What purports to be an affidavit in hæc verba, which takes up over three pages of the printed transcript, is set out, but, aside from the above, there is nothing in the indictment to show wherein the testimony is false. There are some statements in the affidavit that might be construed as contradicting a part of the testimony, but nothing specifically doing so, and it does not appear from the testimony that defendant denied making the affidavit as a whole. It is not averred that the affidavit is either true or false.

[1,2] In charging perjury it is sufficient, but it is also necessary, to set forth the substance of the offense, and to show before whom the oath was taken, with the averment that the officer taking it had authority to administer it, together with the proper averment to falsify the matter whereon the perjury is assigned. R. S. § 5396 (18 USCA § 558). An indictment for perjury, which does not set forth the substance of the offense, will not sustain a verdict of guilty. Markham v. United States, 160 U. S. 319, 16 S. Ct. 288, 40 L. Ed. 441. It is essential, in charging perjury, that the indictment shall clearly set out wherein the witness has sworn falsely, and this is of the gist of the offense and an essential element to support a conviction. If the pleader sets out contradictory oaths, it is also essential to show which is true and which is false. Bishop's New Criminal Procedure, par. 918.

[3] The allegations of the indictment are sufficient, perhaps, to show that an oath was taken before the clerk by the defendant, as a witness in the District Court, and that some of the testimony given by him was material; but the indictment falls short of showing wherein the testimony alleged to have been given is false, and it is insufficient to charge an offense. The demurrer was improperly overruled. For that error the judgment must be reversed. It is unnecessary to consider the other errors assigned. Reversed.

HOLST V. OWENS, U. S. Marshal. Circuit Court of Appeals, Fifth Circuit. January 30, 1928.

No. 5165.

Criminal law 1202(1)-To constitute a "second offense," it must have been committed after conviction for a first offense (National Prohibition Act, tit. 2, § 29 [27 USCA § 46]). Under National Prohibition Act, tit. 2, § 29 (27 USCA § 46), a second offense is one com

third or subsequent offense one committed after two former convictions, and a defendant cannot be sentenced as for a third offense, where both former offenses relied on were committed before there was a conviction for either. [Ed. Note.-For other definitions, see Words and Phrases, Second Series, Second Offense.]

United States for the Northern District of Appeal from the District Court of the Florida; William B. Sheppard, Judge.

Petition by Victor Holst against M. M. Owens, United States Marshal, for the Northern District of Florida, for writ of habeas corpus. From an order dismissing the writ, petitioner appeals. Reversed, with directions.

J. McHenry Jones, of Pensacola, Fla. (J. Leo Andersen and Harvey E. Page, both of Pensacola, Fla., on the brief), for appellant.

Fred Cubberly, U. S. Atty., of Gainesville, Fla., and George Earl Hoffman, Asst. U. S. Atty., of Pensacola, Fla., for appellee.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

BRYAN, Circuit Judge. This is an appeal from an order dismissing a writ of habeas corpus. Appellant was convicted of the unlawful possession of intoxicating liquor as charged in three indictments. The first indictment charged a first offense, the second pleaded conviction of the first offense, and the third pleaded conviction of the first and second offenses. The offenses charged in the first and second indictments were committed about the same time, and before the finding of any indictment. The offense charged in the third indictment was committed after conviction upon the first two indictments, and the sentence imposed consisted of a fine of $200 and imprisonment for 13 months in the Atlanta penitentiary. Appellant paid the fine, but in his petition for habeas corpus sought relief against the imprisonment feature of the sentence, on the ground, among others, that he had not been legally convicted of a third offense.

Section 29, tit. 2, of the National Prohibition Act (27 USCA § 46) authorizes for a second offense of unlawful possession of intoxicating liquors either a fine of not less than $100 or more than $1,000, or imprisonment of not more than 90 days, and for a third or any such subsequent offense requires both a fine of not less than $500 and imprisonment of not less than 3 months or more than 2 years. That section also makes it the duty of the district attorney to ascertain whether a defendant had been previously convicted,

and, if so, to include in the indictment an averment of prior conviction.

It cannot legally be known that an offense has been committed until there has been a conviction. A second offense, as used in the criminal statutes, is one that has been committed after conviction for a first offense. Likewise, a third or any subsequent offense implies a repetition of crime after each previous conviction. Singer v. United States (C. C. A.) 278 F. 415; Biddle v. Thiele (C. C. A.) 11 F. (2d) 235; Commonwealth v. McDermott, 224 Pa. 363, 73 A. 427, 24 L. R. A. (N. S.) 431. It was because of this general rule that section 29 requires a district attorney to allege in an indictment any prior conviction of the defendant. The third indictment was sufficient to charge a second, but was insufficient to charge a third, offense. The result is that appellant could have been sentenced either to pay a fine or to be imprisoned for not more than 90 days. He could not, however, be subjected to both fine and imprisonment, nor to the imprisonment of 13 months imposed upon him. By paying the fine he discharged the valid part of the sentence, and cannot now be held to serve a sentence of imprisonment.

The order appealed from is reversed, with directions to discharge appellant from custody.

WISINGER v. WHITE OIL CORPORATION.

Circuit Court of Appeals, Fifth Circuit. February 8, 1928.

No. 5150.

Master and servant 367-Owner of oil leases held liable under Compensation Act, not under general tort statute, for death of operators' employee, irrespective of whether op erators were sublessees or independent contractors (Workmen's Compensation Act La. § 1, subd. 2 [a], and § 6, as amended by Act No. 38 of 1918).

Where one owning leases to oil fields was obliged to develop and operate fields turned over by him to others under agreement whereby profits were shared, and equipment was transferred to such other parties to be used by them in operating the oil leases, owner of leases was liable, under Workmen's Compensation Act La. (Act No. 20 of 1914) § 1, subd. 2 (a), and section 6, as amended by Act No. 38 of 1918, for death of one employed in the work due to explosion of steam boiler, irrespective of whether persons undertaking the operation of the wells were sublessees or independent contractors, and therefore no recovery could be had against owner of leases, for death of such employee under general tort statute.

In Error to the District Court of the United States for the Eastern District of Texas; W. Lee Estes, Judge.

Action by Mrs. Mae Wisinger against the White Oil Corporation to recover damages for death under the general tort statute of Louisiana, and in the alternative for compensation, under the Workmen's Compensation Law. From a judgment allowing plaintiff recovery under the Compensation Law only, plaintiff brings error. Affirmed.

S. P. Jones and Barret Gibson, both of Marshall, Tex. (Franklin Jones, on the brief), for plaintiff in error.

T. M. Rowland, of Fort Worth, Tex., for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge. Defendant in error, hereafter called defendant, was the owner of certain oil leases on land in Caddo parish, La., which obligated it to drill wells and to develop the property and pay royalties to the owners of the land. A number of paying wells had been brought in, and defendant entered into a written contract with Cockerham and Blackstock to operate the property for 75 per cent. of the residue of the oil produced after paying the royalties. The equipment on the property belonging to defendant, including a steam boiler, was turned over to Cockerham and Blackstock, and was used by them in operating the oil leases. On July 27, 1923, the boiler above referred to exploded, and the husband of the plaintiff in error, hereafter called plaintiff, was so badly injured thereby that he died shortly thereafter.

Plaintiff brought suit to recover damages under the general tort statute of Louisiana, and in the alternative for compensation under the Workmen's Compensation Laws of Louisiana. After various proceedings, which are unnecessary to set out, the jury was waived and the case submitted to the judge, who reached the conclusion that liability was governed by the Compensation Law, and awarded a judgment of $964.05. Error is assigned to the refusal of the court to find as a matter of law and fact that the case was governed by the general tort statute of Louisiana, and to enter judgment accordingly.

It is frankly conceded by plaintiff that, if the Compensation Laws apply, the judgment should be affirmed; but it is contended that the contract between defendant and Cockerham and Blackstock is a lease, and not an agreement constituting them independent

contractors, and therefore the deceased was not covered by them. Under the Workmen's Compensation Laws of Louisiana, Act No. 20 of 1914, § 1, subd. 2 (a), any one operating an oil or gas well is governed by its terms, and section 6 of said act, as amended by Act No. 38 of 1918, provides as follows: "Section 6. Be it further enacted, etc., That where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or his dependent any compensation under this act which he would have been liable to pay if that employee had been immediately employed by him.

Had Wisinger been defendant's employee, plaintiff's recovery would have depended entirely on the Compensation Law. Philps v. Guy Drilling Co., 143 La. 951, 79 So. 549. It is certain that defendant was in the business of drilling and operating oil wells, and was obligated to develop and operate the field turned over to Cockerham and Blackstock. There is no doubt they were doing for defendant the work it was obligated to do, and it is therefore immaterial whether they be classed as sublessees or independent contractors. Under the above-quoted section of the Compensation Laws, the liability of plaintiff is the same. See Holton v. Tall Timber Lumber Co., 148 La. 180, 86 So. 729; Spencer v. Marshall, 107 Kan. 264, 191 P. 468.

The record discloses no reversible error.
Affirmed.

LUTJENS v. UNITED STATES. Circuit Court of Appeals, Ninth Circuit. February 13, 1928.

No. 5066.

Courts 405 (14)-Circuit Court of Appeals held without jurisdiction of writ of error sued out more than three months after judgment entry or to change record.

Where writ of error was not sued out until

more than three months after entry of judgment, the Circuit Court of Appeals is without jurisdiction to review the judgment, nor has it power to change the record of the trial court, but dismissal may be without prejudice to the merits, and with leave to the trial court to entertain a motion to correct its record on a

showing that judgment was prematurely entered without the knowledge of plaintiff in error.

In Error to the District Court of the United States for the Southern Division of the Northern District of California; George the Northern District of California; George M. Bourquin, Judge.

Action at law between the United States and Margaret Lutjens, as administratrix of the estate of Charles Lutjens, deceased. Judgment for the United States, and Lutjens brings error. Writ dismissed without prejudice, and with directions.

J. N. Gillett and H. H. North, both of San Francisco, Cal., for plaintiff in error.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S.. Atty., both of San Francisco, Cal.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge. There is a preliminary question of our jurisdiction. Admittedly the writ of error was not sued out until February 23, 1927. The petition for the writ refers to an "order and judgment" on "the 20th day of December, 1926," and the order allowing it to "the decision and judgment" of that date. No judgment at all was made or entered on December 20th, and the only order or decision made on that date consisted of a rejection of certain supplementary or amendatory findings requested by plaintiff in error. A judgment, final in form, was entered on November 18, 1926. This entry was made by the clerk in harmony with a brief memorandum decision that day made by the District Judge.

Asserting that when they took out the writ they were of the belief that the judgment had been entered immediately after the rejection of the requested amendatory findings, and that they were ignorant of the earlier entry until they received defendant's brief, subsequently to the filing of the record in this court, counsel for plaintiff, upon notice, made in the court below an application, based upon a verified showing of misprision by the clerk, to have the record corrected to indicate entry of the judgment as of December 20, 1926. The petition was denied without prejudice, upon the ground that, a writ of error having been sued out, the District Court was without jurisdiction. McKay v. Neussler (C. C. A.) 148 F. 86, 88. Upon the same showing plaintiff in error presents here a similar application for relief.

More than three months having elapsed before the writ was taken out, admittedly we are without jurisdiction to review the judg

ment of November 18th, and that is the only judgment ever entered; the entries of December 9th and 20th being nothing more than incidental procedural orders. Nor is the desired correction of the trial court's records within our original cognizance. The application is not for a direction to send up a correct record, but to make a new record, and that is a matter in the first instance for the trial court. We therefore find no escape from the necessity of dismissing the writ for. want of jurisdiction. The order, however, will be without prejudice to the merits, and with leave to plaintiff in error to renew her application to the trial court, or to present a new application, and also without prejudice to the right of that court to grant such relief as otherwise may be within its competency, and as the facts and the law may warrant.

Furthermore, in the interest of economy, in case there is another writ of error, such parts of the present record as shall be material thereto may be adopted by reference without the necessity of reprinting; this to include briefs. Without prejudice, however, to the right of the government to have the lower court correct errors, if any there be, in the bill of exceptions, so that it will truly exhibit the records in the office of the clerk of the District Court. So ordered.

Action by Regina Boer against Albert Revesz and another. Judgment for defendants, and plaintiff brings error. Reversed and remanded, with directions.

John E. Hughes, of Chicago, Ill., for plaintiff in error.

Lester L. Bauer, of Chicago, Ill., for defendants in error.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PAGE, Circuit Judge. The only question presented by this writ is whether the District Court for the Northern District of Illinois erred in sustaining a general demurrer to the declaration of plaintiff in error. [1] The declaration, filed June 1, 1925, alleges, in substance:

That plaintiff, a citizen of Indiana, befendants, citizens of Illinois, was induced, cause of representations made to her by dedefendants $7,150, for which she received an on or about January 15, 1917, to deliver to instrument in writing as follows:

"Chicago, Ill., Jan. 15, 1917. "Received from Mrs. M. Domoko's Oden Boer seven thousand and one hundred fifty dollars for (foreign money) kronen 55,000 to be remitted to Magyar Kirahji Postaresidence Takarekpentztar Budapest.

"Resvesz & Szoeke, per Revesz." That defendants agreed they would, within a reasonable time thereafter, deposit to plaintiff's credit in the Royal Hungarian Post Savings Bank, 55,000 kronen and deliver to her a passbook therefor, and in event they failed within a reasonable time to deliver the passbook they would return, upon request, the $7,150; that defendants did not deposit the 55,000 kronen to her credit, or deliver a passbook to her therefor, and, upon her demand, made January 15, 1919, refused to return the $7,150 or deliver such passbook, thereby breaching their contract, to her damage in the sum of $12,000.

[2] The record does not disclose in what particular the court found the declaration defective, nor do we have the aid of a brief from defendant in error, but counsel for defendant in error, on oral argument in this court, urged that the declaration is defective, because he is unable to tell therefrom whether the plaintiff is relying upon a written undertaking or an oral one, and he therefore did not know what statute of limitations to plead, and that, in any event, it appeared that the statute of limitations had run against the action. Whether the statute of limitations had run is a question which cannot,