[6] We approve of the practice followed in the present case. Defendants were first charged (count 3) with the sale of intoxicating liquor on the 18th day of August, 1924. By the next count (No. 4) McCarren was charged with the identical sale, but it was further alleged:

"And the grand jurors aforesaid, upon their oath do further present, that the above offense is the second offense of the said Alex McCarren, in this, that at the October term, A. D. 1921, of this court an indictment was duly returned against the said Alex McCarren; that the first count of said indictment charged the said Alex McCarren with unlawful sale of intoxicating liquor on the 17th day of May, A. D. 1921, in violation of the National Prohibition Act; that said indictment was duly filed with the clerk of said court in the case of the United States v. Alex McCarren et al., No. 1687; that thereafter at the April term, A. D. 1922, of said court on the 8th and 9th days of May, A. D. 1922, the said Alex McCarren was tried by a jury and found guilty as charged in the first count of said indictment, and that thereupon the said Alex McCarren was by the court on the 11th day of May, A. D. 1922, sentenced to pay a fine of $500 and costs and to imprisonment in the McLean county jail for a period of six months; that thereafter on the 11th day of May, A. D. 1922, a writ of error was allowed to the Circuit Court of Appeals, which writ of error was on the 5th day of April, A. D. 1923, dismissed by the Circuit Court of Appeals and mandate issued."

[7] The jury was thus permitted to find and did find separately on each count of the indictment-in other words, upon each of the two issues. No doubt the same issues could, by appropriate instructions, be presented under a single count. In such case the court should make it clear that the jury should determine the issues thus raised and record its finding. It is not necessary, however, that this be done by a special verdict. The foreman, in announcing the verdict, may remove all uncertainty. In fact, it is not uncommon practice, under an indictment or information charging a felony where the jury may find the accused guilty merely of a misdemeanor, to accept the oral announcement of the foreman as the equivalent of a special verdict.

[8] In case of a conviction on both counts (where the case is submitted as the instant one was presented to the jury), the court must, however, bear in mind that there can

be but one sentence. As stated in McDonald v. Massachusetts, supra:

"The allegation of previous convictions. is not a distinct charge of crimes, but is necessary to bring the case within the statute, and goes to the punishment only."

We think the court erred, therefore, in imposing a fine on McCarren under count 3 of the indictment.

The judgment is affirmed as to Wall, and also affirmed as to McCarren in all respects save for the imposition of a fine of $1 under count 3 of the indictment.

NOGUERA et al. v. FUERTES. (Circuit Court of Appeals, First Circuit. October 7, 1925.)

No. 1810.

1. Appeal and error 1074(3)—Error, If any, in statement in judgment that vendor was in possession at time of conveyance, held immaterial.

In suit to recover land, error, if any, in

statement by Supreme Court of Porto Rico that, when vendor sold land in question to complainant, latter left her in possession, was immaterial, in view of fact that, if vendor was not in actual physical possession, she had right to its possession at time of conveyance to complainant.

2. Vendor and purchaser 212-Refusal to apply statute of Porto Rico relating to rights of different vendees to whom same land is sold to contention as to effect of conveyance by person who had no title held not error.

In action to recover land, where defendant's predecessor in title, as result of conveyance, did not acquire any title to land in question, but when he afterwards conveyed land to third person included part, if not the whole, of property in dispute, which gave rise to refusal by registrar to record sale as to excess of land above certain amount, refusal of Supreme Court of Porto Rico to apply Civ. Code Porto Rico, § 1376, providing that, if same real property is

sold to different vendees, it shall belong to person acquiring it who first recorded it in registry, was not error.

3. Vendor and purchaser ~~228(1)—Purchaser, notified before purchase of adverse claim to part of property in question, held to have acted in bad faith.

Where prospective purchaser of property was notified by owner of land, which had been wrongfully incorporated in such property, of true situation before purchase, his subsequent purchase was made in absence of good faith. 4. Courts 406 (1)-Judgment of District Court and Supreme Court of Porto Rico in matter involving Porto Rican law should not be reversed, except on clear showing of er

ror.

Where both District Court and Supreme Court of Porto Rico have reached practically

same result on matter involving Porto Rican law, their judgment should not be reversed, except on clear showing of error.

Rico.

Action by Faustino Fuertes against Juan Noguera and others. From a judgment of the Supreme Court of Porto Rico, affirming a judgment for plaintiff, defendants appeal. Affirmed.

Howard L. Kern, of New York City (Armstrong, Keith & Kern, of New York City, on the brief), for appellants.

Arturo Aponte, Jr., of Humacao, Porto Rico, for appellee.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge. This is an appeal from the Supreme Court of Porto Rico, in an action in which the plaintiff seeks to recover a parcel of land called "Cercado Maldonado," alleged to be in the possession of the defendants.

The following facts were found by the Supreme Court, which are in substantial accord with those found by the District Court: "In 1903 Manuel Gonzalez Fernandez purchased the property called 'Cercado Maldonado,' containing 35.190 acres, from Santiago R. Palmer. Ten days later Gonzalez died, and was succeeded by his widow and children, who recorded their hereditary title to said property. Shortly after this record was made the parties in interest proceeded to execute the will of their ancestor, and awarded this and other properties to Clementina Lugo y Calzada in settlement of her share. Finally, on October 2, 1912, Clementina sold to Faustino R. Fuertes all these properties, including the 'Cercado Maldonado' involved in this controversy. It is well to mention at this point that Palmer, who had sold Manuel Gonzalez the said 'Cercado Maldonado' property, gave Emilio Cuadra a power of attorney to sell Francisco Noya and wife a part consisting of one hundred acres, to be segregated from a property named 'Cercado Torres,' or 'Maizales.' Under this power of attorney Emilio Cuadra sold the spouses Noya the 100 acres in question, segregating the same from the 'Cercado Torres.' Now the property 'Cercado Maldonado' and 'Torres' were two distinct and separate properties, as shown by the registry, the plans, and the real facts. It is shown that, at the time of the purchase made by Manuel Gonzalez, as well as by Noya, all these properties were held by Faus

being performed by Surveyor Juan A. Davila. At such time all the properties were still held under lease by Fuertes, and he did not deliver Noya's property to the new lessee, Gustavo Preston, until about the year 1904 or 1905, and when he surrendered possession. of this property, he did not deliver the 'Cercado Maldonado,' which he retained for some time longer, but only the 100 acres. A little later Faustino R. Fuertes also delivered the properties still in his possession belonging to the Gonzalez succession as a consequence of the death of Manuel Gonzalez, his predecessor in interest. This was about the year 1905. In 1912 plaintiff, Faustino R. Fuertes, bought all these properties. He continued, however, to lease them to their former owners. He had no need to inspect them, since they were known to him for more than 20 years, and when, in 1913, he proceeded to enter into possession of said properties, he found that 'Cercado Maldonado' was not among them, but was in possession of the Central San Cristobal, against which proceedings for a receivership were then being instituted in the federal court.

"It is well to state here that the property belonging to Noya was sold by him to the Central San Cristobal in 1911; but, instead of 100, the sale involved 130-odd acres, namely, the acres contained in the 'Cercado Maldonado' property, and the 100 acres belonging to Noya. This gave rise to the refusal of the registrar of Humacao to record the sale in favor of the Central San Cristobal as to the excess, the records of the registry stating clearly and distinctly 'that the admission to record of the excess of 30-odd acres was denied, because these did not lie within the same boundaries, and because the difference was too great to be overlooked.'

"Subject to the refusal of the registrar of property to record the excess of 30-odd cuerdas, and a showing of 98 and a fraction cuerdas, after deducting a small segregation of one cuerda and a fraction of another, the Noya property of the Central San Cristobal was sold at public auction to the Naguabo Sugar Company, predecessor in interest of the Fajardo Sugar Growers' Association.

"In 1916 the plaintiff learned that Noguera contemplated the purchase of the Noya property, and thereupon by his attorneys, Dexter & Aponte, wrote, notifying

Noguera of the true state of affairs, and advising him that he was the owner of the Maldonado property, which had been wrongfully incorporated in the 'Noya' property, and that, if he persisted in making the purchase, he would do so at his risk and peril, and could not invoke or rely upon the defense that he was a third person or innocent purchaser.

"On December 27, 1916, or one week after Noguera received the letter from Dexter & Aponte, the said Noguera purchased 60 cuerdas of the Noya property-or what they called the southern section of the highway -from the Fajardo Sugar Growers' Association.

"In making this conveyance the parties assumed that the 'Noya' property contained 130-odd cuerdas and that the southern section of the road contained 60-odd cuerdas, whereas the fact is that, according to the registry, it contained a total area of only 98.86 cuerdas, and the section to the south of the highway an area of only 40 cuerdas.

"The defendants rest their defense on the contention that the 'Cercado Maldonado' never existed, and that therefore the complaint cannot prosper.

"But the fact remains that according to the certificate of the registry of property and the old plan of the properties the 'Cercado Maldonado' has always existed, and has always possessed natural boundary lines not open to dispute, namely, on the east an inlet and the Viejo river; on the south the river Viejo; on the west, a small inlet; and on the north the property Fe, formerly owned by Pereyo, from which it is divided by a road, now a highway in process of construction. And these natural boundaries of water, except on one side, are the ones taken or relied on by the defendants themselves in their statements of identification."

The Supreme Court of Porto Rico has affirmed the judgment of the District Court, modified to show that the title of the defendants is not to be destroyed, except so far as it conflicts with the title of the complainant, and, summing up its conclusion, it states:

"The complainant shows a title duly recorded in 1902. He showed the defendants in possession of the same, and a holding against complainant, and such adverse holding was continued despite all sorts of notice. The defendants have not satisfied us that there is any mistake in the origin of complainant's title, or that they have a superior claim."

The language used in the opinion may be unfortunate, and not strictly accurate, and

might imply that the burden was upon the defendants to show that they had a superior claim; but a reading of the whole opinion makes it clear that the court did not place the burden upon the defendants of proving a superior claim, but that it made its finding upon the evidence, which showed that the plaintiff had sustained the burden thrown upon him of proving a superior claim.

[1] The first assignment of error alleges that the Supreme Court was in error in finding that Clementina Lugo, widow of Gonzalez, was in possession of the 'Cercado Maldonado' when he purchased it. This assignment seems to be directed to that part of the opinion of the Supreme Court where it is stated:

"But the record clearly shows, and the court so found, that when Dona Clementina Lugo sold to the complainant, in 1912, the latter left her in possession, giving her a lease to the said land which was to expire in 1914. Now when a person buys a piece of land, and immediately leases the same to the vendor, the civil possession is transferred from the vendor to the purchaser. The continued possession of the lessee is the possession of the lessor."

If the vendor was not in actual physical possession of "Cercado Maldonado," the evidence discloses that she had the right to its possession at the time of its conveyance to the plaintiff; and if the court was in error in stating that she had possession, we think it is immaterial.

[2] It is also assigned as error that the Supreme Court made a wrong application of or did not apply at all, section 1376 of the Civil Code of Porto Rico, which is as follows:

"Sec. 1376. If the same thing should have been sold to different vendees, the ownership shall be transferred to the person who may have first taken possession thereof in good faith, if it should be personal property.

"Should it be real property, it shall belong to the person acquiring it who first recorded it in the registry.

"Should there be no entry, the property shall belong to the person who first took possession of it in good faith, and, in the absence thereof, to the person who presents the oldest title, provided there is good faith."

While this section might be helpful in determining ownership, where two parties claim the same land through conveyances from the same grantor, we think it does not have application to the present case. The evidence discloses that when Noya received a deed of 100 acres which was segre

gated from "Cercado Torres," he did not claim to have received title to any part of "Cercado Maldonado," but, when he afterwards sold the property which he had acquired to the San Cristobal Central, a survey was made, showing that the Central claimed that he had conveyed to it more than 130 acres. Witness testified that he had never been in possession of the property and could not give its boundaries. The same land was surveyed again, when it was conveyed by the San Cristobal Central to the Fajardo Sugar Growers' Association, and found to contain 109 acres. The surveyor who made the survey when 100 acres was segregated from "Cercado Torres" testified that, when he made this segregation and his plan, he was shown a plan which had been offered in evidence and purported to have been made in 1868, which plan included "Cercado Maldonado," "Cercado Torres," and other properties, and that the "Cercado Maldonado" was shown to be a property distinct from the "Cercado Torres," from which he made the segregation of 100 acres.

It appears, therefore, that Noya, the predecessor in title of the defendant, did not receive title to any of the land included within "Cercado Maldonado"; but, when he afterwards conveyed it, in 1911, to the San Cristobal Central, he included part, if not the whole, of the "Cercado Maldonado" property, which gave rise to a refusal by the registrar to record the sale as to the excess above 100 acres, the records of the registry stating clearly and distinctly "that the admission to the record of the excess of 30-odd acres was denied because these did not lie within the same boundaries, and because the difference was too great to be overlooked."

[3] If Noya had no title to any part of "Cercado Maldonado," he could convey none, and there was no error in the refusal of the Supreme Court to make application of section 1376 of the Civil Code. Nor do we think there was any error in the finding of the Supreme Court that there was an entire absence of good faith in the purchase by Noguera of the land in question, in view of the notice which had been given him before his purchase.

[4] As both the District Court and the Supreme Court of Porto Rico have reached practically the same result, and the matter is one involving Porto Rican law, their judgment should not be reversed by us, unless we are convinced that they are clearly wrong. In this case we are convinced that they are clearly right. The entry therefore must be:

The judgment of the Supreme Court of Porto Rico is affirmed, with costs to the appellee in this court.

CROWLEY v. UNITED STATES. * (Circuit Court of Appeals, Ninth Circuit. October 5, 1925.)

No. 4494.、

1. Criminal law 369 (1) 1169(11)-Evidence of other offense held error and prejudicial. In trial for conspiracy to violate National Prohibition Law (Comp. St. Ann. Supp. 1923, § 101384et seq.), admission of prohibition agent's testimony, that he arrested defendant and seized liquor being transported by him on spiracy was alleged to have begun, held error date seven months before that on which conand prejudicial; such evidence being wholly collateral to issue as to place, time, and circumstances of conspiracy charged.

2. Criminal law 371 (1, 12)-Evidence of like offenses in carrying on common enterprise inadmissible, without showing connection raising fair inference of common motive.

In conspiracy case, where evidence tends to prove that defendant and others entered into common scheme to commit crime, such as transportation of liquor, evidence of other like offenses by defendant in carrying on common enterprise is relevant as showing his knowledge or intent, if such connection between different transactions is shown as raises fair inference of common motive in each.

3. Conspiracy 48-Evidence held sufficient for jury, in trial for conspiracy to violate prohibition law.

Evidence of what occurred at time of arrest of defendant and others held sufficient for jury, in trial for conspiracy to violate National Prohibition Law (Comp. St. Ann. Supp. 1923, § 101384 et seq.).

In Error to the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Kerrigan, Judge.

Frank D. Crowley was convicted of con

spiracy to violate the National Prohibition Law, and he brings error. Reversed, and remanded for new trial.

Otto Christensen, O. N. Hilton, and Verge & Cooney, all of Los Angeles, Cal., and James B. O'Connor, of San Francisco, Cal., for plaintiff in error.

Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

*Rehearing denied December 7, 1925.

HUNT, Circuit Judge. Writ of error by Crowley, who, with one Lucas, was convicted of conspiracy to violate the National Prohibition Law (Comp. St. Ann. Supp. 1923, § 101384 et seq.). The indictment charges that Crowley and three others, on or about March 20, 1924, willfully combined and continued thereafter up to the date of the indictment to possess and transport and purchase intoxicating liquor. Overt acts alleged were that Crowley and Sasso and one Lucas went to the plant of the Union Construction Company, at Oakland, with intent to buy and possess certain liquor; that they caused automobiles and trucks to go to a certain place in the yard of the construction company for purposes of loading liquor; that they helped to load the trucks with some 2,500 quarts of liquors. There was evidence to the following effect: Early in the morning of March 25, 1924, prohibition agents and police officers went to the yards of the construction company and found a Dodge sedan on the side of the road. The watchman of the yards was discovered with intoxicating liquor in a sack. After arresting him the officer went to the edge of the water and saw three men loading a truck. The officers announced who they were, whereupon the men tried to escape. One succeeded, but two were arrested. The officers then found 389 sacks containing bottles of whisky. Crowley was standing at the door of a small shack a short distance away. He was arrested.

After his arrest, Crowley told the police that his name was Dailey, and that he had recently come from Los Angeles in a Dodge car. Crowley took the stand in his own behalf. He said he had known Lucas, a codefendant, for 4 years; that by chance he met him at 10:30 o'clock on the night of March 25; that the two went to a hotel; that Lucas asked him to take him for a ride and wanted to go to the dock, saying that he expected "some stuff"; that he took Lucas to the place where the Dodge car was subsequently found; that he thought Lucas was expecting liquor; that Lucas told him there would be no trouble; that he suspected no trouble; that he saw the piles of sacks; that, while Lucas went to see some one, he went to the shack to get out of the weather, which was raining; that he saw the truck go to the dock. A

[1] Plaintiff in error contends that his rights were prejudiced by the admission of certain evidence. A prohibition agent called upon the direct case of the government was asked if he had ever seen the defendant,

Crowley. Witness said he saw him on the night of August 13, 1923. Defendant objected to any evidence of anything that had occurred at that date. Counsel for the prosecution stated that he proposed to show that Crowley was arrested for the transportation of liquor on the day named by the witness; that the liquor was seized and taken into custody. The court overruled the defendant's objections, and admitted the testimony as tending to show knowledge and intent with which the crime charged in the indictment was committed, if it was committed at all. The witness then testified that upon August 13th he had seen and arrested defendant, Crowley, at Gilroy, Cal. (which is about 80 miles south of Oakland), and had seized 40 cases of liquor, which were afterwards turned over to the prohibition authorities, and that Crowley was arrested under the name of Dailey. On cross-examination, witness said that no information was ever filed against Crowley; that Crowley never had been convicted and never had pleaded guilty.

We cannot avoid the conclusion that it was prejudicial error to admit evidence of the occurrence of August 13th. It does not appear to have had any relation whatever to the charge of conspiracy for which Crowley and his codefendant were on trial. It did not tend to show that he had acted in combination with any one named in the conspiracy charged, or that his possession of liquor in August was part of a plan to violate the prohibition law at subsequent times, or that in any way it was connected with the offense under consideration. was wholly collateral to the issue on trial as to place, time, and circumstances, and the evidence of it should not have been introduced. Terry v. United States (C. C. A.) 7 F. (2d) 28 (Aug. 3, 1925).

It

[2] It is not doubted at all that in a conspiracy case, where the evidence tends to prove that the defendant and one or more persons have entered into a common scheme to commit a crime such as unlawfully to transport liquor, evidence of other like offenses, committed by defendant in carrying on the common enterprise, is relevant as showing the knowledge or intent of the defendant. But, in order to make such evidence admissible, there must be such a showing of connection between the different transactions as raises a fair inference of a common motive in each. Griggs v. United States, 158 F. 572, 85 C. C. A. 596. Here there was no ground for any such inference. The obvious effect of the admission of the