10 F.(2d) 102 the weight appearing on the reissued bill ent case. It alleges both forgery and alterawas not the correct weight. The indictment tion of a written instrument, but the definiclearly sets forth the necessary ingredients tion of forgery includes both the false makof the offense, and alleges that the alteration ing and the alteration of a written instruwas done knowingly, feloniously, willfully, ment, and the facts set forth in each count unlawfully, and with intent to defraud, and show clearly that the class of forgery that the reissued bill contained a false state- charged against the defendant was that of ment of weight in a specified number of the alteration of an instrument. In the Gepounds. sell Case it was held that one who possessed and uttered a forged assignment of a genuine obligation of the United States could not be convicted of uttering or having possession of a forged obligation or security of the United States. That proposition is not involved in the case at bar. [10, 11] It is contended that the indictment is multifarious; that in alleging the alteration of the bills of lading and the altering of the reissued bills two distinct offenses are charged. Conceding the rule to be that charges of different crimes must be stated in different counts, the rule is not applicable here, for the case comes within the wellsettled rule of criminal pleading that, when an offense against a criminal statute may be committed in one or more of several ways, the indictment may in a single count charge its commission in any or all of the ways specified. In Simpson v. United States, 229 F. 940, 144 C. C. A. 222, this court held that, if the statute mentions several acts disjunctively and prescribes that each shall constitute the same offense, an indictment may in a single count charge any or all of the acts conjunctively, or charge the commission of the offense in any or all of the ways specified. [12] It is contended that there was fatal variance between the counts of the indictment and the evidence adduced to support them; that in each count the defendant was charged with forgery, as well as with alteration of bills of lading. The controlling fact, however, is that in each count the specific acts of the defendant are set forth, and they relate only to the charge of altering the weights stated in the bills of lading. In proving that charge there was no variance. The defendant cites De Lemos v. United States, 91 F. 497, 33 C. C. A. 655, and Gesell v. United States (C. C. A.) 1 F.(2d) 283. Neither case is in point. The first case presented no question of variance between pleading and proof, but only the question of the sufficiency of the indictment. It was held, on an indictment for forging an indorsement on a draft of the United States, that to charge first that the draft itself constituted the obligation which was forged, and then to charge that the forgery consisted in the false making of the indorsement, creates repugnancy, and does not properly lay the offense under either section 5414 or section 5421, Rev. Stats. (Comp. St. §§ 10318, 10193). There is no such repugnancy in the pres [13] The witness Freschi testified that in the last four months of the year 1919 he purchased about 35 carloads of grapes from the defendant and consigned them to customers from whom he subsequently received complaints of discrepancies between the railroad bills of lading weights and the bills of lading weights which he sent them. It was objected that those shipments were not shown to have anything to do with the particular transactions referred to in the indictment. We are not convinced that the admission of the testimony was reversible error. In view of the uncontroverted evidence to sustain the 186 distinct counts involving the fraudulent transactions which were alleged and proven, it is not seen that prejudice could have arisen from evidence tending to prove 35 other similar transactions during the same period of time, even if they were not shown to be connected with the particular offenses charged. Price v. United States, 53 App. D. C. 164, 289 F. 562. Nor are we convinced that the case does not come within the exception that sustains the admission of. evidence of other similar transactions as indicating the fraudulent intent of the accused. "Intent to defraud" is an element of the offense here charged. Paine v. United States (C. C. A.) 7 F. (2d) 263; American Socialist Soc. v. United States (C. C. A.) 266 F. 212; Marshall v. United States, 197 F. 511, 117 C. C. A. 65. [14] Error is assigned to an instruction to the jury on the subject of intent, in which the court said: "You are instructed that the law presumes that every person intends the natural and ordinary consequence of his act." It is argued that, inasmuch as the statute makes the intent of the accused a material fact to be proven, the court by its instruction in substance informed the jury that evidence of the commission of the act charged is conclusive proof of the commission of the crime, without regard to intent, citing Hibbard v. United States, 172 F. 66, 96 C. C. A. 554, 18 Ann. Cas. 1040. It is impossible to find in the charge of the court taken as a whole the meaning, which the defendant attributes to it. The court took pains to instruct the jury that intent is an essential element of the offense charged, and before the jury retired said in conclusion: "So that there will be no confusion in your minds regarding the question of intent, and, because this is a very important matter for the jury to consider, I want you to definitely understand the question of intent. As I have heretofore instructed you, like all other questions of fact in this case, it is solely for you to determine from the evidence in the case." [15] Objection was made to an instruction in the course of which the court had said: "If you have reasonable doubt of the defendant's guilt, you must acquit him; but a doubt, to authorize an acquittal, must be a substantial doubt arising from the insufficiency of the evidence, and not a mere possibility of innocence." It is urged that the question of the insufficiency of the evidence was a matter of law for the court to pass upon, and not a question of fact for the jury. It is impossible to see that the jury could have been misled by that portion of the charge. The court proceeded to define reasonable doubt as "that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jury in that condition that they cannot say that they feel an abiding conviction to a moral certainty of the truth of the charge." From the language of the instruction the jury could not have understood that they were to consider the sufficiency of the evidence in any light other than its sufficiency in fact. We find no error for which the judgment should be reversed. It is accordingly af In prosecution for violation of White Slave Act, §§ 1-3 (Comp. St. §§ 8812-8814), asking accused on cross-examination whether she had not "seen a great many sporting women a greater part of her life," held not prejudicial, in view of negative answer given. 6. Criminal law 1169(11)—Admission of evidence not prejudicial, where proof had been made before first objection. In prosecution for violation of White Slave Act, §§ 1-3 (Comp. St. §§ 8812-8814), admission of evidence of possession and sale of liquor by defendants held not prejudicial, when before first objection was made government had proved possession and sale by two witnesses. 7. Criminal law 1169(11)—Admission of record of former conviction on liquor charge not prejudicial, when evidence of liquor sales had been admitted without objection. of defendants, admission on that issue of recWhere government did not admit marriage ord of liquor conviction of woman under different name subsequent to alleged marriage could not have been prejudicial, where evidence of liquor sales had been admitted without objection. 8. Criminal law 392-Evidence that government had surrendered cash bail for attendance of absent witness properly excluded. Evidence that government had surrendered cash bail furnished to secure attendance of absent witness was properly excluded, since government owed no duty to defendants to exact a bond for attendance of witness. 9. Criminal law 696 (3)-Testimony tending to prove controverted fact properly retained, although confused. Testimony which, although confused, tended to prove a fact in controversy, was properly retained. 10. Witnesses 10 F.(2d) 106 with reference to untried criminal charge against witness properly excluded. Cross-examination with reference to crim 345(1)-Cross-examination they entered into a written contract of marriage in the presence of Wm. L. McConnell, a notary or justice of the peace at Idaho Falls; also that since that date they have held themselves out as man and wife. Based upon this testimony, defendants requested the trial court to give the following instruction: inal charge still untried was not admissible for purpose of impeachment. 11. Criminal law 844(1)-General exception to every instruction of court on its own motion held insufficient. Under rule 10 of Circuit Court of Appeals, a general exception to each and every instruction given by court on its motion directs attention of trial court to no error, and is in sufficient. In Error to the District Court of the United States for the Southern Division of the District of Idaho; Frank S. Dietrich, Judge. Paul Dawson and Celia Dawson were con victed on one count of conspiracy to violate the White Slave Act (Comp. St. §§ 88128814), and on two counts of unlawful transportation of a girl in violation of these statutes, and they bring error. Reversed and remanded on first count, and affirmed on other counts. Plaintiffs in error, hereinafter called the defendants, were indicted on six counts. The first count charged a conspiracy to violate the White Slave Act. Sections 8812, 8813 and 8814, Comp. Stat. Count 2 charged the unlawful transportation of Edna Belnap from Twin Falls, Idaho, to Twin Springs, Nevada, in violation of the above statutes. Count 3 made the same charge with reference to Beebe Lewis, under date of April 19, 1924. Counts 4 and 5 charged the unlawful transportation, respectively, of Edna Belnap and Beebe Lewis from Twin Springs, Nevada, to Twin Falls, Idaho. Count 6 charged the transportation of Beebe Lewis on the 26th of April, 1924, from Twin Falls, Idaho, to Twin Springs, Nevada. Defendants were acquitted on counts 2, 4, and 5; they were convicted on counts 1, 3, and 6. This writ is sued out to review the judgment of convic tion. K. I. Perky, of Long Beach, Cal., Arthur W. Holden, of Idaho Falls, Idaho, and J. R. Smead, of Boise, Idaho, for plaintiffs in er ror. H. E. Ray, U. S. Atty., and Sam S. Griffin, Asst. U. S. Atty., both of Boise, Idaho. Before HUNT, RUDKIN, and McCAMANT, Circuit Judges. McCAMANT, Circuit Judge (after stating the facts as above). The defendants testified that on the 24th of December, 1918, "That if you find from the evidence that the defendants were man and wife during the period covered by the first count or charge in the indictment, and the evidence herein, you should find both defendants not guilty on that count. The charge is one of conspiracy to commit crime, and it is not legally possible for a wife so to conspire with her husband, nor a husband with his wife." An exception was reserved, and error is assigned on the refusal of this request. [1,2] Marriage, at common law, was a civil contract. In the absence of a statute forbidding marriage by contract, such a marriage is lawful, and will be recognized by the courts. Meister v. Moore, 96 U. S. 76, 79, 24 L. Ed. 826. The Idaho statute on the subject is section 4600, Idaho Compiled Statutes, which is as follows: "Marriage must be solemnized, authenticated and recorded as provided in this chapter, but noncompliance with its provisions does not invalidate any lawful marriage." [3] In Huff v. Huff, 20 Idaho, 450, 118 P. 1080, 1084, the Idaho court held that a mar- uniformly held that, as husband and wife are The same rule is announced in a note in 4 The language of these text-writers is supported by the following decisions: People v. Miller, 82 Cal. 107, 22 P. 934; Merrill v. Marshall, 113 Ill. App. 447, 456; Worthy v. Birk, 224 Ill. App. 574, 583; Commonwealth v. Allen, 24 P. Co. Ct. R. 65, 66; State v. Clark, 9 Houst. (Del.) 536, 540, 33 A. 310. The law is held to be otherwise in Smith v. State, 48 Tex. Cr. R. 233, 89 S. W. 817, 820, 821, and Dalton v. People, 68 Colo. 44, 189 initiative, rather than under the coercion of P. 37. her husband." We think the presumption inapplicable to the case of a procuress, and that there was no error in the refusal of the requested instructions. The common-law rule unquestionably supports defendants' contention; a rule so well established and so generally recognized by the modern authorities should not be judicially repealed. We think the requested instruction should have been given. The government relies on Wilson v. U. S., 232 U. S. 563, 34 S. Ct. 347, 58 L. Ed. 728. This was not a conspiracy case. The court affirmed the conviction of a man and wife charged with violation of the White Slave Act. [4] Error is also assigned on the refusal of the court to charge that, if the jury found the defendants to be man and wife, a presumption would arise that any criminal acts of the defendant Celia Dawson in the presence of her husband were done at his coercion. Authorities are cited to the effect that this common-law presumption is still recognized. The defendants were convicted of the transportation of Beebe Lewis from Idaho to Nevada on the 19th and 26th days of April, 1924, for purposes of prostitution. The government's evidence tended to show that it was the purpose of the defendant Celia Dawson to establish a bawdyhouse at Twin Springs, Nev., and that the Lewis woman was taken there to engage in commercial vice. The evidence indicates that Celia Dawson was the moving spirit in the enterprise. The presumption invoked by Celia Daw pur son does not arise under the facts of this case. In 30 C. J. 793, it is said: "It has been held that the presumption of coercion will not arise, where the crime was of a nature more likely to be committed by a woman than a man, such as keeping a house of prostitution or abducting girls for immoral poses." It is well established that the presumption will not be indulged when the charge is the keeping of a house of ill fame. 4 Blackstone, 29; State v. Jones, 53 W. Va. 613, 45 S. E. 916, 917; People v. Wheeler, 142 Mich. 212, 105 N. W. 607; Haffner v. State, 176 Wis. 471, 187 N. W. 173, 175; State v. Gill, 150 Iowa, 210, 129 N. W. 821. In State v. Nowell, 156 N. C. 648, 72 S. E. 590, 591, a married woman was charged with the abduction of a 14 year old girl. The presumption of coercion was invoked. The court said: "Among the crimes excepted from the rule are keeping bawdyhouses and offenses of a like character. This principle would cover, we are inclined to think, abducting girls by solicitation for immoral purposes, a business in which the defendant was more likely to be acting upon her own [5] In the cross-examination of Celia Dawson, counsel for the government asked the following question: "A great part of your life, you had seen a great many sporting women, had you not?" This was objected to as improper cross-examination, and "an attempt to degrade her by matter that wasn't touched upon on direct." The objection was overruled, and the witness answered: "No, sir; I have not. I have not mingled with that class of people." We are not prepared to say that the question was improper, in view of the condition of the record at the time. In view of the answer of the witness, there was certainly no prejudicial error. [6] It is contended that there was error in admitting evidence of the possession and sale of liquor by the defendants. Before the first objection had been made to this character of testimony, the government had proved by two witnesses that defendants, both at Twin Falls and Twin Springs, kept and sold liquor. Prejudicial error cannot be predicated on proof of facts already in evidence without objection. St. Louis & S. F. R. Co. v. Duke, 192 F. 306, 309, 112 C. C. A. 564; Western Coal Co. v. Greeson (C. C. A.) 284 F. 510, 512; Brice v. Miller, 35 S. C. 537, 547, 15 S. E. 272; Hickman v. Layne, 47 Neb. 177, 66 N. W. 298. [7] The government did not admit that the defendants were married. In support of its contention that they were not, the government offered proof that on March 7, 1920, the defendant Celia Dawson had pleaded to an indictment in the federal court and had stated that her name was Jane Anderson. There was also received in evidence, on the same issue, the judgment roll in a prosecution of the defendant Celia Dawson in the district court for Bonneville county, Idaho. This record showed that she had been convicted under the name of Jane Anderson of the unlawful possession of liquor. The information was filed in January, 1919, which was subsequent to the date of the alleged marriage. The prosecution offered to introduce only so much of the second record as showed the arraignment and plea of the defendant under the name of Jane Anderson. Counsel for defendants refused to consent to receive any part of the record in evidence, even with the reservation of his objection. The jury was instructed that these 10 F.(2d) 109 records were received solely for the purpose of proving that Celia Dawson had answered to the name of Jane Anderson at these times, and they were particularly cautioned that she was not being tried on a charge involving the possession or sale of liquor. The marriage of the defendants was one of the controverted questions in the case, and it was competent for the government to prove that, subsequent to December 24, 1918, the defendant Celia Dawson had been known by a name which tended to show that she was not the wife of Paul Dawson. In view of the testimony as to sales of liquor, admitted without objection, the record of her conviction in Bonneville county could not have prejudiced Celia Dawson. [8] Beebe Lewis was not called as a witness by the government. Testimony was offered to show that she could not be found. The defendants thereupon offered to show that the government had surrendered the cash bail furnished to secure the attendance of this witness. The court excluded the evidence. In this there was no error. The government owed no duty to the defendants to exact a bond to secure the attendance of this witness. The trial of collateral issues is apt to distract the attention of the jury from the questions to be determined. The trial court must be accorded a broad discretion on such matters. [9] There was no error in denying defendants' motion to strike out the testimony of the witness Edholm. The testimony was confused and of little probative value, but it had some tendency to prove the presence of Paul Dawson in Twin Falls on the 18th of April, 1924, which was a fact in controversy. [10] Defendants sought to impeach the credibility of the witness Daisy Maynard by cross-examining her with reference to a criminal charge preferred against her in the federal court and still untried. The court did not err in excluding this testimony. 5 Jones on Evidence, § 838. gen A [11] At the conclusion of the charge, defendants excepted "to each and every instruction of the court given on its motion." This eral exception is the basis of the only remaining matters urged by the defendants. general exception of this character directs the attention of the trial court to no error, and is insufficient under rule 10 of this court. Partridge v. Boston & Maine R. Co., 184 F. 211, 215, 107 C. C. A. 49; Simkin's Federal Practice, 106. The judgment of conviction on the first count is reversed, for further proceedings not inconsistent herewith. The judgment on counts 3 and 6 is affirmed. The court having given a single sentence on the first, third, and sixth counts, the cause is remanded for a resentence of the defendants. HOSTETTER v. SYMES, District Judge. (Circuit Court of Appeals, Eighth Circuit. December 10, 1925.) No. 289. 1. Criminal law 1072-Allowance of writ of error in noncapital criminal cases is matter of right. Allowance of writ of error from Circuit Court of Appeals to district court in criminal cases, not capital, is matter of right, where essential requirements of law have been-complied with. 2. Criminal law 1076(2)-Right to writ of error in noncapital cases exists without giving security for costs. Filing of cost bond is not essential to appellate jurisdiction, and right to writ of error exists without giving such security, and court will not, because of such omission, dismiss writ, except on failure later to comply with such terms as it may impose. 3. Criminal law 1080-Writ of error must be filed in district court rendering judgment in order to confer jurisdiction on Circuit Court of Appeals. Writ of error, though allowed, must be filed in district court rendering judgment in order to confer jurisdiction on Circuit Court of Appeals. 4. Mandamus 57(1)-Defendant, denied writ of error for failing to file cost bond, held entitled to writ of mandamus. Where application for writ of error filed within 60 days from date of judgment of conviction was denied because of failure to furnish cost bond, defendant properly applied to Circuit Court of Appeals for writ of mandamus to compel issuance of writ of error. Original motion by Harry H. Hostetter for leave to file petition for writ of mandamus against Hon. J. Foster Symes, United States District Judge for the District of Colorado. Motion sustained. Before STONE and VAN VALKENBURGH, Circuit Judges, and WILLIAMS, District Judge. VAN VALKENBURGH, Circuit Judge. The above-named petitioner has filed a motion for leave to file his petition for writ of mandamus requiring the respondent to allow a writ of error from this court to the District Court for the District of Colorado. The proposed petition is filed with the motion. |