provided such death shall occur within ninety (90) days from the date of the accident, the company will pay to the beneficiary or beneficiaries hereunder, in addition to the amount otherwise due, under this policy, the sum of five thousand dollars."

The death of the insured having occurred, the insurer, after receipt by it of the prescribed notice of the death, paid $5,000, which was accepted by the beneficiary without prejudice to her claim, asserted by the suit, of the right to recover an additional $5,000 under the abovequoted "double indemnity" provision of the policy.

[1] The claim asserted by the suit was duly resisted. In the trial uncontroverted evidence was adduced to the following effect: The insured entered the United States army in the summer of 1917. He then was within the draft age and was subject to draft, but volunteered before he was called. His name was among those first drawn. He went to France with his command in the spring of 1918. He was killed in the Argonne-Meuse battle in France on October 14, 1918, the first day of that battle. He was first lieutenant of his company and was leader of a platoon engaged in that battle. In pursuance of orders he led his platoon in an advance against the Germans, who were retreating; his company being part of a force, consisting of several regiments, which was engaged in that advance. When that advance movement had been in progress about 30 minutes, the force engaged in it was held up by a German machine gun barrage. At the place where the troops of which the platoon led by Lieut. Allison was a part were so held up, German shells were being thrown over, and Allied shells, fired from a point several miles in the rear, were falling short and exploding. At that time and place, and just after Lieut. Allison had got down in a little shell hole, a piece of shrapnel from an exploded shell struck him just back of the top of his head, went through the steel helmet he had on and into his brain, killing him instantly. There was no way of determining whether it was an Allied shell or a German shell that caused his death. The policy was in force when the insured's death so occurred, all premiums having been duly paid.

The insurer excepted to the action of the court in directing a ver-, dict in favor of the plaintiff, and to the refusal to give requested written charges, among them the following:

"Unless the jury are reasonably satisfied from the evidence that Lieut. Allison was killed by a shell fired by the American forces, you cannot find for the plaintiff."

"The court charges the jury that, even though the plaintiff's son may have been killed by an American shell, yet if he met his death while engaged in battle with the Germans, the defendant company would not be liable."

The policy contains no provision whereby the liability incurred by the insurer is affected as a result of the insured becoming a soldier or engaging in an occupation more hazardous than the one in which he was engaged at the time the policy was issued. The only exception stated in the double indemnity provision is expressed by the words, "murder or suicide, sane or insane, not included." A death of the insured, not due to murder or suicide, is covered by that provision, if it resulted from bodily injury, sustained and effected directly through external, violent, and accidental means, exclusively and independently

(269 F.)

of all other causes, and occurred within 90 days from the date of the accident. It is not open to question that the bodily injury which resulted in the insured's death was sustained directly through external and violent means, exclusively and independently of all other causes. If those means were accidental within the meaning of that provision, the death of the insured so occurred as to be within the terms of the policy upon which the claim asserted by the suit is based.

If it was by chance, without his design, consent, or co-operation, that the insured in the policy sued on was the victim of the external and violent means whereby his death was caused, those means are to be regarded as accidental, so far as he was concerned. United States Mutual Accident Ass'n v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60; Equitable Accident Ins. Co. v. Osborn, 90 Ala. 201, 9 South. 869, 13 L. R. A. 267; Campbell v. Fidelity & Casualty Co., 109 Ky. 661, 60 S. W. 492; Western Commercial Travelers Ass'n v. Smith, 85 Fed. 401, 29 C. C. A. 223, 40 L. R. A. 653; Standard Life & Accident Ins. Co. v. Schmaltz, 66 Ark. 588, 53 S. W. 49, 74 Am. St. Rep. 112. Such means are none the less accidental, so far as the insured is concerned, because they were put into operation by the voluntary act of another. 4 Cooley's Briefs on Insurance, 3159. Nor are such means made other than accidental by the circumstance that one or more persons engaged or employed as the insured was when he was killed were likely to be injured or killed by such means.

[2] Experience convincingly teaches that the hazards incident to many lawful employments other than war are such that it is to be expected that some of those engaged therein will be injured or killed. If an accident policy contains no provision excepting such hazards, and by chance, without the insured's design, consent, or co-operation, he is injured or killed as a result of a hazard incident to his occupation, his injury or death properly may be said to have been caused by accidental means. While it was to be expected that some of the soldiers engaged in the military operation in which the insured was engaged when he was killed would be injured or killed, it is not to be denied that it was by chance that Lieut. Allison's person was in the path of the piece of shrapnel which caused his death. He would not have been injured or killed by that missile, but for the accidental or fortuitous circumstance that his person happened to be in its path. It was chance which determined that he was the soldier who was the victim of that stray missile.

[3] Though the means whereby a personal injury or death is caused were put into operation with the design or intention of killing or injuring one or more persons, if chance determines what particular person or persons are injured or killed in consequence of the use of those means, as to a person so injured or killed, without his fault, consent, or co-operation, such means are to be regarded as accidental within the meaning of the provision in question. Of the millions of Americans who served as soldiers in the war with Germany, comparatively few were wounded or killed in battle. Battle casualty lists, in great measure at least, disclosed results of the chances of war. Whether the injury or death of a particular soldier is a consequence of

his participation in a battle ordinarily depends on his happening to be or not to be in the path of a missile of war. It cannot well be said that the wounding or killing of any particular soldier belonging to a force going into battle is so far a natural and to be expected consequence of his so being exposed to danger as to prevent a casualty happening to him properly being regarded as within the category of accidents.

We are of the opinion that the evidence adduced required the conclusion that the death of Lieut. Allison was a consequence of an unforeseen and unforeseeable combination of fortuitous circumstances, and that the means whereby his death was effected were accidental within the meaning of the above set out provision of the policy. This conclusion is supported by the decision rendered in the case of Interstate Business Men's Accident Association v. Lester, 257 Fed. 225, 168 C. C. A. 309. Whether it was an American or a German shell which exploded near where Lieut. Allison happened then to be, it was a matter of chance or accident that it was he who was struck by a piece of it, or that any one would be struck by it. In our opinion the court did not err in ruling as it did.

The judgment is affirmed.

HOLMES v. UNITED STATES.

(Circuit Court of Appeals, Fifth Circuit. December 2, 1920.)

No. 3513.

1. Courts 337-Federal procedure follows common law.

In the absence of statute, courts of the United States will observe the common-law procedure in criminal cases, as modified by the law of the state in which the trial is held at the time that state was admitted into the Union.

2. Perjury ~6-May be predicated on false oath to application for continu

ance.

By the common law and the law of Texas when it was admitted as a state, applications for continuance in criminal cases were required to be supported by oath, and a prosecution for perjury under Rev. St. § 5392 (Comp. St. § 10295), may be based on a false oath to such an application in a federal court in Texas, which follows that procedure.

3. Conspiracy-45-Testimony showing nonparticipation of defendant held

admissible.

Testimony held material in a prosecution for conspiracy which would tend to impeach a witness for the government and to show that a defendant was not in the conspiracy.

4. Perjury 32 (2)—Evidence admissible to show that defendant knew that statement would not be true.

In a prosecution for perjury in making false oath to an application for continuances containing statements of what would be testified to by an absent witness, evidence tending to show that defendant knew that such testimony, if given, would not be the truth, held admissible on the issue as to whether defendant believed his statement to be true.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

5. Criminal law

(269 F.)

1044-Admission of evidence not objected to not error,

in absence of motion to strike out.

Admission without objection of evidence which was subject to be stricken out, if not subsequently connected with defendant, held not reversible error, where no motion to strike it out was made.

6. Criminal law 878 (2)-General verdict, under indictment containing two counts, good.

Under an indictment for perjury containing two counts, both good, the verdict may be general.

In Error to the District Court of the United States for the El Paso Division of the Western District of Texas; W. R. Smith, Judge. Criminal prosecution by the United States against George Holmes. Judgment of conviction, and defendant brings error. Affirmed. Frank G. Morris, of El Paso, Tex., for plaintiff in error. E. B. Elfers, Sp. Asst. U. S. Atty., of El Paso, Tex. Before WALKER, BRYAN, and KING, Circuit Judges.

BRYAN, Circuit Judge. Plaintiff in error was convicted of perjury in making a false affidavit in support of a motion for continuance in another prosecution, reported in 267 Fed. 529, pending against himself and others, for conspiracy to steal certain arms and ammunition from the United States and to export the same without license. This affidavit contained two statements which the indictment charges were false. These statements are as follows:

(1) "That on the 2d day of February, A. D. 1919, he, the said Amado Carmono, was at the house of one Francisco Lopez, and that on said day Francisco Lopez told Amado Carmono, the said Amado Carmono being then and there about to go to San Ignacio, in Mexico, to notify for him, said Francisco Lopez, the commander of the Carranza troops or the Carranza river guards, that he, the said Lopez, had obtained for them the guns mentioned that he, said Lopez, had been asked to get, and to request said commander to send for said guns and ammunition as soon as possible, or to tell him to take said property, and that said witness, Amado Carmono, would further testify that the said Lopez told him, the said Carmono, at the said time and place, that he had obtained said guns and ammunitions for one Dick Harrell and two soldiers of the United States army, and that he had them there in his possession, since he obtained them from said parties, and that said property had been in his possession for some 10 or 12 days, and that he had held said property so long that he was getting uneasy."

(2) "That one Salvador Cano, a witness for the government, just before leaving the premises of the said George Holmes with one Dick Harrell, a codefendant of said Holmes in said cause, on the night of January 22, 1919, the said Cano admonished the said Francisco Trujillo that under no circumstances should he let the defendant Holmes know that said Dick Harrell had been at the premises of the said Holmes that night, and should not let Holmes know that he, the said Cano, had gone out with the said Harrell, and further that the said witness Francisco Trujillo would testify that he told the defendant Holmes of the fact that Cano, who was a chauffeur for the defendant Holmes, had left the premises on said night with said Harrell, and further that said witness Cano would testify that thereupon said Holmes called the said Cano into his presence and rebuked him for having people call at the house in the nighttime, and threatened to discharge said Cano if his conduct was repeated."

The affidavit also alleged that Lopez and Cano would appear as witnesses for the government.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 269 F.--7

The first count of the indictment alleges that the first of the above statements was material, in that it would discredit the testimony of Lopez, and operate to procure a continuance of the conspiracy case. It was further alleged that the second statement above quoted was material, in that Cano would testify to the commission of certain overt acts by plaintiff in error in furtherance of the conspiracy, and would deny he had been rebuked or admonished by plaintiff in error. There is practically no difference in substance between the two counts of the indictment. The matters set up in the first count were pleaded in the second count by reference, and their materiality was alleged to lie in the fact that plaintiff in error would thereby be enabled to procure a continuance of the prosecution pending against him. Carmono and Trujillo were present at the trial of plaintiff in error and his codefendants upon the charge of conspiracy, but were not called upon to testify.

It is not contended here that the evidence was insufficient to sustain the indictment, and therefore it becomes unnecessary to state what it was. The assignments relate wholly to the sufficiency of the indictment, and to the admissibility of certain evidence admitted over the objection of plaintiff in error.

[1] 1. It is contended that the indictment charges no offense against the laws of the United States. The basis of this contention is that an oath or affidavit in support of an application for continuance is not required by any law of the United States in a criminal case, and therefore that the fact that such application was sworn to is immaterial. It is true, of course, that section 914 of the Revised Statutes (Comp. St. § 1537), which conforms the federal practice to that of the state in which the trial is held, has no reference to criminal cases. Perjury must be based upon a law of the United States authorizing an oath to be administered. Revised Statutes, § 5392 (Comp. St. § 10295). There is no statute of the United States requiring that a motion for continuance be supported by oath or affidavit. However, it by no means follows that federal courts are without authority of law to require an oath or affidavit in support of a motion for continuance. In the absence of statute, the courts of the United States will observe the common-law procedure in criminal cases, as modified by the state in which the trial is held, and as of the date that state was admitted into the Union. U. S. v. Reid, 12 How. 361, 13 L. Ed. 1023; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429.

[2] It is conceded that, at the time Texas became one of the states of the Union, its laws required applications for continuance to be supported by oath. And it was so at common law. Reg. v. Savage, 1 C. & K. 75. Smith v. Barker, Fed. Cas. No. 13,010. This rule was adopted by this court, with reference to the competency of evidence, in the case of McCoy v. United States, 247 Fed. 861, 160 C. C. A. 83, and is clearly applicable to motions for continuance. The demurrer to the indictment and the motion in arrest of judgment were therefore properly overruled and denied.

[3] 2. Plaintiff in error next insists that the testimony of the absent witnesses, Carmono and Trujillo, were immaterial to the issue in