874, 21 R. I. 218; Lucretia E. Doan et al. v. Vestry of the Parish of the Ascension of Carroll County et al., 64 A. 314, 103 Md. 662, 7 L. R. A. (N. S.) 1119, 115 Am. St. Rep. 379; Rambo v. Pile et al., 69 A. 807, 220 Pa. 235; Melba Frank v. Morris A. Heimann, 258 S. W. 1000, 302 Mo. 334.

[6] Equity will not interfere to perfect an imperfect or defective gift by declaring a trust which decedent failed to declare, nor will equity complete and enforce a mere intention or promise to create a trust. William H. Young, etc., v. George Young et al., 80 N. Y. 422, 36 Am. Rep. 634; Pennell v. Ennis, etc., 103 S. W. 147, 126 Mo. App. 355; 3 Pomeroy's Equity Jurisprudence (4th Ed.) § 997; Norway Sav. Bank v. Merriam et al., 33 A. 840, 88 Me. 146; In re Estate of Soulard, 43 S. W. 617, 141 Mo. 642; Northrip v. Burge, 164 S. W. 584, 255 Mo. 641, 655. [7] If the trust is completely established, donor has no power to revoke the same, unless such power is reserved in its creation. Harding v. Trust Co., 207 S. W. 68, 276 Mo. 136; Melba Frank v. Morris A. Heimann, 258 S. W. 1000, 302 Mo. 334; Gobeille v. Allison et al., 76 A. 354, 30 R. I. 525.

[8] An attempted testamentary disposition of property not in the manner provided by law is ineffective. Dunn v. German-American Bank, 18 S. W. 1139, 109 Mo. 90, 100; Godard v. Conrad, 101 S. W. 1108, 125 Mo. App. 165, 172; Elizabeth Bieber's Administrator v. Boeckmann, 70 Mo. App. 503, 508; Basket v. Hassell, 2 S. Ct. 415, 107 U. S. 602, 610, 27 L. Ed. 500.

The Supreme Court of Missouri, in Re Estate of Soulard, 43 S. W. 617, 622, 141 Mo. 642, 664, in discussing the necessities of a trust in personal property says: "Three things, it has been said, must concur to raise a trust: 'Sufficient words to create it, a definite subject, and a definite object; and to these requisites may be added another, viz., that the terms of the trust should be sufficiently declared.' Bispham's Eq. 65." [9] Viewing the letter in the light of these general legal propositions, it is clearly apparent that the project was one merely in contemplation, imperfect, and never completed. Steers sets forth to his friend the vice president of the bank a certain plan, and asks suggestions from him as to a better one. The postscript to the letter shows that he did not intend the same to complete the matter. There was something further to be done before even the arrangement which he was proposing could be fully carried out. Further, the letter shows no intention on the part of

Could she have en

Mr. Steers to create a trust of which he was to be the trustee, and Mrs. Eschen the beneficiary. He expressly retained control of the money. True, the bank book was to be made in Mrs. Eschen's name showing $10,000 transferred to her as a savings account-not as a checking account-but the book was to be sent to Steers. He could have drawn every cent of it before his death even had the plan been fully arranged and had he lived for some time thereafter. He reserved absolute dominion over the fund; did not transfer to Mrs. Eschen the beneficial title or any right to use the money. If he had lived and completed the plan outlined in the letter, and thereafter had withdrawn all of this fund by checks, signing her name per himself, as provided in the letter, what recourse would have been available to her? joined the transaction? Could she have said the fund belonged to her, and that he as trustee was despoiling a trust fund? Would he have been liable to her for using a part or the whole of the fund? The letter clearly answered these questions in the negative. This letter, sent three hours before Mr. Steers' death, and not received by the vice president of the bank until after his death, is a mere tentative suggestion of what he was thinking of doing and what he wanted to do in order to keep the matter from passing through the court in case of his death in order to relieve his daughter of any trouble in connection with securing the money. It did not constitute either a gift causa mortis or an executed trust. It was merely a tentative plan for a testamentary disposition of property. The matter lacks that element of completeness essential to establish a transaction as distinguished from a mere intention so to do.

Appellant cites and quotes from the case of The Harris Banking Co. v. Helen A. Miller, 89 S. W. 629, 190 Mo. 640, 1 L. R. A. (N. S.) 790, where the court held that a valid trust in personal property had been established by parol. There the owner of the money in question, after depositing it in a bank, and taking a certificate of deposit in his own name, assigned the same in writing to his housekeeper. He stated that the money belonged to her; told the bank to pay it to her and to no one else; and the court said this created an express trust which a court of equity would enforce. It is to be noted in that case that the statement to the bank was to pay the money to her and to no one else, in that it differs fundamentally from this case where Steers reserved the right to exercise dominion over the entire fund.

In re Estate of Soulard, 43 S. W. 617, 141 Mo. 642, is also a case where the court held the facts were sufficient to create a valid express trust. The court found that the donor intended to make a complete disposition of his property, reserving only the income to be paid him during life; that the donor divested himself of the legal title; that he retained a beneficial interest in the property; but that this was part of the declared purpose of the trust. This case is the strongest cited by appellant, but is easily distinguishable in its facts from the case at bar.

The Missouri courts have frequently had before them the question of gifts inter vivos, gifts causa mortis, and trusts, and careful and thoughtful attention has been given to the intricate questions ofttimes involved.

A case very similar to the one at bar is Citizens' National Bank v. William McKenna, 153 S. W. 521, 168 Mo. App. 254. John McKenna, prior to his death, deposited $3,500 in the Citizens' National Bank of Chillicothe, receiving therefor a certificate of deposit payable to himself or to William McKenna. He stated to witnesses that he wanted the money to go to William in the event of his death. The evidence clearly showed he intended the money for William. After his death, William McKenna claimed there was a trust created in his favor; the deceased being there, as here, the trustor and the claimed trustee of the fund. The court held that there was no intention shown on the part of the deceased to make the deposit a trust fund for William McKenna with himself as trustee, and that the beneficial title did not pass to William McKenna. The court said, referring to the circumstances: "They show rather a reservation of his own ownership and control; and without doubt deceased considered the money in his power and ownership, if he should conclude to use it before he died. The Supreme Court, in quoting from Stone v. Hackett, 12 Gray (Mass.) 227, said that equity would not regard a transaction as creating a trust so long as it remains executory. Estate of Soulard (43 S. W. 617) 141 Mo. loc. cit. 660. The property must have passed out of the trustor so as to effectually pass the title, equitable though it be, to the cestui que trust. Id. 662 (43 S. W. 617)." In this case the court also refers to and distinguishes Harris Banking Co. v. Miller, 89 S. W. 629, 190 Mo. 640, 1 L. R. A. (N. S.) 790. The McKenna Case is very closely in point with the case under consideration.

In Godard v. Conrad, 101 S. W. 1108,

125 Mo. App. 165, the question of a gift inter vivos was discussed, and also whether the transaction involved constituted an express trust. The court held the evidence was not sufficient to establish either a gift inter vivos or an express trust, and said that equity would not interpose to perfect a defective gift. The evidence in that case showed a declaration of decedent, Stewart, that he desired Mrs. Searcy "to have the property in the event of his death." This was held to be in the nature of a testamentary bequest and not sufficient to establish a trust.

In Pennell v. Ennis, 103 S. W. 147, 126 Mo. App. 355, a check had been given on a bank to a daughter before the donor's death. It was not accepted or paid prior to his death. It was held it could not be a valid gift, because there was no complete delivery, and that it was not sufficient to constitute a trust. It is interesting to note the court's reference to the two Missouri cases relied on here by appellant. On page 361 (103 S. W. 149) it said: "In Harris Banking Co. v. Miller and In re Soulard's Estate, supra, the Supreme Court of this state managed to extract trusts from the circumstances in proof. But those decisions recognized the rule that a trust cannot be raised if a gift was intended, or unless the elements of a trust appear."

In Harding v. Trust Co., 207 S. W. 68, 69, 276 Mo. 136, 142, the claim was made of an executed trust in personal property, and the court, after discussing the evidence consisting of certain letters and declarations, and holding that they did not convey any personal equitable title to plaintiff nor deprive donor of the full use and control of the bonds in question, referred to certain legal propositions as follows: "That an executed trust may be validly created in personal property by express declaration and present conveyance of such property to a definite beneficiary, and that when the trust has been thus completed, it is irrevocable, though voluntary, is the settled law of Missouri and elsewhere.

It is equally elementary that such a trust can be enforced only upon evidence so clear, full and demonstrative as to banish any reasonable doubt from the mind of the chancellor as to the existence of every element essential to the establishment of a complete express trust in personal property."

Other cases in Missouri dealing with the general subject of gifts and trusts are: Bieber's Adm'r v. Boeckmann, 70 Mo. App. 503; McCord's Administrator v. McCord et al., 77 Mo. 166, 46 Am. Rep. 9; Elizabeth Foley

v. J. S. Harrison, 136 S. W. 354, 233 Mo. 460; Albrecht v. Slater et al. (Mo. Sup.) 233 S. W. 8.

There is little in the doctrine announced by the Missouri courts to sustain appellant's claim that the letter constitutes a completed voluntary trust.

A very leading and much-cited case also relied on by appellant and quoted from at length in its brief is the Bath Sav. Inst. v. Hathorn, 33 A. 836, 839, 840, 88 Me. 122, 131, 32 L. R. A. 377, 51 Am. St. Rep. 382, where it was held that the entry on the books of a savings bank in the name of a donor "in trust for the donee" was not conclusive evidence of a gift, but that all the declarations, acts, and conduct of the donor, with the presumption arising from the entry itself, were sufficient to show a completed trust. The court said: "The entry 'in trust for' is of clear and unmistakable import, and sufficient to create a prima facie trust. It might have been controlled by evidence that would have shown a contrary intention, but such evidence is wholly wanting. Moreover, all the declarations, acts, and conduct of the donor are consistent with the presumption arising from the entry itself, and show that it expresses the true import of the transaction, and creates a completed trust in favor of the donee."

There is no such situation here. It is interesting to note also that a few days after this decision the Supreme Court of Maine decided the case of Norway Sav. Bank v. Merriam et al., 33 A. 840, 88 Me. 146, and discussed the necessities of a perfect and completed voluntary trust, distinguishing Bath Savings Inst. v. Hathorn, because of the words there used when the deposit was made "in trust for Alice D. Files," and held that the facts in the case under consideration failed to establish a completed trust.

The case of Richards v. Delbridge, L. R. 18 Eq. 11-13, referred to by appellant in its brief as establishing the principle or law upon which Mrs. Eschen claims the fund, is, we think, an authority under this record against appellant's position. The court there discusses the method in which the legal owner of the property may constitute himself a trustee, and says: "The legal owner of the property may, by one or the other of the modes recognized as amounting to a valid declaration of

trust, constitute himself a trustee, and without an actual transfer of the title may so deal with the property as to deprive himself of its beneficial ownership and declare that he will hold it from that time forth in trust for the other person." Also:. "The making a man trustee involves an intention to become a trustee, whereas words of gift show an intention to give over property to another, and not to retain it in the donor's hands for any purpose fiduciary or otherwise."

Mr. Steers here did not deal with the property in such way as to deprive himself of its beneficial ownership. He did not unequivocally declare that he held it in trust for Mrs. Eschen, but retained complete dominion over the same to the extent of using it all, if necessary, for his own benefit, or of checking it out and then disposing of it according to his own desire or whim.

The number of cases dealing with this interesting subject is legion. Each of necessity depends for solution upon its own facts. From the labyrinth of decisions we cite the following, where the courts have held the language employed or circumstances surrounding the transaction were not sufficient to create a voluntary, express trust of personal property. Emri Clark v. Ann Clark & Trustee, 108 Mass. 522; Isaac C. Sherman, Executor, v. New Bedford Five Cents Savings Bank, 138 Mass. 581; Pope v. Burlington Sav. Bank, 56 Vt. 284, 48 Am. Rep. 781; Nicklas v. Parker et al., 61 A. 267, 69 N. J. Eq. 743; Young v. Young et al., 80 N. Y. 422, 36 Am. Rep. 634; Barnum v. Reed et al., 26 N. E. 572, 136 Ill. 388; Chandler v. Chandler, 69 A. 806, 220 Pa. 311; O'Gorman et al. v. Jolley et al., 147 N. W. 78, 34 S. D. 26.

The language of the letter relied on shows an intention to arrange for giving Mrs. Eschen what might remain of the $10,000 at the time of Mr. Steers' death. It is an uncompleted and imperfect attempt to bring about a testamentary disposition of personal property in a manner not provided by law. The question presented is not a close one. No distortion of language or legal principles could spell out of this letter a completed trust. The decision of the trial court is correct, and its decree is affirmed.

37-Defendant was not entrapped if, in due course of business of selling intoxicating liquor, he made sales to government officers.

Defendant was not entrapped, if engaged in criminal business of selling intoxicating liquors, and in due course of business he made sales to government officers.

YOUMANS, District Judge. The errors urged by counsel for plaintiff in error, in oral argument and in their brief, are four in number.

[1] 1. The first is that the verdict is inconsistent, in that plaintiff in error was found guilty on the first count of the information and not guilty on the second. The testimony on the part of the government tended to show sales of alcohol to two individuals on the same occasion. It is argued on behalf of plaintiff in error that, if the testimony warranted a conviction on the first count, it also warranted a conviction on the second. While that is true, it does not follow that a verdict of not guilty on one count necessitated a verdict of not guilty on the other. In the language of the Supreme Court of Arkansas in the case of Burnett v. State, 96 S. W. 1007, 80 Ark. 225, 226, "necessarily the evidence justifying an acquittal was rejected when the jury found this verdict."

4. Criminal law 811(1).

In Error to the District Court of the United States for the Eastern District of Oklahoma; Franklin E. Kennamer, Judge.

William Weiderman was convicted of violating the prohibition law, and he brings error. Reversed and remanded.

M. A. Breckenridge, of Tulsa, Okl. (Charles R. Bostick, of Tulsa, Okl., on the brief), .for plaintiff in error.

W. F. Rampendahl, Asst. U. S. Atty., of Muskogee, Okl. (Frank Lee, U. S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and YOUMANS, District Judge.

jority of the court. for the majority in

Judge Trieber, speaking that case, said:

"It is true, as claimed by counsel, that the evidence as to some of the other counts, especially the sixth and eighth, on which the defendant was acquitted, is stronger against the defendant than that on this count; but it was for the jury to determine on what counts, if any, the defendant should be found guilty, ' and he certainly cannot complain of not having been found guilty on these counts. It is a well-known fact that juries frequently hesitate to return verdicts of guilty on a large number of counts, when the punishment which may be imposed on each count is as severe as that provided for violations of this statute (the minimum punishment on each count is five years). They therefore satisfy their consciences by a verdict of guilty on one or two counts, and not always on the counts supported by the strongest evidence."

[2,3] 2. The second contention is that the court erred in the instruction given on entrapment. On that point the court instructed the jury as follows:

"It is claimed that, the government officials having induced the defendant to commit a crime, the government would be estopped from insisting upon a conviction. It is true in law that government officers cannot be permitted to induce otherwise innocent persons to commit crime, with a view to having them

prosecuted for such offense. In other words, if the crime originates in the mind of the government official, and in order to secure prosecutions against innocent persons such innocent person is induced to embark in a criminal enterprise, that in contemplation of law would be what is known as an entrapment. And if you believe from the evidence that the defendant was induced to make the sales by the government witnesses, who were government officials, and but for the inducement of these officials he would not have made the sales, or you entertain a reasonable doubt as to these facts, you should acquit the defendant. In the present case you are instructed that, if the defendant was engaged in the criminal business of selling intoxicating liquor, to wit, alcohol, and that in due course of such criminal business he made the sale or sales to the government officers, this would not constitute an entrapment. In other words, if the sales alleged to have been made were made in due course of the business in which the defendant was engaged—that is, of committing crime and selling intoxicating liquors-then it would be no entrapment for government officials to purchase liquor from him, and he would be as guilty as if he had sold the liquor to any other individual."

This instruction was a fair statement of the law upon the proposition involved. Ritter v. United States (C. C. A.) 293 F. 187; Rossi v. United States (C. C. A.) 293 F. 896; Newman v. United States (C. C. A.) 299 F. 128; De Long v. United States (C. C. A.) 4 · F. (2d) 244.

Counsel for plaintiff in error requested an instruction upon this point, in which certain facts in testimony were particularized. It was not error to refuse that instruction. Bullard v. State, 252 S. W. 584, 159 Ark. 435.

[4] 3. The third error urged is based upon what occurred after the jury had been instructed, had retired, and had deliberated. The occurrence is stated in the record as follows:

"The Court: Is it a question of law or question of fact?

"Foreman of the Jury: Question of whether or not they believe the witnesses. "The Court: Is there any additional instruction any members of the jury desire? "Foreman of the Jury: I don't think so.

"The Court: I don't want any man to yield against his conscientious views in reference to any case. A man's verdict is his own verdict, and must satisfy his own conscience; but I will say frankly, gentlemen, it occurs to me there should be no difficulty in reaching a verdict in this case. It occurs to me there is very little dispute about the testimony; in fact, practically very little." [5] An inquiry as to the numerical proportion in which a jury was divided was disapproved in Burton v. United States, 25 S. Ct. 243, 196 U. S. 283, 305, 306, 49 L. Ed. 482. We think in this case that inquiry constituted reversible error. Stewart v. United States (C. C. A.) 300 F. 769.

[6] 4. The fourth ground urged is that the court erred in expressing an opinion as to the weight of the evidence. The language of the court was as follows:

"Now, gentlemen of the jury, the court seldom expresses an opinion as to what he And what thinks about the facts in a case. I say to you in that respect is not binding upon you, but it is merely advisory to you. In my judgment, in this case it was a plain case of a man violating the prohibition law [Comp. St. Ann. Supp. 1923, § 101381⁄4 et seq.] by dealing in alcohol. This story of furnishing a quart of alcohol to one man that he said was a stranger to him, and to another man that he admits that he had known no great considerable length of time, and only in a casual business way, does not appeal to the judgment of this court as being credible. I have no faith in that statement, but I believe that the officers told the truth when they said he said he had to go out to his plant to get it. I believe he had a plant that he went to, as he agreed to go, and delivered the alcohol at

"Foreman of the Jury: We have not. "The Court: Without indicating which way you stand, how do you stand as to numbers?

"Foreman of the Jury: Nine to three, the last ballot.

"The Court: What do you think of the probabilities of you reaching a verdict?

"Foreman of the Jury: Well, some of them seem to be set in their ways.

ment. I do not believe, under the evidence of the case, he was entrapped. But this is only an opinion of mine, and is not binding upon you, gentlemen; it is only a suggestion from me as to how this evidence strikes me."

In the case of Rudd v. United States, 173 F. 912, 97 C. C. A. 462, Judge Hook, speaking for the court, said:

"We do not mean to impair in any degree the right of a trial court in both civil and criminal cases to comment upon the facts, to