author: CHASE, Circuit Judge

text:
    O’BOYLE v. NORTHWESTERN FIRE & MARINE INS. CO. et al.
    No. 345.
    Circuit Court of Appeals, Second Circuit.
    May 11, 1931.

      The scow Maybrook, owned by the plaintiff, with a deck load of about 540 yards of mixed sand and gravel consigned to the Sicilian Asphalt Paving Company, was towed to the dock of that company in Newtown creek and there securely made fast late in the afternoon of August 13,1928. She had been loaded by the Rosoff Sand & Gravel Corporation at Marlboro on August 11th, and had, during the intervening time, made the trip from that point to her destination without mishap. She was built in 1916, was 114 feet long, 32 feet wide, and properly constructed for the work she was put to do. She had a bargee aboard who saw to her being made fast and who later eased off her lines to allow for the falling tide.
    Between 2 and 3 o’clock on the morning of August 14th, her captain was awakened by a crash, and for a few seconds immediately afterwards heard what he thought sounded like a tugboat alongside pumping. He went out on deck toward the stem but saw no tug or other boat and started to walk over the load to the bow. The load was then well trimmed and the stern appeared to be afloat. When he reached the bow, that seemed to be aground. He testified that, while he was standing on the deck at the bow, the scow twisted and rolled both ways; then her decks blew in, and she sank at once, throwing him into the water. He swam ashore and reported to his owner as soon as the latter’s office was open that morning.
    The Maybrook was covered by a marine insurance policy issued by the defendant and in force at the time. This policy is in suit. The Sicilian Asphalt Paving Company was impleaded by the original defendant and obtained a verdict and judgment in its favor, from which no appeal has been taken.
    It is not claimed by the defendant that the loss does not fall within the general provisions of its policy, but it does claim non-liability because the vessel was unseaworthy and was overloaded; because a proof of loss was filed in which the cause of the loss or damage was falsely represented to have been ascertained and to have been due to collision with an unknown boat.
    It appeared that, before the policy was issued, but while a binder was in force, an inspector for the insurance company had examined the Maybrook, found and reported certain defects due to lack of repair, and that these defects had been called to the attention of the agents for the owner on June 20,-1928, with a request that repairs be made. In a letter sent by the agents of the defendant to those of the owner on July 6, 1928, it was expressly stated that there should be no liability under the policy issued for loss or damage attributable to such defects. They were as noted: “Port side seventh plank below top log aft broken; fourth plank below top log broken forward end; bitt on port side forward end broken; chock on forward rail broken; four knees on port side broken; stern and second plank below bumper log broken; 11 knees throughout center broken; deck in bad condition; planks are broken and leaking all over the deck.” No repairs were made. The boat was used until she sank as above stated. The evidence as to her condition with respect to these claimed defects was conflicting, and so it was as to what effect they would have had if present. While all agreed that they would have had some .effect, the evidence introduced by the plaintiff upheld its claim that most of the parts called broken merely had inconsequential checks or cracks; that the boat had 240 knees in all, and was so strongly built throughout that the defects mentioned could have had at most but a trifling effect.
    The claim of the plaintiff in his proof of loss that the sinking was caused by collision with an unknown boat was not urged upon the trial. There was, however, sufficient evidence that he had reason to believe and did believe that to be the fact when he executed the proof of loss. Nor was there any evidence to support the allegation in the complaint that the vessel grounded on an uneven and hard bottom. On the contrary, it was amply proved that the bottom was soft. But it did appear that the bottom, though soft, lay in two cross slopes, so that, when she grounded, her starboard stem corner would be about eight feet lower than the port corner at her bow, while the port corner at her stern would be only about four feet lower than her starboard bow corner. The resulting straining and twisting when she took this kind of a bottom was claimed by the plaintiff to have caused her collapse.
    It further appeared that, after the plaintiff’s proof of loss was filed and before this suit was brought, the agent of the defendant on October 15, 1928, returned all proofs submitted in support of the claim with the statement that “we must respectfully decline liability for this loss' inasmuch as it is a claim not covered by the terms of the policy.” Among the provisions in the policy were the following:
    “It is a condition precedent, however, to any liability under this policy, that the Assured establish that any claim, whether for general average charges, salvage expenses or loss, damage, detriment or hurt to said vessel, has been directly caused by a peril insured against as aforesaid, and that the Assured further establish that such general average charges, salvage expenses or loss, damage, detriment or hurt has not arisen from or "been caused by, either directly or indirectly, any of the following or other excluded causes namely: ineompeteney of the master or insufficiency of the crew, or want of ordinary care in loading or unloading, stowing or broaching the cargo of the vessel; rottenness, inherent defects, or other unseaworthiness.”
    “The assured further agrees that it shall be a condition precedent to any right of action or suit under this policy that the Assured submit to the Insurers proofs of loss which shall show, (a) not only that the vessel was seaworthy, and that the Assure^ has used due diligence to prevent such loss or damage; (b) but also that the cause of the loss or damage has been ascertained and was accidental and occurred after this policy attached and during its term, and as a direct result of a peril for which these Insurers by the terms of this policy have agreed to indemnify the Assured; and (c) the amount of the sum claimed by the Assured, and that such amount has been ascertained in the manner as herein provided. No claim shall bepavable hereunder until the expiration of thirty (30) days from the date of the submission of said proofs.”
    Some of the evidence as to the load was that it was average in size and well within the capacity of the boat. Some evidence was to the effect that the scow was overloaded.
    William F. Purdy, of New York City (John E. Purdy and Edmund P. Lamb, both of New York City, of counsel), for appellant.
    Poley & Martin, of New York City (William J. Martin, Harold R. Medinq, and William P. McNulty, all of New York City, of counsel), for-plaintiff-appellee.
    Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for appellee Sicilian Asphalt Paving Co.
    Before L. HAND, SWAN, and CHASE, Circuit Judges.
   CHASE, Circuit Judge

(after stating the facts as above).

With the evidence conflicting as above indicated, the denial of the defendant’s motion, made at the close of all the evidence, to dismiss the complaint for lack of proof, was not erroneous. Treated, as it should be, as a motion for a directed verdict, it presents the question of whether a jury of reasonable and impartial men were justified in finding the facts as the evidence in favor of the plaintiff tended to show them to be in spite of the evidence to the contrary. Troxell V» Delaware, L. & W. R. R. Co., 227 U. S. 434, 33 S. Ct. 274, 57 L. Ed. 586. There was evidence sufficient to support a verdict for either party, and upon elementary principles that is enough to withstand a motion for a directed verdict and quite enough to uphold the denial of such a motion when made one of the grounds of appeal.

The proof of loss put the cause of the sinking of the Maybrook upon collision with an unknown vessel. Though the plaintiff reasonably believed that to be the truth when the proof was filed, it was not shown at the trial to have been the cause. The defendant denied all liability before suit was brought, and so waived any right to further particulars by way of proof of loss as a condition precedent to the accrual of this cause of action. Royal Ins. Co. v. Martin, 192 U. S. 149, 163, 24 S. Ct. 247, 48 L. Ed. 385. There is nothing to indicate that it was misled by anything contained in the proof of loss or that the plaintiff was not acting in good faith in making the statements in it. It now insists that the cause of damage was not “ascertained” ; that the stated cause was false when the proof was filed and being so there can be no recovery. Courts, in giving effect to that provision in an insurance policy, have never treated the requirement for a proof of loss as a mere trap for the unwary. See Atlas Assur. Co. v. Hurst (C. C. A.) 11 F.(2d) 250, and cases there cited. Where the insurer has taken no action to its detriment in reliance upon any statement therein, the rule would be harsh indeed that worked a forfeiture of all insurance as the penalty for an honest mistake of fact. The law which governs here is that a substantial compliance with the terms of the policy relating to proof of loss is sufficient. American Merchant Marine Ins. Co. v. Ford Corporation (C. C. A.) 269 F. 768; Globe & Rutgers Ins. Co. v. Prairie Oil & Gas Co. (C. C. A.) 248 F. 452. See, also, Glazer v. Home Ins. Co., 113 App. Div. 235, 98 N. Y. S. 979; Lloyd v. North British & Mercantile Ins. Co. of London & Edinburgh, 174 App. Div. 371, 161 N. Y. S. 271.

The court at first charged that the burden to show unseaworthiness was upon the defendant, having in mind, no doubt, such cases -as American Merchant Marine Ins. Co. v. Ford Corporation, supra; Fireman’s Fund Ins. Co. v. Globe Nav. Co. (C. C. A.) 236 F. 618; American M. M. Ins. Co. v. Liberty Sand & Gravel Co. (C. C. A.) 282 F. 514. To this the defendant was allowed an exception which has been argued. It is true that \ the insurance policy here sued upon placed the burden upon the plaintiff to prove that the loss was not caused by unseaworthiness. After the charge excepted to was delivered, however, and before the jury had finished its deliberations, it returned to the courtroom for further instructions. At that time, the court called the attention of the jury directly to the provisions of the policy, and charged, according to the printed record: “Under that contract it would be the duty of the plaintiff to prove that the loss was (not) caused through ineompeteney or other unseaworthiness.” To this the plaintiff was allowed an exception. It is so- plain from the context that the word “not,” supplied in the above quotation in parenthesis, has been left out of the record through error that we shall treat the supplemental charge, just as it must have been given and understood by all at the time, as an instruction to the jury that the plaintiff was bound to prove that his loss was not caused by the unseaworthiness of the boat. In this way any previous error in that regard was cured, and the defendant now has nothing of which it can justly complain on' that score.

The court did comply with some of the defendant’s specific requests to charge. Others were refused. A reading of the charge as a whole shows that the issues were accurately and fully presented to the jury and in as favorable a manner as the defendant was entitled to under the law. Of course the court was not required to adopt the phraseology of the requests. A few exceptions taken to the admission and exclusion of evidence are alluded to in the defendant’s brief. Perhaps some of these rulings were not exactly in harmony with a striet application of the technical rules of evidence, but it is beyond reason to believe that the defendant was at all prejudiced by them.

Judgment affirmed.


source: Caselaw Access Project

author: L. HAND, Circuit Judge.

license: Public Domain

text:
    ALLEN v. COMMISSIONER OF INTERNAL REVENUE.
    No. 322.
    Circuit Court of Appeals, Second Circuit.
    May 11, 1931.

      J. Sterling Halstead, of Washington, D. C., and Martin A. Sehenek, of New York City, for appellant.
    G. A. Youngquist, Asst. Atty. Gen., and Sewall Key and Morton K. Rothschild, Sp. Assts. to Atty. Gen., of Washington, D. C., for appellee.
    Before MANTON, L. HAND, and CHASE, Circuit Judges.
   L. HAND, Circuit Judge.

On June 6, 1912, the Knickerbocker Trust Company of New York merged with another bank and the two became a third. Its assets were divided into three parts, “Schedules A, B, and C,” the first two of which the new bank took outright, and the third, “Schedule C,” in trust to secure it against any unknown debts of the Knickerbocker, and any shrinkage in the assets in “Schedule B” below their appraised value. The trust was to last two years, during which interest w>as to be paid at four per cent., so far as earned, and after which the trustee was to liquidate the assets, and distribute the residue among the holders of “beneficial certificates,” issued to the Knickerbocker shareholders, and transferable at will.

Allen, the appellant, who had been a shareholder in the Knickerbocker bank, re- ' eeived apparently one hundred of these certificates upon his original holdings; he bought others from time to time, until in 1922 he held over one thousand. Meanwhile the trustee had made a series of cash distributions, leaving among the undistributed assets certain shares of stock in the “Brunswick Site” company, and a large mortgage upon the Hotel Gotham. Believing these incapable of sale at their proper value, the trustee distributed them ratably during 1922, and Allen received as his allotment one thousand shares in the “Brunswick Site” Company, and eleven hundred “mortgage participation certificates” in the mortgage upon the Hotel Gotham. These he did not sell during the year 1922, and for this reason did not enter any profit upon them in his return for that year. The Commissioner: treated them as gain at the value at which Allen entered them on his books and assessed him accordingly. This was because the earlier cash distributions had already redeemed the cost of the purchased certificates, so that as to them the distribution of 1922 was all profit. The same is not so clear in the case of those certificates which Allen had received upon his original holdings, but as no distinction is taken, we shall assume that the value of these too had been redeemed. The Board affirmed the Commissioner and’ the taxpayer appealed.

We agree with the appellant that the trust did not create an “association” under section 2 (2) of the Revenue Act of 1921 (42 Stat. 227), and that section 201 (c) did not in terms apply. This was not a trust like those before the court in Hecht v. Malley, 265 U. S. 144, 44 S. Ct. 462, 68 L. Ed. 949, where the trustee was conducting a business. The only purpose was to hold the assets as security for a season, and then to distribute them. Little of the assets proved necessary to make whole the trustee, and the delay arose only because of difficulties in liquidation. We therefore assimilate the trust to those considered in Crocker v. Malley, 249 U. S. 223, 39 S. Ct. 270, 63 L. Ed. 573, 2 A. L. R. 1601, and White v. Hornblower, 27 F.(2d) 777 (C. C. A. 1), and we accept section 219 as the controlling section. If so, section 219 (e) imposed the tax primarily upon the trustee, and this covered profits arising from the sale of the trust property. Merchants’ etc., Co. v. Smietanka, 253 U. S. 509, 41 S. Ct. 386, 65 L. Ed. 751, 15 A. L. R. 1305. However, in the case at bar the trustee paid over the principal together with any profit as the liquidation proceeded, as well as any interest that was available. Hence the trust was for the “periodic,” though irregular, payment of any income that arose, and fell within section 219 (a) (4). If so, the certificate holders were subject to the tax under section 219 (d), and so we understand every one agrees in the case of property sold by the trustee and distributed in cash.

The securities in question were not, however, sold, but delivered in kind, and there was no gain or profit under section 213 (a), unless the distribution effected a substantial change in the beneficiaries’ interest. If that change was enough to justify saying that they received new property for their former rights, there was a taxable profit, even though strictly the transaction were not an exchange under section 202 (e). It seems to us that there was enough such change, due to the particular character of the trust. It does not follow that the same would be true generally, as for example in the ordinary case of a trust of land, of one or of several parcels, for the benefit of a single cestui que trust or of more, or of voting trusts of corporate shares, where the res is a mass of fungibles to be returned in kind upon dissolution, or of similar transactions. The result may well vary with the relation of the beneficiaries to the fund while the trust is being administered. In any event we have to decide no more than the ease before us.

Originally, a cestui que trust — as ,in archaic times a bailor — had only a right in personam, and the question is still debated among scholars, whether even now he has more. 17 Col. L. Rev. 269; 1 Harv. L. Rev. 1, 9 ; 17 Col. L. Rev. 467. But Brown v. Fletcher, 235 U. S. 589, 35 S. Ct. 154, 59 L. Ed. 374, decided that he has a present “equitable interest” in the res, and so perhaps did Maguire v. Trefry, 253 U. S. 12, 40 S. Ct. 417, 64 L. Ed. 739, so far as it has not been overruled by Safe Dep. & T. Co. v. Virginia, 280 U. S. 83, 50 S. Ct. 59, 74 L. Ed. 180, 67 A. L. R. 386. We shall therefore assume that he has such an interest, and, when the res is a congeries of securities of different kinds, in the separate funds of which the res is in that ease composed. We can also assume that even so in most cases the mere change from equitable to legal title may be disregarded in computing profits or losses. Brewster v. Gage, 280 U. S. 327, 50 S. Ct. 115, 74 L. Ed. 457.

The application of such a theory here would, however, result in an extremely complicated and onerous method of computing the tax. Each certificate holder would be regarded as an “equitable co-owner” of each fund in the res from the time of his purchase. Not only in case the trustee distributed a security in kind, but if he sold and paid out the cash, it would be necessary to- appraise the value of the fund in question when the particular holder bought his certificate in order to ascertain the “basis” for calculating his profit or loss. All the earlier distributions in the case at bar were erroneously computed on this theory. Unless such a method is necessary in law, it is to be avoided, and the simpler one adopted which the Commissioner used; treating the certificate as an interest in the res in gross, and all distributions, whether in cash or in kind, as first redeeming the original cost, and thereafter creating a profit.

It appears to us that noi principle compels us to declare invalid the Commissioner’s method. The res, as we have said, was composed of a miscellany of funds, each made up of fungibles, in each of which by hypothesis a certificate holder was an “equitable co-owner” in the proportion of his holdings, If- we disregard all but the two funds distributed in kind, it is plausible to- say that the interest of each holder after distribution was but formally different from what he had had before; like the distribution of grain in a bin. Moreover, it was at least theoretically possible for a holder to transfer his interest in one fund separately. But this was clearly not intended, for while the certificates were bought and sold, there is no reason to suppose that the trustee would have recognized any attempt to split their ownership among the constituent funds, except so far as it could have been compelled in law to do- so. Practically at any rate, it was impossible for a holder to deal with the funds separately, and there was much difference between his control over his allotment out of any particular fund, after it was distributed in kind, and over what he had theretofore possessed. He could not have dealt with it independently, nor have realized any profit or loss upon it, except as it reduced or raised the general value of the whole res, which the sale value of his certificate reflected. Again, even if we were to disregard this practical limitation, the holders had no power to withdraw their shares in any of the funds without the trustee’s consent, which it was not obliged to give. The trust was to sell, and the other holders might have objected to the partition of any fund; they might have had good reason for believing that the trustee’s powers of sale might be better exercised if it was kept whole, rather than split up among disorganized holders. The trustee’s decision to the contrary as to the two securities here in question did not affect the status of the property before they had so decided.

Thus it appears to us that there are very real reasons for refusing to identify the pri- or “equitable interest” of a certificate holder in these securities with what he got upon distribution. It may be that the transaction was not an “exchange” under section 202 (e), though it was certainly not very different: but the question whether a profit ensues depends not so mueh.upon whether one chattel is exchanged for another as upon what are the rights of the taxpayer before and after the transaction under consideration. If these be so far changed as to constitute substantially a new means of command over money, there may be a taxable transaction, in spite of the fact that appreciation in value in the same properly never alone results in profit. It seems to' us that the change in rights here was enough, certainly since the securities when delivered were not shown to have lacked “a readily realizable market,” an issue on which, if it be material at all, the taxpayer has the burden.

The transaction was analogous to those dealt with in U. S. v. Phellis, 257 U. S. 156, 42 S. Ct. 63, 66 L. Ed. 180; and Rockefeller v. U. S., 257 U. S. 176, 42 S. Ct. 68, 66 L. Ed. 186. In those cases a corporation wished to segregate some of its assets in a subsidiary to be formed. This it did, and allotted the new shares pari passu to the old’ shareholders. They insisted that 'the new shares were a stock dividend under Eisner v. Macomber, 252 U. S. 189, 40 S. Ct. 189, 64 L. Ed. 521, 9 A. L. R. 1570, and that no profit emerged. But the court said no; that the new shares were property of another kind, though the shareholders got no title to the segregated assets, but remained shareholders as before. The doctrine was carried still further in Cullinan v. Walker, 262 U. S. 134, 43 S. Ct. 495, 67 L. Ed. 906, and Marr v. U. S., 268 U. S. 536, 45 S. Ct. 575, 69 L. Ed. 1079; its limit being marked in Weiss v. Stearn, 265 U. S. 242, 44 S. Ct. 490, 68 L. Ed. 1001, 33 A. L. R. 520. The change in interest accomplished by those transactions appears to us no greater than that arising from the distribution in kind of the securities here before us. It is true that the shareholders of the new company had no direct control over the segregated assets any more than they had had before; but it is also true that the transaction gave them a power, though only as shareholders, to deal with the segregated assets, which they lacked before. In the same way, here, the certificate holders got power to deal with the distributed securities separately, which before they could in practice only dispose of along with their interest in the whole res. True, they had never been shareholders; their rights by hypothesis were more direct than that both before and after; but it is the change that counts and the change was as great here as in the decisions cited.

There are no absolutes applicable to such issues; we have to apply colloquial and vague notions, “gain” and “profit,” to varying situations, and the lines drawn will often appear arbitrary. But no problem more constantly confronts a court than how far to preserve principles inviolate at the expense of actuality; when to introduce variants in propositions theretofore treated as valid without limitation. We need not here decide that the termination of a dry trust is material in assessing taxes, or even of an active trust for a single cestui que trust who enjoys no more than the income, or of a trust where there are several beneficiaries and several pieces of property. But when the res is heterogenous, when the purpose is to liquidate the property and when any transfer to be practically available must be of the cestui que trust’s interest in the whole res, it seems to us that distribution in cash or in kind should be regarded as the redemption of a single right.

Schoenheit v. Lucas, 44 F.(2d) 476 (C. C. A. 4), does not stand in our path. It held that when the owner of property transferred it to a company which had nothing else, and all of whose shares he got in exchange, no> gain resulted. Whether or not we should have so held ourselves, the sitúations are plainly different. The owner retained substantially the same control as before; as much as though he had put the assets in a trust for himself. Nor are we met by Brewster v. Gage, 280 U. S. 327, 50 S. Ct. 115, 74 L. Ed. 457, which turned upon the meaning of the words, “acquired,” in the Revenue Act of 1918, § 202 (a), 40 Stat. 1060, and “time of such acquisition,” in section 202 (a) (3) of the Revenue Act of 1921, and which decided that the “basis” for computing the gain upon a residuary legaey was its value at the death of the testator. It is true that an executor is a “fiduciary”, section 200 (2), but quite apart from the limited scope of the decision, the legatee’s relation to the estate was unlike that of the certificate holders here for the reasons we have given.

Order affirmed.


text:
    BTESH et al. v. ROYAL INS. CO., LIMITED, OF LIVERPOOL.
    No. 386.
    Circuit Court of Appeals, Second Circuit.
    May 11, 1931.
    Burlingham, Veeder, Feary, Clark & Hupper, -of New York City (Ray Rood Allen and Norman M. Barron, both of New York City, of counsel), for libelants-appellants.
    Mortimer L. Shuford, of New York City (Joseph A. Fagnant, of New York City, of counsel), for respondent-appellant.
    Before MANTON, L. HAND, and CHASE, Circuit Judges.
   L. HAND, Circuit Judge.

Btesh & Company held an “open” policy of insurance issued by the respondent covering marine shipments made by them for their own account, or for the account of others who should so order in writing before the steamer sailed. < One, Cherem, a merchant in Mexico City, bought in New York two parcels of silk from a New York merchant, another of cottons from Btesh, and a third of cotton napkins from a third person. He had the silk merchant make four wooden cases, pack the silks in two of these, and lend them with the two empty cases to Btesh. Btesh then filled the two empty cases with the cottons, and sent the four to a steamer of the Ward Line at New York for shipment to Mexico City via Vera Cruz. The cases were marked in such a way as not to disclose their contents, but the dock receipts and the bills of lading, prepared by Btesh, stated the contents of all four to be “cotton piece goods.” Cherem then executed at the Mexican consulate in New York a consular invoice in five parts which recited that the cases contained “fancy dress goods”, and sent the part retained by him with the bills of lading to his consignee in Mexico City, who procured entry at Vera Cruz of one case of silk and one of cotton. The other two were lost while in the custody of the carrier; nobody could account for their disappearance, and both sides assume that they were stolen en route.

Meanwhile Btesh & Company upon a written, but unsigned, order of Cherem had procured certificates under the open policy covering the four cases from their store in New York to Mexico City, and correctly describing their contents. When Btesh demanded payment of the Ward Line for the lost eases, his claim was rejected because “not presented in accordance with the bill of lading.” Having thus failed, he then made claim against the respondent under the certificates of insurance, which refused and defended on the ground that the bills of lading and the consular invoices had fraudulently misdescribed the goods.

The evidence showed that the Ward line usually, if not always, gave greater care to silk shipments when so declared in the bill of lading, than to ordinary cargo. Silk was • put upon a “special list,” and, while the testimony is not entirely satisfactory, it sufficiently appears that in ordinary course the special list received extra care. This was not the practice of all carriers, some of which, e. g., the White Star and United Fruit Lines, made no difference in the custody of “special” and general cargo, unless the value was declared and extra freight paid. Moreover, the libellant called an underwriter of experience, who said that to mark the cases as silk would have increased the risk en route from Vera Cruz to Mexico City, where substantially all thefts occurred, and that the misdescription was therefore a positive advantage to the insurer.

The judge held that the libellant was bound to disclose to the respondent the way in which the goods were billed, that the risk was thereby affected on the case of silk, and that as to it the libel failed. He held the respondent for the cotton, becausey though Cherem had been engaged in a fraud on the consul, it was immaterial to the risk on that case. Both parties appealed.

The assured under a marine policy must disclose to the underwriter all circumstances known to him which materially affect the risk. McLanahan v. Universal Insurance Co., 1 Pet. 170, 187, 188, 7 L. Ed. 98; Sun Mutual Ins. Co. v. Ocean Ins. Co., 107 U. S. 485, 509, 510, 1 S. Ct. 582, 27 L. Ed. 337; St. Paul F. & M. I. Co. v. Balfour, 168 F. 212, 217 (C. C. A. 9); Muller v. Globe & R. Ins. Co., 246 F. 759, 761 (C. C. A. 2). Just what is material the decisions do not, and in the nature of things cannot, exactly define, except to say that it must be something which would have controlled the underwriter’s decision. By this we understand only what a reasonable person in the assured’s position would suppose. In Granger v. Providence-Washington Ins. Co., 200 F. 730, we held that a practice of the assured’s to compute the amourjt of the cargo upon a false basis, was not material, since it did not expose the property to added peril on the voyage. On .the other hand it is plain that if for example the ship be known to be unseaworthy, or the goods ill stowed, the underwriter’s hazard is substantially increased.

In the ease at bar it seems to us plain that, had Cherem or Btesh known the practice of the Ward Line to give more care to silk shipments than to cotton, his duty would have been clear to disclose how he had entered them upon the bills of lading. Cherem’s excuse, which the libellant tried to fortify by the evidence of the underwriter, that the fraud was an effort to protect the silk by giving it a disguise, is a feeble subterfuge. More might be said for it, if the markings on the cases had been false, but the bills of lading were not likely to pass into the hands of those who would steal the goods. Substantially the whole risk of theft was between Vera Cruz and Mexico City and they did not cover this part of the carriage. ■ It is true that they were sent to the consignee at Mexico City, who presented them, as we assume he was obliged to present them, at Vera Cruz with the consular invoice. At that place they would indeed get some publicity, and it is conceivable that this might expose them to subsequent danger. However, this is a farfetched explanation for a trick more naturally explained otherwise. Cherem got a lower freight rate on cottons than on silk, and paid a smaller consular fee for fancy dress goods. The judge apparently believed that he merely wished to filch a little from the Ward Line and the consul, and we see no reason to differ from his conclusion.

. It is not necessary that the assured should intend a fraud upon the underwriter; his duty is positive to disclose. It cannot of course require him to tell what he does not know, Neptune Ins. Co. v. Robinson, 11 Gill. & J. (Md.) 256, and indeed the books are somewhat vague as to how far he shall be charged at his peril with appreciating the materiality of what he does know, Mayne v. Walter [1782] 1 Park, Ins. 431; Brownlie v. Campbell, L. R., 5 App. Cas. 925, 954; Joel v. Law Union, etc., Ins. Co., L. R. [1908] 2 K. B. 863, 884; Smith v. Ins. Co., 17 Pa. 253, 261, 55 Am. Dec. 546; Curry v. Com. Ins. Co., 10 Pick. (Mass.) 535, 538, 542, 20 Am. Dec. 547; 3 Joyce § 1848; 1 Amould § 575. The last is not here involved, because if Cherem knew of the Ward Line’s practice there could be no doubt that it substantially affected the hazard. It is not shown that he did, though he might well have inferred as much. The statute (section 181, title 46, U. S. C. [46 USCA § 181]) exonerated the carrier, certainly as such, from liability if the silk was not declared, and the liability might well involve added care. Besides, valuable goods are more subject to, theft than others, and though the liability was limited, the carrier would be likely to employ more precautions for their protection.

Be that as it may, it does not appear to us that an assured who engages in a fraud against the carrier is in a-position to protest that he did not suppose that it would hurt any one else. He takes his chances as to how far his wrong may go, and if in fact it exposes his goods to a greater peril than if he had been honest, he becomes responsible to his underwriter as well as to the carrier. It is not anomalous so to impose a larger duty because of conscious- wrongdoing; the law often does so, as for example in the case of deliberate aggression. When a man has violated the primary duty of honest dealing, while he does not indeed become an outlaw, there is no reason to treat him tenderly, or to excuse him because he was aiming at some one else. Here we think that he became charged as between himself and the respondent with whatever were in fact the consequences of his fraud, and that the judge was right in denying recovery for the silk.

As to the cotton we think him also right. The authenticity of Cherem’s written order was perhaps open to doubt, but it is a matter that we will not reopen. The fraud upon the carrier in respect of the silk had no sensible effect upon the risk as to the cotton; it was of no moment that Cherem had shown himself in general untrustworthy. Granger v. Providence-Washington Ins. Co., supra. If insurers would excuse themselves because of the moral obliquity of those with whom they deal, they must write it in their policies. Otherwise it is enough that they are not exposed to unassumed risks directly touching the property insured.

Decree affirmed.


author: AUGUSTUS N. HAND, Circuit Judge.

text:
    BOHENIK v. DELAWARE & HUDSON CO.
    No. 372.
    Circuit Court of Appeals, Second Circuit.
    May 11, 1931.

      Alfred T. Rowe, of New York City (Sol Gelb, of New York City, of counsel), for appellant.
    H. T. Néweomb, of New York City (Cárl E. Whitney and James A. Dilkes, both of New York City, of counsel), for appellee.
    Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
   AUGUSTUS N. HAND, Circuit Judge.

The District Court dismissed the complaint in this action on the ground that there had been a prior determination of the issues between the parties and that a judgment had been rendered in favor of the defendant upon the same issues.

Plaintiff, the administratrix and widow of an employee of defendant Railroad Company, brought an action in the United States District Court for the Southern District of New York, against the defendant, under the Federal Employers’ Liability Act (45 USCA §§ 51-59), to recover damages for negligence resulting in his death. The action came to trial before Judge Thacher and a jury. At the close of plaintiff’s case, upon defendant’s motion, he dismissed the complaint and granted to the defendant a judgment of nonsuit. A judgment was thereafter entered dismissing the complaint on the merits, on the ground that there was no question for the jury. The plaintiff then brought a second action in the same court for the same relief. This the defendant moved to dismiss under rule 107 of the Rules of Civil Practice of the state of New -York because of the prior adjudication on the merits in favor of the defendant. The motion was granted because of the bar of the prior judgment.

The plaintiff-appellant contends that in the courts of the United States a judgment entered upon a nonsuit is not a bar to the maintenance of a new action, and that a judgment must be based on a verdict rendered by a jury if it is to have the effect of barring a subsequent action on the same cause.

There can be no question that, if the two actions had been brought in a New York state court, the second action would have been barred under section 482 of the New York Civil Practice Act which provides that:

“A dismissal of a complaint • * * at the close of the'plaintiff's 11 * * evidence, * * * or a dismissal of a complaint * * * at the close of the whole evidence, is a final determination of the merits of the cause of action and bars a new action between the same parties or their privies for the same cause of action unless the court shall dismiss without prejudice.”

The Conformity Act, Rev. St. § 914 (28 U. S. C. § 724 [28 USCA § 724]) provides that:

“The practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the district courts, shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such district courts are held, any rule of court to the contrary notwithstanding.”

Under the relevant statutes the first judgment was rightly held to he a bar to the second action. But it is contended that, in spite of the Conformity Act and section 482 of the Civil Practice Act of the state of New York, the decision of the court below was wrong. The argument is that section 482, supra, cannot define the effect of the dismissal of a complaint so as to make it a final determination upon the merits because such a statutory definition would deprive the plaintiff of the right of trial of the issues by a jury in the customary manner and would thus violate the Seventh Amendment of the Constitution of the United States. That amendment provides that:

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

In support of the contention that' the plaintiff was deprived of the right of trial by jury because the prior judgment was held a bar, reliance is placed upon the decision of the Supreme Court in Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 879. There the trial court had erroneously refused to direct a verdict for the defendant and had submitted the ease to the jury who rendered a verdict for the plaintiff. On appeal the Circuit Court of Appeals of the Third Circuit (177 F. 842) reversed the judgment on the ground that the plaintiff had not established a eause of action, and directed the entry of judgment for the defendant conformably to a statute of the state in which the court was held. An appeal was taken to the Supreme Court, which held that, under the jury system as it existed at common law and was preserved by the Seventh Amendment of the Constitution, the Circuit Court of Appeals had no power to re-examine a verdict for the plaintiff which the jury had rendered and to direct a judgment for the defendant, but was limited to reversing and granting a new trial. Justice Van Devanter, who wrote the prevailing opinion, discussed the old practice on demurrers to the evidence, which was thought by the minority of the court sufficiently analogous to the state practice followed by the Circuit Court of Appeals to justify the entry of judgment for the defendant. He deemed it insufficient, and adhered strictly to exact common-law precedents. But the Slocum Case did not determine that a statute like section 482 of the New York Civil Practice Act might not give a compulsory nonsuit the effect of a directed verdict. It quoted the words of Justice Story in Parsons v. Bed-ford, 3 Pet. at page 447, 7 L. Ed. 732, to the effect that, where a verdict had been rendered, “the only modes known to the common law to re-examine * * * facts are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable; or the award of a venire facias de novo, by an appellate court, for some error of law which intervened in the proceedings.” Page 378 of 228 U. S., 33 S. Ct. 523, 529.

The effect of the Slocum decision is to prevent the court from finally disposing of a ease where a verdict has been rendered otherwise than by entry of judgment in accordance with the verdict, unless in cases where the decision of a motion for judgment has been reserved during the course of the trial. Hoffman v. American Mills Co. (C. C. A.) 288 F. 768, at page 773; Clemence v. Hudson & M. Ry. Co. (C. C. A.) 11 F.(2d) 913, at page 915.

There is no question that, if Judge Thacher had directed a verdict instead of dismissing the complaint.and ordering a non-suit, the effect of his decision could not have been doubted. All the New York statute does is to make a dismissal at the close of plaintiff’s case the equivalent in effect of a directed verdict if the record contains no statement that dismissal was not on the merits. This, in our opinion, does not interfere with the right of trial by jury. Here a trial with a jury was held, but the plaintiff’s evidence was insufficient to establish her case. The defendant might have requested and obtained the direction of a verdict in its favor. Instead of that the court ordered a judgment which, under the New York statute, is given the same effect as the direction of a verdict which the defendant might have required. To raise a mere mode of procedure into a substantive right and to hold that the state statute cannot furnish the equivalent of a directed verdict though the effect upon the parties would be the same seems to us to place form above substance. It would be quite different to direct judgment non obstante veredicto where decision on a motion for judgment made during the trial had not been reserved. That was in substance what was done by the Circuit Court of Appeals in the Slocum Case and is not what was done here. The Supreme Court has sustained the practice of granting compulsory nonsuits authorized by state statutes. Coughran v. Bigelow, 164 U. S. 301, 17 S. Ct. 117, 41 L. Ed. 442; Central Transp. Co. v. Pullman’s Palace-Car Co., 139 U. S. 24, 11 S. Ct. 478, 35 L. Ed. 55. It is but a short step from this to treat such nonsuits like directed verdicts both in cases where the judge has in terms dismissed “on the merits” and in cases where he has dismissed generally, but the statute has given his acts the same effect.

The Seventh Amendment does not require that old forms of procedure must be retained where the substantial rights of the parties are in fact preserved. In re Peterson, 253 U. S. 300, 40 S. Ct. 543, 64 L. Ed. 919. We think that the Constitution does not stand in the way of the application of section 482 of the New York Civil Practice Act to trials in the United States courts.

Our decision in Schnerb v. Caterpillar Tractor Co., 24 F.(2d) 377, dealt with a trial prior to the passage of the Civil Practice Act, where a dismissal was not to be taken as on the merits unless it so recited. Lehigh Valley R. Co. v. Quereau (C. C. A.) 289 F. 767; Ploxin v. Brooklyn Heights R. Co. (C. C. A.) 261 F. 854; Hopedale Electric Co. v. Electric Storage Battery Co., 132 App. Div. 352, 116 N. Y. S. 859, affirmed 198 N. Y. 588, 92 N. E. 1686. But in the Sehnerb Case' we apparently assumed that, if section 482 of the Civil Practice Act had been applicable, it would have defined the action of the trial court as upon the merits and would have rendered its decision res judicata. In Dominion Trust Co. v. National Surety Co., 221 F. 618, Ann. Cas. 1917C, 447, a compulsory nonsuit at the close of the plaintiff’s ease entered under the Pennsylvania statute was held by the Circuit Court of Appeals of the Third Circuit equivalent to the direction of a verdict for the defendant. [4] But, even if the procedure which resulted in the prior judgment for the defendant was irregular, the court had jurisdiction of the cause, and its errors, if any, should have been rectified by an appeal from that judgment and not by collateral attack. Roller v. Murray, 234 U. S. 738, 34 S. Ct. 902, 58 L. Ed. 1570; Insley v. United States, 150 U. S. 512, 14 S. Ct. 158, 37 L. Ed. 1163.

The judgment is affirmed.


author: MANTON, Circuit Judge.

text:
    UNITED STATES v. SAGER et al.
    No. 344.
    Circuit Court of. Appeals, Second Circuit.
    May 11, 1931.
    Hornblower, Miller, Miller & Boston, of New York City (Harold H. Corbin, Edward J. Bennett, and George Wolf, all of New York City, of counsel), for appellant Sager.
    Gilbert & Brandéis and George H. Combs, Jr., both of New York City (John W. Davis, David L. Podell, and Susan Brandéis, all of New York City, of counsel), for appellant Shalleck.

      William E. Riseley, of New York City, for appellant Reynolds.
    George Z. Medalie, U. S. Atty., of New York City (Leon Leighton and Seymour D. Altmark, both of New York City, of counsel), for the United States.
    Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
   MANTON, Circuit Judge.

The indictments here contain eight counts. The appellants were convicted as follows: Sager with bribing a juror while in service in the trial of a criminal case which he was defending, in violation of U. S. C. title 18, § 237 (18 USCA § 237), Criminal Code § 131; the appellants, Shalleck and Reynolds and Sager, of conspiring to offer and give a bribe to a juror in violation of U. S. Code, title 18, § 88 (18 USCA § 88), Criminal Code § 37; Sager of conspiring to defraud the United States of the impartial services of a court bailiff in violation of title 18, U. S. C. § 88 (18 USCA § 88). They were acquitted on all other counts.

The appellants were attorneys for the defendants in a criminal prosecution in the United States District Court for the Southern District of New York, and one John Cruz was a juror in the trial of that case. While the trial was proceeding, Cruz became ill on January 23, 1930. He was examined by a physician and ordered to be taken home in a taxicab, and was placed in charge of bailiff Weehsler. Sager telephoned his office to obtain a motorcar belonging to his client on trial to take Cruz home. The car was unavailable, and he thereupon gave Weehsler $5 to take “that poor devil home, and see that he gets a plate of hot soup as the doctor has ordered.” Sager gave about $35 to this bailiff from time to time and about $30 more to others, moneys which he received from his client for expenses. On February 18, 1930, the jury returned from its .deliberation to the courtroom 1 o have evidence read. Cruz had asked in tho jury room “for the last four pages of Hanson’s testimony.” While the stenographer was looking for these pages, appellant Shalleck, who had made a digest of the testimony page by page, said, “This will help you find the spot, the last page is 1492.” “Turn to 1492 and go back four pages.” The stenographer read pages 1435 to 1439 of Hanson’s testimony but not the end of the entire testimony. After further deliberation, eleven voted for conviction, Cruz holding out for acquittal. But the jury returned and voted the defendants on trial guilty, and Sager asked to poll the jury. While this was being done, Cruz, when reached, said he had doubt as to the testimony. The court directed the jury to further consider the ease, and, after further deliberation, the jury disagreed. The appellee offered proof establishing that, when Sager told the bailiff to take Cruz home and to get him a píate of hot soup, he said, “See what you can do for him; tell him somebody will be up to see him.” Weehsler said Sager gave him $10 or $15, and he'put the money in Cruz’ coat. While Cruz and Weehsler were riding to the former’s home, he described his poor home conditions and poverty. He also described himself and his family as “in a very bad situation.” Weehsler then told Cruz that, if he would vote not guilty for the defendants, ‘.‘they are nice people, they will help you out, they will get you a job and everything.” Cruz said, “All right,” and Weehsler then told him that “somebody would be up to see him and talk to him about the ease.” The next morning Weehsler spoke to Sager while in the corridor of the courthouse and reported to him what transpired with the promises he (Weehsler) made, and Sager stated he would carry them out. Weehsler said that that afternoon he walked over to Shalleck in the courtroom and told him Cruz had not found the $10 which he (Weehsler) had put in his pocket, whereupon Shelleek gave Weehsler a $10 bill, and said, “Give him this,” and Weehsler went over and handed it to Cruz. Weehsler reported this to Sager. Three days later Cruz told Weehsler they had not been up to see him, and he would like to see them because he needed some money. Shortly afterward Weehsler met Reynolds in the lavatory in the courthouse and told him, “Cruz would like to have them come up to see him.” Reynolds replied, “You tell Cruz we will see him later on.” Later in his examination, Weehsler said Reynolds’ words were, “You tell him we will see him after the case is over.” Cruz was visited by one Conway on three different evenings. Each time he was given money, $50, $50, and $200, which he accepted, and was told to stick to “not guilty” and he was told: “Never give up. Another thing, if you have any doubt, and you think they are going to beat you, the other jurors, you ask the foreman to ask for the last four pages of Mr. Hanson’s testimony.” Conway was a bondsman and was known to Sager and Reynolds. Conway was not available for subpeena at the trial and not produced by the appellants. The appellee introduced testimony as to its effort to find him.

The first count charges the appellants “did offer, give and cause to be offered and given, from time to time, during the said trial, various sums of money in currency of the United States aggregating over three hundred dollars, to and for the benefit of the said John Cruz * * * and did from time to time during the said trial, offer, give and cause to be offered and given to the said John Cruz, promises of money, value and reward, with intent to influence the action, vote, opinion and decision of the said John Cruz, as a juror, '* * * ” and that the defendants were “well aware that the said John Cruz was serving as a juror therein and was authorized by the Law of the United States, to hear and determine, as such juror, the issues of fact in the said action,” and it alleges that this was a violation of section 131 U. S. Criminal Code (18 USCA § 237). This states an offense under section 135 U. S. Criminal Code (18 U. S. C. § 241 [18 USCA § 241]), which forbids any attempt to influence jurors; it does not state an offense under section 131, which concerns bribing a judicial officer. The latter section forbids the offering or giving of money, value, or promise or agreement to any judge, judicial officer, or other person authorized to hear or determine any question, with intent to influence his act, opinion, or decision. Section 131 is entitled “bribery of judicial officer.” A juror is not within this section. Section 135 is entitled “Attempting to influence * ® * juror, or officer.” Both sections became effective March 4, 1909. Congress did not intend to enact both statutes at the same time for the same offense or purpose. While a juror becomes a servant of the United States while in its service, he is not a judicial officer. The penalties to be imposed on guilty defendants under these statutes are different. Section 131 carries the penalty of $20,000 fine and 15 years’ imprisonment; section 135, $1,000 fine and one year imprisonment. Sager received a sentence of two years on this count.

While the charge contained in the count is sufficient to charge a violation of section 135, a retrial may not be had of the charge of bribing a juror. Count 3, setting forth such a charge, was dismissed at the end of all the proof on appellants’ motion. It would now constitute a double jeopardy and be contrary to law to retry the appellant on this count. The issue submitted to the jury by the court below was given under instructions as to a violation of section 131 as the applicable statute, and, since that instruction was erroneous and the statute not applicable, a reversal of this count is necessary. The count will be dismissed.

The second count charges:

“And the Grand Jurors aforesaid on their oath aforesaid; do hereby reaffirm, reiallege and incorporate, as if herein set forth in full, all the allegations in paragraph I of the first Count of this Indictment, and do further upon their oath present:
“That heretofore and at and after the commencement of the said trial, and before the court charged the jury therein, the defendants herein, to wit, Arthur N. Sager, Joseph Shalleck and Edward Reynolds, being then and there attorneys and counsel for the said Charles Beadon and certain other defendants in the said trial, did in the Southern District of New York, conspire with each other and with the said John Cruz, and the said Murray Wechsler, and with divers other persons to the Grand Jurors unknown, to commit an offense against the United States, to wit, to offer and give, and cause to be offered and given, from time to time during the said trial, various sums of money, and promises of money, value and reward, to and for the benefit of the said John Cruz, with intent to influence the action, vote, opinion and decision of the said John Cruz, as a juror in the said trial of the said action, and with intent to cause him to determine therein unfavorably to the United States questions and matters which would come before him for determination as such juror, said defendants, Arthur N. Sag’er, Joseph Shalleck and Edward Reynolds being at the times of such conspiracy and throughout the said trial, well aware that the said John Cruz was serving as a juror therein, and was authorized by the Law of the United States, to hear and determine as such juror, the issues of fact in said action.”
“After the formation of such conspiracy and in order to effect the object thereof, the following overt acts were done.”

This count alleges concert between several intended givers of a bribe and the intended taker of the same bribe. This concert of givers and plurality of agents are necessary elements in the substantive offense of agreeing to receive a bribe and of agreeing to give one. Where concert is necessary to an offense, conspiracy does not lie. There may not be a conspiracy founded on a crime to commit bribery between persons, one charged with the intended taking and several charged with giving the same bribe. Concert is always necessary to an agreement to take and to give a bribe; it is always necessary to an intended taking and an intended giving; and it is necessary to the receipt of a bribe and the giving of a bribe. United States v. Dietrich, 126 F. 664, 667 (C. C. Dist. Neb.); United States v. N. Y. Central R. R., 146 F. 298 (C. C. S. D. N. Y.). In the Dietrich Case, Judge Van Devanter said: “Concert and plurality of agents in such an agreement or transaction are, in a sense, indispensable elements of the substantive offenses, defined in section 1781, of agreeing to receive a bribe and of agreeing to give one. A person cannot agree with himself, receive from himself, or give to himself. The concurrent and several acts of two persons are necessary to the act of agreeing, receiving, or giving. In this respect, agreeing to receive a bribe from another and agreeing to give one are unlike soliciting or offering a bribe, because the solicitation or offer may be the act of a single person and may occur without any concurrent act of another. The rule stated by Wharton (2 Cr. L. § 1339) is applicable here.”

In United States v. Katz, 271 U. S. 354, 46 S. Ct. 513, 70 L. Ed. 986, Justice Stone declares that “an indictment of the buyer and seller for a conspiracy to make the sale [liquor] would have been of doubtful validity.” The District Court said, in United States v. Burke, 221 F. 1014, 1015 (S. D. N. Y.): “It is well recognized that, in a crime such as bribery, where the participation of at least two persons is necessary and concert of action is essential to the offense, an indictment will not lie charging a conspiracy to commit such offense.”

Count 2 charges that the appellants and Cruz all conspired to bribe Cruz. An indictment charging that two persons conspired with a third person names that third person just as fully and with the same effect as the first two persons. A. Guckenheimer & Bros. Co. v. United States, 3 F.(2d) 786 (C. C. A. 3). We have recognized the rule of limitation upon a conspiracy count as applying “to the giver and taker of a bribe (both being guilty by statute).” Vannata v. United States (C. C. A.) 289 F. 424, 427. In so doing, we referred with approval to United States v. Dietrich and United States v. N. Y. C. R. R., supra. But it is argued that in the Dietrich Case he agreed with Fisher to take a bribe and that Fisher agreed with Dietrich to give a bribe. But, where three or more are charged in this indictment with conspiring together to bribe Cruz, the word “agreed” is redundant, for conspiracy imports an agreement, and “bribery,” in which the giver and taker participate, imports agreement. As said in the Dietrich Case, “a person cannot agree with himself, receive from himself, or give to himself,” and “the concurrent and several acts of two persons are necessary to the act of agreeing, receiving, or giving.” Cruz could not join in the conspiracy to offer and give himself a bribe unless he agreed to take, and accept one. Chadwick v. United States, 141 F. 225 (C. C. A. 6). Indeed, the overt acts 3, 5, and 6 actually charged Cruz’ receipt of the bribe money.

It is said that, if the crime as charged can be accomplished without the consent on the part of all the conspirators or without concerted action on the part of all the conspirators, then a charge of conspiracy will lie. United States v. Holte, 236 U. S. 140, 35 S. Ct. 271, 59 L. Ed. 504, L. R. A. 1915D, 281. In the Holte Case the offense, a violation of the Mann Act (18 USCA §§ 397-404) might have occurred without the woman’s consent. So, in the Chadwick Case, the cheek could be wrongfully certified without the guilty complicity of the drawer. But here the conspiracy, as charged, is one between the givers and taker of the bribe to offer and give a bribe to the taker, which cannot exist without the consent and guilty complicity of the taker. The concerted action with Cruz is the very essence of the crime.

The ease of In re Coy, 127 U. S. 731, 8 S. Ct. 1263, 32 L. Ed. 274, which appellee refers to, arose on habeas corpus after sentence with no attack on the indictment. It it not applicable. In Haas v. Henkel, 216 U. S. 462, 30 S. Ct. 249, 54 L. Ed. 569, 17 Ann. Cas. 1112, two cotton speculators were, in the first indictment, charged with conspiracy to bribe a government official. In the second indictment, two were charged with a third party to bribe a government official. In the third indictment, which was for conspiracy to defraud the United States, and not for conspiracy to bribe, the government official was joined as a defendant with the speculators. This followed the rule of the Dietrich Case. Browne v. United States, 290 F. 870 (C. C. A. 6), sets forth in the opinion that the prime object of the conspiracy was to bribe one who was not participating in the conspiracy but acting for the government to entrap the defendants. The government agent was not a party to the conspiracy. It is not inconsistent with the rule that we apply. Harvey v. United States, 23 F.(2d) 561 (C. C. A. 2) and Felder v. United States, 9 F.(2d) 872 (C. C. A. 2), are not in point.

The court on motion for a new trial eon • sidered the sufficiency of this count of the in* dictment. The appellee does not now base its support, claiming the validity of the count, upon the reasons set forth in the opinion filed in denying appellants’ motion. The denial of the motion was based upon the assumption that the rule of the Dietrich Case does not apply because Cruz was not made a defendant and convicted. But the conspiracy cannot be established out of what is not a crime by merely not indicting as a defendant one or more of the parties named as participants in the indictment. A plurality of parties givers does not change the rule of the Dietrich Case. United States v. N. Y. Central R. R., supra.

It does not change the substantive offense of bribery that there be several givers and a single taker. But it was thought below that appellants were indicted for having conspired by, unlawful agreement to corrupt Cruz prior to the successive payments that were made to him. The indictment charges only one agreement, and Cruz was a party to the agreement “from the commencement of the Utah Lead trial.” This claim is foreign to the indictment. Cruz was a party to the only agreement alleged. There is no disconnected or antecedent conspiracy alleged. The language is that the appellants conspired in association “with the said John Cruz”. — quite the opposite of the charge of any separate action on the part of the appellants alone. Guckenheimer v. United States, supra. And the phrase of the charge is, “After the formation of such conspiracy and in order to effect the object thereof, the following overt acts were done.” This court said, “An indictment will not lie against such actors for conspiring to commit the offense they actually did commit.” Vannata v. United States, supra, at page 427 of 289 F.

The failure of this count to charge a crime is not answered by stating that it is “inartistieally drawn,” and it “should not be scrutinized with a critical eye,” or that “it amounts to an imperfection in the matter of form only.” The difficulty is that the eount of the indictment does not charge a crime. It is no mere formal defect. Dunbar v. United States, 156 U. S. 185, 15 S. Ct. 325, 39 L. Ed. 390. Goulson v. United States (C. C. A.) 16 F.(2d) 44. The judgment of conviction of the three appellants on this count must be reversed.

There remains appellant Sager’s conviction on the sixth count. In view of the errors committed in the admission of evidence which were prejudicial to this appellant, there must be a new trial on this count. The appellant voluntarily appeared and testified before the grand jury. As part of the appellee’s direct ease, the United States attorney offered in evidence the stenographer’s minutes of the grand jury proceedings. Sufficient and timely objection was made to the admission' of this record. Among other matters, the following subjects were read from the grand jury minutes to the jury: Inquiries as to the bringing of the Utah Lead Case to Sager by one'Eugene McGee and as to his having been Instrumental in bringing other cases to Sager ; McGee’s connection with and interest in the ease; remarks upon the disbarment of McGee and inquiries as to why he was disbarred; the affirmance of McGee’s disbarment and statements by the United.States attorney that he did not think he was innocent of the charge upon which he was disbarred; inquiries as to the giving of money and 'obtaining information from bailiffs in the Poultry Case, tried in the fall of 1929, with Sager as attorney for the defendants; statements by the prosecutor that bailiffs leaked both ways and would leak a little more readily if given some money; inquiries concerning gratuities given to bondsmen in prior eases; statement by the prosecutor that he always found bailiffs extremely courteous without being paid; suggestions by the United States attorney that nothing was more common than for counsel to excuse a prospective juror simply on his looks; inquiries concerning a possible investigation of the Utah Lead jury because of the fact that the foreman was alleged to be in an illegitimate business, running a speakeasy; statements by the assistant United States attorney as to the nature of Shalleck’s summation; suggestions that the defendants in the Utah Lead Case had been very busy looking up the jurors’- history; discussion of Shalleek’s summation in the Utah Lead Case; inquiries as to whether the prosecutor’s office brought any pressure to bear on the Utah Lead jurors; inquiries about the business relation between McGee and Conway; inquiry as to whether any part of Sager’s fee was paid to McGee.

Admissions made by Sager as to the crime for which he was on trial or matters relating to that specific offense were material and competent. But these indiscriminate references to previous trials, bailiffs, and bondsmen, the giving of money at prior trials, association with a disbarred lawyer, and inquiries as to whether he was justly disbarred, were all collateral matters and improperly received, and we think prejudicial to the appellant’s case. Boyd v. United States, 142 U. S. 450; 12 S. Ct. 292, 295, 35 L. Ed. 1077; Commonwealth v. Campbell, 155 Mass. 537, 30 N. E. 72; State v. Berger, 121 Iowa, 581, 96 N. W. 1094; State v. Ellwood, 17 R. I. 763, 24 A. 782. As said in the Boyd Case, no notice was given in the indictment “of the purpose of the government to introduce proof of them” (collateral issues). When the grand jury’s minutes were offered and received, Sager’s credibility was not in issue, and the introduction of these irrelevant portions of the testimony forced him into a position where he was com-; pelled to explain collateral matters with which he was not charged: It reflected to his discredit, and was used by the prosecutor to his disadvantage in his summation. He was prejudiced before the jury, and such error constituted failure to accord him an impartial trial.

Appellant Sager, as a witness in his own behalf, testified as to his career and professional employment. He said on direct examination that he served as an Assistant Attorney General. He was asked on cross-examination if he left that position at the suggestion of the Attorney General because of various complaints. He said positively that the Attorney General had not suggested his resignation. The subject of whether Sager had been asked to resign or did so voluntarily was one which should not have been gone into at all, inasmuch as it did not tend to disclose-any vicious or criminal acts of his life. People v. Johnston, 228 N. Y. 332, 127 N. E. 186. But it having gone into the subject, and obtaining a denial from the appellant, those answers were binding on the appellee and not subject to attack by way of contradiction by other witnesses. This collateral issue was introduced on cross-examination. The rule that any witness may be asked concerning any vicious or -criminal act of his past life is limited. The witness may be asked about any specific incident, but his answers thereto are final and conclusive except only where a judgment of conviction of crime has been shown. At the end of the trial, a sharp- issue was presented as to credibility between Sager and Weehsler concerning their conversations -and instructions to Cruz and the employment of Weehsler as a bribe giver. The issue was sharply drawn, and there was thrown in the balance against the defendant the testimony of the Attorney General of the United States and his assistant, offered by the government in rebuttal, in substance, that Sager was untruthful, was obliged to resign, and did so because he had been drinking, and that, if he had not resigned, he would have been removed. A strong appeal was made by the appearance of the Attorney General and his assistant, and their contradiction of Sager’s testimony raised an issue of credibility which should not have been presented. Moreover, the United States attorney drew in summation a strong contrast between the men to Sager’s disadvantage, pointing to the appearance as a witness of the Attorney General. The learned judge, thinking that it bore upon Sager’s credibility, called the jury’s attention to this collateral issue. Greenleaf stated the rule which has been long reeognized, as follows: “It has long been settled that testimony from other witnesses of particular instances of misconduct is an improper mode of discrediting, because of the confusion of issues and waste of time that would thus be involved, and because of the unfair surprise to the witness, wbo cannot know what variety of false charges may be specified- and cannot be prepared to expose their falsity. This rule excluding proof by other witnesses is well settled and everywhere accepted.”

In Bullard v. United States, 245 F. 837 (C. C. A. 4), and Rau v. United States, 260 F. 131 (C. C. A. 2), this rule was recognized and applied and the judgments of conviction were reversed for the admission of similar collateral issues. Hanover Fire Ins. Co. v. Dallavo, 274 P. 258 (C. C. A. 6); People v. Hinksman, 192 N. Y. 421, 85 N. E. 676; People v. De Garmo, 179 N. Y. 130, 71 N. E. 736.

The judgment will be reversed, with direct tions to dismiss count 2 and discharge the appellants Shalleek and Reynolds; as to Sager, the judgment is reversed, and a new trial may be had on count 6. The errors to which we have referred require such reversal.

Judgments reversed.


text:
    UNITED STATES ex rel. POLYMERIS et al. v. TRUDELL, Immigration Inspector in Charge.
    No. 294.
    Circuit Court of Appeals, Second Circuit.
    May 4, 1931.

      The relators are two subjects of Greece who presented themselves for admission at St. Albans, Vt., on August 2, 1930, as aliens who had previously been lawfully admitted to this country and were returning from a temporary visit abroad. Aspasia Polymeris is the mother of Antigone Polymeris. They first entered the United States in 1909 and lived in New York City until September, 1913, where Aspasia had, and has, two sons in business. They then returned to Greece for a visit and came back to this country in 1914. Prom then on they lived in New York City, where Antigone was educated and later employed, until they returned to Greece in 1923. They both were domiciled in New York from 1909, and the evidence is perfectly plain and convincing to the effect that neither of them has abandoned her domicile but has at all times since it was acquired intended to keep it and to make her permanent residence in this country..
    They went to Greece in 1923 because the husband of Aspasia was sick at his home there at Volo. When they left, they executed an affidavit showing their intention to return within six months. Before that period expired it became apparent that they needed to remain longer, and Antigone wrote to the American consul at Athens for an extension of time. He replied that “* * * Your papers cannot be renewed for a stay longer than six months time unless you can furnish very good reasons for your longer delay.” Although she testified that she replied to the consul’s letter and complied with his requirement, there is no record of her reply ever having been received at the consulate and no return permit was ever issued to either of these aliens. The husband died in 1924. There was some delay in settling his estate, and, when the relators were ready to return to this country, application was made to the consul by letter some time in 1924 for return permits. They were refused. In 1925, another such application was made and denied. In 1926, they employed a Greek lawyer in Athens to assist them, and he was unsuccessful. In 1929, Antigone personally applied to the consul for return permits and was refused. Her brothers in New York engaged a New York attorney who endeavored in vain to obtain return permits. In 1930, acting under the advice of this lawyer, who believed their cause would be advanced if they could present themselves for admission at the border, they obtained transit visas through Canada en route to Japan, landed at Montreal, came to St. Albans, and applied for admission. They were excluded because they had neither immigration visas nor return permits.
    Harry B. Amey, U. S. Atty., of Burlington, Vt., for appellant.
    Harold Van Riper, of New York City, for appellees.
    Before L. HAND, SWAN, and CHASE, Circuit Judges. .
   CHASE, Circuit Judge

(after stating the facts as above).

The learned District Judge adopted the views expressed in the opinion in Johnson v. Keating (C. C. A.) 17 F.(2d) 50, and discharged the aliens on the ground that they were entitled to admission as non-quota immigrants under section 4 (b) of the Act of 1924 (8 USCA § 204 (b), since they had previously been lawfully admitted to the United States and were returning from a temporary visit abroad. It is true that they had previously lawfully been admitted, had established their domicile here, and were returning from a visit abroad. Their visit had been somewhat extended first by the sickness and death of Aspasia’s husband, by the necessity for remaining to settle his estate, and then by the delay occasioned by their persistent, though fruitless, attempts to obtain return permits. What is a temporary visit cannot be defined in terms of elapsed time alone, when it is of such duration that its temporary character may "reasonably be questioned. Then the intention of the visitor, when it can be determined, will control. U. S. ex rel. Lesto v. Day (C. C. A.) 21 F.(2d) 307, 309. Ordinarily the intention must be, as said in the above ease, “to return within a period relatively short, fixed by some early event.” We think the relators have brought themselves well within the claimed status as immigrants once lawfully admitted who were returning from a temporary visit abroad. They always intended to come back as soon as they could. That depended upon the condition of health of Aspasia’s husband and after he died upon the time required for them to remain to attend to the settlement of his estate. Surely this was all a matter of time which might be relatively short, and, with proof of an unrelinquished United States domicile of seven consecutive years satisfactory to the Secretary of Labor, gave him power to; admit them in his discretion under 8 USCA § 136 (p). See Immigration Rules of January 1, 1930, Rule 13 (A). However, he has not admitted them, and the issue now is whether they could enter of right with no return permits and no immigration visas.

Although we have great respect for the court which rendered the decision in Johnson v. Keating, Supra, we cannot agree with that decision. Section 13 (a) of the Immigration Act of 1924, 8 USCA § 213 (a), so far as pertinent to the present ease, denies an immigrant admission to the United States unless he has an unexpired immigration visa..

.Subdivision (b) of the same section is as follows: “(b) In such classes of eases and under such conditions as may be by regulations prescribed immigrants who have been legally admitted to the United States and who depart therefrom temporarily may be admitted to the United States without being required to obtain an immigration visa.” (8 USCA § 213(b).

The 1930 regulations prescribed and applicable provide: “Par. 2. An alien claiming to be a non-quota immigrant on the ground that he had been previously lawfully admitted to> the United States and is returning from a temporary visit abroad shall not be admitted as such unless at the time of arrival he shall establish that he has been previously lawfully admitted to the United States and is returning from a temporary visit abroad, and presents an unexpired valid immigration visa duly issuedP by an American consular officer designating the holder as such: Provided, that the presentation of an unexpired valid permit to reenter, duly issued to the holder thereof pursuant to the provisions of Sec. 10 of the Immigration Act of 1924, shall be deemed to show prima facie that such holder is returning from a temporary visit abroad, and shall he accepted also in lieu of immigration visa.”

Thus it appears that, regardless of other requirements, a returning alien cannot enter unless he has either an immigration visa or a return permit. If he has one or the other, he is not limited in the proof of his right to enter to the prima facie proof afforded by the visa or the permit, but possession of one or the other of those two documents is an absolute condition upon his admission. Seo United States ex rel. Timpano v. Day (D. C.) 21 F.(2d) 852.

It is true that section 10 (f) of the Immigration Act of 1924, 8 USCA § 210 (f), provides that: “(f) A permit issued under this section shall have no effect under the immigration laws, except to show that the alien to whom it is issued is returning from a temporary visit abroad; but nothing in this section shall be construed as making such permit the exclusive means of establishing that the alien is so returning.”

If read literally, this might be taken to nullify the regulation in so far as it provides that the return permit “shall be accepted also in lieu of immigration visa.” But we think it plainly has to do only with the effect of the permit as evidence and not with its possession being made a condition for dispensing with the necessity for having an immigration visa if an alien can bring himself within the regulations authorized by section 13 (b) of the Act of 1924, 8 USCA § 213 (b). U. S. ex rel. Timpano; v. Day, supra.

It follows that these aliens were properly excluded under section 13 (a) of the Immigration Act of 1924 (8 USCA § 213 (a), since the Secretary of Labor did not admit them in his discretion under 8 USCA § 138 (p), and neither presented an unexpired valid immigration visa or an unexpired valid permit to re-enter in accordance with the regulations promulgated under section 13 (b) of that act.

Order reversed.


author: VAN VALKENBURGH, Circuit Judge.

text:
    FRISINA v. UNITED STATES.
    No. 9029.
    Circuit Court of Appeals, Eighth Circuit.
    April 21, 1931.
    P. H. Cullen, of St. Louis, Mo. (Anthony Canzoneri and Abbott, Fauntleroy, Cullen & Edwards, all of St. Louis, Mo., on the brief), for appellant.
    Howard Williams, Asst. U. S. Atty., of St. Louis, Mo.' (Louis H. Brener, U. S. Atty., of Rolla, Mo., on the brief), for the United States.
    Before VAN VALKENBURGH and BOOTH, Circuit Judges, and HUNGER, District Judge. .
   VAN VALKENBURGH, Circuit Judge.

Appellant was indicted under the following' provisions of section 65 of the Criminal Code (section 121, title 18, USCA, p. 304), which for convenience we have numbered 1 and 2.

(1) “Whoever shall forcibly assault, resist, oppose, prevent, impede, or interfere with any officer of the customs or of the internal revenue, or his deputy, or any person assisting him in the execution of his duties, or any person authorized to make searches and seizures, in the execution of his duty. * * *»

(2) “And whoever shall use any deadly or dangerous weapon in resisting any person authorized to make searches or seizures, in the execution of his duty, with intent to commit a bodily injury upon him or to deter or prevent him from discharging his duty, shall be imprisoned not more than ten years. (R. S. § 5447; Mar. 4, 1909, c. 321, § 65, 35 Stat. 1100.)”

The indictment was in four counts. A sufficient understanding of the points raised on this appeal requires quotation of the charging part of these several counts:

“Count 1. That on or about the said 3d day of August, 1929, in the City of St. Louis, in the State of Missouri, within the Division and District aforesaid, and within the jurisdiction of this court, Carmelo Erisina, alias Charles Freese, Knowingly, Wilfully, Unlawfully and Feloniously did forcibly resist, impede, oppose and interfere with the aforesaid mentioned federal prohibition agents, namely Agents Harris, Byrd, Waters, Stanley and Mulderig, in the execution of the said warrant by entering the premises then and there being searched, armed with a loaded automatic shotgun and threatening the aforesaid agents with their lives unless they immediately discontinued the search, with the intent then and there on the part of him, the said Carmelo Frisina, alias Charles Freese, to deter and prevent the said prohibition agents from discharging their official duties aforesaid; he, the said Carmelo, alias Charles Freese, then and there well knowing the said agents to be officers authorized to make searches and seizures, and to be engaged in the execution of their duties as such; contrary to the form of the statute in such ease made and provided, and against the-peace and dignity of the United States.
“Count 2. That on or about the 3d day of August, 1929, in the City of St Louis, in the State of Missouri, within the Division and District aforesaid, and within the jurisdiction of this court, Carmelo Frisina, alias Charles Freese, Knowingly, Wilfully, Unlawfully and Feloniously did use a deadly and dangerous weapon, to-wit, an automatic shotgun loaded with gunpowder and shot in resisting two of the aforesaid prohibition agents, namely, Thomas L. Harris and Carol T. Byrd in the execution of their duty aforesaid, he, the said Carmelo Frisina, alias Charles Freese, then and there well knowing the said Thomas L. Harris and Carol T. Byrd to be prohibition agents engaged in the discharge of their official duties, with the intent then and there on the part of the said Carmelo Frisina, alias Charles Freese, to deter and prevent them from discharging their duties aforesaid, by pointing and aiming the said shotgun at the agents aforesaid, and commanding that they desist and discontinue the said search on pain of immediate death; contrary to thé form of the statute in such case made and provided, and against the peace and dignity of the United States.
“Count 3. That on or about the 3d day of August, 1929, in the City of St. Louis, in the State of Missouri, within the Division and District aforesaid, and within the jurisdiction of this court, Carmelo Frisina, alias Charles Freese, Knowingly, Wilfully, Unlawfully and Feloniously did, with a deadly and dangerous weapon, to-wit, an automatic shotgun loaded with gunpowder and shot, forcibly assault Carol T. Byrd, a federal prohibition agent as aforesaid, in resisting the said Carol T. Byrd in the execution of his official duty as above described, he, the said Carmelo Frisina, alias Charles Freese, then and there well knowing the said Carol T. Byrd to be a prohibition agent engaged in the execution of his official duty, with the intent then and there on the part of him, the rsaid Carmelo Frisina, alias Charles Freese, to commit bodily injury upon the said Carol T. Byrd, by aiming and discharging the said automatic shotgun at the said Carol T. Byrd; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.
“Count 4. That on or about the 3d day of August, 1929, in the City of St. Louis, in the State of Missouri, within the Division and District aforesaid, and within the jurisdiction of this court, Carmelo- Frisina, alias Charles Freese, Knowingly, Wilfully, Unlawfully and Feloniously did, with a deadly and dangerous weapon, to-wit, an automatic shotgun, loaded with gunpowder" and shot, forcibly assault Thomas L. Harris, a federal prohibition agent as aforesaid, in resisting the said Thomas L. Harris in the execution of his official duty as above described, he, the said Carmelo Frisina, alias Charles Freese, then and there well knowing the said Thomas L. Harris to be a prohibition agent engaged in the execution of his official duty, with the intent then and there on the part of him, the said Carmelo Frisina, alias Charles Freese, to commit bodily injury upon the said Thomas L. Harris, by aiming and discharging the said automatic shotgun at the said Thomas L. Harris; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.”

At the conclusion of the government’s case, a motion to elect between the various counts was interposed and sustained. Counsel for appellee elected to stand upon counts 2, 3, and 4, based upon the second subdivision of the statute as hereinabove set out and numbered. The court in its charge instructed the jury to find appellant not guilty upon'count 2, and submitted the ease upon counts 3 and 4. Verdicts of guilty were returned upon these two counts. The court imposed a penitentiary sentence of six years on each count, the terms to run and terminate concurrently.

To obtain a reversal, counsel for appellant rely upon four specifications of error:

(1) The defendant, after a verdict of not guilty on count No. 2 in this ease, cannot be lawfully sentenced pursuant to a repugnant and inconsistent verdict of guilty upon counts 3 and 4.
(2) If counts 3 and 4 do not charge an offense under the second subdivision of the statute, supra, and therefore the judgments thereunder are not repugnant and inconsistent as claimed in the first specification of error, then these counts must be bottomed upon the first subdivision of the statute, and the sentences of six years are excessive.
(3) The charge of the court failed to embody a full or accurate statement as to the appellant’s right of self-defense under the proof offered in his behalf.
(4) The court failed to require the jury to find the intent to commit bodily injury as an element of the offense charged, and as requested-by appellant.

We take up these specifications in their order.

1. There is no necessary inconsistency and repugnancy between the instructed verdict on count 2 and those returned upon counts 3 and 4. The general rule is that there is no fatal inconsistency in a verdict of guilty on one count and a verdict of not guilty on another count, though testimony .warranting conviction on the one count would warrant conviction likewise on the other. Weiderman v. United States (C. C. A. 8) 10 F.(2d) 745; Corbin v. United States (C. C. A. 8) 205 F. 278; Boone v. United States (C. C. A. 8) 257 F. 963; Marshallo v. United States (C. C. A. 2) 298 F. 74; Steckler v. United States (C. C. A. 2) 7 F.(2d) 59; Seiden v. United States (C. C. A. 2) 16 F. (2d) 197; Carroll v. United States (C. C. A. 2) 16 F.(2d) 951; Carrignan v. United States (C. C. A. 7) 290 F. 189; Gozner v. United States (C. C. A. 6) 9 F.(2d) 603.

This rule has been modified in certain eases. It has been held that, where there is-a verdict of guilty on one count and of not guilty on another count, the verdict of guilty must be based on evidence other than that pleaded in support of the count on which the verdict of not guilty is returned. Hohenadel Brewing Co., Inc., v. United States (C. C. A. 3) 295 F. 489; Peru v. United States (C. C. A. 8) 4 F.(2d) 881, 884; Murphy v. United States (C. C. A. 8) 18 F.(2d) 509, 512.

The application of these rules must depend upon the facts and circumstances in the individual case.

Comparison of the allegations contained in count 2 with those employed in counts 3 and 4 reveals marked differences. The use-of a deadly or dangerous weapon in resisting a person authorized to make searches and seizures denounced by the second subdivision of the statute as numbered above must be “with intent to commit a bodily injury upon him,” or “to deter or prevent him from discharging his duty.” The offense may be-committed with either of two distinct intents- and purposes — the one, to “deter or prevent”; the other, “to commit a bodily injury.” The element of resistance is common to both. Count 2 discloses the first of' these two purposes. The intent to commit a bodily injury is not charged. The use of the-gun was rather in the nature of a threat by which it was hoped to deter the officers from proceeding.

The third and fourth counts present an additional element. It is expressly ch'arged that the intent was to commit bodily injury by both aiming and discharging the shotgun at the officers. The “use” o£ the deadly and dangerous weapon is described as an “assault”; this term, with the subsequent charge of “aiming and discharging,” satisfies the demands of pleading under the second subdivision. The assault here described is not that contemplated by the first subdivision of the statute, to wit, common assault, amounting only to a misdemeanor and punishable as such. The third and fourth counts charge felonious assaults. It will thus be seen that the allegations made and the proofs required by the third and fourth counts differ so materially from those incidental to the second count that the verdict of acquittal on the latter and those of conviction on the former are in no sense inconsistent and repugnant. It should also be noted that the verdict on the second count was directed. The court gave as its reason for this action that that count charged a general assault upon all of the agents engaged in the search; that the proofs failed to sustain this charge. In this respect the court evidently confused the allegations of the second count with those of the first. Its ruling had no reference to the substance of the prosecution, as disclosed by the pleadings and proofs. For this reason, the usual presumptions attending the verdicts of juries and the rulings of courts are not present. It is further to be noted that the gist of these subdivisions of the statute is “resisting” officers authorized to make searches or seizures. The offense, in general, is the same under both subdivisions, which, in the statute, are not separately numbered. The punishment is graduated to meet the degree of turpitude in the resistance offered.

2. Inasmuch as it is obvious that counts 3 and 4 do charge an offense under the second subdivision of section 121, the sentences imposed by the court were well within the statutory provision.

3. That appellant did some shooting with his automatic shotgun is beyond dispute. His claim is that he did so in self-defense and with no purpose to resist or deter the officers in their search. Counsel for appellant made' a number of requests for instructions embodying this defense. They were not given, and error is assigned for this reason. The court charged as follows upon this phase of the controversy: “It is, of course, not only common sense but law, that a man has a right to defend himself, if a prohibition agent commences an assault on a citizen, wholly without the fault of a citizen. But as I have said to you, a citizen has no right to commence an assault upon a prohibition agent, knowing him to be such, and knowing that that agent is engaged in performing his duty, whatever the reason for it may be, whether it be dogs or anything else. But if he does not know that the agent is a prohibition agent, and does not know that he is engaged in the performance of his duty, he, of course, has the right of self-defense. I would go so far as to say that the law is, or ought to be — and I say it is — that if he did know they were prohibition agents, and were there engaged in the performance of their duty, that if they wantonly, and without cause, assaulted him so as to render it necessary that he fight back, or shoot back, in order, to save his life, or save himself from having inflicted upon him great bodily harm, that he would then have the right of self-defense. But the assault must have been begun by them, without cause or excuse or reason on their part, without his having done anything to cause them* to assault him. If they began it, without cause or excuse, then, of course, the defendant had the right of defense. If they did not begin it, but if he began it, with knowledge, then, of course, he had no such right. As a matter of opinion — upon matters-which are largely evidentiary — I think that there is where a solution of this ease lies, so far as you gentlemen are concerned. Of course, it follows from that, that if defendant did not know until after the assaults complained of here had been fully consummated, that these men were prohibition agents, then, if they began this trouble, he had a right to defend himself.”

We think that under the facts and circumstances of this ease the foregoing charge sufficiently covered the point under consideration.

4. The statute requires that, as charged in the third and fourth counts, the resistance with the use of a deadly or dangerous weapon must be made with intent to commit bodily injury. It is complained that the court refused to charge as requested by appellant, and failed to require the jury to find the existence of such intent. Substantially at the outset the court -read the pertinent section of the statute which contains the requirement of intent to commit bodily injury. The indictment charges that the “use” of the deadly weapon was made in the form of an “assault.” The court discussed and defined this term as follows: “You will want to know what an assault is, because the word ‘assault’ connotes a technical thing. It might seem, in fact, to be one thing to you, whereas in law it might seem to be another. But, an assault, in law, and as that word occurs in the section of the statute which I have read to you, is any attempt, with force or violence, to do a bodily hurt to another person, whether such attempt be made from malice or wantonness,' and under such circumstances as denote, at the time, an intention to do such bodily hurt, coupled with a present ability to carry such intention into effect.”

Later on in its charge the court said: “Of course, you must find that the resistance here was a wilful resistance, that is, that it was intentional and not accidental, and that it implied an evil intent, without justifiable excuse. When an act is wilfully done it means that it is done intentionally and done wrongfully, and done with an evil intent. I have already said to you that you must find here, before you ean find defendant guilty, that he knew these men were prohibition officers, and that he knew they were engaged, at the time he is said to have assaulted them, in the prosecution of their duties as such, in making a search. You ean consider the evidence m the ease, pro and con, upon that question.”

It is unnecessary to cite decisions to the - effect that the court’s charge need not adopt the language of an instruction requested, nor follow the exact language of the statute in defining and explaining its terms. It is enough if the subject-matter is sufficiently covered, and made clear to the understanding of the jury. The indictment charged, and the proofs tended to show, that appellant in his resistance used an automatic shotgun, loaded with gunpowder and shot; that he aimed and discharged it at the government officers. The court charged that, to support a verdict of guilty, this act of resistance must have been willful, and done with evil intent. When a loaded shotgun is discharged at an officer with evil intent under the circumstances here present, it is scarcely necessary for the court to add in hase verba that that intent must be to commit bodily injury. We think the jury entered upon its deliberations with no misunderstanding of what must be found by it before it could properly return a verdict of guilty.

No reversible error appearing, the judgment is affirmed.