ant himself. 3. Criminal Law 376-Witnesses 337 (5)-Accused taking stand in own defense may be cross-examined respecting prior convictions to affect credibility, but not to prove offense charged. Where defendant takes the stand in his own defense, he offers himself as a witness and submits himself to attack as to his credibility, and for this purpose alone he may be asked, and of previous convictions, but prosecuting attorcompelled to answer, .questions as to the fact ney cannot explore defendant's record in order to prove the crime charged by the one confessed. and Holliday under the Prohibition Act, and witnesses for the prosecution or from defendsend the case back for a new trial because the order dismissing the libel was erroneous at the time it was entered, there can be no doubt, under the decision in the Port Gardner Investment Company case, that their conviction and punishment can be pleaded in bar of further proceedings under the libel. Is it necessary, then, that we do the vain thing of sending the case back for a new trial, when facts appear by admissions of the parties which can be pleaded in bar of further proceedings in the court below, and which, when so plead ed, will require the entry of the order which was erroneously entered when there had been no conviction or prosecution? We think not. The order of dismissal, erroneous when made, in view of the subsequent happenings has become the proper order, and the error in entering same has become harmless and should be disregarded. U. S. C. title 28, § 391; 40 Stat. 1181 (Comp. St. § 1246). [5] While ordinarily a writ of error must be passed upon in the light of the record brought up from the court below, certain exceptions to this rule are recognized, and we think that the happenings subsequent to the suing out of the writ of error bring this case within the exceptions. Sewell v. Johnson, 165 Cal. 762, 134 P. 704, Ann. Cas. 1915B, 645, 648; Ballard v. Searls, 130 U. S. 50, 9 S. Ct. 418, 32 L. Ed. 846; Butler v. Eaton, 141 U. S. 240, 11 S. Ct. 985, 35 L. Ed. 713; Hennessy v. Tacoma Smelting Co. (C. C. A. 9th) 129 F. 40. The order of the District Court dismissing the libel is therefore affirmed. Affirmed. WEINER v. UNITED STATES. Circuit Court of Appeals, Third Circuit. July 1, 1927. No. 3586. 1. Criminal law 369(1)-With certain exceptions, evidence of one crime is inadmissible to prove another. Evidence of the commission of one crime cannot be used to prove that defendant commit 4. Criminal law 11701⁄2 (5)—Cross-examination of accused, who admitted previous conviction, as to whether he had paid fine imposed, held not prejudicial (National Prohibition Act [Comp. St. § 10138 et seq.]). Where, in prosecution for violation of National Prohibition Act (Comp. St. § 10138% in issue, was cross-examined respecting a prior et seq.), accused, who had not put his character conviction on a similar charge, and admitted his conviction thereof, cross-examination as to whether he paid fine imposed, though superfluous, held not prejudicial. 5. Criminal law 1169(5)-Attempt to crossexamine accused respecting previous conviction held not prejudicial, where court refused to permit it, and instructed jury to consider evidence on question of accused's credibility only (National Prohibition Act [Comp. St. § 101384 et seq.]). Prohibition Act (Comp. St. § 101384 et seq.), In prosecution for violation of National cross-examination of accused respecting details of another crime of which he had previously been convicted, on theory that prior conviction was for an offense growing out of and so closely connected with the offense for which he was on trial as to be part of the same transaction, held not prejudicial, where trial court refused to permit prosecuting attorney to proceed after he had asked a few questions and instructed jury to consider evidence respecting former conviction only on accused's credibility as a witness. In Error to the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge. Alex Weiner was convicted of violating the National Prohibition Act, and he brings Affirmed. error. Warren H. VanKirk, of Pittsburgh, Pa., ted another, except, among other exceptions, for plaintiff in error. when two offenses are inseparably connected, and evidence of the first tends directly to prove the second. 2. Criminal law 374-Rule against admis. sibility of evidence of one crime to prove another applies, whether elicited from govern. ment's witnesses or from defendant. The rule against the admissibility of evidence of one crime to prove another is equally applicable, whether the evidence is elicited from Joseph A. Richardson and John D. Meyer, both of Pittsburgh, Pa., for the United States. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. WOOLLEY, Circuit Judge. Some United States Attorneys, when prosecuting for 20 F.(2d) 522 violations of the National Prohibition Act (Comp. St. § 101384 et seq.), show a disposition to depart as far as they safely can from the rule which limits cross-examination of the defendant as to prior criminal convictions solely to an attack upon his credibility as a witness (when, as in this case, he has not put his character in issue) and to endeavor thus to lodge in the minds of jurors the thought that, as the defendant has confessed a previous conviction for the commission of a similar crime, it is likely he committed the one for which he is on trial. [1-3] The law has long been settled that evidence of the commission of one crime cannot be used to prove the defendant committed another. Wigmore on Evidence, § 192; Regina v. Oddy, 2 Denison Cr. C. 264; Boyd v. United States, 142 U. S. 450, 12 S. Ct. 292, 35 L. Ed. 1077; Taliaferro v. United States (C. C. A.) 213 F. 25; Dyar v. United States (C. C. A.) 186 F. 614. To this rule there are exceptions, for instance, when two of fenses are inseparably connected and evidence of the first tends directly to prove the second. Astwood v. United States, 1 F. (2d) (C. C. A. 8th) 639, 642. The rule against the admissibility of evidence of one crime to prove another is equally applicable whether the evidence is elicited from witnesses for the prosecution or from the defendant himself. But when the defendant takes the stand in his own defense, he offers himself as a witness and, like all witnesses, submits himself to attack as to his credibility. For this purpose alone he may be asked, and be compelled to answer, questions as to the fact of previous convictions. And in this way his testimony may lawfully be weakened. It is just here that trouble arises, for not infrequently a prosecuting attorney will, if allowed, proceed further and explore the defendant's record in an endeavor to compare the facts of two unrelated cases and prove the one on trial by the one confessed. This, we have repeatedly held, is wrong. Beyer v. United States (C. C. A.) 282 F. 225, 227; Mansbach v. United States (C. C. A.) 11 F.(2d) 221, 224. [4] Applying the law to this case, where the defendant with others was on trial for breaking a lock and seal of a distillery warehouse, for conspiracy to commit that offense, for resisting government officers and removing spirits on which the internal revenue tax had not been paid, and where he had not put his character in issue, the offending questions appear in the three assignments of error which the defendant filed on taking this writ. They are: "1. The court erred in admitting over objection the following evidence testified to by the defendant, which is as follows: 'United States Attorney: Q. Mr. Weiner, were you the defendant in a criminal information in the Court at No. 477 Criminal, the charge against you being the transportation of 235 quarts of whisky on August 7, 1924, and the possession of 235 quarts of whisky on August 7, 1924, which information was filed by the United States Attorney in this court? A. Yes, sir.' "2. "Q. You were found guilty on the charge of possession of 235 quarts of whisky by a jury? A. Yes, sir.' "3. 'Q. And you were sentenced by the court to pay a fine of $500.00 on February 7, 1925; is that correct? A. Yes, sir. Q. Did you pay that fine? A. Yes, sir. Q. Did you pay all of it? A. Yes, sir. Q. To whom? A. To the treasury, I suppose.'" At the hearing on this writ of error the attorney for Weiner (who was not his trial attorney) admitted there was no vice in the questions shown by the first two assignments of error, but maintained that the rule was invaded by the questions appearing in the third assignment, which were directed to the sentence of fine imposed by the court for the previously committed crime and payment thereof. We think these questions were superfluous, but not prejudicial. Having confessed conviction, it may be assumed that the defendant paid the penalty. His credibility as a witness was affected by his confession of the crime; in committing the crime, turpitude was involved. His position as a defendant on trial was not prejudiced by his admission that he had paid the fine; in doing that, he did nothing wrong. [5] On these three assignments, which comprise all the specifications of error, we might dispose of the case except for a disclosure by the record, which we notice of our own motion, that the United States Attorney did not stop there but resumed his inquires in an attempt to bring out the details of the confessed crime by further cross-examining the defendant, when later he reappeared as a witness, on the theory that his prior conviction was of an offense growing out of and so closely connected with the offense for which he was on trial as to be a part of the same transaction. This examination was as follows: "United States Attorney: Q. Was that whisky of which you were guilty of possession a part of any whisky which was secured from the Guggenheim distillery on the night of March 4th or 5th? A. I don't know any thing about that whisky. It was in my car. It was found for possession. Q. When? A. Well, it has been about a year ago." "Q. Wasn't it August, 19241 A. I don't remember when it was. Q. Where was that whisky found? A. That whisky was found in the top of the garage at that time. Q. Whose garage? A. Kaufman's. Q. How far is that? A. On Center avenue. Q. How far from the Keystone garage?" Right there the learned trial court, evidently having waited to see whether the cross examination was, as the government contends, within the exception to the rule, stopped it by interrupting the prosecuting attorney and saying to him: "We cannot try that case. This is introduced for just one particular purpose, and that is the credibility of the witness." Thus the learned trial court abruptly and effectively arrested the prosecutor's advance toward the line dividing lawful from unlawful cross-examination, and stopped him, we think, before he had crossed it. When the court came to its charge, it instructed the jury in language so clear as not to be susceptible of misunderstanding that the testimony of the defendant in respect to his previous conviction had no bearing on his guilt in the case then being tried and that it only affected his credibility as a witness. We are of opinion that the court in stopping the prosecuting attorney short of the forbidden field of cross-examination saved him from injecting error into the case and similarly saved the defendant from prejudice which might soon have arisen. The judgment is affirmed. GARCIA v. FANTAUZZI. Circuit Court of Appeals. First Circuit. June 20, 1927. On Petition for Rehearing, Sept. 7, 1927. No. 1991. 1. Pleading 364(1)—Motion to strike out is remedy in case of superfluous and irrelevant allegations. Remedy for defects in complaint containing superfluous and irrelevant allegations is motion to strike out. 2. Pleading 48-General demurrer cannot be sustained, if complaint, fairly construed, states case. A general demurrer cannot be sustained, and plaintif held remediless, if, fairly construing complaint, a case is stated. 3. Bastards 16-Complaint by natural child for damages against alleged father, based on avoidance of duty to support and conspiracy in causing paternity to be ascribed to another, held good (Comp. St. Porto Rico, § 469). Complaint in action by natural child for damages against alleged father, alleging failure of support and education and conspiracy to cause plaintiff's paternity to be ascribed to a negro barber, held sufficient as against demurrer, in that act and omission, within Comp. St. Porto Rico § 469 (Civ. Code Porto Rico, § 1803), are both alleged; gravamen of case being damages for fraud in preventing plaintiff from asserting truth as to paternity, and thus having environment and education to which he was entitled. 4. Bastards 16-In Porto Rico, father of natural child may be held for damages resulting from failure to support and educate child (Civ. Code Porto Rico, § 195). In Porto Rico, the real father of natural child, on whom rested primary duty of_support and education, under Civ. Code Porto Rico, § 195, may be held for damages resulting from his failure of duty, effected, and aggravated by harmful means used to escape such duty. 5. Bastards 16-Natural child may sue alleged father for damages for failure of support, notwithstanding allegations that another had falsely acknowledged paternity. Natural child held not precluded from maintaining action against alleged father for failure of support and education and for conspiracy to cause paternity to be ascribed to negro barber, because of allegation that such negro barber and mother were fraudulently induced to state that he was plaintiff's father, since allegation that such instrument was procured by fraud destroys its effect. 6. Bastards 16-Natural child's mother may sue alleged father in behalf of child for damages for failure to support and educate child, where another's acknowledgment of paternity was invalid (Civ. Code Porto Rico, §§ 195, 222). Where acknowledgment of paternity of natural child was fraudulent, mother was natural guardian, and entitled to bring suit against alleged father for damages for his failure of support and education, required by Civ. Code Porto Rico, § 195, and it was not necessary, under section 222, that it be brought by father falsely acknowledging paternity. 7. Bastards 16-Judgment for filiation was not condition precedent to natural child's action against alleged father for damages for failure of support and conspiracy to ascribe paternity to another (Civ. Code Porto Rico, § 195). Where purpose of action by natural child against alleged father was to recover damages for failure of support and education required by Civ. Code, 195, and for conspiracy to cause paternity to be ascribed to another, a judg 20 F.(2d) 524 ment for filiation was not necessary condition precedent to maintenance of action. Johnson, Circuit Judge, dissenting. In Error to the District Court of the United States for the District of Porto Rico; Ira K. Wells, Judge. Action by Jose Esteban Garcia, by his mother, Jacinto Garcia y Torrendell, against Antonio Fantauzzi. Judgment of dismissal, and plaintiff brings error. Reversed and remanded. E. B. Wilcox, of San Juan, Porto Rico, for plaintiff in error. Francis E. Neagle, of New York City (Tomas Bernardini de la Huerta, of Guayama, Porto Rico, and O. B. Frazer, of San Juan, Porto Rico, on the brief), for defendant in error. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. ANDERSON, Circuit Judge. The court below sustained a demurrer, and dismissed the complaint. The case comes here on a writ of error with numerous assignments. Jurisdiction is grounded on diversity of citizenship. It is a very unusual case. The complaint, filed June 1, 1925, sets up that the plaintiff is the natural son of defendant and Jacinto Garcia y Torrendell; that she is the plaintiff's guardian; that both are citizens of the United States domiciled in Porto Rico; that the defendant is a citizen of France, domiciled in France, "and is a man of ability, intelligence, education, and wealth, and of high social position, both in Porto Rico and in France"; that he owns property amounting to about $3,000,000; that he has married and has three children by his wife, with whom he lives in France. It is alleged that in 1906, when there was no legal impediment to prevent their marriage, defendant and Jacinto lived together as man and wife, with the resultant birth of the plaintiff as the natural child of defendant; that on many occasions both mother and son importuned the defendant to acknowledge the son; that, while privately admitting the relationship, the defendant has always refused to make public acknowledgment, and to provide properly for his rearing, support and education; that, as a result, the plaintiff has been reared in poverty and forced to live under sordid and immoral conditions, to his humiliation, prejudice, and damage; that in February, 1910, "defendant willfully, wantonly, and criminally, by conspiracy with parties to plaintiff unknown and by the payment of a large sum of money, induced, by means of fraud and misrepresentation, plaintiff's mother and one Jose Doout education or means, or social standing, a lores Diaz y Aponte, a colored barber, withman of immoral and vicious life and habits, to appear before a notary public in Porto Rico, and to falsely state in writing in a public document that the said Jose Dolores Diaz y Aponte is the plaintiff's father"; that defendant's agents, at defendant's instigation, represented to plaintiff's mother and the said Jose that by the terms of the document they were signing Jose was only adopting plaintiff as his son; that in 1925 plaintiff's mother and said Jose, having learned that the document signed by them in 1910 was not an adoption of said plaintiff, but purported to be a legal recognition of plaintiff as the son of said Jose, appeared before a notary pub lic, and by public document revoked the document of 1910 as being untrue, and having been procured through the false representations of defendant and those acting with him; that thereafter the plaintiff and his mother again demanded that defendant acknowledge plaintiff as his son, and that defendant refused so to do, or to make any provision for his support and education; that in 1920 the defendant created in New York a trust fund of $3,000 in the hands of said Jose for the plaintiff's benefit, but that plaintiff has received no appreciable benefit therefrom. As a result of the defendant's failure to recognize plaintiff as his own child and his wrongful acts in causing the plaintiff to be reputed as the "son of an uneducated negro barber of no means or standing, and of immoral life and habits, under whose care and influence plaintiff was forced to live through the criminal conduct of defendant," the defendant is alleged to have laid himself liable for actual damages of $100,000 and exemplary damages of $150,000. The case thus stated must be considered in the light of the Porto Rican statutes dealing with the rights of a child born out of wedlock. The plaintiff is a natural child, as distinguished from an illegitimate or adulterine child. The Civil Code provides: "Sec. 193. Natural children are those born out of wedlock, from parents who, at the moment when such children were conceived or were born could have intermarried with or without dispensation. "The natural child may be recognized by the father and mother conjointly or by one of them only either in the record of birth or in the testament [will] or in any other pub- indispensable for maintenance, housing, lic instrument. clothing and medical attention, according to "The father is obliged to recognize the the social position of the family. natural child: "1. When there exists an indubitable statement in writing of the father wherein he expressly acknowledges his paternity. "2. Where the child has uninterruptedly enjoyed the condition as of a natural child of the defendant father justified by acts of the same father or of his family. "3. When the mother was known to have lived in concubinage with the father, both during her pregnancy and at the time of the birth of the child. "4. When the child may present any authentic evidence of his paternity. "The mother shall likewise be obliged to recognize a natural child in the same cases as the father, and further where the act of the confinement and the identity of the child are fully established. "Support also includes the education and instruction of the person supported when he is a minor." It is thus manifest that the rights of a natural child under the law in the jurisdiction in which the plaintiff was begotten and born, are much greater than the rights of a bastard at common law, or under the common law as modified by the statutes enacted in most of our states. Compare 7 C. J. pp. 939, 948, 950, 951, 955, 958–961; Sanders v. Sanders, 167 N. C. 319, 83 S. E. 490; Commonwealth v. Callaghan, 223 Mass. 150, 111 N. E. 773; Morales v. Heirs of Cerame, 30 P. R. 784; Gual v. Bonafoux, 15 P. R. 545; Negueruela v. Samohano, 16 P. R. 658. In Armsterdam v. Puente, 16 P. R. Rep. 527, 532, the Supreme Court of Porto Rico said: "We think it is a fair deduction, from "The child, if of age, cannot be recognized the provisions of the Civil Code heretofore without his consent. "When the recognition of the minor is not made at the time of recording the birth or in the testament, the approval of the judge of the district court of the district where the child resides, with the concurrence of the fiscal, shall be necessary. "Sec. 194. The action for the recognition of natural children, can only be established during the life of the presumptive parents, and a year beyond their death except in the following instances: "1. If the father or the mother shall have died during the minority of the child, in which case, the child may bring his action before the first four years of his having attained his majority, shall have elapsed. "2. If after the death of the father or mother there shall appear a written statement or document, of which no notice was previously had, wherein the child is expressly recognized. "In this case the action shall be established within the next six months after the document has been discovered. "The recognition of a child not having the qualifications provided for in paragraph first of section 193 can be disputed by whomsoever may be affected thereby. "Sec. 195. A natural child has the right: "1. To use the surname of the parent making the recognition. "2. To be supported. in existence, as well as the practice and jurisprudence in this regard, that, without some authentic act which reveals the will of the father to give the child a status, the child has only a right of action to compel the father to confer such status. Section 135 of the Spanish Civil Code and section 193 of the Porto Rican Civil Code provide for the cases when a father is compelled to acknowledge his illegitimate child. He can be compelled by an action, and the necessity for such action can only be said to be dispensed with when there are some solemn acts on the part of the father, which show that this obligation has already been performed." In Porto Rico, a natural child has a legal (statutory) right to support by the father. In most of our states the father of such child is merely required to furnish narrowly limited support, lest otherwise the community be burdened by an additional pauper; the basic right is the right of the taxpayers to be exonerated from the burden of supporting the father's illegitimate offspring. Another important difference is as to rights of inheritance, which cannot be defeated by will. Under section 195, par. 3, supra, a natural child has the right to receive the hereditary portion determined in the Civil Code. By section 751 it is provided that a person "having heirs by force of law, may dispose of his property only in the manner and with the limitations established in article "3. To receive the hereditary portion de- 5 of this chapter." Turning to article 5, termined in this code." Section 212 provides that: we find that, subject to some exceptions, a testator having legal heirs can freely dispose "Support is understood to be all that is of only one-third of his property. |