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tors are estopped to oppose the discharge of that he had in his possession moneys belong. the bankrupt. The basis of the alleged es- ing to Hamre, which were held under a comtoppel is found in certain transactions prior mon-law assignment for the benefit of Hamto the bankruptcy proceedings. It appears re's creditors. Judgment was obtained in from the record that in May, 1922, an ex- the main suit against Hamre by default, and tension agreement was entered into between thereafter on August 6, 1923, judgment was Hamre and a number of his creditors, through entered against Marin in the garnishment the agency of the Northwestern Jobbers' suit upon his disclosure. Execution issued, Credit Bureau, having as its manager one and money sufficient in amount to satisfy the Marin. The business of Hamre was there- judgment was paid by Marin to the judgafter run under the supervision, more or less ment creditor. Thereupon three other credidirect, of the Bureau, from May to August, tors of Hamre, all of whom had consented to 1922, at a cost to the estate of approximate- the trust deed of August 25, 1922, and had ly $2,500. At the close of this period a state- given Marin power of attorney to execute the ment made by the manager of the Bureau same in their names, filed a petition in bankshowed that the assets were $54,542.88; the ruptcy against him, alleging as the act of liabilities, $43,900. The liability figures in- bankruptcy that he had, while insolvent, percluded the $2,500 cost of running the busi- mitted the Bedding Company to obtain a ness by the Bureau during the period men- preference through legal proceedings by suftioned.

fering a judgment to be entered in the suit · The Bureau, finding that the handling of above mentioned and had taken no steps to the business under the extension agreement vacate or discharge such preference. was unsatisfactory, persuaded Hamre to ex- This suit by the Bedding Company, in ecute a deed of trust, conveying all his prop- which Marin was garnisheed, has numerous erty, less exemptions, to Marin, as manager earmarks of collusion between those two parof the Northwestern Jobbers' Credit Bureau, ties. The payment of the garnishee fees was for the benefit of creditors. The deed bore waived by Marin. No attempt to defeat the date August 25, 1922, and was executed by garnishment, upon which the jurisdiction of Hamre and Marin. It contemplated execu- the court depended, was made by Marin. tion also by the various creditors, and Marin He was still trustee under the trust deed of took powers of attorney from almost all of August 25, 1922, and still held the assets of the creditors, wherein they consented to the Hamre under that deed, which had not been trust deed, and authorized Marin to execute canceled or abandoned. Whether under such the same for them, and agreed to be bound circumstances the assets in the hands of by the conditions thereof. They also filed Marin were subject to garnishment may well their claims with Marin.

be doubted. After the judgment against Though having these powers of attorney Hamre had been satisfied by the payment by from the creditors, Marin did not in fact ex- Marin to the Bedding Company, the money ecute the trust agreement in their names, was turned back by the Bedding Company naively explaining to the creditors (but not to Marin, and he continued to hold it until it to Hamre) that "your name will not be at- was turned over by him to the trustee in tached to the trust agreement, or your con- bankruptcy, and from the account rendered sent made binding, until we feel your inter- by Marin, trustee, to the bankruptcy court, ests are not prejudiced thereby.” Mean- it appears quite probable that the attorneys while the business of Hamre was taken con- who brought the suit for the Bedding Comtrol of by Marin, and retained until after pany were paid by Marin out of the funds September, 1923. The assets were largely held in his hands as trustee under the deed sold. Disbursements were made for taxes of trust. The end apparently sought to be and expenses, amounting to more than $7,- accomplished by Marin for the creditors had 000. Eventually about $6,300 in cash and thus been reached. The estate had been so $9,900 in uncollected accounts were turned administered that it was now unquestionably over by Marin to the trustee in bankruptcy. insolvent. Hamre was adjudicated a bank

In April, 1923, an action was begun by rupt, and the creditors were now in a posithe Minneapolis Bedding Company against tion to demand that his discharge be denied. Hamre in the state district court of Ramsey This demand they attempted to have made county, Minn. The Bedding Company was by the trustee in bankruptcy, as above set one of the creditors of Hamre, who had con- forth. sented to the trust deed and had given Marin The trust deed of August 25, 1922, conpower of attorney to execute the same on its tained the following: behalf. Marin was garnisheed, and disclosed “The parties of the third part (the cred10 F.(2d) 119 itors) are willing to give and do hereby give consequence. The estate was administered the party of the first part an extension of by their agent, Marin, for nearly a year, and time for the payment of the respective he had assets in his hands from which a diviamounts due said third parties for a period dend could have been paid, if he had so of twelve months from the date hereof on wished. He charged and received compensathe terms and conditions hereinafter set tion from the estate for administering it on forth.

behalf on the creditors. Hamre during this "That the parties of the third part, in time was bereft of the control of his own consideration of the premises, hereby mutu- property. ally and severally agree with each other and

It may be further claimed that the crediwith the parties of the first part and second tors did not find out that Hamre had failed part severally, that the parties of the third to keep proper books of account until shortly part will not or either attempt to enforce or prior to the bankruptcy proceedings. The obtain, payment of their several respective answer is that the creditors had partial conamounts and demands by legal proceedings trol of the business under the extension or otherwise during the continuance of this agreement of May, 1922, and complete contrust.

trol under the trust deed of August 25, “In consideration of the foregoing cove- 1922, and that Marin made a personal invesnants the parties of the third part hereby tigation into the methods of the business in agree to reiease said party of the first part the early fall of 1922; so that the loose from all liability on the amounts due them method of bookkeeping was either known or the same as said first party would be re

could have been known in the summer or leased by proceedings in bankruptcy.” [5] In view of the foregoing facts disclosed

early fall of 1922. by the record, we think the creditors of

No action was taken by Marin or the Hamre who acted through the Northwestern

creditors to cancel or repudiate the deed of Jobbers' Credit Bureau, and Marin as man

trust. They recognized the deed of trust so ager, were estopped to object to the dis- long as it served their purpose; but when it charge of Hamre. The bringing of the suit

was no longer useful they calmly disregarded by the Bedding Company was a plain viola- it, and proceeded to throw Hamre into banktion of the covenants of the deed of trust. ruptcy. Since they could not have particiThe collusive action of Marin was a plain pated in the assets of their debtor under the violation of his duties as trustee under said deed of trust without granting him a disdeed.

charge, equity will hold that they are es[6] It may be said that the creditors were

topped to demand any greater advantage in not parties to the deed of trust, because they the bankruptcy court. had not executed the same. But they had It does not appear clearly from the recassented to said deed, and had authorized ord what other creditors, if any, of the bankMarin to execute the same in their names. rupt there are, besides those who acted For nearly a year Marin administered the through the Bureau, its agents, and attorestate in their behalf. Under such circum- neys. For this reason the proceeding will be stances, equity will consider that as done remanded to the court below, with instrucwhich ought to have been done. The credi- tions to modify its decree, so that the banktors who gave their powers of attorney to rupt shall be discharged of the debts of all Marin must stand as though they had in fact creditors who appeared in the proceedings, executed the deed of trust.

directly or indirectly, through the NorthIt may be said that they received no divi- western Jobbers' Credit Bureau, its agents, dend, no benefit from the deed of trust, and or attorneys; as to the debts of other creditherefore were not bound by its terms. tors, if any, the discharge not to be operaWhether they received a dividend is of little tive.

ica

1141,46 Sup. 10

7.482

124

10 FEDERAL REPORTER, 20 SERIES

CHAPMAN et al. v. UNITED STATES. to impose additional imprisonment in default

of payment of fine imposed, and imprisonment (Circuit Court of Appeals, Fifth Circuit. De

cannot be extended beyond 30 days for noncember 21, 1925. Rehearing Denied

payment of fine.
January 29, 1926.)
No. 4634.

In Error to the District Court of the

United States for the Eastern District of 1. Conspiracy w 47–Evidence held to support Texas; W. Lee Estes, Judge. conviction of conspiracy to transport motor vehicles with knowledge that they had been Edgar M. Chapman and another were stolen.

convicted of conspiracy, under Criminal Evidence held sufficient to sustain conviction Code, $ 37, to transport motor vehicles with for conspiracy, under Criminal Code, 8 37 (Comp. St. § 10201), to transport motor vehi- knowledge that they had been stolen, in viocles with knowledge that they had been stolen, lation of Motor Vehicle Theft Act, and dein violation of National Motor Vehicle Theft fendant first named was also convicted on Act (Comp. St. Ann. Supp. 1923, $$ 10418b- two counts of transporting motor vehicles in 10418f).

interstate commerce with knowledge that 2. Indictment and information om 125(542)

Conspiracy to commit several offenses may be they were stolen, and they bring error. Judgcharged in same count of indictment.

ment affirmed, but cause remanded for propConspiracy to commit several offenses may

er sentence. be charged in same count of indictment.

Cecil H. Smith, of Sherman, Tex. (Head, 3. Indictment and information om 130_Held Dillard, Smith, Maxey & Head, of Sherman,

not to have been misjoinder of offenses, where Tex., Ratliff & Ratliff, of Tishomingo, Okl., evidence failed to connect some of defendants and J. H. Mathers, of Oklahoma City, Okl., in conspiracy charge with substantive offense. Where evidence fails to connect some of

on the brief), for plaintiffs in error. defendants to charge of conspiracy with sub

Randolph Bryant, U. S. Atty., of Sherstantive offenses of transporting automobiles man, Tex. which they knew had been stolen, held, that there was no misjoinder of offenses, in view of

Before WALKER, BRYAN, and FOSRev. St. 8 1024 (Comp. St. 8 1690), as crimes TER, Circuit Judges. of same class may be properly joined. 4. Witnesses Om48(1)-One convicted of fel.

BRYAN, Circuit Judge. This is an inony is competent witness.

dictment in nine counts against six defendOne who has been convicted of felony is ants. The first count alleges a conspiracy, competent witness in criminal case.

under section 37 of the Criminal Code 5. Criminal law Om753 (2)-Refusal to direct (Comp. St. § 10201), to transport motor ve

verdict for defendants is not error, where hicles from Oklahoma to Texas and from evidence would sustain verdict of guilty. Texas to Oklahoma, with knowledge that

Where evidence is sufficient to sustain ver- they had been stolen, in violation of the Nadict of guilty, it was not error to refuse to di- tional Motor Vehicle Theft Act. 41 Stat. rect verdict for defendants.

324 (Comp. St. Ann. Supp. 1923, SS 10418b6. Criminal lawm97(1)-Conspiracy trial 10418f). Numerous overt acts to effect the

may be held in Texas, where overt acts were committed therein, although some defendants object of the conspiracy are alleged. The remained in another state.

other counts charged all the defendants with Where conspiracy existed in Oklahoma and the substantive offenses of transporting moTexas, trial could be held in Texas, notwith- tor vehicles in interstate commerce with standing some of defendants remained in Ok. knowledge that they were stolen; each of lahoma, and overt acts were performed by said counts specifying a particularly deothers in Texas, since all defendants need not join in overt acts.

scribed automobile, which was also referred

to in connection with some of the overt acts 7. Criminal law w 1134(3)—Court will not in alleged in the first count. Only two of the

quire whether evidence supports verdict on other counts, when sentence is no greater defendants, Chapman and Lynn, have sued than could be imposed on first count.

out writ of error. Chapman was convicted Where sentence of defendant is no greater on the first, second, and third counts, and than could have been imposed on first count Lynn on the first or conspiracy count. Chapin indictment, it is unnecessary to inquire whether evidence supports verdict on other

man was sentenced to pay a fine of $2,500

and to be imprisoned in the United States 8. Fines Cw12–Trial court is without author of the payment of the fine he was sentenced

penitentiary for 18 months; but in default ity to impose additional imprisonment in de. fault of payment of fine.

to imprisonment for 2 years. Lynn was Under Rev. St. $8 10-11, 1042 (Comp. St. $$ sentenced to pay a fine of $3,000 and to be 1705, 1706), trial court is without authority imprisoned in the United States penitentiary

counts.

a

10 F.(20) 125 for 15 months; but in default of the payment States (C. C. A.) 285 F. 15. The conspirof the fine he was sentenced to be impris- acy exists in any jurisdiction where overt acts oned for a period of 2 years.

are committed. Hyde v. United States, 225 [1] There was sufficient evidence, if believed U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, by the jury, to sustain the verdict. Accord- Ann. Cas. 1914A, 614. ing to the testimony, Chapman and Lynn [7] It is finally said that the evidence does arranged to buy and did buy a number of not support a verdict of guilty against ChapFord cars, which they knew were stolen and man on the second and third counts. It is brought from Texas into Oklahoma. They unnecessary to inquire whether this contenalso, by agreement, bought Ford cars stolen tion be correct or not, as the sentence of that in Oklahoma and sold them in Texas. One defendant is not greater than could have been Russell, who testified for the government, imposed upon him under the first or conhad been convicted in Texas of a felony, and spiracy count. his testimony was admitted, over the objec- [8] The maximum sentence under section 37 tion that it was incompetent.

of the Criminal Code is a fine of $10,000 and [2, 3] It is argued that the conspiracy count imprisonment for 2 years. We are of opinis bad, because it charges more than one crim- ion that the trial court was without authorinal offense. It is permissible to charge a ity to impose additional imprisonment in deconspiracy to commit several offenses in the fault of the payment of the fine imposed by same count of an indictment. Bailey v. Unit- it upon each of the plaintiffs in error. Seced States (C. C. A.) 5 F.(20) 437. It is tion 1041, Revised Statutes (Comp. St. § also insisted that there was a misjoinder of 1705), impliedly authorizes imprisonment offenses, in that the evidence failed to con- only until the fine is paid. Section 1042 nect some of the defendants with the sub- (Comp. St. $ 1706) confers upon one who is stantive offenses of transporting automobiles unable to pay a fine, and who has been conwhich they knew had been stolen. It is not fined in prison 30 days for non-payment, the shown that injury resulted from this, but, on right to be discharged. We therefore are of the contrary, it appears that the court care- opinion that imprisonment cannot be extendfully protected the rights of each defendant. ed beyond 30 days for the nonpayment of a The substantive offenses related to the same fine. automobiles described in the overt acts, but The judgment is affirmed, but the cause the evidence failed to show that all of the de- is remanded for proper sentence upon each fendants were guilty of the substantive of- of the plaintiffs in error. fenses. The crimes were all of the same class and were properly joined. R. S. § 1024 (Comp. St. 8 1690). [4, 5] The witness Russell, whose testimony was objected to on the ground that he had been convicted of a felony, was a competent OCCIDENTAL LIFE INS. CO. v. HOLCOMB. witness. Rosen v. United States, 245 U. S.

(Circuit Court of Appeals, Fifth Circuit. 467, 38 S. Ct. 148, 62 L. Ed. 406. The evi

December 30, 1925.) dence being sufficient to sustain a verdict of

No. 4616. guilty, it, of course, was not error to refuse to direct a verdict for defendants.

1. Insurance Cow 455—Death in encounter of in[6] But it is insisted that the conspiracy was

sured, if innocent of aggression, or if he entered into in Oklahoma, if anywhere, and

could not reasonably anticipate injury from

his aggression, held “accidental." that the trial could not be held in Texas. Ac

Where insured is innocent of aggression or cording to the evidence, the conspiracy exist- wrongdoing, or, if he is aggressor, could not ed in both states. It is immaterial if some of reasonably anticipate bodily injury, his death the defendants remained in Oklahoma and by being killed in encounter with another is the overt acts were performed by others of “accidental,” within usual accident policy. them in Texas. It need not appear that all

(Ed. Note.-For other definitions, see Words the defendants joined in the overt acts; it and Phrases, First and Second Series, Accident

--Accidental.] is enough if the overt acts in pursuance of the conspiracy be committed by any one or

2. Insurance 455—Death of aggressor, who more of the conspirators less than the whole

knew or should have anticipated possibility of

death in encounter, held not accidental. number. Bannon v. United States, 156 U. S. 464, 15 S. Ct. 467, 39 L. Ed. 494; Unit

Death of aggressor is not accidental, with

in accident policy, where he knew or should ed States v. Rabinowich, 238 U. S. 78, 35 have anticipated that other might kill him in S. Ct. 682, 59 L. Ed. 1211; Baker v. United encounter.

error.

error.

3. Insurance cm 529 — Insured's death in en- pendently of all other causes results in the counter held not accidental, within double death of the insured within 90 days therebenefit provision of life policy. Where insured, after his demand that G.

after, the company will pay the beneficiary, sign written confession of improper relations

or beneficiaries, upon surrender of this poliwith insured's wife was refused, shot G., and cy and this supplemental agreement, double was then shot and killed by G., held, that death the face of the policy, making the total was not accidental, within life policy, entitling amount payable $5,000.” beneficiary to double benefit in case of accidental death,

The salient facts shown by the stipula

tion are these : In Error to the District Court of the Holcomb, the insured, resided in Fort United States for the Northern District of Worth, Tex., with his wife. He became susTexas; James C. Wilson, Judge.

picious of her relations with one Green, emAction by Leta D. Holcomb against the ployed as a delivery man by a laundry. On Occidental Life Insurance Company. Judg- a certain day Holcomb met Green at his resiment for plaintiff, and defendant brings dence, while he was delivering laundry.

Reversed and remanded, with direc- Holcomb cursed and abused Green, and told tions.

him if he caught hin there any more he W. M. Bates, F. H. Lowrance, and C. H. would kill him. On April 7, 1924, a few Read, all of Dallas, Tex., for plaintiff in days later, Mrs. Hooks, a sister of Mrs.

Holcomb, had a conversation with Green by W. P. McLean, Jr., of Fort Worth, Tex. telephone, and asked him to meet her at (McLean, Scott & Sayers, of Fort Worth, Lowe's Pharmacy in the city of Fort Worth Tex., on the brief), for defendant in error.

at 3 o'clock the same afternoon. Holcomb Before WALKER, BRYAN, and FOS- conversation, and knew that she was to meet

was present when she had the telephone TER, Circuit Judges.

Green at the place appointed. That mornFOSTER, Circuit Judge. This is a suit ing Holcomb had become enraged with his on a policy of life insurance. It was filed wife, choked her, and compelled her to sign originally in the Forty-Ninth judicial dis

a statement to the effect that she had had imtrict court of Tarrant county, Tex., and re

proper relations with Green. moved to the District Court. The policy pro- 2:30 p. m. and went behind a partition in the

Holcomb went to the pharmacy at about vided for indemnity of $2,500 for death from

Mrs. Hooks arrived about 2:45 at the ordinary causes, and a rider was attached giving double benefit in case of death by acci- pharmacy. Green came shortly after, but dent. Prior to the bringing of suit, defend they were not acquainted; so did not meet. ant had tendered the face of the policy, less Green passed through the store and went $18.80, a balance due on account of premi- back to where Holcomb was waiting. Holums, and after removal that amount ($2,- comb immediately charged him with im481.20) was deposited in the registry of the proper conduct with Mrs. Holcomb, prepared District Court. At the trial the jury was

a written confession of guilt and an agreewaived by stipulation, and the case submitted ment to leave the city, and demanded of on an agreed statement of facts. Judgment Green that he sign it. Green denied any imwas entered for the double benefit, less the proper relations with Mrs. Holcomb and rebalance due, with interest, for a penalty of fused to sign the statement. Immediately 12 per cent. on the amount not tendered, and thereafter Holcomb drew his pistol and fired for $500 attorney's fees, under the Texas several shots into Green's body mortally law, a total of $5,781.20.

wounding him. Green then drew his pistol The material part of the provision of the and shot Holcomb, killing him instantly. policy for double indemnity is as follows:

Green died several hours later, “That if the insured, while this policy is Defendant in error insists that under the maintained in force by the payment of cash facts above stated Holcomb's death must be premiums, shall sustain personal bodily in- considered accidental, and the beneficiary, jury (excluding those received while engaged his widow, entitled to be paid double benefit in military or naval service, whether as a under the policy. In support of this contenvolunteer or otherwise, or aeronautics, or sui- tion reliance is had on the case of Lovelace v. cide, or self-destruction, or any attempt Travelers' Protective Ass'n (decided by the thereat while sane or insane) which is ef- Supreme Court of Missouri) 126 Mo. 104, 28 fected by the happening of a purely acci- S. W. 877, 30 L. R. A. 209, 47 Am. St. Rep. dental event, and which solely and inde- 638, and the case of Hutcherson v. Sovereign

rear.

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