RAMSEY et al. v. UNITED STATES.

Circuit Court of Appeals, Sixth Circuit. July 6, 1928.

No. 5077.

1. Searches and seizures 7(19)-Officers,

acting on information received, seeing liquor

containers in automobiles, held warranted in believing automobiles were transporting liquor, and in searching without warrant (Const. Amend. 4).

Where one who had been assisting officers in breaking up liquor business told officers to go to certain place, where they would find load of liquor, and officer saw fruit jar cartons in one automobile and a large quantity of stuff in "paper pokes" used for carrying liquors in another automobile, before opening doors facts and circumstances presented to officers held sufficient to warrant men of prudence and caution in believing that the automobiles were transporting liquor in violation of law, and justified search without warrant, under Const. Amend. 4. 2. Criminal law 393(1), 394-Admitting result of search of automobiles for liquor with out warrant, where facts justified search without warrant, did not violate constitutional provisions (National Prohibition Act [27 USCA]; Const. Amends. 4, 5).

In prosecution for conspiracy to violate National Prohibition Act (27 USCA), admitting

result of search of automobiles without warrant, where facts justified search without warrant, held not to violate Const. Amends. 4, 5. 3. Criminal law 925 (5)-Denying new trial on ground jurors, after retiring, were given by one of them information regarding codefendant's place not given in evidence, held not error, where such testimony did not affect defendants' case.

Denial of motion for new trial on ground that jurors, after they had retired, were given by one of them, not in presence of and without knowledge of defendants, information regarding reputation of codefendant's place, not given in evidence on trial, held not error, where such testimony did not touch defendants' case. 4. Courts 353-In federal courts, jurors may not testify in impeachment of their own verdict.

General rule in federal courts is that jurors may not testify in impeachment of their own verdict.

5. Courts 353-Local practice does not control federal courts as to right of jurors to impeach their verdict (Conformity Act [28 USCA §§ 724, 726, 727]).

Local practice in state does not control practice in federal court as to right of jurors to. testify in impeachment of their own verdict; Conformity Act (28 USCA §§ 724, 726, 727) not applying.

In Error to the District Court of the United States for the Eastern District of Tennessee; Xenophon Hicks, Judge.

Halcomb Ramsey and another were convicted of conspiracy to violate the National

Sam A. Susong, of Greeneville, Tenn. (Susong, Susong & Parvin, of Greeneville, Tenn., McMahan & Pierce, of Morristown, Tenn., and Greer & Greer, of Newport, Tenn., on the brief), for plaintiffs in error.

Wilbur W. Piper, Asst. U. S. Atty., of Knoxville, Tenn. (George C. Taylor, U. S. Atty., of Knoxville, Tenn., on the brief), for the United States.

Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.

KNAPPEN, Circuit Judge. The two plaintiffs in error were indicted, under section 37 of the Penal Code (18 USCA § 88), jointly with Laura Ramsey (sister of plaintiff in error Halcomb Ramsey), one Mathis, one Green, and one Thomas, on a charge of conspiring to violate the National Prohibition Act (27 USCA) by selling, possessing, transporting, and manufacturing intoxicating liquor and maintaining a common nuisance at the dwelling house of Laura Ramsey, in Newport, Tenn. The two plaintiffs in error were convicted and sentenced. Laura Ramsey was convicted, but the final disposition of her case does not appear. The remaining three persons charged in the indictment were acquitted.1

All the parties charged in the conspiracy indictment had been found by the prohibition agent and deputy United States marshal at the home of Laura Ramsey. A Hudson car driven by Halcomb Ramsey and a Ford coupé driven by McCurry, and occupied also by Mathis, were then and there searched without a warrant therefor, and a large quantity of whisky found in each car. A Ford touring car brought by Green and Thomas (the "colored boys") contained no liquor. On the trial each plaintiff in error, while denying a conspiracy, admitted that the liquor found in his car was being possessed and transported by him, without even asserting a claim of lawful purpose.

It was the government's theory that Green and Thomas were at the Laura Ramsey home for the purpose of getting a load of liquor. The first of the two complaints presented here is that the two officers had no probable cause

1 It appears by the court's charge that plaintiffs in error McCurry and Mathis were charged in another indictment, and plaintiff Ramsey in still another, with the substantive offenses of unlawfully possessing and transporting intoxicating liquors, and that all three cases were tried together with the conspiracy case. The other two cases are not involved here.

for searching the automobiles of the respective plaintiffs in error, and that the admission of the result of that search violated the Fourth and Fifth Amendments to the Constitution.

We see no merit in this contention. There was testimony, in substance, that one Proffett, who had been assisting the officers in "breaking up the liquor business on Cosby," saw plaintiff in error Halcomb Ramsey in his Hudson car, and plaintiff in error McCurry and Mathis in the Ford coupé, the latter not far behind the former, and going toward Cosby; that the Hudson car (at least) was heavily loaded; that Proffett told the officers that, if the prohibition director wanted to catch two cars "right quick," to go to Laura Ramsey's; if he would go there he would catch them; or, as again stated, that "Halcomb Ramsey was coming down the road and had gone on with a load of liquor;" that because of this information the officers went at once to Laura Ramsey's where McCurry was seen to come out of the house and put his hand on the door of the Hudson (Ramsey's car), and when he saw the officers went back in the house; that Ramsey came out of one door of the house and McCurry out of the other; that Laura Ramsey's house was not the home of either plaintiff in error, nor was the whisky seized in the house, but in the automobiles which were in Laura Ramsey's yard. Neither the automobiles nor the whisky therein were claimed by any one to belong to Laura Ramsey. The two cars containing the liquor, when found at Laura Ramsey's, were splashed with fresh mud and apparently were just driven in. The soft ground also showed the marks of recent tracks; there was testimony that one of the officers, before opening the cars, looked in through the window of the Hudson car and saw there a large number of "fruit jar cartons," said to be commonly used for carrying bottled liquor. The seizure was in February, and thus outside the canning season. looking through the door of the Ford coupé, before it was opened, there was seen a large quantity of stuff in "paper pokes," said also to be used for carrying liquors.2

The first objection to the testimony of the finding and seizure of liquor was made at the

close of Proffett's testimony, by motion to strike out, and not until after both officers and a fourth witness for the government had testified. The record thus shows, not only express information given by Proffett, which fully justified the officers in going to Laura Ramsey's home; but the evidence, even standing alone, disclosed by the cars themselves, before they were opened, completely warranted the expectation that liquor would be found within. Not to have acted upon the evidence so presented would call for explanation. We see no merit in the contention that Proffett himself had not sufficient evidence to justify the word sent the officers. If true, it would not be controlling. The crucial question concerns only the officers' prudence and caution. However, it is at least presumable that Proffett was well acquainted with both plaintiffs in error, and with operations on their part justifying his message to the offi

cers.

[1, 2] We think the facts and circumstances presented to the officers were amply sufficient to warrant men of prudence and caution in believing that the two cars were transporting liquor in violation of law, and that is the test of the right to seize and search under the situation here. The claim that the constitutional rights of plaintiffs in error were violated thereby impress us as trivial. Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A. L. R. 790; Dumbra v. United States, 268 U. S. 435, 438, 45 S. Ct. 546, 69 L. Ed. 1032; Steele v. United States, No. 1, 267 U. S. 498, 504, 45 S. Ct. 414, 69 L. Ed. 757; Steele v. United States, No. 2, 267 U. S. 505, 45 S. Ct. 417, 69 L. Ed. 761; Daisen v. United States (C. C. A. 6) 4 F. (2d) 382; Keith v. United States (C. C. A. 6) 11 F. (2d) 933, 935; Hilsinger v. United States (C. C. A. 6) 2 F. (2d)

241.

2 We pass by the suggestion that the court had not been asked to order return of the seized liquor. The record shows that some, at least, of the liquor was destroyed as seized. Possibly all of it was so treated. It does not appear

that any was received or offered in evidence on the trial, but its nature was not only sworn to, but was admitted by plaintiffs in error.

on the jury from the section in question, who knew the the parties or the reputation of their place, and received the reply from one of the jurors that he had heard some of the garage boys talking about going to Aunt Laura's, or, as one juror put it, that the juror in question had heard of the Laura Ramsey place for the last four or five years as being a place where any one could go and buy whisky, and that "we must get rid of it." It would appear by the testimony of another juror that, before the statements in question, the jury had convicted plaintiffs in error, and that the trouble was in reaching a verdict as to Laura Ramsey. One of the jurors testified that the juror in question was told what he said was hearsay and "didn't go." The court denied the motion as to plaintiffs in error, on the ground that there was no indication that "any testimony before the jury touching their case occurred. It is all as to Laura Ramsey, so that is not in their way so far as their case is concerned." The court reserved the disposition of the motion as to Laura Ramsey.

[5] We think the court did not err in refusing to set aside the verdict as to plaintiffs in error. The general rule is well established in the federal courts that jurors may not testify in impeachment of their own verdict. McDonald v. Pless, 238 U. S. 264, 269, 35 S. Ct. 783, 59 L. Ed. 1300; Hyde v. United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614; Williams v. United States (C. C. A. 6) 3 F. (2d) 934, 936. True, the statutory practice in Tennessee is in contravention of the rule in the federal courts. Street Railway & Tel. Co. v. Simmons, 107 Tenn. 401, 403, 64 S. W. 705. But the Conformity Act (28 USCA §§ 724, 726, 727), does not apply to the subject before us. McDonald v. Pless, supra. The instant case is entirely outside the rule which permits proof of matters occurring outside the jury room which might have influenced jurors (as, for instance, newspaper publications). See Williams v. United States, supra.

Nor need we consider whether or not, in the present state of the rulings of the Supreme Court, there might be instances in which testimony of jurors could not be excluded without violating the plainest principles of justice. In the instant case, not only did the court not exercise its discretion in such direction, but its conclusions of fact negative existence of room for such action. The judgment of the District Court is affirmed.

CREEKMORE v. OVERTON et al. Circuit Court of Appeals, Eighth Circuit. June 21, 1928.

No. 8009.

1. Courts 359-Legal effect of Instrument assigning interest in real and personal property located within Oklahoma must be deter. mined by law of that state.

Legal effect of instrument assigning interest in estate involving real and personal property located within state of Oklahoma must be determined by a consideration of law and decisions of that state, since conveyances of property attacked on ground of fraud will, wherever possible, be considered in light of local law.

2. Fraudulent conveyances 215-Plaintiff In tort action is, prior to judgment, a "creditor," within law making transfers with intent to defraud void as against creditors (Comp. St. Okl. 1921, § 6020).

Plaintiff in a tort action is, prior to judgment, a "creditor," within meaning of Comp. St. Okl. 1921, § 6020, providing in substance that transfers of property made with intent to defraud shall be void as against all creditors, on the theory that, when a claim in tort has been reduced to judgment, it relates back and is to be regarded as a debt as of the time that cause of

action accrued.

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

3. Fraudulent conveyances 215-Plaintiff, suing for alienation of affections, is "creditor," within law providing transfers of property with intent to defraud are void against creditors (Comp. St. Okl. 1921, § 6020).

Plaintiff, in action for alienation of affec

tions, held a "creditor" of defendant, within meaning of Comp. St. Okl. 1921, § 6020, providing in substance that transfers of property made with intent to defraud shall be void as against all creditors.

4. Fraudulent conveyances 298 (1)-Purpose of party making conveyance is to be determined by consideration of circumstances, and statements as to intent are not conclusive.

Purpose of party making conveyance is to be determined by a consideration of circumstances connected with execution of instrument by which title is claimed, and what parties to transfer may state as their intent, though properly to be kept in mind, is not conclusive. 5. Fraudulent conveyances

160-Title under

assignment of interest in estate after institution of suit against assignor for alienation of affections with knowledge of assignee held vulnerable, notwithstanding substantial consideration paid (Comp. St. Okl. 1921, § 6020).

Title acquired by assignment of interest in estate after institution of proceedings against assignor for alienation of affections, of which under Comp. St. Okl. 1921, § 6020, by reason proceedings assignee had notice, held vulnerable, of fraud in such transaction, notwithstanding substantial consideration was paid for transfer.

Appeal from the District Court of the United States for the Northern District of Oklahoma; Franklin E. Kennamer, Judge. Action by William J. Creekmore against Ann Overton and others. Decree of dismissal, and plaintiff appeals. Affirmed.

Charles A. Coakley, of Tulsa, Okl. (C. B. Stuart, of Oklahoma City, Okl., and E. J. Doerner, of Tulsa, Okl., on the brief), for appellant.

T. G. Chambers, Jr., of Oklahoma City, Okl. (Moss & Young, of Tulsa, Okl., on the brief), for appellees.

Before LEWIS, Circuit Judge, and SCOTT and DAVIS, District Judges.

sale.

DAVIS, District Judge. This is an action for an injunction to restrain appellees, Ann Overton and T. G. Chambers, Jr., from asserting any right in or title to the property of the estate of C. H. Overton, deceased, by virtue of being the purchasers at a receiver's A cross-complaint was filed, praying that a certain alleged assignment of interest in the said estate, executed by Ellen Overton to William J. Creekmore, be canceled. The court dismissed the bill for want of equity, and granted the relief sought on the crossbill. The case is here on appeal.

Charles H. Overton and Ann Overton were married in 1906, and remained husband and wife until 1923, when a divorce was granted Ann Overton. Two children were born of the marriage. Some adjustment of property rights of the parties was effected about the time the divorce was granted. Charles H. Overton and Ellen Wright were married in November, 1923. Overton died May 19, 1924, leaving a will whereby onehalf of his estate was bequeathed and devised to his two children, and substantially the other half to his then wife, Ellen Overton.

Ann Overton filed, in the district court of Tulsa county, Oklahoma, on September 8, 1924, a suit against Ellen Overton for damages for the alienation of the affections of Charles H. Overton. No service was had in this action, and it was dismissed on November 15, 1924, and on the same day substantially the same suit was again filed. Judgment was on April 24, 1925, rendered in favor of plaintiff in the sum of $150,000, which judgment on appeal to the Supreme Court of Oklahoma, was affirmed in July, 1926, to the extent and in the sum of $60,000.

An execution was issued on the judgment in the district court of Tulsa county, on April 24, 1925, upon which a nulla bona return was made. That court, on July 13, 1925, appoint27 F. (2d)-32%

ed W. B. Green, as receiver, to take charge of the interest of Ellen Overton in the estate of her husband, then in the hands of Harry M. Price and Harry Campbell, executors. The receiver, on December 7, 1925, sold at public sale all the right, title, and interest of Ellen Overton in the said estate to Ann Overton and T. G. Chambers, Jr., appellees, herein. Ellen Overton, on September 24, 1924, subsequent to the filing of the first suit against her by Ann Overton, is alleged to have, by a written instrument, sold and assigned to William J. Creekmore, appellant, in consideration of $10,000, her entire interest in the estate of her husband.

The issue in this case is whether or not the conveyance executed on September 24, 1924, whereby Ellen Overton purported to transfer all of her interest in the estate of Charles H. Overton to appellant, is valid as against Ann Overton. If this were a valid conveyance, then Ellen Overton had remaining no interest in the estate of her husband, and the appellees acquired nothing by being

the purchasers at the receiver's sale.

The following facts were developed in connection with the execution of this instrument: The appellant resided at Joplin, Mo., and for many years was intimately acquainted with Charles H. Overton and Ann Overton, his first wife. He was at one time a partner of the said Overton, and had much information about his property and business affairs. Appellant was frequently a visitor at the Overton home, and had observed a happy household until about 1921, when Ellen Overton, with whom he was also acquainted, began to exert a disquieting influence in that home. Ellen Overton did actually enter into that home with the express purpose of inducing Overton to leave his family. It has been judicially determined that she accomplished that object. The facts were all known to appellant at the time they occurred, and he frequently stated that Ellen Overton was known to him to be an immoral woman. The separation of the Overtons, the divorce, the property settlement effected, the remarriage of Overton, the filing of the suit for alienation of affections, were all familiar matters to appellant. In fact, it would be difficult to acquire a more intimate insight into domestic and business affairs of any family than that possessed by appellant. He not only knew about these matters, but assumed the rôle of adviser to Ann Overton in her troubles and in the litigation that resulted therefrom.

The estate left by Overton consisted of real estate located in the state of Oklahoma,

and of real estate mortgages. The value of the interest left to Ellen Overton was about $25,000. The executors were not notified of the assignment of her interest until after the receiver's sale in December, 1925.

Appellant testified that in August, 1924, he commenced to negotiate with Ellen Overton with a view of purchasing her interest in Charles H. Overton's estate; that on September 24, 1924, he met her in Afton, Oklahoma (a place where neither of the parties resided), and consummated the transaction; that she executed the conveyance of her interest for the consideration of $10,000, which was paid in the following manner: $3,000 in cash, $5,000 in a check drawn by appellant on a bank in Afton, and $2,000 in cash on a later date; that C. O. Shepherd and Joe H. Smalley were witnesses to the execution of the paper. The witness further stated that at the time of this transaction he was informed that the alienation suit was pending and that Ellen Overton had assigned to her attorneys, as a fee for defending that suit, an interest in the estate to the extent of $7,500, and that she had no property other than her interest in the estate.

Ellen Overton testified that she took the cash paid her by appellant, concealed it in her home in Tulsa, went back to Afton about a week later, and cashed the check above mentioned; that none of this money was deposited in the bank, but that she gave $6,500 to one Harrison to invest for her in Florida, and for this sum she took no receipt, note, or other written evidence; that the balance she spent for her own use and that of some other member of her family.

[1] The appellant plants his case upon the binding character of the assignment of an interest in the estate executed by Ellen Overton, and asserts that the receiver's sale of that interest should be declared a nullity. The legal effect of that instrument should be determined by a consideration of the law and decisions of Oklahoma. The property involved, both real and personal, was located in that state. Conveyances of property, attacked on the ground of fraud, will, wherever possible, be considered in the light of the local law. Schreyer v. Scott, 134 U. S. 405, 10 S. Ct. 579, 33 L. Ed. 955; Allen v. Massey, 84 U. S. (17 Wall.) 351, 21 L. Ed. 543; Wallace v. Penfield, 106 U. S. 260, 1 S. Ct. 216, 27 L. Ed. 147; Shauer v. Alterton, 151 U. S. 607, 14 S. Ct. 442, 38 L. Ed. 286; Klinger v. Hyman (C. C. A.) 223 F. 257.

[2] The state of Oklahoma has adopted a statute (section 6020, Compiled Laws 1921) which provides in substance that transfers of

property made with intent to defraud shall be void as against all creditors. This statute has been before the courts of that state, and it has been uniformly held that this law not only protects creditors whose obligations have matured at the time of the transfer, but that potential creditors come within its purview. The plaintiff in a tort action is, prior to judgment, a creditor within the meaning of the statute. This is on the theory that, when a claim in tort has been reduced to judgment, it relates back and is to be regarded as a debt as of the time that the cause of action accrued. Shelby et al. v. Ziegler, 22 Okl. 799, 98 P. 989; Union Coal Co. v. Wooley, 54 Okl. 391, 154 P. 62, 19 A. L. R. 312; Adams v. Wallace et al., 94 Okl. 73, 220 P. 872. This rule is not peculiar to that state, but is in accord with the law of this circuit and is generally applied. Bumpass v. McGehee (C. C. A.) 247 F. 306; McLaughlin v. Bank of Potomac, 7 How. 220, 12 L. Ed. 675. [3, 4] There can be no question, then, but that Ann Overton was creditor within the meaning of the statute. We turn to the circumstances connected with the execution of the instrument by which appellant claims title, and the rule by which these facts are to be interpreted. The purpose of the party making the conveyance is to be determined by a consideration of these circumstances. What the parties to the transfer may state as to their intent, though properly to be kept in mind, is by no means to be regarded as conclusive.

In Kansas Moline Plow Co. v. Sherman, 3 Okl. 204, 41 P. 623, 32 L. R. A. 33, it was said:

"Where a transfer of property is made for the purpose, or with the intent, on the part of the person making such transfer, to hinder and delay creditors, it is fraudulent and void; and the conveyance is fraudulent and void, also, as to the transferee, if, at the time or before the making of the transfer, the transferee had notice of such facts and circumstances as would arouse the suspicion of an ordinarily prudent man and cause him to make inquiry as to the purpose for which such transfer is being made, which would disclose the fraudulent intent of the maker; and it is not necessary in order to defeat such a transfer, to show that the transferee had actual notice of, or was a participant in, the fraud of the maker of the transfer."

There are other Oklahoma cases to the same effect. Armstrong v. Wasson, 93 Okl. 262, 220 P. 643; Toone v. Walker et al., 115 Okl. 289, 243 P. 147; Apple v. American Nat. Bank, 104 Okl. 69, 231 P. 79. In the