The shaft at the mine was divided by partitions into three parts called the north shaft, the south shaft, and the air shaft. Cages were operated in the first two shafts for the workmen,and materials and the hoisting of coal. In the air shaft there was an electric cable supplying power to a motor that ran in the entries below. Wire cables, one attached to each cage, extended to wheels or pulleys above the mouth of the shafts and thence at a tangent to a drum in the engine house about 40 feet distant. These two cables were arranged inversely on the drum in the engine house so that when it revolved one cable was wound up and the other was unwound, with the result that when one cage came up the other went down in the shaft. The revolution of the drum was controlled by a brake actuated by a lever. The brake consisted of a metallic casting equipped on the inner or friction side with wooden brake shoes which by use of the lever were clamped in an encircling way about the drum to retard or stop its motion. The revolution of the drum could also be controlled by direct application of the steam. There was a turnbuckle designed to take up the wear of the wooden brake shoes so they would continue to engage the drum. When one of the cages rested on the surface at the mouth of the shaft the other would be about 25 feet from the bottom. Their weights, unloaded, substantially balanced.

The accident occurred on a Sabbath. Mining operations had been suspended, and the day was devoted to various repairs for their resumption the following day. The heavy framework of the south cage was to be replaced; the sump at the bottom of the shafts was to be cleared of water and the fragments of coal that had fallen there; and the electric cable in the air shaft was to be repaired and the motor and operating electric current tested. Different men were delegated to these several tasks, the last one being the duty of the deceased and a helper. Certain parts of the tasks were being done at the same time. In repairing the electric cable the deceased used the cages in the hoisting shafts for descent and ascent, and it was not until he was through with that part of his work, as he thought and so reported, that the south cage was placed at the surface and the men went to work upon it. This left the other cage hanging in the north shaft about 25 feet from the bottom. The testing of the motor and the electric current would ordinarily have kept deceased in an entry quite a distance from the bottom of the shafts, but he found that in splicing the electric cable in the air shaft it had been shortened too much so he went to the north shaft and was in the act of climbing up the side to get into the air shaft when the south cage at the surface, from which about three-fourths of the weight in timber had been taken, suddenly went up and the cage above him plunged down and killed him. One if not both of the two men working in the sump. were also struck.

[1, 2] Though the record of the trial is not voluminous there are 58 assignments of error, almost all of which are argued with equal emphasis. In the first place it is urged that there was not sufficient evidence of defendant's negligence; that the evidence showed the deceased himself was negligent in going under the suspended cage;

and that he knew enough of the machinery and its operation and the work then being done at the mine to charge him with assumption of the risk. There was ample evidence sustaining the verdict against the defendant on all those points. The jury were fully justified in finding that the accident was caused by the negligent use of insufficient brake shoes. They had been allowed to wear down from an original thickness of about four inches to an inch or less in places, a wear too great to be taken up by the turnbuckle, and there was evidence that immediately after the accident an attempt to use them showed their insufficiency. When the accident occurred the engineer was not in the engine room, and steam was not being applied to hold the drum. Reliance was had wholly upon the setting of the lever and the brake. The duty of an employer is not discharged by merely furnishing suitable machinery and appliances in the beginning, but comprises also a continued oversight and inspection to keep them so.

[3] Much is made in argument of the testimony of defendant's witnesses, particularly that of the mine foreman, but it conveys the impression of an ingenious attempt to adjust what occurred to an assumed but nonexistent thoughtfulness for the safety of the deceased. For example, it is said that the removal of the timbers of the south cage was not begun until it was believed the deceased was back in the entry in a place of safety. But it is just as credible, if not more so, that no such consideration was given the deceased. While working on the electric cable he was using the cages, and until he was through, one of them could not well be placed at the surface for repairs. Again, as bearing on the contention mentioned, it may be recalled that the fall of the cage endangered the lives of the men working in the sump beneath it and known to be there. Anticipating the effect of this upon the jury, counsel for defendant asked an instruction that a belief on their part of negligence towards others (the men in the sump) should "not be given the slightest weight in determining as to whether the company was guilty of negligence toward the deceased Barrowman." The instruction was rightly denied. The evidence as to the men in the sump tended at least to show that the claim at the trial of a selective, discriminating care for the deceased was an afterthought.

[4] It is said the deceased was negligent in quitting his place of safety and going under the suspended cage when he knew work was being done upon the other cage at the surface. There was evidence that in the performance of his duty he had to go back to the electric cable in the air shaft, that the latter had been closed some distance from the bottom by boards nailed across, and also held down by refuse, and that the only way of access was up the hoisting shaft to a point above the closing. It is true he knew of the cage above him and of the timbers being removed from the other cage, but that did not signify a condition of danger if the machinery and appliances for holding them were in order as he had a right to assume them to be. The difference in the weight of the two cages caused by the removal of structural timbers from one of them was not much greater, if at all, than would reasonably be expected in the customary movement of

miners and hoisting of coal. If the holding appliances in the engine room were sufficient for the latter, there was nothing in the removal of the timbers to advise the deceased of a danger. The duty as to the sufficiency of such appliances was upon the defendant, not upon the deceased. Again, defendant seeks to charge the deceased with that care for self-protection which ordinarily keeps workmen from beneath a cage that is being repaired. But that is because of the danger of falling tools and materials. The cage that fell upon him was not being repaired, and no such danger threatened him.

[5] Instructions were asked that deceased assumed the risk if he could have known of the danger by exercise of ordinary care. have frequently held that an employé is under no such obligation, but has a right to assume that his employer has performed his primary duty with respect to the machinery and appliances. That is also the rule of the Supreme Court. Gila Valley, etc., R. Co. v. Hall, 232 U. S. 94, 34 Sup. Ct. 229, 58 L. Ed. 521.

[6-8] Some instructions asked were sufficiently covered by the general charge; others were argumentative. Some gave undue prominence to certain features of the evidence. "Singling out a single matter and emphasizing it by special instruction as often tends to mislead as to guide a jury." Perovich v. United States, 205 U. S. 86, 92, 27 Sup. Ct. 456, 51 L. Ed. 722. Others were predicated upon incomplete or erroneous statements of the evidence including reasonable inferences.

[9] Several of the instructions asked and refused were directed to the denial of a motion for a new trial, one to the overruling of a motion in arrest of judgment, and one states generally that upon the pleadings, evidence, and record the verdict should have been for the defendant. Such grounds are not properly assignable under the federal practice. It is not necessary to review the other assignments in detail. We think the verdict was for the right party, and that nothing occurred in the trial court erroneously prejudicing the defendant.

1. CRIMINAL LAW 1169(2)-REVIEW ON APPEAL-HARMLESS ERROR. The admission of evidence is not ground for reversal in a criminal case, where the same facts were afterwards shown by defendant's testimony.

2. BANKS AND BANKING 257(3)-PROSECUTION EVIDENCE OF INTENT. In a prosecution for willful misapplication of the funds of a national bank by defendants, who were its managing officers, evidence was admissible to show that in their reports to the directors defendants did not For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Rehearing denied March 26, 1918.

mention a large overdraft by a corporation of which they were the principal stockholders.

3. BANKS AND BANKING 257(3)—TRIAL-RECEPTION OF EVIDENCE.

Rulings on the admission of evidence on the trial for misapplication of funds of national bank held not erroneous.

In Error to the District Court of the United States for the Eastern District of Arkansas; F. A. Youmans, Judge.

Criminal prosecution against William H. Garanflo and Robert D. Duncan. Judgment of conviction, and defendants severally bring error. Affirmed.

George W. Murphy, of Little Rock, Ark. (M. J. Manning, George W. Emerson, Wallace Townsend, and E. L. McHaney, all of Little Rock, Ark., on the brief), for plaintiffs in error.

W. H. Martin, U. S. Atty., of Hot Springs, Ark. (W. H. Rector, Asst. U. S. Atty., of Little Rock, Ark., on the brief), for the United States.

Before HOOK, SMITH, and STONE, Circuit Judges.

SMITH, Circuit Judge. The plaintiffs in error were jointly indicted in the District Court of the United States for the Eastern District of Arkansas. There were six counts in the indictment. The first five charged each of the defendants with the willful misapplication of the money, funds, and credits of the State National Bank of Little Rock, in violation of Revised Statutes, § 5209 (U. S. Compiled Statutes 1916, § 9772). The sixth count charged them with conspiring to misapply the money, funds, and credits of the said State National Bank under Criminal Code, § 37 (U. S. Compiled Statutes 1916, vol. 10, § 10201, p. 12552). They were tried to a jury, who found them both guilty on all six counts, and upon the verdict of the jury they were each sentenced to six years in the Atlanta Penitentiary upon each of the first five counts and to two years in the same penitentiary upon the sixth count, all of the sentences to run concurrently in point of time. They sued out separate writs of error to this court. They will be styled as defendants in the further consideration of this case.

In view of the concurrent character of the sentences upon the first five counts, if the case is affirmed on any one of them, the sentence will have to stand. Evans v. United States, 153 U. S. 584, 595, 14 Sup. Ct. 934, 38 L. Ed. 830. As, however, the questions raised upon the appeal are common to all the counts, the case must be either affirmed or reversed upon them all. No objection was ever made to the indictment, or to any count thereof, and there is no criticism of any of the instructions given; but all objections are to the rulings on evidence and the refusal of the instructions asked.

In 1902 the State National Bank of Little Rock was organized. It had at all times material here a capital of $500,000 and a surplus of $45,000. The defendant William H. Garanflo was president, and the defendant Robert D. Duncan was its vice president and cashier. The bank closed its doors and went into voluntary liquidation June 19, 1914.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

On February 17, 1915 the Comptroller of the Currency appointed Gen. Lloyd England receiver of the bank.

In 1907 there was organized under the state laws of Arkansas the R. D. Duncan Investment Company. Its name was changed to the State Investment & Trust Company. It bore this new name for a year or such a matter, when its name was again changed to the State Trust Company. These two defendants were the principal holders of the stock in that company, and owned together $29,000 of the $50,000 of its capital stock. Defendant R. D. Duncan was president of this company, and defendant W. H. Garanflo was its vice president. This company had its offices in the State National Bank building. The first five counts of the indictment charge the willful misapplication of the funds of the bank, by the turning over by the defendants of the money and credits of the State National Bank to the State Trust Company in the aggregate of between $81,000 and $82,000.

In its charge to the jury the court said:

"To constitute the crime of willful misapplication it is necessary, not only that there should be a conversion of the moneys, funds, or credits of the bank, to some one other than the bank, but it must also appear that the conversion was made with the intent at the time to injure or defraud the bank."

With the question of fraud thus in the case on the first five counts, and with the sixth count based upon conspiracy, it is not to be wondered at that the plaintiffs in error in their argument say:

"While a wide range is allowed in the introduction of evidence and the examination of witnesses in cases like these, it does not go to the extent of authorizing the admission of testimony which merely tends to facilitate conviction by arousing in the minds of the jury a feeling of prejudice against the accused."

Bearing in mind that a wide range is allowed in the introduction of evidence in such cases, we now turn to the various questions made upon the admissibility of evidence. Plaintiffs in error say in their brief:

"There was not and is not any dispute about the issuing of the drafts and the transfers of credit charged in the first, second, third, fourth, and fifth counts of the indictment. They were clearly proved by the government's witnesses, the bank examiners, and were also testified to by both defendants. The only question about them relates to willfulness and intent."

The North Arkansas Land & Timber Company, a local corporation in which the defendant Duncan was interested, bought 8,400 acres of land at $6 per acre, a total investment of $50,400. With this as its sole assets, it issued its bonds in the sum of $80,000 and stock in the sum of $150,000. Up to the time of the trial no portion of the interest on these bonds had even been paid. This land company had borrowed $48,000 from the State National Bank, through the State Trust Company. The State Trust Company had bought $200,000 of the stock of the State National Bank at $240,000. It borrowed $20,000 to make the first payment of the State National Bank, and gave its note for $220,000 to the Bankers' Trust Company of St. Louis, of which it bought the stock. A few days after the failure of the State