21 F.(2d) 963 294 F. 535; Turinetti v. U. S. (C. C. A.) 2 F.(2d) 15. The judgment is reversed, and the cause remanded for a new trial. Immigration.* Circuit Court of Appeals, First Circuit. No. 2138. on the Mason county ranch, but kept a hired man there most of the time; that he visited the ranch every two weeks or so, to bring groceries and supplies to the hired man; that these visits did not extend beyond a few hours at most, except while he was putting up hay on the ranch during the previ- WONG WEY v. JOHNSON, Commissioner of ous August; that he owned the coal oil found at the barn, and had purchased it for the purpose of operating a tractor to plow the ranch; that he knew nothing about the sugar, and had not visited the barn where it was found, since he put up his hay in the previous August; and that he knew nothing whatever about the still or its operation. As to his visits to the ranch, and their frequency and duration, he was fully corroborated by other disinterested witnesses. A neighbor also testified that he had agreed to rent a tractor to the plaintiff in error to plow his land, and that the coal oil found there was no more than adequate for that purpose. This testimony on the part of the plaintiff in error was in no wise contradicted, and the jury was not at liberty to wholly disregard it. It As already stated, we have viewed the testimony on the part of the government in its most favorable light, and do not assume the right to pass upon conflicting testimony. But, in this view of the case, we have little hesitation in declaring as a matter of law that the testimony was wholly insufficient to establish the guilt of the plaintiff in error beyond a reasonable doubt. shows quite clearly that he was not at or in the vicinity of the ranch often enough or long enough to operate a still of that magnitude, and there is no testimony or claim that he operated it through other agencies. Indeed the testimony offered by the government made out fully as strong a case against the two men who were living on the ranch at the time the still was found, and perhaps against others. We do not mean by this that the government made out a case against these two men, or against any one else, but we refer to it solely for the purpose of showing that under the testimony the question as to who operated or maintained the still was a pure matter of guesswork and speculation. It is highly important, of course, that this and all other criminal laws should be strictly enforced, but it is of far greater importance that a citizen should not be imprisoned and deprived of his liberty under a judgment based on no surer foundation than mere guesswork and speculation. This rule. is elementary. DeLuca v. U. S. (C. C. A.) 298 F. 412; DeVilla v. U. S. (C. C. A.) 1. Habeas corpus 92(I)-District Court, on habeas corpus proceeding by applicant for admission, may only determine fairness of hearing. On habeas corpus proceeding by applicant for admission as a foreign-born son of a nativeborn citizen, the only question of which District Court had jurisdiction was whether the relator was accorded a fair hearing by admin istration authorities. 2. Habeas corpus 96-District Court is without jurisdiction in habeas corpus proceeding by applicant for admission, in case evidence supports decision of Board of Special Inquiry. In case there is any substantial evidence to support decision by Board of Special Inquiry denying admission to one claiming as foreignborn son of a native-born citizen, the District Court is without jurisdiction in habeas corpus proceeding. 3. Aliens 32 (8)-Evidence held to support decision of Board of Special Inquiry denying admission to applicant. claiming admission as foreign-born son of na In habeas corpus proceeding by applicant, tive-born citizen, evidence held sufficient to support decision of Board of Special Inquiry denying admission. United States for the District of MassachuAppeal from the District Court of the setts; James Arnold Lowell, Judge. Application for habeas corpus by Wong Wey, on the relation of Wong Cheu Dong, to be directed to John P. Johnson, United States Commissioner of Immigration. From an order discharging the writ, petitioner appeals. Affirmed. Joseph F. O'Connell, of Boston, Mass. (James F. Meagher, of Boston, Mass., on the brief), for appellant. John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Gloucester, Mass., on the brief), for appellee. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. JOHNSON, Circuit Judge. This is an appeal from the District Court of the United States for the District of Massachusetts from *Rehearing denied 22 F. (2d) an order discharging a writ of habeas corpus issued upon a petition alleging that the appellant, Wong Cheu Dong, was unlawfully restrained of his liberty by the appellee, the United States Commissioner of Immigration. The appellant was an applicant for admission to the United States as the foreign-born son of a native-born citizen, Wong Wey, whose citizenship was conceded. The applicant, Wong Cheu Dong, and his witnesses, were heard by a Board of Special Inquiry at Boston, and he was ordered excluded on the ground that the claimed relationship to the alleged father had not been reasonably established. An appeal was taken from this decision and the applicant was furnished with a copy of the testimony taken before the board. Upon representations to the Department of Labor by counsel for the applicant, the case was reopened for the purpose of taking additional evidence, and the Board of Special Inquiry took and considered the additional evidence, and on the 14th day of May, 1926, again ordered the applicant excluded. An appeal was then taken to the Secretary of Labor, and the case was heard and considered by the Board of Review sitting at Washington, the applicant being represented by counsel. The Board of Review affirmed the decision of the Board of Special Inquiry and ordered that the appeal be dismissed. A petition for a writ of habeas corpus was which in many particulars coincided with the testimony of the alleged father. The Board of Special Inquiry thought that it was not possible for the witness to remember so many minute details of what occurred at a wedding which had taken place more than 30 years before, and held that the applicant was not the son of Wong Wey, in view of the fact that the alleged father, when testifying at Boston before a United States commissioner on November 26, 1906, in the case of Wong Shu, who was then applying for a return certificate as a laborer, gave the following testimony: "Q. Are you married? A. No. Q. Have you ever been married? A. No." This statement of the father under oath, when his marriage was not a material issue and no emergency had arisen for claiming it, afforded sufficient ground for disbelieving the witnesses, who had testified to the marriage, and also affirmative evidence, as this court has held in Moy Said Ching v. Tillinghast, 21 F. (2d) 810, announced October 18, 1927, that the father was not then married. The applicant claimed to have been born December 27, 1906, and therefore, in view of this testimony of the alleged father, if believed by the board, could not have been his son. The order of the District Court is affirmed. SWAIN v. HICKS, Sheriff, et al. Circuit Court of Appeals, Fifth Circuit. Nos. 4999, 5022. 1. Habeas corpus 54-Habeas corpus petitions, alleging that trials of criminal prosecutions in state court were affected by mob spirit and violated constitutional rights, held Insufficient to show trial by jury was nullity. then filed by the applicant in the District JOHNSON v. MIDDLEBROOKS, Sheriff, et al. Court, which ordered the petition dismissed and the writ discharged, and the relator remanded to the custody of the United States Commissioner of Immigration at Boston. [1, 2] The only question of which the District Court had jurisdiction was whether the relator was accorded a fair hearing by the immigration authorities. If he was accorded a fair hearing, and the action of the immigration authorities was not arbitrary, then the District Court was without jurisdiction to hear the case upon its merits. It is not contended that the applicant was not accorded a full and fair hearing before the Board of Special Inquiry, but that its decision upon the testimony taken was wrong. If there was any substantial evidence to support this decision the District Court was without jurisdiction. [3] The applicant, his alleged father, Wong Suey Lam, and Wong Let were heard by the Board of Special Inquiry. The last-named witness testified that he attended the wedding of the alleged father, Wong Wey, when he was about 12 years old, and in considerable detail related what occurred at the wedding, Petitions for habeas corpus, alleging that criminal prosecutions in state court were conducted under influence of mob spirit, without regard to defendants' legal rights under the state and federal Constitutions, that trial, conviction, and sentence to death were without due process of law and void, and that during trial court permitted jury in charge of bailiffs to visit scene of homicide, unattended by trial judge, held insufficient to make out a case of the trials by jury being sham or nullity because of vitiating influences under which they were conducted, for absence of allegations of supporting facts. 2. Habeas corpus 30(1)-Errors of state trial court in criminal prosecution held not reviewable by habeas corpus. trial of criminal prosecutions did not affect court's jurisdiction to try the cases, and cannot be reviewed by habeas corpus. Errors committed by state trial court in 21 F.(2d) 965 Petitions for habeas corpus by Wade Johnson against J. C. Middlebrooks, Sheriff of Jones County, Ga., and others, and by James A. Swain against J. R. Hicks, Jr., Sheriff of Bibb County, Ga., and others. Petitions denied, and petitioners appeal. Affirmed. Joseph E. Pottle, of Milledgeville, Ga., and W. A. McClellan, of Macon, Ga., for appellant Johnson. W. O. Cooper, Jr., of Macon, Ga., and J. R. Terrell, of La Grange, Ga., for appellant Swain. T. R. Gress, Asst. Atty. Gen., of Georgia, for appellees. distance from the courthouse, unattended by the trial judge, and that the trial of the petitioner "from beginning to end was conducted under a mob spirit, although a trial in form was void in substance." Neither of the petitions contained allegations of facts furnishing any support for a conclusion that at the time of the trial there was any mob spirit affecting it, that the trial was dominated by a mob, or that there was justice. Those allegations fall far short of any actual interference with the course of making out a case of a trial by jury being a sham or nullity, because of vitiating influ ences under which it was conducted. [2] The other actions of the trial courts which were made the bases of attacks on the judgments were reviewable by the Supreme Court of Georgia, and were reviewed by that Before WALKER, BRYAN, and FOS- court. If the trial courts erred in those matTER, Circuit Judges. WALKER, Circuit Judge. [1] These two appeals are from orders denying petitions for the writ of habeas corpus, one of which petitions was sued out by a person who was in custody under process issued under a judgment of a Georgia state court convicting him of rape and sentencing him to death, and the other of which petitions was sued out by a person who was in custody under process issued under a judgment of a court of the same state convicting him of murder and sentencing him to death, both of which judgments were affirmed by the Supreme Court of Georgia. In the first-mentioned case the judgment of conviction was attacked on the grounds that it was rendered invalid by the action of the court in which the case was tried, in denying a motion for continuance made by the accused, and that, as stated in the petition in that case, petitioner's "restraint is illegal because his trial, conviction and sentence to death, in the superior court of Jones county aforesaid, on the 26th day of May, 1924, was conducted from beginning to end under the spirit of mob domination; that he was hurried to conviction under mob influence, without regard for his legal rights guaranteed to him under both state and federal Constitutions; that his trial, conviction, and sentence to death were without due process of law, and were absolutely null, void, and of no legal effect." In the other case, the attack on the judgment of conviction was based on the action of the trial court during the trial in permitting the jury, in charge of two bailiffs, to leave the court room, and go to and view the scene of the homicide a short ters, such errors did not affect the jurisdic- SECURITY MORTGAGE CO. v. POWERS. PORATION. Circuit Court of Appeals, Fifth Circuit. No. 5012. Bankruptcy 316(2)-Foreclosure of mortgage on default after bankruptcy held unnecessary, and mortgagee not entitled to attorney's fee therefor. Mortgagee held not entitled to allowance of of foreclosure, and allowed by a state court in a attorney's fee provided by the mortgage in case foreclosure suit unnecessarily brought, on default after bankruptcy, and after the property had passed into possession of bankruptcy court. Appeal from the District Court of the United States for the Northern District of Georgia; Samuel H. Sibley, Judge. In the matter of the Florida Furniture Corporation, bankrupt; Charles A. Powers, trustee. The Security Mortgage Company appeals from an order disallowing its claim for attorney's fees as mortgagee of property of bankrupt. Affirmed. Ross, Receiver, 162 Ga. 654, 134 S. E. 762, and Scott v. Paisley, 271 U. S. 632, 46 S. Ct. 591, 70 L. Ed. 1123. We conclude that this is beside the issue. The attorney's fees claimed were not a fixed liability at the time of bankruptcy, and became a lien on the property, if at all, merely by virtue of the W. D. Thomson and Asa W. Candler, both of Atlanta, Ga. (Candler, Thomson & Hirsch, of Atlanta, Ga., on the brief), for appellant. Walter S. Dillon and Clarence H. Calhoun, both of Atlanta, Ga. (Dillon, Calhoun & Dillon, of Atlanta, Ga., on the brief), for appellee. Before WALKER, BRYAN, and FOS- judgment of the state court. There is no TER, Circuit Judges. doubt that the property passed into the custody of the District Court sitting in bankruptcy with the adjudication, and no other court had jurisdiction to impress it with a lien not then in existence. Murphy v. John Hofman Co., 211 U. S. 586, 29 S. Ct. 154, 53 L. Ed. 327; in re Joseph Webre (C. C. A.) 219 F. 417; In re John T. Moore Planting Co. (C. C. A.) 237 F. 737. As the rights of appellant could have been amply protected in the District Court, there We was no occasion for the foreclosure. have repeatedly held that, under similar conditions, a claim for attorney's fees is not allowable against the fund arising from the sale of mortgaged property in the hands of the trustee. In re Roche (C. C. A.) 101 F. 956; Labarre v. Citizens' Bank (C. C. A.) 193 F. 648; British & American Mortgage Co. v. Stuart (C. C. A.) 210 F. 425. We find no error in the record. Affirmed. FOSTER, Circuit Judge. In this case the material facts, which are stipulated, are these: The Florida Furniture Corporation was adjudicated bankrupt on January 7, 1926, and surrendered certain real estate purchased from the Hanson Motor Company, prior thereto, which property was burdened with a mortgage of $90,000 held by appellant. The deed of trust contained a provision for 10 per cent. attorney's fees in the event of foreclosure. At the time of adjudication in bankruptcy there was nothing due on the mortgage either in principal or interest, but on February 24, 1926, an interest coupon fell due, which was not paid. Pursuant to a clause in the mortgage, appellant declared the entire debt due on April 1, 1926, gave notice of intention to sue, and brought suit in the city court of Atlanta against the Hanson Motor Company to foreclose the mortgage. Judgment was rendered by that court May 4, 1926, for principal and interest due and attorney's fees in the sum of $9,442.40, and execution was ordered to issue against the property. The property then was and had been in the actual custody of the Circuit Court of Appeals, Eighth Circuit. Octobankrupt court, through the trustee or a receiver, from the date of adjudication. Thereafter, on application of the trustee, appellee herein, the property was sold in the bankruptcy proceedings on June 12, 1926, free of liens, without objection, and was bought in Indictment charging violation of Penal Code, by appellant for $112,500. Appellant then § 215 (18 USCA § 338), for using the mails to filed its claim for payment by preference out defraud by inducing numerous, divers, and sunof the proceeds for the amount due under the dry persons, including the public generally, to mortgage, principal and interest, and attor- buy shares and certificates in a trust estate, by means of false and fraudulent pretenses, held ney's fees. The trustee objected to the allow-sufficient as against motion to quash. ance of the attorney's fees, but the referee ruled against him, which ruling was subse- In Error to the District Court of the Unitquently reversed by the District Court. The ed States for the Eastern District of Misonly question presented on this appeal is as souri. to the correctness of the order disallowing the attorney's fees. Appellant relies upon the provision of the Georgia Code (paragraph 6037) permitting transfers of real estate burdened by a mortgage and deed of trust to be disregarded by the mortgage creditor, and allowing suit to be brought against the original debtor, and cites John Hancock Mut. Life Ins. Co. v. RUTLEDGE v. UNITED STATES. Post office ber 13, 1927. 48(4%)-Indictment charging use of mails to defraud by means of stockselling scheme held sufficient as against motion to quash (Penal Code [18 USCA § 338]). William E. Rutledge was convicted of us-' ing the mails to defraud by means of a fraudulent stock-selling scheme, and he brings er ror. Affirmed. Frank C. Smith, of St. Louis, Mo., for plaintiff in error. Louis H. Breuer, U. S. Atty., of Rolla, Mo. (C. J. Stattler, Asst. U. S. Atty., of St. 21 F.(2d) 967 Louis, Mo., on the brief), for the United the motion to quash. Being satisfied that the States. Before WALTER H. SANBORN and BOOTH, Circuit Judges, and MILLER, District Judge. MILLER, District Judge. This case comes here on writ of error from the District Court for the Eastern District of Missouri. The sole question involved is the sufficiency of、 the indictment as tested by defendant's motion to quash. The defendant was tried, convicted, and sentenced in the Eastern district of Missouri under an indictment charging him with violating section 215 of the Penal Code of the United States (18 USCA § 338), for using the United States mails in aid of and in the execution of a certain scheme and artifice devised by him to defraud and obtain money and property by means of false and fraudulent pretenses from numerous, divers and sundry persons, including the public generally, and particularly of those whom his false representations and false promises should induce to give and pay money and property to him. The motion is on eight grounds, but, eliminating repetitions, they may be reduced to four as follows: (1) That the matters and things set forth in the indictment do not constitute any offense against the laws of the United States or charge a violation of section 215. (2) That the allegations in the indictment are too vague, indefinite, and uncertain to inform defendant of the exact nature of the accusation against him and afford him proper notice to enable him to plead and prepare his defense. (3) The indictment does not inform the defendant in what respect the alleged false pretenses, representations, and promises were fraudulent, and does not contain an allegation that the alleged scheme devised was to be carried out and executed by use of the United States mails. (4) Because it appears on the face of the indictment that the offenses alleged therein were barred by the statute of limitations. A careful examination of the record convinces us that there is no merit in any of the grounds set forth; that the trial court did not err in overruling the same. The indictment consists of 37 typewritten sheets and contains five counts. Conviction, however, was had only on counts 1, 2, and 5, on which the court imposed a sentence of four years under each count, to run concurrently. errors complained of are not well taken, we are of the further opinion that to analyze the long and somewhat tedious indictment to demonstrate the conclusion of the court would serve no useful purpose. The judgment of the lower court should be, and is, affirmed. TILDEN et al., California State Board of No. 5253. Courts 303 (2)-Action for penalty against California harbor commissioners for violating federal statute held not "suit against state" (Safety Appliance Acts [45 USCA §§ 2,8-10]). Action by United States against California state board of harbor commissioners to recover a penalty for violation of Safety Appliance Act March 2, 1893, § 2, amended by Act March 2, 1903 (45 USCA §§ 2, 8-10 [Comp. St. §§ 8606, 8613-8615]), in the operation of State Belt Railroad was not a "suit against the state," since State Belt Railroad, though belonging to state, is a common carrier engaged in interstate commerce, and required to comply with federal Safety Appliance Act. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Suit against the State.] In Error to the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Kerrigan, Judge. Action by the United States against C. L. Tilden and others, comprising the California State Board of Harbor Commissioners, operating the State Belt Railroad. Judgment for plaintiff, and defendants bring error. Affirmed. Leon E. Morris, of San Francisco, Cal. (Edward M. Jaffa, of San Francisco, Cal., of counsel), for plaintiffs in error. George J. Hatfield, U. S. Atty., and Thomas J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., and M. C. List, Sp. Atty., of Washington, D. C. Before GILBERT, HUNT, and RUDKIN, Circuit Judges. GILBERT, Circuit Judge. In the court below the plaintiffs in error, who constitute the board of state harbor commissioners of California, were adjudged to pay a penalty No new or novel questions are raised in of $100 for violation of section 2 of the |