. The other evidence of transportation is that of the agents to the effect that appellant admitted he had just driven the car in. In short, the entire evidence that this car was recently driven into the farmyard consisted of three pieces, as follows : The agents seeing it driven in and following it; the admission of appellant that he had driven it in; the evidence that the motor was still hot. All of this evidence was given by the two agents. The jury must have approved their credibility and believed them, or there was no way possibly to reach a verdict of guilty. In this situation, how can it be said that there was the slightest prejudice from the evidence as to the hot motor? Could the evidence of the agents that the motor was still hot add to their positive evidence that they had seen and closely followed this car a few hundred feet to where it was parked ? Could such evidence add to the testimony of the agents that appellant had admitted having just driven the ear in? The fact clearly is that this evidence came into the ease, not at all as proof of the ear being driven in, but it came in connection with the admission of appellant. There was never any doubt in the minds or the evidence of the agents that they had just seen this car driven into the farmyard, but when appellant denied to them that he had driven it in they faced him with this contradicting physical fact and, thereupon, he made the admission that he had driven it in. Viewing this entire situation, it is impossible for me to see how there could have been any prejudice from the admission of this piece of evidence.

But it seems to be the view of the majority that, because some of the above evidence was secured by what is deemed an unlawful search and seizure, the vice of admitting such evidence cannot be cured even though the appellant himself, or other testimony entirely nullifies the effect of such testimony. This upon the theory that the appellant cannot be said to have given his nullifying testimony voluntarily, but under the compulsion of a situation created by the erroneous action of the court. I think this view is directly contrary to authority and is dangerous to the administration of criminal justice. This court [Rossini v. U. S., 6 F.(2d) 350, 353] has held directly the contrary in a case where appellant objected to evidence of the presence of intoxicants claimed to have been found in an illegal search and seizure, saying:

“The third reason is that there was other evidence which conclusively established the presence of intoxicants. Rossini testified, without objection, that he had the liquor, but that it was for his own use. One bottle, he said, was alcohol for body rubbing purposes and that the beer was ‘near beer,’ or was bought by him for ‘near beer,’ and he had no knowledge that it was intoxicating or contained an illegal excess of alcohol. As this plaintiff in error voluntarily admitted all that the officers found under the search warrant, he could not have been substantially injured by the admission of such evidence. Without substantial prejudice therefrom, he cannot urge reversal therefor.”

Other cases to the same effect are White v. U. S., 16 F.(2d) 870, 872 (C. C. A. 9); Bilodeau v. U. S., 14 F.(2d) 582, 585 (C. C. A. 9); McFarland v. U. S., 11 F.(2d) 140, 141 (C. C. A. 9); Libera v. U. S., 299 F. 300, 301 (C. C. A. 9); Temperani v. U. S., 299 F. 365, 367 (C. C. A. 9); Malacrauis v. U. S., 299 F. 253, 255 (C. C. A. 4); Jones v. U. S., 296 F. 632 (C. C. A. 4); Savage v. U. S., 295 F. 686 (C. C. A. 4); Honeycutt v. U. S., 277 F. 941, 944 (C. C. A. 4).

I am convinced that this evidence was in no possible way prejudicial, and to so hold will have the practical effect of releasing a criminal, which the entire evidence proves clearly is guilty of the offense charged, and for which he was properly convicted.

       In this court some of the cases are the following: Norwood v. U. S., 45 F.(2d) 495, 496, where a telephone directory was improperly admitted to show partnership because no sufficient foundation laid, but the error held nonprejudicial because appellant and other testimony showed partnership; Lipscomb v. U. S., 33 F.(2d) 33, 36, where evidence of unlawful sale of liquor in a trial for perjury held nonprejudicial because the indictment charged this sale as being the basis of the suit wherein the perjury was committed; Porter v. U. S., 31 F.(2d) 544, 545, where incompetent evidence of the true name and address of appellant held nonprejudicial because appellant gave the same evidence; Sloan v. U. S., 31 F.(2d) 902, 905, where evidence as to other transactions held nonprejudicial because later appellant testified thereto; Beach v. U. S., 19 F.(2d) 739, 743, where introduction of affidavits held nonprejudicial because affiants testified to substantially the facts in the affidavits; Anderson v. U. S., 18 F.(2d) 404, 405, where evidence of alcohol found in search a short time after illegal sales, held nonprejudicial where appellant admitted the presence thereof; Havener v. U. S., 15 F.(2d) 503, 506, where parole evidence of conviction of principal offender, in the trial of an abettor, held nonprejudicial by admission of such conviction by counsel for appellant; Cooper v. U. S., 9 F.(2d) 216, 223, where testimony as to signatures of appellants on tax returns, held nonprejudicial because sufficiently established by other testimony; Ingram v. U. S., 5 F.(2d) 940, 941, where parole testimony of contents of official records, held nonprejudicial because same facts shown in testimony of appellant and one of his witnesses; Bergera v. U. S., 297 F. 102, 115, where evidence was held nonprejudicial because same facts shown by other evidence; Lucas v. U. S., 275 F. 405, 407, where a confession, introduced without proper showing that it was voluntary was held nonprejudicial because cross-examination of appellant showed it was voluntary; Kreuzer v. U. S., 254 F. 34, 38 (certiorari denied 249 U. S. 603, 39 S. Ct. 260, 63 L. Ed. 798), where testimony by a participant in a raid as to what another participant said about a barricade, held nonprejudicial where the witness testified as to what he himself saw and heard the appellant do; De Moss v. U. S., 250 F. 87, 88, where parole testimony as to a check given for liquor, held nonprejudicial because other undisputed testimony that check was given by appellant; Garanflo v. U. S., 246 F. 910, 914, where incompetent evidence held nonprejudicial because appellant testified to same matter ; Blackwell v. U. S., 236 F. 912, 913, where testimony that business of defendant on certain day was hauling whisky held nonprejudicial because admitted by appellant.

       In other circuits some of the cases are as follows: First Circuit, Thompson v. U. S., 144 F. 14, 19-20, 7 Ann. Cas. 62; Second Circuit, Becher v. U. S., 5 F.(2d) 45, 52; Third Circuit, Sibona v. U. S., 294 F. 272, 274, where admission of sample of win© from barrels found at appellant’s place held nonprejudicial because testimony by government that appellant admitted, at time of seizure, that barrels contained wine; Stern v. U. S., 193 F. 888, 896; Cook v. U. S., 159 F. 919, 922, certiorari denied 209 U. S. 551, 28 S. Ct. 761, 52 L. Ed. 922; Fourth Circuit, Malacrauis v. U. S., 299 F. 253, 255; Jones v. U. S., 296 F. 632, 634; Savage v. U. S., 295 F. 686; Bullard v. U. S., 245 F. 837, 839; Sneierson v. U. S., 264 F. 268, 275; Fifth Circuit, Williams v. U. S., 46 F.(2d) 731, 732; Benese v. U. S., 25 F.(2d) 231, 232; McLendon v. U. S., 14 F.(2d) 12, 15; Sharp v. U. S., 280 F. 86, 88, where evidence as to presence of liquor held nonprejudicial since appellant admitted its presence; Brown v. U. S., 257 F. 46, 51; Gregorat v. U. S., 249 F. 470, 472; Dean v. U. S., 246 F. 568, 574; Sixth Circuit, McDaniel v. U. S., 294 F. 769, 770 (certiorari denied 264 U. S. 593, 44 S. Ct. 453, 68 L. Ed. 866); Tucker v. U. S., 224 F. 833, 840; Seventh Circuit, Kriebel v. U. S., 8 F.(2d) 692, 696; Michael v. U. S., 7 F.(2d) 865, 866; Arnold v. U. S., 7 F.(2d) 867, 870; Brown v. U. S., 142 F. 1, 3; Ninth Circuit, Mitchell v. U. S., 23 F.(2d) 260, 263; Marron v. U. S., 18 F.(2d) 218, 219; White v. U. S., 16 F.(2d) 870, 872, where introduction of narcotics claimed to have been unlawfully seized held nonprejudicial because possession thereof admitted by accused; Bilodeau v. U. S., 14 F.(2d) 582, 585, where introduction of documents illegally seized held nonprejudicial because same facts shown by uncontradicted evidence; McFarland v. U. S., 11 F.(2d) 140, 141, where evidence gained in unlawful search held nonprejudicial because same facts admitted by counsel for accused; Dawson v. U. S., 10 F.(2d) 106, 108, where improper 'evidence of possession and sale of liquor held nonprejudicial because proven by other evidence; Libera v. U. S., 299 F. 300, 301, where evidence of liquor and still gained by unlawful search held nonprejudicial because accused admitted such possession ; Temperani v. U. S., 299 F. 365, 367, where introduction of liquor, eta, obtained in unlawful search held nonprejudicial because accused admitted same facts; Wells v. U. S., 257 F. 605, 615; Stewart v. U. S., 211 F. 41, 45; Reagan v. U. S., 202 F. 488, 491, 44 L. R. A. (N. S.) 583; Barnard v. U. S., 162 F. 618, 626 ; Court of Appeals of the District of Columbia, Harrod v. U. S., 58 App. D. C. 254, 29 F.(2d) 454, 455; Harris v. U. S., 50 App. D. C. 139, 269 F. 481, 482.