The decree is reversed, and the case remanded for a new decree in accordance with this opinion.

GOODWIN et al. v. UNITED STATES.

(Circuit Court of Appeals, Sixth Circuit. November 5, 1924.)

No. 3983.

1. Food 24-Procedure, and not jurisdiction, of admiralty, provided by Food and Drug Act. Food and Drug Act. § 8, and amendment of 1912 (Comp. St. § 8724), do not confer admiralty jurisdiction on District Courts, in proceedings to condemn property seized under such statutes; the provision that a libel shall be filed, and the proceedings shall conform as near as may be to those in admiralty, relating only to procedure, and not to jurisdiction.

2. Food 24-Libel held to state case of false labeling as to curative powers.

Libel in proceeding to condemn bottled waters, based on amendment of 1912 to Food and Drug Act, § 8 (Comp. St. § 8724), which, after quoting from label a long list of ailments for which the water was said to be beneficial, with "healing powers" and a "reliable remedy," denies that the water can produce the therapeutic effects so claimed, states a case under the stat

ute.

3. Food 24-Libel for false labeling as to curative powers sustained by showing any of claims false.

Libel under Food and Drug Act (Comp. St. §§ 8717-8728) for condemnation of bottled waters, for false statements on label of curative or therapeutic effects of the water, is sustained by sufficiently showing the false and fraudulent character of any of such claims.

4. Food

15-Mineral water held "drug," not "food," within statute.

Mineral water transported, not being in its original state, and processes of separation of the constituent drug elements being carried to the extent that the commercial water can no longer be used as a beverage, but only in small quantities as a drug, it is to be classified as a "drug," and not a "food," within the Food and Drug Act (Comp. St. §§ 8717-8728).

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Drug; Food.]

5. Evidence 508-Expert testimony admissible on misbranding of mineral water as to curative powers.

On the issue of misbranding as to curative powers, within Food and Drug Act (Comp. St. §§ 8717-8728), of commercial concentrated mineral water, expert testimony is admissible.

6. Evidence 536-Opinion of chemist or doctor competent on curative powers of alleged misbranded mineral water.

On issue of misbranding as to curative powers of commercial concentrated mineral water, opinion of one learned in chemistry or regularly admitted to practice medicine, having knowledge of the drug elements and their efficiency or lack thereof as curative agents. separately or in combination, is competent. regardless of witness having had actual experience or observation of the effect of use of such drugs in the exact form in question.

7. Appeal and error 987 (2)-No review of weight of evidence.

Circuit Court of Appeals may not determine the weight of evidence, or reverse on the

ground of verdict being against weight of evidence, if it is sustained by substantial evidence, under Rev. St. § 1011 (Comp. St. § 1672). 8. Appeal and error 1001 (1)—Misbranding being charged generally, general verdict sustained on substantial evidence of any statement on label being false or fraudulent.

Libel under Food and Drug Act (Comp. St. §§ 8717-8728), to condemn bottled waters, charging misbranding in general terms, and there having been no motion for bill of particulars, general verdict for government must be sustained, there being substantial evidence of any one of the statements on the label being false or fraudulent.

Appeal from the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hickenlooper, Judge.

Proceeding by the United States against Idie C. Goodwin and another. From an adverse judgment, defendants appeal. Affirm

ed.

See, also, 295 Fed. 856.

T. V. Maxedon, of Cincinnati, Ohio, for appellants.

Robert A. Kramer, Asst. U. S. Atty., of Cincinnati, Ohio.

Before DENISON and DONAHUE, Circuit Judges, and SATER, District Judge.

DONAHUE, Circuit Judge. [1] The Food and Drug Act of 1906 and the amendments of 1912 (Comp. St. § 8724) do not confer, and do not purport to confer, admiralty jurisdiction upon the United States District Courts, in proceedings to condemn property seized under the provisions of that act and amendments thereto. The provision that a libel shall be filed and the proceedings shall conform as near as may be to the proceedings in admiralty, relate only to procedure and not to jurisdiction. Four Hundred and Forty-Three Cans of Frozen Egg Product v. U. S., 226 U. S. 172, 33 S. Ct. 50, 57 L. Ed. 174, and cases there cited.

[2, 3] This prosecution was based solely on the amendment of 1912 to section 8. The libel quoted from the label a long list of ailments for which the water was said to be beneficial, with "healing powers" and a "reliable remedy." It then denied that the water "is capable of producing the therapeutic effects claimed in the statements upon and in said cartons as hereinbefore set forth." This does not fail to state a case under the statute, and did not make the libel subject to demurrer or motion to quash. It would be sustained by proof of the false and fraudulent character of any one of the various claims recited. If defendant needed a better specification of the particulars upon

which the government would rely, if it did not rely upon all the statements, a motion for a bill of particulars would doubtless have been granted, or an amendment of the libel permitted.

[4] The record in this case does not present the question whether mineral spring water as it comes from the earth is or is not a drug, for the reason that the Crab Orchard concentrated mineral water is not transported and marketed in its original condition. While it appears that the constituent drug elements are not completely extracted therefrom, and transported and sold without the admixture of other elements, nevertheless the processes of separation are carried to such an extent that the water can no longer be used as a beverage, but only in small quantities or doses, as a medicine. For this reason Crab Orchard concentrated mineral water cannot be classified as "food," but, on the contrary, comes fairly within the meaning of "drug," as used in the Pure Food Act and amendments thereto.

[5,6] Upon the trial of the issue of fact joined by the libel charging the misbranding

of mineral water and the answer of the intervener, expert evidence may be properly admitted. If it appears from the testimony of a witness upon preliminary examination that he is learned in the science of chemistry or has been regularly and legally admitted to the practice of medicine, and that he has knowledge of the drug elements contained in the article transported in interstate commerce and their efficacy or lack of efficacy as curative agents, used either separately or in combination in the treatment of the diseases specified on the label, his opinion on that subject is competent evidence regardless of whether he has had actual experience or observation of the effect of the use of such drugs in the exact form in which they are transported in interstate commerce. The weight of his evidence is a question for the jury.

of the statements made on the label is false or fraudulent; but the verdict and judgment relates to and affects only the particular label on the bottles seized in interstate commerce. This general verdict is sustained by substantial evidence.

For the reasons stated, the judgment of the District Court is affirmed.

WEST v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. November 10, 1924.)

No. 4248.

1. Criminal law 901-Any error in denying motion to dismiss for insufficiency of state's evidence is not available where motion not renewed after defendant's evidence.

Any error in overruling motion for order of dismissal on ground of insufficiency of evidence, made at conclusion of government's case, is not available, where motion was not renewed after introduction of defendant's own testimony. 2. Witnesses 330(1) Refusal to require prohibition agent to name persons met at places visited other than defendant's held not

error.

had visited places other than defendant's, it Where prohibition agent testified that he

was not error to refuse to permit defendant to ask such witness to name the persons met his credibility. at those places for alleged purpose of testing

3. Intoxicating liquors 226 Permitting state to ask defendant's waiter what his duties were held not error.

Permitting state to ask waiter for defendant, in place where liquors were alleged to have been kept and sold, what his duties were, held not error.

4. Intoxicating liquors 233 (1)—Prohibition agent's testimony as to purchases in defendant's absence held not erroneously admitted.

Testimony by prohibition agent as to purchases of liquor at defendant's place by him and another agent when defendant was not present held not erroneously admitted.

5. Intoxicating liquors 226-Cross-examination of witness as to events preceding visit to defendant's place held not improper.

Admission of testimony, on cross-examination, by woman who accompanied prohibition agents to defendant's place of business, as to events of evening preceding visit, held not er

ror.

In Error to the District Court of the United States for the Northern Division of the Eastern District of Washington; J. Stanley Webster, Judge.

[8] The government having charged misbranding in general terms, and no motion being made to require it to file a bill of particulars, the general verdict must be sustained, if there is substantial evidence that any one

William S. West was convicted of viola

error.

Judgment affirmed.

Edward A. Davis, of Pasco, Wash., for plaintiff in error.

Frank R. Jeffrey, U. S. Atty., of Spokane, Wash., and Lee C. Delle, Asst. U. S. Atty., of Yakima, Wash.

ROSS, Circuit Judge. The plaintiff in error, with one McKay, alias Scott, were indicted in five counts for selling certain described intoxicating liquor contrary to the provisions of the National Prohibition Act (Comp St. Ann. Supp. 1923, § 101381 et seq.) The first and third counts charged them with having at a certain specified time and place, within the jurisdiction of the trial court, sold such liquor to J. Pickett and J. M. Simmons; the second count charged that at a certain described time and place within the jurisdiction of the court they sold certain described intoxicating liquor to J. M. Simmons; the fourth charged that at a certain described time and place, within the jurisdiction of the court, they sold such liquor to J. Pickett; and the fifth count charged that at a certain time and place, within the jurisdiction of the court, they knowingly and unlawfully maintained a common nuisance known as the "Cliff House," west of the city of Spokane, in which they, at the time and place stated, kept and sold such intoxicating liquor.

[1] Under each of the counts the plaintiff in error was found guilty, upon which the judgment against him in question was entered. The bill of exceptions shows that upon the conclusion of the government's case the defendant moved "for an order of dismissal on the ground of insufficiency of the evidence to hold him," but no such motion was made after the introduction of evidence on his own behalf. It is therefore well settled that the point is not now avail

able.

And, in our opinion, the exceptions taken to the ruling of the court regarding the admission of testimony hardly deserve mention.

[2-5] The first of such exceptions was taken to the ruling of the court refusing to permit the defendant to ask the government witness Simmons, who was a prohibition agent, and who testified, in substance, that besides visiting the defendant West's place of business, he had visited eight or ten other such places, to give the list of the various persons he had met at those places; the plaintiff in error claiming that such tes

witness." The second of such exceptions was taken to the ruling of the court permitting the prosecution to ask the witness Scott, who it appears from his testimony was a waiter for the plaintiff in error at the time and place in question, what were his general duties as such waiter. The third relates to the ruling of the trial court regarding the testimony of the witness Pickett, who was also a prohibition agent, who testified among other things that he was with Simmons when they went to the defendant's place on June 8, 1923, and where they bought intoxicating liquor, West not at the time being there; on which ground counsel objected to the introduction of such testimony and moved to strike it out, which the court refused to do. The fourth related to the overruling of objections made by the defendant to the evidence of the witness Maxine Dale, who was one of the two women who went to the defendant's place with the prohibition agents Simmons and Pickett. That testimony is as follows:

"Q. You say you were drinking prior to the time you went out there that night?, A. Yes, sir; we were drinking out of the bottle.

"Q. Where was this at? A. At the Louvre Hotel.

"Q. At the Louvre Hotel. That is the hotel that you are in charge of, isn't it? A. Yes, sir.

"Q. And in whose room was this drinking going on? A. Drinking in the dining room.

"Q. In the dining room up there, and the officers, as I understand it, brought this bottle up there? A. Yes, sir.

"Q. As a matter of fact, were you not selling drinks up there for 50 cents a drink? A. No, sir.

"Mr. Davis: Objected to as immaterial and not proper cross-examination. "The Court: Overruled.

"Mr. Garvin: Your answer to that is

no?

"A. No, sir; I did not.

"Q. You did not sell either Mr. Pickett or Mr. Simmons any whisky up there? A. No, sir."

We can see no merit whatever in any of the exceptions.

The judgment is affirmed.

ment was in effect, the cork company was permitted to enter and use for a period of about six weeks driers located in the leased portion of the building.

Swope, vice president of the Western National Bank, was a stockholder, officer, and director of the cork company from the time of its organization. He was at all times thoroughly familiar with the affairs of the company and took an active part in directors' meetings. The loans made by the bank were passed on by the president, Reiman, but were generally presented to him by Swope. Frequent full financial statements were furnished to the bank.

Credit was extended to the cork company by general creditors subsequent to the arrangement with the bank.

We think, both on principle and authority, the District Court correctly decided that the bank had no such possession as is necessary to a pledge.

These cases relied on by the appellant involve choses in action which, as pointed out in Sexton v. Kessler, 225 U. S. 90, 32 S. Ct. 657, 56 L. Ed. 995, are not on the same footing as goods and chattels. In re Hub Carpet Co. (C. C. A.) 282 F. 12; Greey v. Dockendorff, 231 U. S. 513, 34 S. Ct. 166, 58 L. Ed. 339; Sexton v. Kessler, 225 U. S. 90, 32 S. Ct. 657, 56 L. Ed. 995. The cases cited below also relied on are different in their facts and nearly all relate to goods pledged and so separated and marked as to give notice to the public of the possession of the pledgee: Allen v. Hollander (C. C.) 128 F. 159; First National Bank v. Pennsylvania Trust Co., 124 F. 968, 60 C. C. A. 100; Van Brunt v. Pike, 4 Gill (Md.) 270, 45 Am. Dec. 126; Dale v. Pattison, 234 U. S. 399, 34 S. Ct. 785, 58 L. Ed. 1370, 52 L. R. A. (N. S.) 754; Union Trust Co. v. Wilson, 198 U. S. 530, 25 S. Ct. 766, 49 L. Ed. 1154; Philadelphia Warehouse Co. v. Winchester (C. C.) 156 F. 600; Love v. Export Storage Co., 143 F. 1, 74 C. C. A. 155; Fidelity Ins. & S. D. Co. v. Roanoke Iron Co. (C. C.) 81 F. 439; American Can Co. v. Erie Preserving Co. (C. C.) 171 F. 549; In re Ozark Cooperage & Lumber Co., 180 F. 105, 103 C. C. A. 603; Boise v. Talcott (C. C. A.) 264 F. 61; Taney v. Penn Bank, 232 U. S. 174, 34 S. Ct. 288, 58 L. Ed. 558. Most of these cases were decided before the Amendment of 1910 giving the trustee in bankruptcy the rights of a lien creditor (Comp. St. § 9631).

The following cases also decided prior to the Amendment of 1910 support the contention of appellant: Dunn v. Train, 125 F.

221, 60 C. C. A. 113; Bush v. Export Storage Co. (C. C.) 136 F. 918; In re Cincinnati Iron Store Co., 167 F. 486, 93 C. C. A. 122.

[2] All authorities agree that possession is necessary to the validity of a pledge. The necessary indication of possession varies, of course, according to the nature and bulk and situation of the property. The rule is the pledgee must either have actual exclusive possession of the property, or if it remains on the pledgor's premises he must so separate and mark it as to give notice of his possession to the public, who might deal with the pledgor on the faith of it. In this case the cork was in the building occupied by the bankrupt, engaged in the cork business. Those who dealt with it had a right to assume in the absence of notice that the stock of cork carried in the building for use in the business was the property of the company which was using it. There was nothing on the outside to put anybody on inquiry. The public dealing with the cork company or interested in it could not be required to search for notice of some other ownership of the stock of cork by making an obtrusive and prying inspection of the inside of the cork company's premises to find and inquire the meaning of the signs of agency of one of the bankrupt's employees. There is no binding nor well-considered case that goes to that length. It is the duty of the pledgee to make such segregation and marks as will indicate his possession to business men of ordinary prudence dealing with the pledgor in the ordinary course of business. In Security Warehousing Co. v. Hand, the facts as set out in the syllabus in 143 F. 32, 74 C. C. A. 186, affirmed in 206 U. S. 415, 27 S. Ct. 720, 51 L. Ed. 1117, 11 Ann. Cas. 789, were almost exactly the same:

"A bankrupt was a corporation of Wisconsin engaged in operating knitting mills in that state. A so-called warehouse company incorporated in New York and having its principal office there with a branch in Chicago nominally leased certain spaces in the bankrupt's storage rooms at its mills which were inclosed by open palings having gates locked with a padlock having the name of the warehouse company thereon, and such company issued receipts from its Chicago office to the bankrupt for goods of the latter stored therein which receipts were indorsed by the bankrupts and delivered to claimants as collateral security for loans. All expense of inclosing and maintaining such storage rooms was paid by the bank