(269 F.) the only money he had in paying costs of the proceeding indicates the absence of any intention to improperly withhold that part of his property for his own use or benefit. The only other property he is shown to have been entitled to was such that it could have been retained under a claim of exemption. It was not disclosed that he did anything to conceal or hide any of his property. The circumstances attending the act of the bankrupt in swearing to his petition and schedules were not proved. It was not shown that those instruments were prepared by the bankrupt himself, or that he was informed of their contents, otherwise than by their being presented for his signature and oath. Not infrequently it happens that persons unaccustomed to legal proceedings carelessly and falsely make oath to papers prepared for their signature, who, if they had been called on to testify orally as to matters so sworn to, would have stated them differently and truly. It was not fairly made to appear that the bankrupt at any time understandingly and with fraudulent intent made any false statement in regard to his property or affairs. We are not of opinion that the evidence adduced was such that it properly may be regarded as clearly and convincingly showing that the false oath of the bankrupt to some of his schedules was knowingly and fraudulently made. The order appealed from is reversed. FORD et al. v. UNITED STATES. (Circuit Court of Appeals, Fifth Circuit. January 21, 1921.) No. 3517. 1. Intoxicating liquors 132-War Time Prohibition Act continued in force for trials thereunder. Under National Prohibition Act, § 35, providing that it shall not relieve any person from liability incurred under existing laws, the War Time Prohibition Act (Comp. St. Ann. Supp. 1919, §§ 311511/12f311511/12h) remained in force for the trial, after enactment of the National Prohibition Act, of a charge for selling intoxicating liquor prior to such enactment, contrary to the War-Time Prohibition Act. 2. Indictment and information 166-Prosecution need not prove fact was unknown to grand jury. A prosecution for selling intoxicating liquor, where the indictment alleged the liquor was alcohol mixed with some substance to the grand jury unknown, and there was no evidence that the grand jurors knew or were informed what that substance was, there was a presumption that it was unknown to the grand jury, which dispensed with the necessity of proving that allegation of the indictment. In Error to the District Court of the United States for the Western District of Texas; W. R. Smith, Judge. John Ford and others were convicted of selling intoxicating liquor, in violation of the War-Time Prohibition Act, and they bring error. Affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 269 F.-39 Joseph M. Nealon, of El Paso, Tex., for plaintiffs in error. Hugh R. Robertson, U. S. Atty., of San Antonio, Tex. (E. B. Elfers, Asst. U. S. Atty., of El Paso, Tex., on the brief), for the United States. Before WALKER, BRYAN, and KING, Circuit Judges. WALKER, Circuit Judge. The plaintiffs in error were convicted on counts of an indictment, filed on October 13, 1919, charging sales of intoxicating liquor in violation of the War-Time Prohibition Act. of November 21, 1918 (Comp. St. Ann. Supp. 1919, §§ 311511/12f311511/12h). [1] There is no merit in the suggestion that the law mentioned was not in force when the trial and conviction occurred, as section 35 of the National Prohibition Act of October 28, 1919 (41 Stat. 305), contains the provision: "Nor shall this act relieve any person from any liability, civil or criminal, heretofore or hereafter incurred under existing laws." [2] Each of the counts upon which there was a conviction charged a sale of a glass of alcohol mixed with some substance to the grand jury unknown. Error is assigned on the court's refusal to give the following instruction requested in behalf of the defendants: "You are instructed that if the evidence shows that the grand jurors could by reasonable diligence have ascertained what was the substance mixed with the alcohol, alleged to have been sold in the various counts of the indictment, you will acquit each of the defendants on all of the counts of the indictment." The refusal to give that charge was not reversible error. There was no evidence tending to prove that the grand jurors knew or were informed what was the substance which was mixed with the alcohol charged to have been sold. In that condition of the evidence there was a presumption that such substance was unknown to the grand jury, and such presumption dispensed with the necessity of adducing evidence to prove the averment of the indictment in that regard. United States v. Riley (C. C.) 74 Fed. 210. Of the other rulings complained no more need be said than that no one of them was erroneous. The judgment is affirmed. (269 F.) UNITED STATES DIRECTOR GENERAL OF RAILROADS v. BISHOP. (Circuit Court of Appeals, Fourth Circuit. November 4, 1920.) No. 1808. 1. Trial 143—Instruction equivalent to peremptory instruction properly refused, when evidence conflicting. Where the evidence was conflicting, an instruction which would have been equivalent to an instruction to decide the issue of fact made by the evidence in favor of defendant was properly refused. 2. Continuance 22-Denial of continuance for illness of witness held not abuse of discretion. There was no abuse of discretion in refusing a continuance because of the illness of a witness, where defendant had the benefit of a statement of what her testimony would be, and the facts within her knowledge were in the main testified to by other witnesses. In Error to the District Court of the United States for the Eastern District of Virginia, at Norfolk; Edmund Waddill, Jr., Judge. Action by Annie V. Bishop, administratrix of T. M. Bishop, deceased, against the United States Director General of Railroads. Judgment for plaintiff, and defendant brings error. Affirmed. James G. Martin, of Norfolk, Va., for plaintiff in error. John N. Sebrell, Jr., of Norfolk, Va., for defendant in error. Before KNAPP and WOODS, Circuit Judges, and SMITH, District Judge.. WOODS, Circuit Judge. By derailment of his engine on December 12, 1918, T. M. Bishop, engineer on Norfolk Southern Railroad, was seriously burnt on his legs and buttock, and his collar bone was broken. He was taken to the hospital and apparently received proper attention at the hands of the defendant from doctors and nurses. The wounds seemed to be healing, and he appeared to be on the way to early recovery, until pneumonia supervened on January 4, 1919. Bishop died of pneumonia on January 8, 1919. His widow, as administratrix, recovered a verdict for $30,000 on a declaration charging that the injuries and death were due to the negligence of the defendant. The District Judge ordered a new trial, unless the plaintiff should remit $10,000 from the verdict. The plaintiff complied with the order, and judgment was entered for $20,000. There was evidence that the injuries were due to negligence of the defendant and no error is assigned as to that issue. The main question on the trial was whether there was any ground for a reasonable conclusion that the injuries were the sole or a contributing cause of the fatal attack of pneumonia. On this issue the evidence was conflicting. [1] The several requests to charge of plaintiff and defendant given. by the trial judge were indisputably correct statements of the law. No analysis seems necessary to show that the objections of defendant's counsel relate to verbiage rather than meaning and are hypercritical. The instruction asked by defendant and refused would have been For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes equivalent to an instruction to decide the issue of fact made by the evidence in favor of the defendant. [2] There was no abuse of discretion in refusing a continuance because of the illness of the witness, Mrs. Covington. Defendant had the benefit of a statement of what her testimony would be, and the facts within her knowledge were in the main testified to by other wit nesses. Affirmed. THE A. E. ACKERMAN. Appeal of ACKERMAN TOWING CO. (Circuit Court of Appeals, Second Circuit. November 10, 1920.) No. 52. Collision 125-Insufficiency of evidence. A decree against a tug for collision with a lighter lying in a slip held not sustained by the evidence. Appeal from the District Court of the United States for the Southern District of New York. Suit in admiralty for collision by the Hudson River Lighterage Company against the tug A. E. Ackerman; the Ackerman Towing Company, claimant. Decree for libelant, and claimant appeals. Reversed. F. W. Park, of New York City, for appellant. Harrington, Bigham & Englar, of New York City (G. C. Manning, Jr., of Brooklyn, N. Y., of counsel), for appellee. Before WARD, HOUGH, and MANTON, Circuit Judges. WARD, Circuit Judge. This libel was filed against the tug Ackerman to recover damages for injuries to the derrick lighter Essex sustained June 12, 1916. The libel verified April 17, 1917, set forth with great particularity that the lighter was lying on the south side of Pier 4, Bush's Docks, half way up the dock, bow in; that the tug Ackerman came into the dock between Piers 3 and 4, made fast to the barge Charles Rockwell, lying at the bulkhead, and in taking her out of the slip the barge came into collision with the lighter, doing slight damage; that the master of the lighter called out to the captain of the tug to look at the damage, but he paying no attention continued on out of the slip. At the time in question there were seven piers each about 1,000 feet long at the Bush Docks. At the trial April 4, 1918, the master of the lighter who was the only witness of the libelant told the same story. The claimant, however, showed conclusively, and the District Judge found, that the tug picked up the Rockwell on the north side of Pier 5, close to the outer end, and took her to Pier 27, Brooklyn. The deckhand of the tug as well as the captain of the Rockwell, who were claimant's only witnesses testified, that the Rockwell was in no collision on that day. Notwithstanding this, the District Judge thought that the master of the lighter For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (269 F.) was too honest, and, if not too honest, too stupid, a man to fabricate his story, and therefore found, in spite of his entire misstatement as to the place of the collision, that the lighter was in collision with the Rockwell. We do not think the account given in the libel and adhered to at the trial can be dismissed by mere conjecture. If the derrick was where the libelant stated, she could not have been in collision with the Rockwell. A party is bound by his pleading, unless the clearest explanation is given of mistake. Not only was there none such in this case, but the master of the lighter was contradicted by two witnesses. The decree is reversed. PERRETT v. CLARA KIMBALL YOUNG FILM CORPORATION. No. 14. Courts 405 (5)—Circuit Court of Appeals without jurisdiction, where jurisdiction of District Court as a federal court is involved. Where the question is as to the jurisdiction of a District Court as a federal court, the judgment is reviewable by the Supreme Court, under Judicial Code, § 238 (Comp. St. § 1215), and the Circuit Court of Ap peals is without jurisdiction, under section 128 (Comp. St. § 1120). In Error to the District Court of the United States for the Southern District of New York, Action at law by Leonce Perrett against the Clara Kimball Young Film Corporation. Judgment for defendant, and plaintiff brings error. Writ of error dismissed. Jacobson & Pollock, of New York City (H. L. Jacobson and Henry W. Pollock, both of New York City, of counsel), for plaintiff in error. Konta, Kirchwey, France & Michael, of New York City (K. W. Kirchwey, of New York City, of counsel), for defendant in error. Before WARD, ROGERS, and HOUGH, Circuit Judges. PER CURIAM. The question in this case was as to the jurisdiction of the District Court as a federal court, and should have gone by writ of error to the Supreme Court. Section 128, Judicial Code (Comp. St. § 1120). Because we have no jurisdiction under that section (W. S. Tyler Co. v. Ludlow-Saylor Co., 212 Fed. 156, 129 C. C. A. 12), the writ of error is dismissed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |