author: PAUL, District Judge.

text:
    UNITED STATES v. ST. CLAIR.
    Cr. No. 3244.
    District Court, W. D. Virginia, at Roanoke.
    Oct. 26, 1945.
    T. Warren Messick, of Roanoke, Va., for petitioner.
    Frank S. Tavenner, Jr., U. S. Atty., of Woodstock, Va., for the United States.
   PAUL, District Judge.

Robert Clayton St. Clair, sometimes known as Dewey St. Clair, has filed his petition praying for a revision and reformation of a sentence or sentences of imprisonment imposed upon him at the January, 1938, term of this court at Roanoke.

The allegations of the petition are, in substance, that at the aforesaid term of court the petitioner was indicted for violation of the statute known as the White-Slave Traffic Act, § 2, 18 U.S.C.A. § 398, in an indictment containing twelve counts. That at the same term he entered a plea of guilty to each of the first ten counts and that upon this plea he was sentenced to imprisonment for a period of two and a half years on each of said ten counts with the provision that the ten respective sentences should be run and be served consecutively and not concurrently. That in pursuance of the sentence thus imposed the petitioner was thereafter committed to the United States penitentiary at Atlanta, Georgia, where he now remains in custody. The above recited allegation's of the petition are supported by the records of this court and there is no question of their accuracy.

As a ground for reformation of the sentence imposed upon him the petitioner alleges that while the ten counts of the indictment to which he pleaded guilty purport to charge ten separate offenses for which consecutive sentences might be imposed, such counts in fact comprise and allege only five separate offenses for which consecutive sentences might be imposed. It is alleged that the second and third counts of the indictment relate to one and the same transaction and allege only one offense; that the same is true as to the fourth and fifth counts; the same as to the sixth and seventh counts; and as to the eighth, ninth and tenth counts.

These contentions arise from the following facts: The second count of the indict-rnent charges that the defendant (the petitioner here) on August 4, 1937, transported from Huntsville, Alabama, to Roanoke, Virginia, a woman by the name of Henrietta Sorey for purposes of prostitution etc. The third count of the indictment charges on the same date the transportation between the same points and for the same purposes of a woman named Ruby Reed. The petitioner now urges that these two counts of the indictment relate to only one offense “for the reason that the two separate and distinct women named therein were transported at the same time and in the same conveyance from Huntsville, Alabama, to Roanoke, Virginia.”

Similarly, the fourth count charges the transportation on September 2, 1936, from Jacksonville, Florida, to Roanoke, Virginia, of a woman named Sophia Brosko; while the fifth count charges the transportation on the same date and between the same places of one Nell Wiggins. As to this also the petitioner alleges that both women were transported at the same time and in the same conveyance.

The same situation exists as to the sixth and seventh counts involving the transportation on July 1, 1937, between Frederick, Maryland, and Roanoke of two women who are separately named as the victims in the respective counts.

And again the eighth, ninth and tenth counts each charge a transportation between Greensboro, North Carolina, and Roanoke on July 28, 1937; each count naming a different woman as the subject of the transportation. As to these counts the petitioner raises the same question, namely, that there was only one transportation inasmuch as the three women were all carried on the same trip.

Briefly stated it is the contention of petitioner that where, in violation of the act, a defendant has transported several women in the same vehicle and on the same trip, there has been only a single transportation and therefore only one criminal act; and that the defendant cannot be charged with a number of separate offenses each applying to one of the several women involved.

After this lapse' of time the court has a very indistinct recollection of the facts developed on the hearing of this case and no record -of any evidence was taken at the time of - hearing. However, the United States Attorney, supported by the case report in his files, agrees that the facts-alleged by petitioner are correct; i. e., that in each case where the counts of the indictment allege transportation occurring on the same date and over the same course there was in fact a single trip; and that the separate counts are intended to relate to the different women transported on that trip. This statement comes as no surprise as I have no doubt that I was fully aware of it at the time the case was heard.

There being no dispute about the facts, there is presented to the court this one clear cut question: Where a violation of the White-Slave Act involves the transportation of more than one woman on the same trip and in the same vehicle, has there been committed only one criminal act, or does the transportation of each woman constitute a separate and distinct offense?

No question of the validity of the sentence in this case was raised at the time of its imposition although the petitioner was then represented by able and experienced counsel. I can only presume that his then counsel accepted the view that each of the counts stated a separate and • distinct offense. That the petitioner has now, after the lapse of some years, raised this question is, I am sure, due to the comparatively recent decision in Robinson v. United States, 143 F.2d 276, decided July 17, 1944, by the Circuit Court of Appeals of the Tenth Circuit. However, in a case of this sort the lapse of time should- not bar the petitioner from assertion of his rights if they have in fact been violated. Nor is 'he to be prejudiced by the fact that he pleaded guilty to each of the ten separate counts in the then belief that they each charged a separate and distinct offense.

» On the direct question here presented there is a scarcity of authority in the decided cases. Indeed the only two cases which I am able to find dealing with the specific question are Robinson v. United States, supra, on which petitioner relies, and Gillenwaters v. Biddle, 18 F.2d 206, decided by the Circuit Court of Appeals of the. Eighth Circuit in March, 1927. There is no doubt that the Robinson case is in direct support of petitioner’s contention. But it is also true that the Gillenwaters case is as plainly to the contrary. So far as I can find the question has never been passed on in this (the Fourth) circuit nor by the Supreme Court. This court is thus faced with two conflicting views emanating from two courts of equal dignity and authority. The decisions of a Circuit Court of Appeals are ordinarily persuasive, though not binding authority outside the circuit where rendered; and where, as here, these opinions are in conflict it would seem that this court is not only permitted but required to give the question its independent consideration.

It is to be borne in mind that this is not one of that line of cases where it has been held that in a transportation involving one woman only, the defendant may be charged with separate offenses under separate sections of the act; as for example, in Roark v. United States, 8 Cir., 17 F.2d 570, 51 A. L.R. 870, where it was held that a defendant might bp convicted of two separate offenses, one under Section 2, 18 U.S.C.A. § 398, for “transporting” for immoral purposes, and one under Section 3, 18 U.S.C. A. § 399, for “inducing” the transportation, although there was but one transaction. In the instant case all of the counts are laid under Section 2, charging that the defendant “did transport” and “cause to be transported” and did “aid and assist in transporting,” etc.; and in each count a different woman is named as the subject of the transportation.

Section 2 of the statute, so far as pertinent here, provides that:

“Any person who shall knowingly transport or cause to be transported, or aid or assist * * * in transporting, in interstate * * * commerce, * * * any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose * * * shall be deemed guilty of a felony, * * * ” etc.

The argument of the petitioner is that the transportation in interstate commerce is the gist of the offense and that a single transportation can constitute only one crime, regardless of the number of women transported; and this appears to be the reasoning of the decision in the Robinson case. It is true that the interstate transportation is the act which constitutes an offense against the federal government. It is the element which, under our dual system of government, enables the federal government to take cognizance of a condition which must otherwise be left to the jurisdiction of the states and which, in the absence of such transportation, constitutes no crime against the federal law. But that the transportation is “the gist of the offense”, as stated in the Robinson case [143 F.2d 278], is true only in a limited sense. The transportation must be accompanied by the vicious purpose specifically set forth in the statute. The evil aimed at by this statute is prostitution or debauchery, and not the running of an automobile across a state line. Women are transported in interstate commerce by thousands each day in the course of normal travel. It is only when the transportation is for the purpose prohibited by the act that it constitutes a crime. The purpose or intent with which the transportation is effected is equally as essential as the transportation itself. As said in Hansen v. Half, 291 U.S. 559, 563, 54 S.Ct. 494, 495, 78 L.Ed. 968:

“The Mann Act creates the offense of transporting in interstate commerce a woman or girl ‘for the purpose of prostitution or debauchery, or for any other immoral purpose.’ * * * This court has said that the act ‘seeks to reach and punish the movement in interstate commerce of women and girls with a view to the accomplishment of the unlawful purpose prohibited.’ Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 197, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas.1917B, 1168. Accordingly, it has been held that the transportation denounced must have for its object or be a means of effecting or facilitating the sexual intercourse of the participants.”

So many cases have turned solely upon this question of intent or purpose that citation of them seems -needless.

If, as must be conceded, the evil against which the statute is directed is prostitution or debauchery, and if, as is undoubtedly true, the offense may bé committed with a single woman, Jt would seem logical that a separate offense is committed as to each woman who is made the victim of such transportation. And this seems to be the import of the statute which forbids the transportation of any woman or girl. The word “any” implies singularity in number or selectivity among a number. See Webster’s International Dictionary where it is defined as meaning “one indifferently out of a number” or as “one, no matter what one.” And see United States v. Morse, 27 Fed. Cas. page 1, 2, No. 15,820.

In Ebeling v. Morgan, 237 U.S. 625, 629, 35 S.Ct. 710, 711, 59 L.Ed. 1151, a defendant was charged in seven separate counts with having, in the same transaction, cut open or mutilated an equal number of mail bags, in violation of a statute making it a criminal offense to “tear, cut, or otherwise injure any mail bag * * * with intent to rob, * * * ” etc. 18 U.S. C.A. §■ 312. As against the contention that there had been but a single offense, the Supreme Court says:

“Reading the statute with a view to ascertaining its meaning, it is apparent that it undertakes to make an offender of anyone who shall cut * * * any mail bag * * * with the felonious intent denounced by the statute. These words plainly indicate that it was the intention of the lawmakers to protect each and every mail bag from felonious injury and mutilation. * * * The offense as to each separate bag was complete when that bag was cut, irrespective of any attack upon, or mutilation of, any other bag.” (Emphasis supplied)

With equal force it may be said that the statute now considered intends to protect “each and every woman” from the unlawful transportation and that the offense as to each separate woman is complete as to her when her transportation takes place, irrespective of the fact that it may have been accompanied by, or simultaneous with, similar offenses against other women.

If the contention of the petitioner be sound then a commercial purveyor of vice might recruit a number of women from various points within one state intended for distribution to various houses of prostitution in another state and limit himself to the commission of one offense if he took the precaution of seeing to it that they all crossed the state line on the same train. ■ Surely Congress intended no such result as this when it based the crime upon the transportation of any woman or girl.

There is a close analogy between the White-Slave Traffic Act and the National Motor Vehicle Theft Act, 18 U.S.C.A. § 408. Both of these have invoked the control of the federal government over interstate commerce to deal with delinquencies over which the federal government would have no authority except through the power to regulate interstate commerce. Under both statutes a movement in interstate commerce is essential to the crime, but it is equally essential that the interstate transportation should be the consummation, accompaniment or attending circumstances of an act unlawful in itself and as to which the offender has a guilty intent or knowledge when bringing about the interstate movement. Of like nature is the Kidnaping Act, § 1, 18 U.S.C.A. § 408a. A similarity of language appears in these various statutes. Just as the White-Slave Act prohibits the transportation in interstate commerce of any woman or girl, the Kidnaping Act' prohibits the like transportation of any person who shall have been kidnaped, and the Motor Vehicle Theft Act prohibits transportation of a motor, vehicle. We may suppose a case where several motor vehicles were stolen from different owners in different localities within a state and thereafter transported in interstate commerce in a single movement by towing one behind another or by loading some stolen coupes in a van (also stolen). Or a case in which several persons kidnaped at different places were transported across a state line in the same car. Neither of these is an unlikely situation and while I find no case in which the question has been raised, I doubt that any court would give serious entertainment to the argument that only a single offense had been committed.

Language peculiarly applicable to such situations and to the instant case is found in State v. Robinson, 12 Wash. 491, 41 P. 884, 885, where it is said: “If a person without justification intends to kill A., and does so, he will be guilty of a crime; if he intends to kill B., he will be guilty of another and a different crime; and the fact that he entertains the intent to kill both, and carries such intent into effect at the same time and place, should not be held to make of that which would otherwise be a foundation for two' distinct prosecutions a foundation for only one.” (Emphasis supplied)

It is well settled that distinct violations of the law growing out of the same transaction may be charged as separate and distinct offenses. Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505; Berry v. United States, 8 Cir., 18 F. 2d 276; Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489; Rosser v. United States, 4 Cir., 75 F.2d 498, 499; Burton v. United States, 202 U.S. 344, 26 S.Ct,. 688, 50 L.Ed. 1057, 6 Ann.Cas. 362.

In considering whether a single transaction may constitute more than one distinct offense the rule now generally accepted is stated in Morgan v. Devine, 237 U.S. 632, 641, 35 S.Ct. 712, 715, 59 L.Ed. 1153, as follows:

“The test of identity of offenses is whether the same evidence is required to sustain them.”

In 15 Am.Jur. 56, it is said: “Offenses are not the same if upon the trial of one proof of an additional fact is required, which is not necessary to be proved on the trial of the other.”

In State v. Van Buren, 86 S.C. 297, 68 S.E. 568, 569, the test is thus stated: “Would the evidence necessary to support the second indictment have been' sufficient to procure a legal conviction upon the first.”

In Morey v. Com., 108 Mass. 433, it is said: “A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient' to warrant a conviction upon the other.”

Couched in differing phraseology but to the same effect this rule has been restated in numerous cases. Blair v. State, 81 Ga. 629, 7 S.E. 855; United States v. Sacein Rouhara Farhat, D.C., 269 F. 33, 38; Bens v. United States, 2 Cir., 266 F. 152,160. When we come to apply this test to the counts of the indictment in the instant case, it seems apparent that they each charge a separate crime. As pointed out heretofore offenses against this statute involve not only an interstate transportation but require as an equally essential element that the transportation be with the unlawful purpose or intent condemned by the statute. Proof of this unlawful purpose must be made in every case in order to prove the crime. And proof of a defendant’s intention as to one woman is no proof of his intention as to another. It might well be that a person transporting several women in an automobile in an interstate movement might have as to one or more of them the unlawful purpose set out in the statute, but have no such intention as to the others. If, for example, this case had been tried on the merits, the government would have been under the necessity of proving the petitioner’s unlawful purpose as related to each of the women involved. Proof of such purpose as to Henrietta Sorey (2d count) would not constitute proof of his intention as to Sophia Brosko (3d count) who was in the automobile on the same trip. Or if the defendant had pleaded guilty to the 2d count, thereby admitting his unlawful purpose as to Henrietta So-rey and had pleaded not guilty to the 3d count, the government, in order to convict upon the 3d count, would have been compelled to submit proof of his intention as to Sophia Brosko. Neither the admissions of the defendant nor proof by the government as to defendant’s intentions as to one of the women would suffice as proof of his intentions as to the other. Different and independent evidence would have been required to prove the intent in each case. It might be added that it would also have been necessary to prove the transportation in each case.

Until the decision in the Robinson case, upon which petitioner relies, there does not seem to have existed much doubt on the question now raised. Courts as well as defendants and attorneys appear to have generally concurred in the view that a defendant was properly chargeable with more than one offense when he transported more than one woman with an unlawful purpose applicable to each. The Gillenwaters case would seem to have expressed a view with which there was general acquiescence. In so saying I have not overlooked the case of United States v. Westman, D.C. Or., 182 F. 1017, which may be construed to imply support for petitioner’s contentions. . But in that case the specific question was not dealt with and the action of the court was upon a demurrer to an indictment which the court held was not bad for duplicity. It is true that the court there refers to the transportation of the two women as a “single act” but it does not appear that it held then or thereafter that there had been committed but a single offense. And the conclusion that the indictment was good might well have rested on the provisions of Section 557, Title 18 U.S.C.A., R.S., § 1024, which permits the inclusion in one indictment of separate charges arising from “the same act.”

In the case of Freed v. United States, 49 App.D.C. 392, 266 F. 1012, under circumstances identical with the instant case, the defendant’s contention was substantially the contrary to that of the petitioner here. In that case two women were transported in one automobile trip and the indictment contained separate counts relating to each. The defendant, not denying that there were two offenses, contended that they could not be joined in one indictment. The court held that while there were two separate offenses, nevertheless they grew out of the “same transaction” and could therefore properly be charged in separate counts in one indictment under the provisions of Section 1024, R.S., 18 U. S.C.A. § 557. Both the defendant and the court agreéd that two offenses had been committed.

The case of United States v. Waldon, 7 Cir., 114 F.2d 982, although arising under a different statute, reflects this same acquiescence in the theory that one act affecting two persons may constitute two separate offenses. That case was for violation of the statute, 18 U.S.C.A. § 320, making it unlawful to assault any person having custody of the mails with intent to rob etc. The defendant, attempting to rob a mail car, was charged, convicted and sentenced on two separate counts involving two separate custodians of the mail (presumably railway mail clerks). The appeal in the case rested on an entirely different matter and no question was raised as to the propriety of the two separate charges.

The fact that the Robinson case appears to be contrary to a view theretofore generally accepted does not, of course, determine that it should be rejected. On the contrary, being the latest casé on the subject, it is required that it be carefully considered. But when this is done I find myself unable to accept its conclusions. In addition to what has already been said, I would make particular reference to my inability to accept as correct the statement in that case, 143 F.2d 278, that the weight of authority is to the effect that where the same act results in the death of two persons, a conviction for the murder of one bars a prosecution for the killing of the other; that the killing of both constitutes but one crime. Frankly, I am of the impression that, while there is some conflict, the law is generally to the contrary. And in one of the carefully prepared annotations characteristic of that publication I find that it is so stated in 20 A.L.R. 341, where it is said: “The general rule is that the conviction or acquittal of one charged with the murder of, or assault upon, one person, is not a bar to his subsequent prosecution for the murder of, or assault upon, another person at the same time.” (Emphasis supplied)

A review of the cases dealing with this subject shows that many of them involved situations where in the course of an affray the defendant had delivered several blows or shots in quick succession as a result of which more than one person was killed or injured. In such cases there would seem little room for doubt that more than one crime had been committed upon the theory that separate shots or blows, and therefore separate “acts,” were responsible for the separate injuries. A carefully considered case typical of this situation is State v. Corbitt, 117 S.C. 356, 109 S.E. 133, 20 A.L.R. 328. But it would appear also that the weight of authority (thojigh there is some to the contrary) supports the principle that even though there is but a single act separate offenses have been committed where such act has resulted in harm to more than one person.

This has been- settled in this state (Virginia) since the case of Vaughan v. Com. (decided in 1821) 2 Va.Cases 273, where two ■ persons were shot by the same discharge of a shotgun and it was held that two offenses had been committed.

In Keeton v. Com., 92 Ky. 522, 18 S.W. 359, it was held that in a holdup of two persons where a pistol was pointed at them at the same time, with a demand for their money, the act constituted a separate assault upon each and a separate robbery of each.

In State v. Sonnerkalb, 2 Nott. & McC. 280, the court said:

“But let it be admitted, that the defendant committed, physically, but one act; two offenses may be committed by one act, even at the common law; a person fires a gun, kills one, and wounds another, if he escapes for the homicide (that is, if his life be not taken), he may be indicted for the assault on the other; or suppose he severely wound two, he may be indicted for two assaults.”

In State v. Thurston, 2 McMul. 382, the defendant was charged with stealing at the same time cotton belonging to three individuals. The court held that he was properly indicted in three cases, and a conviction in one case was no bar to a conviction in the other two.

The rather recent case of Lawrence v. Com., 181 Va. 582, 26 S.E.2d 54 (decided 1943), was one where' the driver of an automobile had negligently driven it into another, thereby killing two persons; and resulting in two separate indictments for the separate homicides. On a trial of the second indictment a plea of former jeopardy was filed. The court, following a careful discussion of the authorities, held that, two separate offenses had been committed and that the plea was properly rejected. Citing and quoting from People v. Bran-non, 70 Cal.App. 225, 233 P. 88, the court says [181 Va. 582, 26 S.E.2d 56] :

“It is the identity of the offense, and not of the act, which is referred to in the constitutional guarantee against putting a person twice in jeopardy. Where two or more persons are injured in their persons, though it be by a single act, yet, since the consequences affect, separately, each person injured, there is a corresponding number of distinct offenses.”

The court uses, among others, the following example: “Plainly if one were to poison a well from which several deaths followed, an acquittal in one case should not 'relieve him * * * as to others.”

Com. v. Browning, 146 Ky. 770, 143 S.W. 407, 408, was a case in which the defendant had wounded two men with one pistol shot and where it was held that two separate assaults had thereby been committed. The court, in emphasizing that the offenses were distinct and that different evidence was necessary to sustain them, says:

“Manifestly, appellee, if first tried for the shooting and wounding of Caywood, could not be convicted on proof that he shot Stewart, though both Caywood and Stewart were wounded by one and the same shot. As well might it be argued that, in the killing of several of the same family by putting poison in the food eaten by them, conviction of the poisoner for the death of one of them would bar a prosecution for the killing of the others.”

In the case of People v. Alibez, 49 Cal. 452, there was actually in issue the situation used as an illustration in the two cases last above cited, namely, of multiple deaths caused by one administration of poison. The defendant had administered strychnine to three persons at one and the same time. He was indicted for the death of all of the victims and judgment was arrested on the ground that he had been charged with three separate offenses in one indictment.

And in People v. Majors, 65 Cal. 138, 3 P. 597, 603, 52 Am.Rep. 295, citing People v. Alibez, supra, it is held (quoting from the syllabus) : “Where two are murdered by the same act, conviction or acquittal as to one does not bar a prosecution to the other.” The court says (from the opinion) : “On the trial of the defendant, Majors, for the murder of Renowden he could not have been convicted of the murder of McIntyre. The two crimes, although committed at one time and by the same act, are entirely different in their elements, and the evidence required to convict in the one case very different from that essential to a conviction in the other.”

People v. Allen, 368 Ill. 368, 14 N.E.2d 397, 403, is another case involving the death of two persons struck simultaneously by a speeding automobile. Two indictments for manslaughter being returned, the defendant, on the trial of the second, raised the question of former jeopardy. The court after pointing out that “there was but a single physical act — the collision— from which two persons met their deaths,” nevertheless held that two separate offenses had been committed. In a carefully considered opinion reviewing the authorities the court emphasizes that:

“A distinction obtains between an offense and the unlawful act out of which it arises. The' act is the cause of the offense which, conversely, is the result of the act. The constitutional inhibition is directed to the identity of the offense and not to the act. * * * two or more distinct offenses may grow out of the same transaction or act, and the rule (relating to former jeopardy) * * * has no application where two separate and distinct crimes are committed by one and the same act.”

The court then poses the question (which it answers in the negative) :

“Could a jury in the former case, which charged the manslaughter of Ray Duran, have returned a verdict for the manslaughter of Charles Klafter? In indictments for offenses against persons * * * the name of the person injured must be stated if known.
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“An accused cannot be tried for the manslaughter of any other person than the one charged by the indictment upon which he is then being tried. The substance of one crime cannot be proved by proving the substance of another.”

State v. Fredlund, 200 Minn. 44, 273 N. W. 353, 113 A.L.R. 215, is another case of two deaths in an automobile collision resulting in two indictments against the. defendant. Here again it was held that two offenses had been committed. Here also the court points out the test that the offense, not the act, must be identical to sustain a plea of former jeopardy and that the evidence could not be the same in each case.

A case involving the principle involved is Smith v. Com., 7 Gratt. 593, 49 Va. 593 (decided in 1850), involving a statute making it unlawful to advise any slave to abscond. It was held that a conviction for advising one slave to abscond was not a bar to prosecution for advising'another to abscond, although the advising was to both at one time, and by the same words and acts.

It is to be noted that many of the cases dealing with this question of identity of offenses lay emphasis on the distinction between a single act and a single offense, holding that a single act may constitute more than one offense and that it is only when the offense is identical that the law forbids putting a defendant twice in jeopardy. And further that the test of identity of offenses is whether the same identical evidence which suffices to prove one of the offenses serves to prove the other; whether the offenses are identical in law and in fact. See Lawrence v. Com; Com. v. Browning; People v. Majors; People v. Allen; State v. Fredlund; all of which have been cited hereinbefore.

To the same effect is Winn v. State, 82 Wis. 571, 52 N.W. 775, 777, where it is said:

"The rule is that the offenses charged in two indictments are not identical unless they concur both in law and in fact. * * * the true inquiry is whether the first indictment was such that the accused might have been convicted under it by proof of the facts alleged in the other indictment.”

In a note to Roberts v. State in, 14 Ga. 8, 58 Am.Dec. 528, 540, Judge Freeman in a lengthy discussion of the identity of offenses says:

“When the same act constitutes two or more distinct offenses, each is separately indictable. The defendant may be separately punished for each offense * * *.”

And after pointing out that the proof of the allegations of one indictment are insufficient to secure a legal conviction under the allegations of the other, he continues:

“A well settled,example of this — of two offenses distinct from each other, arising from the same act — occurs when the criminal act affects two different persons.” (Emphasis supplied)

And see Burton v. United States, 202 U. S. 344, 381, 26 S.Ct. 688, 699, 50 L.Ed. 1057, 6 Ann.C&s. 362, where it is said: “It is well settled that ‘the jeopardy is not the same when the two indictments are so diverse as to preclude the same evidence from sustaining both.’ ” Bens v. United States, 2 Cir., 266 F. 152, 160.

And in Wharton’s Criminal Law, Vol. 1, 12th Ed., p. 537, the statement is made:

“The same act may constitute two or more offenses which are distinct from each other. In such cases the accused may be separately prosecuted and punished for each. * * *. Thus, where two or more are assaulted, robbed, or their goods stolen, or are shot or murdered by one and the same act and at the same time, conviction or acquittal on an indictment for the offense against the one will be no bar to a trial on an indictment charging the offense against the other.”

There will be found numerous other cases in agreement with the foregoing citations and referred to therein, but which need not here be listed. Applying these principles, which appear to me to be eminently sound, to the instant case it appears clear to me that each of the counts in the indictment set forth a separate offense. In none of the counts would proof of the allegations therein have been sufficient to prove the offense charged in any other count. While the act of transportation was a single one, it was necessary in order to convict on any count, to prove the transportation of the particular woman named in that count and further that the unlawful intent existed as to that particular woman at the time of the transportation. In each case the proof, or failure to prove, these necessary facts was not dependent upon proof of similar facts involving any of the other women. I am of opinion, therefore, that the sentence imposed in this case was proper and that the petition for its reformation should be denied.

I might add to what has been said the earnest hope that an appeal will be taken from the action of this court in this case, in order that this question may be settled in this circuit. It is in fact desirable that this case, or a similar one, be taken to the Supreme Court so that there may be a decision binding ip. every circuit throughout the country. Violations of the White-Slave Act wherein several women are transported at one time are, unfortunately, not uncommon. And the extent of the offender’s crime in such cases should be determined by a rule of universal application and not depend upon the geographical location wherein he is brought to trial.


source: Caselaw Access Project

author: McCOLLOCH, District Judge.

license: Public Domain

text:
    BOWLES v. HUDSPETH et al.
    Civ. No. 2729.
    District Court, D. Oregon.
    Sept. 11, 1945.
    Jerome S. Bischoff, Chief, Lumber Enforcement Unit, Franz E. Wagner, Chief Dist. Enforcement Atty., Norman T. J. McCaffery, Dist. Enforcement Atty., and Victor E. Harr, Asst. U. S. Atty., all of Portland, Or., for plaintiff.
    James Arthur Powers, of Portland, Or., and Geo. H. Brewster, of Redmond, Or., for defendants.
   McCOLLOCH, District Judge.

I wonder if you realize what you are talking about when, in eighty-four District Courts in the country you put thousands and thousands, accumulating over a period of years, of businessmen under the tutelage of Judges to run their business in a certain way. You just used the expression “put him under the control of the Court.” If you had just a hundred lumbermen under the control of this Court, if you really mean what you are saying, there would not be time to do anything else except go in the lumber business.

One of the modern miracles is the utilization of the statutory injunction by every Government agency as a means of enforcing its legislation. You OPA lawyers are in Government service for a brief time. You will drop out and return to private practice and this will all be like a dream to you, when you get to practicing law for yourselves, but here I am expected to stay permanently running the Hudspeth Lumber Company, along with other business enterprises, to make sure they don’t cut dimension lumber one and one-half inch dressed on one side, instead of one and five-eighths.

Now that is the theory of the thing, and in this court we are very reluctant to add to the accumulated files in the Clerk’s office of the hundreds, maybe thousands of injunctions that have been asked, and in many cases have been given, to compel compliance with technical business practices.

So I repeat what I said a minute ago, before I sign the form of injunction you have prepared, as in every other injunction case — I am not treating it any differently — I will consider very carefully the language of the injunction, even though you have stipulated to it I may sign the injunction based upon the stipulation, or I may require testimony.

A potential prosecution for criminal contempt inheres in every injunction that is issued. It is possible that some day I will come out here and a man, whose name I have forgotten, will be in for violation of an injunction issued five or ten years ago. I will be asked to fine him, possibly to send him to jail. Every time I sign one I must keep that in mind. It is a very convenient temporary device for the Government agency ; I understand that. You can then lay the case aside and start another. But when we sign it we take it on forever. We are married to it; and so, as in the marriage engagement, we enter into it solemnly. Just because it is handy to you, and because the defendant is willing to do it, that is not the end of it at all.

       A cycle of suspicion, if not abhorrence, of the injunctive process seems to have ended with the passage of the Norris-LaGuardia Act, 29 TJ.S.C.A. § 101 et seq. A cycle of utilization of restraining orders and injunctions as a preferred method of enforcing public statutes seems to have begun with the stepped-up activity of the Anti-Trust Division of the Department of Justice in the immediate pre-war years; in the administration of the Fair Labor Standards Act, 29 TJ.S.C.A. § 201 et seq., and in the war time enforcement of the Emergency Price Control Act, 50 TJ.S.C.A.Appendix, § 901 et seq., by the OPA legal staff which was set up separate from the Department of Justice. Toward the end of the war, OPA cases were being filed in the Federal Distinct Courts alone at the rate of 2750 per month. Quarterly Report 6/30/45 of the Administrative Director United States Courts. This is the full normal civil capacity of the United States District Courts. See any Administrator’s report before the war time period.

       New discussions of the very modern subject of statutory injunctions are to be found in the reports or in the law magazines. “The Permissible Scope of Statutory Injunctions” in 54 Tale Law Journal 141 (1944) is an up-to-date article. To the eases cited in the article may be added: Fleming, Adm’r v. Salem Box Co., D.C., 38 F.Supp. 997, 999, an opinion by Judge James Alger Fee, my learned colleague; Bowles v. Town Hall Grill, Inc., 1 Cir., 1944, 145 F.2d 680; Bowles v. Sacher et al. 2 Cir., 1944, 146 F.2d 186, 187, affirming Brown v. Sacher, D.C., 53 F.Supp. 77; Regal Knitwear Co. v. N. L. R. B., 1945, 324 U.S. 9, 65 S.Ct. 478, 479, discussing the use of the phrase “successors and assigns” in injunction decrees; Bowles v. W. W. Elzea, Inc., D.C., 1945, 59 F.Supp. 1012, 1022, next to last par.; N. L. R. B. v. Lipshutz, 5 Cir., 1945, 149 F.2d 141, 142, last par.; Associated Press v. United States, 1945, 326 U,S. 1, 65 S.Ct. 1416. last par. of majority opinion; Bowles v. 870 Seventh Avenue Corporation, 2 Cir., 1945, 150 F.2d 819, 822, last par. May Department Stores Co. v. N. L. R. B., — U.S. —, 66 S.Ct. 203.

       The money judgment was entered as stipulated and the following: “Until the National peace time policy regarding continuance of price control in the lumber industry is determined, jurisdiction and decision as to the issuance of an injunction will be reserved.”
      A typical problem as to form of an injunction decree was presented in this court early in the war. Henderson, Adm’r OPA v. Swift & Company, Civ. No. 1354. This was one of a number of identical cases brought by the OPA Administrator in the United States District Courts in twenty-four States where the defendant operated. A form of consent decree tendered was rejected in this court. The rejected form provided that the temporary restraining order, which had previously been granted without notice, should remain in a state of suspended animation, subject to automatic revival, upon the filing of an affidavit asserting failure in any of the twenty-four plants to grade and stamp beef and veal by use of the official graders of the Agricultural Marketing Administration. The form of injunction adopted was limited to defendant’s future conduct within the jurisdiction of the court.

       No opinion for publication.

       “To make the infraction of a criminal statute also a contempt of court is essentially an invention to evade the safeguards of criminal procedure and to change the tribunal for determining guilt”. Frankfurter and Greene, “The Labor Injunction” 107; citing to the same effect the address (1912) of the President of the American Bar Association. Compare as to jury trial Nye v. United States, 313 U.S. 33, 47, 53, 61 S.Ct. 810, 85 L.Ed. 1172; In the Matter of Michael, 66 S.Ct. 78.
      Excepting Walling, Adm’r v. Men’s Hats, Inc., D.C., 1945, 61 F.Supp. 803, 804[1], it has yet to be ruled, I believe, whether the violation of a statutory injunction (final decree), obtained at the instance of the Government, or one of its agencies, is criminal or civil contempt, or whether it may be one or the other, depending on the circumstances. Cf. MeCrone v. United States, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108 (civil), opinion by Mr. Justice Black; Nye v. United States, 313 U.S. 33, 42, 61 S.Ct. 810, 85 L.Ed. 1172 (criminal), opinion by Mr. Justice Douglas; see “Civil and Criminal Contempt of Court”, 46 Tale L.J. 326, another excellent article. “Contempt of Injunctions, Civil and Criminal”, 43 Col. Law Rev. 780 (1943) by Joseph Moskovitz, a former editor of the Review, is an excellent collection of the cases.
      In this connection, it must be kept in mind that multitudinous injunction decrees now in District Court files enjoin violations of administrative regulations “made or to be made”, as well as violations of the statutes involved.

       Hecht Co. v. Bowles, 321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754, relieved District Judges of the administrative threat, which had been developing, that the trial judge had no discretion about issuing an injunction when a statutory violation was shown. See comment of Arnold, A. J., diss. in Rainbow Dyeing & Cleaning Co. v. Bowles, 1945, — U.S.App.D.C. —, 150 F.2d 273.
      The discussion from the Supreme Court bench during the argument in Hecht Co. v. Bowles needs to be preserved permanently in the reports as a highlight in the present day reexamination of the function of the judiciary. The discussion is to be found in the United States Law Week for February 8,1944 (12 LW Sec. 3, 3257).
      The Ninth Circuit Court of Appeals, by Judge Bone, lately held that a District Judge need not issue an injunction because a defendant consented to its issuance. Bowles v. Huff, 1944,146 F.2d 428, 429, last par.


author: GRAVEN, District Judge.

text:
    GENDLER v. SIBLEY STATE BANK et al.
    Civil Action No. 195.
    District Court, N. D. Iowa, W. D.
    Oct. 18, 1945.

      Thos. H. Quinn, of Faribault, Minn., and S. D. Crary and Free & Free, all of Sioux City, Iowa, for plaintiff.
    George E. Gill, of Sibley, Iowa, and Sif-ford, Wadden & Jepson, of Sioux City, Iowa, for defendant Sibley State Bank.
    No appearance for defendant Roy Sanders.
   GRAVEN, District Judge.

Case involving question of liability of bank for money allegedly paid it by mistake and liability of bank in regard to deposit after receiving notice that deposit is claimed by a third party. In this case the plaintiff was and is a resident of Lake Crystal, Minnesota. The defendant, Roy Sanders, was and is a resident of Sibley, Osceola County, Iowa. The defendant, Sibley State Bank, was and is an Iowa banking corporation engaged in the banking business in the Town of Sibley, Osceola County, Iowa. The defendant Roy Sanders for some time prior to the year 1943, was a customer of the defendant, Sibley State Bank. He kept a checking account with that Bank and from time to time borrowed money from it. In the year 1943 he was engaged in the purchase of wool from wool producers in the area around Sibley. In the spring of 1943 he had accumulated and was accumulating wool on a considerable scale. Sanders needed funds to pay and settle for such wool, and needed an outlet for the wool. The matter of the marketing of wool was at that time covered by Government war time regulations. Under such regulations Sanders could only sell wool to those authorized by the Government to purchase it. O. J. Ditto of Sib-ley, Iowa, was at that time vice-president and a member of the board of directors of the Sibley Bank. Mr. Ditto did not work in the Bank and was engaged in another line of business. At the request of Sanders, Mr. Ditto sought to find an authorized purchaser for the wool. Mr. Ditto contacted the plaintiff, Israel Gendler, who was engaged in the purchasing of wool, and who had been authorized by the Government to purchase wool. The plaintiff handled a good part of his wool business by one F. H. Klemer of Faribault, as his attorney-in-fact. There was located at Faribault, Minnesota, a warehouse of the St. Paul Terminal Warehouse Company, an independent warehouseman, which was a properly licensed warehouse for the storage of wool and the issuance of warehouse receipts therefor. Under the regulations then in effect wool so stored could not be sold until after it had been graded and appraised by Government appraisers.

Pursuant to negotiations by Mr. Ditto, the plaintiff agreed to buy a quantity of wool from Sanders through the St. Paul Terminal Warehouse at Faribault. Sanders in May, 1943, then shipped 23,678 pounds of wool to the St. Paul Terminal Warehouse Company at Faribault. On May 29, 1943, the Warehouse Company issued Warehouse Receipt No. F W 4Í087, certifying that it “had received in storage for the account of Sibley State Bank, Sib-ley, Iowa, from Roy Sanders” 11,413 pounds of wool. On June 10, 1943, the Warehouse Company issued Warehouse Receipt Number 9962 certifying that it “had received in storage for the account of Sibley State Bank, Sibley, Iowa (Re: Roy Sanders),” 12,265 pounds of wool. While Sanders had previously had loans from the Sibley Bank from time to time, he did not have any loans from that bank from January 1, 1943, up to May 11, 1943. On May 12, 1943, Sanders borrowed $1,500, from the Sibley Bank. On May 17, 1943, he borrowed $941.92 additional. On June 3, 1943, his loan was increased to the sum of $4,811.94. On June 14, 1943, the Bank loaned Sanders the additional sum of $4,-000. Upon the making of this loan for $4,-000 Sanders owed the Sibley Bank the total sum of $8,811.84. These loans were all evidenced by promissory notes. Sanders borrowed the greater part of the money to settle for the wool he purchased and was purchasing. It was the contemplation and understanding of the Bank and Sanders that the Bank was to have security on the wool for the loans, and that the Bank was to hold the warehouse receipts for the wool as collateral security therefor. Following the receipt by the Bank of the Warehouse receipts dated May 29, 1943, heretofore referred to, the Bank as heretofore referred to on June 3, 1943, increased Sanders’ loan to the sum of $4,811.94. The Bank then held that warehouse receipt as collateral security for the loan of $4,811.94. Following the receipt by the Bank of the warehouse receipt dated June 10, 1943, heretofore referred to, the Bank as heretofore referred to, loaned Sanders the additional sum of $4,000, and held that warehouse receipt as collateral security. On June 22, 1943, the Sibley Bank sent the two warehouse receipts to the Security National Bank at Faribault, Minnesota, for collection, writing that bank that it had been informed that the wool had been sold, and requested the Faribault Bank to make remittance to it. On July 6, 1943, the Faribault Bank sent the Sibley Bank a draft in the sum of $7,106 payable to the order of the Sibley Bank. The Faribault Bank in its letter of remittance stated that 17,765 pounds of the 23,768 pounds of wool represented by the warehouse receipts had been sold. The Faribault Bank further stated that the remittance was at the rate of 40 cents a pound for the wool sold, but that 40 cents a pound did not represent the full amount due for the wool sold. The Faribault Bank further stated that it had requested the Warehouse Company to issue a warehouse receipt for the balance of the wool unsold. The Warehouse Company made out warehouse receipt number F.W.N. 10006 dated July 6, 1943, reciting that it had “received in storage for the Sibley State Bank, Sib-ley, Iowa (Re Roy Sanders),” 5,913 pounds of wool, which receipt was sent to the Sib-ley Bank. About this time Sanders made another shipment of wool to the Warehouse Company for sale to the plaintiff, and on July 9, 1943, the Warehouse Company issued its warehouse receipt number F.W.N. 10030, reciting that it “received in storage for the account of Sibley State Bank, Sib-ley, Iowa (re Roy Sanders)” 7,933 pounds of wool. These two warehouse receipts were held by the Sibley Bank as collateral for the Sanders indebtedness to it. Upon receipt by the Sibley Bank of the draft for $7,106 dated July 6, 1943, referred to, the same was deposited in the checking account of Sanders. Sanders on July 7 and 8, 1943, issued checks on his account payable to the Sibley Bank in the sum of $2,000 and $4,843.65 respectively to apply upon his notes to the Bank. The check of $4,843.65 paid up the note of $4,811.89 dated June 3, 1943, in full with interest, and the check of $2,000 reduced the principal of the $4,000 note dated June 14, 1943, to $2,-000. On July 10, 1943, the situation was that Sanders owed the Sibley Bank a note for $2,000, and that Bank held as collateral security therefor two warehouse receipts dated July 6 and July 9, 1943. The matter of the disposal of the wool covered by the last two warehouse receipts and the settlement for the balance due on the first two warehouse receipts dragged along with the Sibley Bank making frequent inquiry as to progress. On September 4, 1943, the Fari-bault Bank wrote the Sibley Bank that the wool had been graded and appraised and that as soon as it had been bagged and weighed the plaintiff would settle up the account, and suggested that the Sibley Bank send the two warehouse receipts to it for collection of the balance due from the plaintiff. On September 7, 1943, the Sib-ley Bank sent the Faribault Bank the two warehouse receipts as suggested by the latter bank. On September 28, 1943, the plaintiff by his attorney-in-fact, F. H. Klemer, sent a personal check in the sum of $12,775.88 to the Sibley State Bank. The check was made out jointly to Roy Sanders and Sibley State Bank. Mr. Klemer stated in the letter accompanying the check that it was in settlement of the wool sold by Sanders to the plaintiff. Attached to the letter was a somewhat lengthy statement showing the different grades and amount of wool sold. Mr. Klemer further stated in the letter that it had been “a complicated long drawn out transaction.” Mr. Klemer in sending the check for $12,775.88 overlooked and forgot that the draft for $7,106 dated July 6, 1943, had previously been sent in part payment of the Sanders’ wool, so that the check for $12,775.88 was $7,106 in excess of what was due Sanders. Upon the check of $12,775.88 being received, it was endorsed by Sanders and the Bank and deposited in the checking account of Sanders on September 30, 1943. On the same day Sanders issued his check to the Bank in the sum of $2,044 in full payment with interest of his note for $2,000. This payment paid Sanders’ indebtedness to the Bank in full and was the only payment received by it out of the proceeds of the check for $12,775.88. It appears that Harold Scott, the president of the Sibley Bank, had been unenthusiastic about the Bank making loans to Sanders. When Sanders came into the Bank in connection with the endorsing of the check for $12,775.88, Mr. Odens, the cashier of the Bank, called Mr. Scott from his office in the Bank to the cashier’s desk and showed him the check. Sanders then stated that he had made a profit of around $7,000 on the wool transactions. None of the officers of the Bank or those connected with the Bank had any actual knowledge or notice that Sanders had received an over-payment of $7,106. It is believed that it could hardly be expected that the Bank which was only collaterally interested in the transaction would recollect details of a transaction when the agent for the plaintiff who was directly concerned could not keep them in mind. The Sibley Bank acted innocently and in good faith in the transaction, and without any knowledge of any wrongdoing on the part of Sanders. Whether an investigation by the Bank at that time would have disclosed the overpayment is problematical. The first step in such an investigation would doubtless have been to have contacted Mr. Klemer. If Mr. Klemer would have then remembered the previous payment, which he had forgotten, the matter of the overpayment might then have been discovered, but if Mr. Klemer’s recollection was in the same state as it was when he sent the remittance a couple of days before, the overpayment would not have been discovered.

On November 17, 1943, or 48 days after the overpayment was made, it was discovered by Mr. Klemer. On that day he phoned the Sibley Bank and informed it of the mistake and that the plaintiff expected the overpayment to be refunded. The Bank immediately called up Sanders and informed him about the phone call from Mr. Klemer. There was in the checking account of Sanders with the Bank at the time the phone call came in, the sum of $1,155.-04, representing the balance left in his account of the proceeds of the check for $12,-775.88. The Bank on November 12, 1943, before the phone call came in had accepted or paid checks and other items amounting to $40.90. The Bank informed Sanders that it would not honor any further checks against his account. At the Bank’s request Sanders gave the Bank his check for $1,100, for which the Bank wrote a cashier’s check in that amount to the order of Sanders. The Bank then retained the cashier’s check pending developments. By letter to Sanders dated November 18, 1943, the plaintiff demanded the refund of the sum of $7,106. Sanders insisted that no overpayment had been made and that he was entitled to the money in his account. Sanders then employed a firm of attorneys who made demand on the Bank in his behalf for the $1,100. The Bank consulted Mr. George Gill, attorney for the Bank, who advised it that it could not legally withhold the $1,100 from Sanders. The Bank turned the cashier’s check over to Sanders. The matter of the length of time the cashier’s check was held by the Bank will be referred to later. On November 23, 1943, Mr. Klemer wrote Mr. Gill, the attorney for the Bank, authorizing him to take immediate steps to protect the plaintiff in regard to the overpayment made to Sanders. The plaintiff did nothing further in the matter until nearly eleven months later when on October 14, 1944, he brought action against the Bank and Sanders for the overpayment of $7,106. The defendant Sanders defaulted in this action and it clearly appears that the plaintiff in fact made an overpayment of $7,106.

The plaintiff seeks recovery against the Bank upon the theory of a constructive trust. The case has two phases,, first as to the liability of the Bank before it had notice or knowledge of the overpayment, and secondly as to its liability for the $1,100 in Sanders’ checking account after it received notice on November 17,, 1943, that the plaintiff claimed ownership of the deposit. Jurisdiction in this case is based upon diversity of citizenship and the case is therefore within the scope of Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. The alleged wrongful acts of the defendant, Sibley Bank, took place in the State of Iowa. Therefore the law of the State of Iowa is applicable. The elements and nature of a constructive trust have been passed upon by the Iowa Supreme Court on numerous occasions. Ranee v. Gaddis, 1938, 226 Iowa 531, 284 N.W. 468; Stout v. Vesely, 1940, 228 Iowa 155, 290 N.W. 116, 117; Eliason v. Stephens, 1933, 216 Iowa 601, 246 N.W. 771, 774. See also, New York Life Ins. Co. v. Clemens, 1941, 230 Iowa 279, 297 N.W. 253. The Iowa rule is in general that a constructive trust can only be established where there is a fraud or unjust enrichment. A constructive trust does not give rise to a fiduciary relationship, but a fiduciary relationship may give rise to a constructive trust. However, a party standing in a fiduciary relationship may be charged as a constructive trustee notwithstanding integrity of purpose and intention. Stout v. Vesely, supra. Where a fiduciary had no actual intent to defraud but is held liable irrespective of intent because of the fiduciary relationship the situation is sometimes referred to as a case of constructive fraud. In Restatement of the Law, Restitution, Sec. 160 page 640, the general rule is stated as follows: “Where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he will be unjustly enriched, if he were to retain it, a constructive trust arises.”

On September 30, 1943, when the check of $12,775.88 was received the situation was that the Bank was the holder of two warehouse receipts as collateral security for the re-payment of a loan of $2,-000, by Sanders. The plaintiff in paying for the wool made the check out jointly to the Bank as lienholder and to Sanders as owner. 'Of the amount of $12,775.88, Sanders was' justly entitled to $5,669.88, and the Bank was justly entitled to $2,000 plus interest. When the Bank endorsed the check of $12,775.88 and deposited it in the account of Sanders, the situation was the same as if the Bank had given Sanders cash for the same over the counter. When Sanders gave the Bank a check for the $2,000 note plus interest, the legal situation was the same as if Sanders had given the Bánk $2,000 in cash in payment of his note. Langan v. Farmers’ State Bank, 1923, 195 Iowa 1108, 192 N.W. 832. The Bank was not unjustly enriched, as it only received what was justly due it, and there was nothing wrongful in Sanders using up to $5,669.88 to pay his debts and for other purposes. The Bank itself has never received any part of the $7,106 overpayment. The $7,106 overpayment was used by Sanders for purposes and objects with which the Bank was not connected. The Bank stood in no fiduciary relation to the plaintiff. The Bank had no actual notice of the overpayment and committed no fraud in connection with the receipt of the check of $12,775.88 on the amount due on the Sanders’ note. This is not a case involving the question of a liability of a bank for permitting a fiduciary to misuse trust funds on deposit with it such as is discussed in Grace v. Corn Exch. Bank Trust Co., 287 N.Y. 94, 746, 38 N.E.2d 449, 40 N.E.2d 34, 145 A.L.R. 436, and in Fidelity & Deposit Co. v. Merchants Nat. Bank, 1937, 223 Iowa 446, 273 N.W. 141. In order to charge a .bank with liability for receiving money belonging to another person the bank must be in conspiracy with the depositor or actually know of the wrongdoing of the depositor. Mere means of knowledge is not sufficient. Langan v. Farmers’ State Bank, 1923, 195 Iowa 1108, 192 N.W. 832. It is the holding of the Court that the defendant, Sibley State Bank, is under no liability to the plaintiff in connection with the receipt of the plaintiff’s check for $12,775.88, and the receipt by it from the defendant, Sanders, of the amount owing it by him.

The other phase of the case is the liability of the Bank for its acts on and after November 17, 1943, after it received notice from the plaintiff that an overpayment had been made and that the plaintiff was claiming the $1,100 in the account of Sanders. This phase brings up the question as to the applicable rules of law where a third party gives notice to a bank that he is claiming a deposit in a bank is the property of such claimant and not the property of the person in whose name the deposit stands. The Iowa Supreme Court in the case of Elliott v. Capital City State Bank, 1905, 128 Iowa 275, 103 N.W. 777, 1 L.R.A., N.S., 1130, 111 Am.St.Rep. 198, overruled its previous rule that a deposit was a loan to a bank. The Court in that case on page 277 of the Iowa citation, on page 778 of 103. N.W., states: “Deposits are made in a bank in accordance with the universal commercial usage, which becomes a part of the law of the transaction. They are neither loans, nor bailments in the strict sense of the term. A deposit is a transaction peculiar to the banking business, and one that the courts should recognize and deal with according to commercial usage and understanding. * * * The transaction is in reality for the benefit and convenience of the depositor, and while the relation of debtor and creditor exists, and the bank has the use of the money for commercial gain, it assumes no further obligation than to pay the amount received when it shall be demanded at its banking house.” In 9 C.J.S., Banks and Banking, § 285, p. 593, it is stated: “If a deposit is claimed by a person other than the depositor who forbids the bank to pay it to any person other than himself, the bank may be held liable for a disregard of such notice in case the claim is substantiated.”

In the case of Miller v. Bank of Washington, 1918, 176 N.C. 152, 96 S.E. 977, 978 appears the following: “In Tiffany on Banks, p. 50, it is said: ‘After receiving notice of an adverse claim, the bank will pay its depositor at its peril.’ * * * In Morse on Banks (3d Ed.) § 342, it is said: ‘A bank is justified in paying to the depositor or his order until the fund is claimed by some other person; but, if notified that the funds belong to another, it will pay the depositor at its peril.’ ”

A bank which is notified by a third party that a deposit standing in the name of one of its depositors is claimed by such third party, under the general or majority rule is in rather a precarious position. If it heeds the notice and refuses to pay the checks of the depositor and then the third party does not substantiate his claim, the bank may have to pay heavy damages to the depositor for the wrongful dishonor of his checks. 9 C.J.S., Banks and Banking, § 365, p. 778. Some courts base a bank’s liability for wrongful dishonor of a depositor’s checks upon the theory of a breach of contract. Thomas v. American Trust Co., 1935, 208 N.C. 653, 182 S.E. 136; Browning v. Bank of Vernal, 1922, 60 Utah 197, 207 P. 462. See also Third National Bank of St. Louis v. Ober, 8 Cir., 1910, 178 F. 678. Other courts regard the action as an injury to the depositor’s credit and reputation similar to tort actions for slander and libel. Schaffner v. Ehrman, 1891, 139 Ill. 109, 28 N.E. 917, 15 L.R.A. 134, 32 Am.St.Rep. 192. If the depositor is a merchant or trader and his checks are dishonored by his depository bank, such depositor can according to the majority rule recover substantial damages from such bank without the necessity of actual damages. First National Bank v. N. R. McFall & Co., 1920, 144 Ark. 149, 222 S.W. 40; McFall v. First Nat. Bank, 138 Ark. 370, 211 S.W. 919, 4 A.L.R. 940; Browning v. Bank of Vernal, supra; Third National Bank of St. Louis v. Ober, supra. The Iowa Supreme Court has apparently not passed upon the question. While the term trader as used in this connection originally meant a shopkeeper, now it means any business man. Peabody v. Citizens State Bank, 1906, 98 Minn. 302, 108 N.W. 272. Thus, when a claim is made by a third party to the deposit of a business man, as in the instant case, the bank is in a much more dangerous situation than in cases where the depositor is not a business man. As to the liability of a bank for dishonoring checks see McFall v. First Nat. Bank, 138 Ark. 370, 211 S.W. 919, 4 A.L.R. 947; First Nat. Bank v. Stewart, 204 Ala. 199, 85 So. 529, 13 A.L.R. 305; State Bank v. Marshall, 163 Ark. 566, 260 S.W. 431, 34 A.L.R. 205; 58 A.L.R. 732; Magness v. Equitable Trust Co., 176 Md. 528, 6 A.2d 241, 126 A.L.R. 206.

Because of the difficult situation in which a bank is placed when an adverse claim is made by a third party to a deposit standing in the name of another, The American Bankers Association a number of years ago recommended a statute to protect banks in such cases. The statute so recommended provides in substance that when a third party gives notice to a bank of an adverse claim to a deposit, that the bank does not have to recognize such claim until it is directed to do so by proper court order or unless a proper indemnifying bond is furnished to the bank. Paton’s Digest of Legal Opinions (1940) Vol. II p. 1657. According to the same author the following States have adopted the recommended statute or one similar to it: Arkansas, Stat. Digest (Pope’s 1937) § 758; California, Gen.Laws Act 652 (Deering, 1937) § 16f; Idaho, 2 Code Ann. (1932) §§ 25-102, 25-1007; Indiana, Stat.Ann.Supp. (Burns, 1933) § 18-2001 (c); Kansas, Gen.Stat. Ann. (1935) § 9-174; Louisiana, 1 Gen. Stat.Ann. (Dart, 1932) § 638, Act No. 90 of 1926; Maine, Rev.Stat. (1930) Chap. 57, § 131; Massachusetts, St.1941, Chap. 444 (quoted above) ; Michigan, 17 Stat.Anno. (1937) § 23.311, Comp.Laws 1929, § 12058; Mississippi Code Anno. (1938 Supp.) §§ 644, 591; Missouri, Mo.R.S.A. §§ 7982 (banks), 8062 (trust cos.); New Jersey, St.Ann. § 17:9-6; New Mexico, Stat.Ann. (1929) § 13-1015; New York, Banking Law (McKinney’s) § 134 subd. 5, 6, 7 (banks and trust companies) § 171 subd. 5, 6, 7 (private bankers); § 239 subd. 5, 6, 7 (savings banks); Oklahoma, Stat.Ann. Title 6, § 118v.; Oregon, 4 Comp.Laws Ann. (1940) § 40-1005; Pennsylvania, Stat. Anno. (Purdon’s Perm. Ed.) Title 7, §§ 819-905; South Dakota, Code (1939) § 6.-0416; Utah, Rev.Stat.Ann. (1933) § 7-3-52; West Virginia, Code Ann. (1937) § 3210. Iowa has not adopted such a statute.

While it is stated to be the general rule that a bank makes payment to a depositor at its peril after it has received notice of an adverse claim to such deposit, yet there are a minority of courts which do not recognize the rule. In the case of Tassell v. Cooper (England 1850) 9 Common Bench Reports 509, a former agent of one Lord De L’Isle received a check payable to his (the agent’s) order upon the assumption that he was still such agent. The former agent deposited the check in the defendant bank in his own name. While the deposit stood thus, Lord De L’lsle notified the defendant bank in writing that he claimed the deposit and would hold the bank harmless in connection with his claim. The defendant bank dishonored the former agent’s checks, and he sued it for damages for such dishonoring. It was held that the ■bank had no right to dishonor his checks. J. Maulé, on page 532, states: “It seems to me to be quite clear that the account in question is a banking account of the ordinary kind * * * and that it is not competent for any third party to interpose and say that the banking company in reality contracted with him.” On page 534 the same Judge states: “But * * * it seems to me, that the banking company, having received the money on behalf of the plaintiff, and given him credit for it, became debtors to him for the amount and that the circumstance that the receipt of the cheque by the plaintiff might have been blameable, does not afford any answer to the action.” J. Cresswell (commencing on page 534) states: “It is said that the cheque of Vines & Tombs was received by the plaintiff in defiance of an order not to receive it. Assume that it was: if the plaintiff had himself received the cash for that cheque, and had paid the money into his account with the banking company, they clearly would have been responsible to him for it; and I cannot see that it makes the slightest difference, that, instead of doing so, he handed the cheque to the bankers to get cashed, they having no notice at the time that they obtained money for it. * * *.”

In the case of Lund v. Seamen’s Bank, 1862, 37 Barb., N.Y., 129, one Anders Larr-son had deposited $2,200 in the defendant bank. The plaintiff sued the defendant bank for the deposit as an assignee of An-ders Larrson. The bank set up as a defense for refusal to pay that Anders Larr-son about the time he absconded from Sweden had fraudulently got possession of securities owned by Pehr Larrson and others and that the deposit represented the money received by Pehr Larrson from the sale of the fraudulently acquired securities and that Pehr Larrson and the other owners were claiming the deposit. The court held that this was not a good defense. The court on page 132 of 37 Barb., N.Y., states: “It must be conceded on authority * * * that the claim of the depositor is a chose in action and not a bailment. * * * The rule which forbids a bailee to deny the title of his bailor is not applicable. No principle of law can however be found which permits a debtor for goods sold, or for money lent or deposited, to set up, as a defense against a claim of his creditor, that his title to the goods sold, or money lent or deposited, is defective or wrongful. That question is of no concern to the pur- , chaser or borrower, unless the third party who claims to have been despoiled of his goods or money will proceed, by process of law, to enforce his rights. It can never be permitted that a debtor may volunteer, by plea or answer, the protection of the claims of those with whom he has had no dealings, to defeat liability for the performance of his contracts.” In the case of Nehawka Bank v. Ingersoll, 1902, 2 Neb. Uñof. 617, 89 N.W. 618, the precise question was not involved, but the Nebraska court on page 620 of the Northwestern citation states: “So, where a bank receives money from a person, and gives him credit therefor, it is in duty bound to honor his checks to the amount of such deposit, and it cannot refuse to honor his checks or drafts against the fund on the ground that the money deposited belonged to some other person, or that the title of the depositor to it is defective. These are matters in which the bank is not interested or concerned until the third party who claims to own the fund shall proceed to enforce his rights.”

It is the claim of the defendant Sibley Bank that the Iowa Supreme Court has adopted the minority rule, while the claim of the plaintiff is to the contrary. The case relied upon by the Sibley Bank is the case of Ford v. Ames Nat. Bank, 1923, 196 Iowa 958, 195 N.W. 742. In that case a wife deposited in her own name with the defendant bank the proceeds of the sale of the family homestead. The husband who was away wired the bank for the money and the bank sent him around $1,700 out of the deposit without the knowledge and consent of the wife. The trial court found that the money deposited was the property of the wife and held the bank liable for the amount of the deposit paid to the husband. On appeal the decision of the trial court was affirmed. The precise holding of the Iowa Supreme Court was that a bank cannot take money out of a depositor’s account and pay it to some third party not entitled thereto. This holding is in accord with the general rule that a bank which pays out a depositor’s money to a third party claimant without being ordered to do so by court order does so at its peril. Jaselli v. Riggs Nat. Bank, 1910, 36 App.D.C. 159, 31 L.R.A.,N.S., 763, Ann.Cas.l912C, 119. The Iowa Court in the case of Ford v. Ames National Bank, supra, after sustaining the finding and holding of the trial court that the money deposited was the property of the wife and not the husband, goes on to make the statements that are the cause of the differences of opinion as to the Iowa rule. On page 743 of the Northwestern citation the court states: “A bank having received money from a depositor and credited him therewith upon its books, entered into an implied contract to honor his checks, and is estopped from alleging that the money deposited belonged to some one else, or deny the title of the depositor.” That statement lends strength to the claim that the Iowa Supreme Court was adopting the minority rule. However, the Iowa Court then continues with the following statement: “The hank, upon notice of an adverse claim, could doubtless, if satisfied that the claim was made in good faith, retain a sum sufficient to meet the claim; still it must exercise diligence in notifying its customer thereof, and in its intention to protect itself.” The majority rule is premised upon the theory that it is proper for a bank to withhold payments from a depositor’s account when it receives notice of an adverse claim to such deposit. Therefore, the last quoted statement tends to give support to the,view that the Iowa Supreme Court might follow the majority rule. However, because of some other features of the case, it is not necessary to determine whether the Iowa Supreme Court intends to follow the majority or minority rule.

The liability of a bank to an adverse claimant to a deposit standing in the name of another is clearly not based upon contract for the bank’s contractual relations are with its depositor and not with such third party. Therefore, it seems clear that the liability of a bank to such third party must be based on tort. In order to constitute a tort there must be a duty owing from one party to another and a breach of that duty. 62 C.J. p. 1102. Even those courts which follow the majority rule do not hold that it is the duty of a bank to pay a deposit standing in the name of another to a third party claimant without court proceedings. It seems clear that in such cases the bank is not to constitute itself a judge or jury to determine the ownership of the deposit. The cases in which the courts which follow the majority rule discuss the matter of the nature of the duty owed to such third party claimant indicate that the duty that is owed to such third party claimant is the duty to withhold payment until the third party claimant can institute the necessary court proceedings to stop payment to the depositor by court order or process. Huff v. Oklahoma State Bank, 1922, 87 Okl. 7, 207 P. 963; Drumm-Flato Commission Co. v. Gerlach Bank, Kansas City Court of Appeals 1904, 107 Mo.App, 426, 81 S.W. 503. The only duty owed by a bank to a third party claimant under the majority rule then seems to be not to release the deposit unreasonably early after such third party makes known his adverse claim. Under the majority rule it is the duty of the third party claimant to diligently and promptly institute the necessary legal proceedings to stop payment to the depositor by court order or process and if such claimant does not so do the bank is released from liability. In the case of Huff v. Oklahoma State Bank, supra, the failure of the claimant to institute such court proceedings within nine days was held sufficient to justify a jury verdict against him. In the case of Drumm-Flato Commission Co. v. Gerlach Bank, supra, there was a jury verdict against the plaintiff-claimant. On appeal, in passing upon the instructions to the jury, the appellate court on page 504 of the Southwestern citation states: “Defendant was not required, as the instructions declared, to hold the proceeds until a reasonable time had elapsed to enable plaintiff to complete its investigation and to bring suit against defendant. * * * Any one claiming money deposited in a bank to the credit of another ought to be required to exercise the same diligence in taking legal steps to assert his claim thereto that a reasonably prudent and diligent person would exercise in attaching the property of his debtor when satisfied that such debtor is about to make a fraudulent disposition of his property, or to remove the same from the State.”

Where a plaintiff seeks to recover from a defendant for a tort such plaintiff must establish that the breach of duty on the part of the defendant was the proximate cause of the loss complained of. 62 C.J. p. 1104. In the instant case assuming without deciding that the Iowa Supreme Court would follow the majority rule, the burden would be upon the plaintiff as to the $1,100 deposit to establish that the Sibley Bank was under a duty to the plaintiff in regard thereto, and that the Bank breached that duty, and that the breach of that duty was the proximate cause of the loss to the plaintiff of the $1,100. The plaintiff proved notice to the Bank of its adverse claim. Such notice gave rise to the duty on the part of the Bank to withhold payment from Sanders for such length of time that the plaintiff by proceeding diligently and promptly in its institution of a suit could have tied up the deposit by court order or process. The burden is upon the plaintiff to prove that it was diligently and promptly so proceeding with the institution of legal proceedings to tie up the deposit by court order or process when the Bank made an unreasonably early release of the deposit, and that as a proximate cause of such early release that the plaintiff was unable to tie up the deposit by legal proceedings and thereby lost the deposit.

The questions then present themselves as to whether the plaintiff has sustained the burden of proving (1) that the plaintiff after giving of the notice of adverse claim was diligently and promptly instituting legal proceedings to tie up the account by court process or order; (2) that the Sibley Bank made an unreasonably early release of the deposit; (3) that the unreasonably early release by the Bank was the proximate cause of the loss of the deposit to the plaintiff. Both the plaintiff and his agent-in-fact appeared as witnesses, yet neither made any showing that they were promptly and diligently proceeding in the institution of the necessary legal proceedings after they notified the Bank of the plaintiff’s adverse claim. The only legal proceedings or legal action shown is the institution of the present suit nearly eleven months after giving notice of adverse claim. In failing to prove that he was diligently and promptly proceeding with the necessary legal proceedings following notice of his adverse claim, the plaintiff has failed to establish one of the essential elements of his case.

It appears that the Bank did withhold payment of the deposit from Sanders for a time. The deposit was not paid to Sanders until after demand upon the Bank by the attorney for Sanders and until Mr. Gill, the attorney for the Bank, advised it that payment could not be withheld from Sanders. Mr. Odens, the cashier of the Bank, testified that the cashier’s check representing the deposit was not turned over to Sanders for “quite a while afterwards.” Mr. Odens further testified that it was “a few days” after November 17, 1943, before the cashier’s check was turned over to Sanders. The Court is unable from the evidence to determine or make a finding as to the length of time the cashier’s check was held by the Bank after it received notice of plaintiff’s adverse claim, and hence is unable to determine whether or not the Bank did or did not withhold payment of the Sanders deposit for a reasonable time after receiving notice of plaintiff’s adverse claim. In failing to show that the Bank did not withhold payment from Sanders for a reasonable time following notice of adverse claim the plaintiff failed to establish another essential element of his case.

The ledger sheets showing the Sanders’ checking account indicate that on November 23, 1943, Sanders started depositing to his checking account and that on that date fair sized checks started to be paid from that account. If this indicates that the Bank held up the cashier’s check representing the deposit for six days, this Court, as a trier of the facts, would be of the view that since it was a trader’s account which was being held up with risk on the Bank for heavy damages for the dishonoring of checks, that the failure of the plaintiff to bring the necessary suit within six days would justify the Bank in releasing the deposit.

There was a trifling few dollars left in the Sanders account after the writing of the cashier’s check on November 17, 1943, but they were paid out long before the plaintiff instituted this action.

The last question has to do with the duty of the Bank to have filed interpleader after the plaintiff made adverse claim to the $1,100 deposit. Since the amount involved was not sufficiently large to confer federal court jurisdiction, the Bank could not make use of proceedings for interpleader provided by Rule 22 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Prior to July 4, 1943, in Iowa there was only a limited form of interpleader provided for by statute for certain special situations. Sections 8264 and 8265 of the 1939 Code of Iowa (common carriers); Sections 9677 and 9678 of the 1939 Code of Iowa (warehouses) ; Sections 11002 to 11006 of the 1939 Code of Iowa (actions upon contract involving personal property). Prior to July 4, 1943, interpleader in general was governed by the old chancery practice. Hoyt v. Gouge, 1904, 125 Iowa 603, 101 N. W. 464. Under the old chancery practice the use of a bill of interpleader by a bank where a third party claimant was asserting an adverse claim against a deposit standing in the name of another was fraught with doubt and difficulty. See Note, 60 A. L.R. 719. See also Lund v. Seamen’s Bank, 1862, 37 Barb., N.Y., 129. On July 4, 1943, the new Iowa Rules of Civil Procedure (Chapter 278, Laws of 50th General Assembly) went into effect. Under Rules 35 to 41 thereof provision was made for an adequate and flexible system of interpleader similar to that provided by the Federal Rules of Civil Procedure. See Cook, Iowa Rules of Procedure, Annotated, pp. Ill— 125. The provisions of the Iowa Rules referred to are sufficiently broad to permit a bank to interplead rival claimants to a deposit.

The claim of the plaintiff to the deposit in the instant case was made on November 17, 1943, at which time the new Iowa Rules of Procedure were in effect. The Sibley Bank could have brought an action and interpleaded the plaintiff and Sanders as to the $1100 deposit. However, the fact that the Sibley Bank had the right to interplead the two claimants did not make it the duty of that bank to do so. Under the majority rule the only duty owed by the bank to the plaintiff was, after notice, to hold up the Sanders deposit for such time as would enable the plaintiff by proceeding diligently and promptly to tie up the deposit by legal action. The plaintiff has not established that the Sibley Bank breached that duty.

Thus, whether the Iowa Supreme Court follows the majority or minority rule, the defendant is not liable to the plaintiff in this action.

Judgment will be entered in favor of the defendant Sibley Bank as to the claim of the plaintiff against it. Judgment will be entered in favor of the plaintiff against the defendant Sanders for $7,106, the amount of the overpayment.