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In Error to the District Court of the United States for the Western District of Michigan; Clarence W. Sessions, Judge.

Augustus H. Sherman was convicted of violating the National Prohibition Act, and he brings error. Reversed and remanded for

new trial.

Herbert L. Parsille, of Sault Ste. Marie, Mich., for plaintiff in error.

Edward J. Bowman, U. S. Atty., of Grand Rapids, Mich. (Howard A. Ellis, Asst. U. S. Atty., of Grand Rapids, Mich., on the brief), for the United States.

Before DENISON and DONAHUE, Circuit Judges, and HICKENLOOPER, District Judge.

or

PER CURIAM. Sherman sold to Oleson a four-ounce bottle of Jamaica ginger. Section 4 of title 2 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101382b) provides that certain groups of medicinal preparations (by definitions effectively including this Jamaica ginger), although alcoholic and intoxicating, shall not be subject to the provisions of the act, but continues: "Any person who shall knowingly sell [such preparations] for beverage purposes, under circumstances from which the seller might reasonably deduce the intention of the purchaser to use them for such purposes, shall be subject to the penalties [of this act]." Because of selling this preparation to Oleson, Sherman was indicted on two counts-one for having knowingly sold it; the other for having sold it under circumstances from which he should reasonably have deduced Oleson's intention to use it for a beverage. He was convicted on both. The undisputed fact is that Oleson did not use this particular purchase for a beverage, and never intended to. He bought it at the request of an officer for the sole purpose of turning it over to the officer, for evidential and not for drinking purposes, and this was done. So we are called upon to declare the intent of the law as applicable to such a situation.

It is urged that there is no evidence that, as to this particular sale, Sherman should have deduced that it was Oleson's intention to use his purchase to quench a thirst rather than to subdue an ache. The majority of the court find sufficient evidence to this effect. This conclusion leaves the conviction best supported, if supportable at all, by the "circumstances from which" clause, and presents the question whether the seller's intent or reason to believe, which can make him guilty,

may be merely his independent purpose or conclusion, or whether it can exist only as collateral to the purchaser's actual intent. We say that his conviction is best supported by the latter clause, because, as to the former, "knowingly sell," it is difficult to conceive knowledge of a thing which does not exist, while the "circumstances under which" clause is, if read literally, open to be construed as wholly satisfied by the seller's state of mind. For a concrete example of this construction, we observe that, if a purchaser really needed the Jamaica ginger for medicine, and intended so to use it, and did so use it, but if his appearance or answers justified the inference that he probably wanted to drink it, the sale would be a crime by the seller. Did Congress so intend?

[1] The difference between such a sale and an ordinary one of intoxicating liquor is fundamental. The constitutional power is clear to prohibit broadly all sales of intoxicating liquor, whether for beverage purposes or not, provided suitable provision is made for such nonbeverage sales as are consistent with the purpose of the constitutional amendment, and so we find section 3 (Comp. St. Ann. Supp. 1923, § 101382aa) containing a general and initial prohibition of all sales of intoxicating liquor. However, medicinal preparations are not within the ordinary definition of intoxicating liquor, and perhaps not within the definition of section 1 (Comp. St. Ann. Supp. 1923, § 101381⁄2), and to clear the doubt, if there is any, the first part of section 4 exempts them wholly from the operation of the act. Up to this point, the situation, then, is that the sale of what is commonly called intoxicating liquor is generally forbidden and the sale of these medicinal preparations is generally permitted. Thus the two transactions are approached from opposite viewpoints, and it would seem that the burden of establishing the exception is oppositely imposed.

[2, 3] It is contrary to the general principles of criminal law-except in conspiracy-that the mere intent to violate the law, not followed by actual violation, should be a crime. We think the ultimate thing at which this part of section 4 was aimed was such intoxication as might be caused through the purchase of these preparations by one who intended to use them to drink, and we conclude that participation by the seller in this actual intent by the purchaser furnishes the only reasonable basis for transforming the otherwise permitted sale into a prohibited one. It is the reasonable and consistent construction of this part of the statute to regard it

10 F.(2d) 19

as directed against those sales which were in fact for drinking purposes, and where the seller either knew or should have known this It follows that, unless the purchaser at the time of the purchase intends beverage use, there is no violation of law in which the seller can participate, either by direct purpose or by equivalent indifference and negligence.

We get no helpful analogy from the numerous instances of a transaction by two parties, where the criminal intent of only one of them is held to be sufficient to make him guilty-like an acceptance of a bribe offered only as a test, or like the other familiar entrapment cases. In all of those the necessary intent of the respondent rests sufficiently upon the act done by him; in the present case the respondent's effective intent is, as we construe the statute, declared to rest, necessarily and only, upon the actual intent of the other party to the transaction.

The judgment and sentence must be vacated, and the case reversed for a new trial upon these two counts. This result makes it unnecessary to consider whether section 29 of the act (Comp. St. Ann. Supp. 1923, § 101382p) authorizes imprisonment for the first offense of selling Jamaica ginger.

Bill in equity by F. W. Vowinckel against the First Federal Trust Company and others. From a final decree dismissing the bill, plaintiff appeals. Reversed, with directions.

A. P. Black, of San Francisco, Cal., for appellant.

George J. Hatfield, U. S. Atty., of San Francisco, Cal., Ira Lloyd Letts, Asst. Atty. Gen., and C: W. McClean and Dean Hill Stanley, Sp. Assts. to Atty. Gen., for appellee Hicks.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

RUDKIN, Circuit Judge. This is an appeal from a final decree dismissing a bill in equity. It appears from the bill of complaint that the plaintiff was born in the kingdom of Prussia in 1861; that he attended various schools and colleges in that country and was there licensed to practice medicine in 1886; that he migrated from Germany to the United States in 1892, and ever since that date has been a bona fide resident of the state of California; that on the 22d day of December, 1892, he was licensed to practice medicine in that state, and ever since has practiced medicine and surgery therein; that in the year 1898 he declared his intention to become a citizen of the United States, and made application to be admitted to citizenship in January, 1915, but

VOWINCKEL v. FIRST FEDERAL TRUST his application was not heard, owing to le

CO. et al.

(Circuit Court of Appeals, Ninth Circuit.

January 4, 1926.)

No. 4574.

gal delays for which he was not responsible; that in September, 1915, being desirous of advancing in his profession and at the same time rendering aid to the wounded, and vis

1. Evidence 46-Courts take Judicial notice iting a daughter then engaged as a Red of President's proclamation.

The courts will take judicial notice of convention between United States and other countries proclaimed by the President under date of August 3, 1907.

2. War 12-Red Cross surgeon held not "enemy" of United States.

Immigrant from Germany, who returned to Germany in 1915, and entered service of German army as a Red Cross surgeon, held, in view of convention proclaimed by the President August 3, 1907, not an "enemy" of the United States, within Trading with the Enemy Act, §§ 2, 9 (Comp. St. 1918. Comp. St. Ann. Supp. 1919, §§ 31151⁄2aa, 31151⁄2e).

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

Appeal from the District Court of the United States for the Southern Division of the Northern District of California; John S. Partridge, Judge.

Cross nurse in Germany, he left California and sailed from New York for Germany, with lawful authority from the United States government so to do; that upon his arrival in Germany he entered the service of the German army for the duration of the war as a Red Cross surgeon, and there remained as such Red Cross surgeon until the signing of the Armistice; that between October, 1915, and the close of the war he rendered service in France in the care of the sick and wounded, including German, French, English, and Russian soldiers, and men, women, and children, and all persons of all nationalities who were presented to him for medical treatment; that he was discharged as such Red Cross surgeon from the German army in March, 1919; that upon his discharge he was permitted to leave Germany and to take with him property inher

ited from his parents there, because of the fact that he had not been a resident of Germany since 1892, and, according to German law, had ceased to be a German subject in 1900; that in August, 1919, he went to Norway, and there remained until December, 1920, when he went by steamer to the kingdom of Spain; that on divers occasions between the time of his arrival in Norway and the last-mentioned date he applied for a legal and proper visa to return to the United States, but such visa was refused on the ground that he had been declared an alien enemy, whose entrance into the United States was forbidden by law; that on the 6th day of October, 1917, Thomas Miller, Custodian of Alien Enemy Property, seized certain described property belonging to him; that he has demanded a return of such property in the manner prescribed by law, but that such return has been refused; that the appellant was at no time an alien enemy of the United States, and that he has no plain, speedy, or adequate remedy at law. [1] In addition to the foregoing, the bill of complaint quotes at length from the convention between the United States and other countries, for the amelioration of the condition of the wounded of armies in the field, proclaimed by the President under date of August 3, 1907 (35 Stat. 1885). Of this, of course, the courts will take judicial notice. Articles 9, 12, and 13 of that convention are as follows:

"Art. 9. The personnel charged exclusively with the removal, transportation, and treatment of the sick and wounded, as well as with the administration of sanitary formations and establishments, and the chaplains attached to armies, shall be respected and protected under all circumstances. If they fall into the hands of the enemy they shall not be considered as prisoners of war. "These provisions apply to the guards of sanitary formations, and establishments in the case provided for in section 2 of article 8."

"Art. 12. Persons described in articles 9, 10, and 11 will continue in the exercise of their functions, under the direction of the enemy, after they have fallen into his power.

"When their assistance is no longer indispensable they will be sent back to their army or country, within such period and by such route as may accord with military necessity. They will carry with them such effects, instruments, arms, and horses as are their private property.

"Art. 13. While they remain in his power, the enemy will secure to the personnel

mentioned in article 9 the same pay and allowances to which persons of the same grade in his own army are entitled."

Section 2 of the Act of October 6, 1917 (40 Stat. 411 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 31152aa]) defines the term "enemy" as: "Any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war.

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Section 9 (section 31152e) provides that any person, not an enemy, or ally of an enemy, claiming any interest, right, or title to any money or other property which may have been conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian, and held by him or by the Treasurer of the United States, may institute suit in the District Court of the United States for the district in which such claimant resides, against the Alien Property Custodian or the Treasurer of the United States, to establish the interest, right, title, or debt so claimed, after complying with certain conditions precedent with which we have no present

concern.

[2] The enemy character of the appellant is the only question for consideration on this appeal. If an enemy within the meaning of the law he may not maintain this suit under the express provisions of the Trading with the Enemy Act; otherwise, he may. And, first, was he a resident of Germany, or of territory occupied by the military and naval forces of that country? It would serve no purpose to review the multiplicity of decisions construing the term "resident," or "residence," in statutes relating to attachment, bankruptcy, divorce, elections, executors and administrators, guardian and ward, homesteads, insolvency, limitation of actions, paupers, naturalization, and schools. ""Residence' as used in various statutes has been considered synonymous with 'domicile,' but of course this depends upon the intent of the particular statute as ascertained by construction of its provisions. The terms are not necessarily synonymous. Generally, where a statute prescribes residence as a qualification for the enjoyment of a privilege, or the exercise of a franchise, and whenever the terms are used in connection with subjects of domestic policy, domicile and residence are equivalent." 19 C. J. 397.

What, then, did Congress mean by the term "resident," as employed in the Trading with the Enemy Act? Under a well-settled rule of international law, a foreigner living

10 F.(2d) 19

and established in the territory of a state is to a large extent under its control; he cannot be made to serve it personally in war, but he contributes by way of payment of ordinary taxes to its support, and his property is liable, like that of subjects, to such extraordinary subsidies as the prosecution of a war may demand. Hall's International Law (8th Ed.) § 167.

In the following section the author says: "The chief test of the existence of such an identification of a neutral subject with an enemy state as will suffice to clothe him with an enemy character is supplied by the fact of domicile. For belligerent purposes a person may be said to be domiciled in a country when he lives there under circumstances which give rise to a reasonable presumption that he intends to make it his sole or principal place of residence during an unlimited time." And in a note to the section it is said: "The Anglo-American test of enemy character is based on domicile, using that word, as Westlake says, in a peculiar sense known as a 'trade domicile' in war."

No doubt, the prime object of the statute was to reach out and include those whose presence in the enemy country might aid it in some way in the prosecution of the war; but, if the act is merely declaratory of the international rule on the subject, it would seem that the appellant was not an enemy, because he never acquired a domicile in the enemy country for trade or otherwise, unless he changed his domicile by operation of law when he joined the German army, as claimed by the appellees. The appellees contend, however, that the appellant took up his domicile in Germany as a matter of law when he joined the German army, and that in any event he was an enemy, because he was an officer, official, agent, or agency of the German government, as defined by section 2 of the act. Did the appellant join the German army, within the meaning of this rule, or did he become an officer, official, agent, or agency of the German government, by simply entering the service of the German army as a Red Cross surgeon? It would seem not.

While from the necessities of the case Red Cross surgeons, nurses, and chaplains

are in the service of the army in time of war, they form no part of the military forces proper, and, as will be seen by reference to the convention to which the United States is a party, they shall be respected and protected under all circumstances; if they fall into the hands of the enemy, they shall not be considered as prisoners of war; they shall continue in the exercise of their functions under the direction of the enemy after they have fallen into his power; they shall receive the same pay and allowances as persons of the same grade in his own army, and when their assistance is no longer indispensable they shall be sent back to their own army or country within such period and by such route as may accord with military necessity, taking with them such effects, instruments, arms, and horses as are their private property. Under these provisions, it would seem clear that Red Cross surgeons and nurses, who are engaged exclusively in ameliorating the condition of the wounded of the armies in the field, and in alleviating the sufferings of mankind in general, are not enemies of the United States in any proper sense of that term. They may come within the letter of the statute, but they do not come within its spirit, or within the intention of Congress. Thus, in Holy Trinity Church v. United States, 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226, the court held that a rector or minister of the gospel was not within the spirit or purpose of the contract labor law, although within its letter, saying: "It is a familiar rule that a thing may be within the letter of the statute, and yet not within the statute, because not within its spirit, nor within the intention of its makers."

It may appear upon the hearing that the appellant was an enemy because of his activities in Germany, or because of his relations to the German government or the German army; but that fact does not appear on the face of the complaint, which must be taken as true for present purposes.

The decree of the court below is therefore reversed, with directions to overrule the motion to dismiss, and for further proceedings not inconsistent with this opinion.

271266,570 LED. 1140,46Sup 6.481.

WALZ et al. v. FIDELITY-PHOENIX FIRE ultimate rightful presence in the case on findINS. CO. OF NEW YORK.

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3. Evidence

77(1)-Counsel might take creditor's interest into account in deciding to submit to any inference drawn by not calling certain apparently material witnesses.

Question whether a witness shall testify being normally one for counsel to decide finally, in suit by trustee for creditors of insured on fire policy, though he stood in most respects in shoes of insured, counsel might take creditors' interest into account in deciding to submit to any inference which might be drawn by not calling certain apparently material witnesses. 4. Judgment 828 (1)—Judgment in state court not controlling adjudication in suit in federal court.

In suit on fire policies, removed from state to federal court, judgment in state court in one of unremoved cases was not controlling.

5. Evidence 272-Statements against interest by insured and her agent, after assignments for security of causes of action on fire policies, held admissible.

In suit on fire policies, where insured was equitable owner of cause of action, subject to charge for her debts, and plaintiff was not a bona fide assignee for value, statements against

interest by insured and her agent after assign

ments were admissible, subject to proper limitation.

6. Insurance

553(1)-Absolute personal knowledge of insured that statement in proofs of loss was false not required to defeat recovery on fire policies.

If insured's statement in proofs of loss was intended to get money, and was materially false, and believed by her to be false, her absolute personal knowledge that it was false was not required to defeat recovery on fire policies.

7. Insurance 4-Statute passed after fire held inapplicable to loss.

ing by jury that a conspiracy did exist, should not be received preliminarily, or retained in case, except with great caution.

In Error to the District Court of the United States for the Eastern District of

Michigan; Arthur J. Tuttle, Judge.

Separate suits by William L. Walz, trustee, and others against the Fidelity-Phoenix Fire Insurance Company of New York and others, removed from the state court and tried together. Judgment for defendant named, and plaintiffs bring error. Reversed and remanded.

James O. Murfin, of Detroit, Mich. (Cavanaugh & Burke, of Ann Arbor, Mich., on the brief), for plaintiffs in error.

Arthur P. Hicks and Henry C. Walters, both of Detroit, Mich. (Frank B. De Vine, of Ann Arbor, Mich., on the brief), for defendant in error.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

PER CURIAM. Sarah Goffe was doing business as the Ann Arbor Stamping & Metal Company. Her husband, Jacob, was more or less her general manager. By a group of policies, she carried an insurance of $94,000 on the buildings, $71,000 on equipment, and $210,000 on stock and materials, manufactured and unmanufactured. Following a fire, she submitted proofs, claiming $560,000 loss, of which $375,000 was for stock and material. She was largely indebted to the Ann Arbor Savings Bank, partly secured by mortgage on the property, and partly unsecured. The plaintiff in this action, Walz, was cashier of the bank, and all her claims against the insurance companies she assigned to him as trustee, to collect, pay her debts, and return the surplus to her. The insurance companies denied liability, on the grounds that the fire was purposely caused by or for her, and that the proofs were fraudulent, as claiming losses for property which was not in the fire, and as claiming losses which had not accrued to the property which had gone through the fire. Suits were brought in the state court upon all the policies, the nonresident defendants removed their cases to the federal court, and all of them were tried as one case, resulting in the

In suit on fire policies, act of 1921, passed judgment for the defendants, now under reafter fire, held inapplicable to loss.

8. Evidence 260-Declarations of another, depending on finding of conspiracy, not received preliminarily, except with caution. Declarations of another, not covered by principles of agency, and which depend for their

view.

After a trial of several weeks, involving not only the amount of the actual loss, but the defensive issues of fraudulent fire and fraudulent proofs, the jury was charged and

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