December, 1922," held insufficient, as not identifying occasion referred to, since prosecutor could prove commission of offense at any time within three years before filing of indictment. 4. Indictment and information 150-In determining sufficiency of facts alleged to make available judgment against defendant in defense of another prosecution for same offense, indictment and possible judgment alone can be considered, evidence being prospective and unknown.

In determining, on a motion to quash or on a demurrer, the sufficiency of the facts alleged to enable the defendant to avail himself of a judgment against him in defense of another prosecution for the same offense, the indictment and possible judgment alone can be considered,

for the evidence is prospective and unknown. 5. Indians 38(4)-Indictment for possessing liquor in Indian country held insufficient. Indictment charging that "at Pawhuska, in Osage county, in the Western district of the state of Oklahoma," defendant had in his possession "one (1) pint of whisky, in and upon Indian country, to wit, Osage county, Oklahoma,' held insufficient, as not stating exact place of, persons present at, and circumstances rounding, alleged offense.

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In Error to the District Court of the United States for the Western District of Oklahoma; John H. Cotteral, Judge.

H. L. Lynch was convicted of possession of intoxicating liquor in Indian country, and he brings error. Reversed and remanded.

Horsley & Stith and B. C. Trice, all of Pawhuska, Okl., for plaintiff in error.

W. A. Maurer, U. S. Atty., and James A. Ingraham, Asst. U. S. Atty., both of Oklahoma City, Okl.

Before SANBORN and KENYON, Circuit Judges, and SCOTT, District Judge.

WALTER

H. SANBORN, Circuit Judge. Plaintiff in error was tried and convicted in the District Court of the United States for the Western District of Oklahoma upon an indictment charging possession of intoxicating liquors in Indian country, to wit, Pawhuska, Osage county, Oklahoma. A motion to quash the indictment, for the reason that it failed to state facts sufficient to constitute an offense under the laws and statutes of the United States, and that the act under which the indictment was found was in conflict with the Eighteenth Amendment of the Constitution of the United States, was overruled by the court. Nine assignments of error are filed, some merely formal.

The first assignment of error is as follows: "Because the court erred in overruling

the defendant's motion to set aside, vacate, and quash the indictment herein." This raises the question as to the action of the court on the motion, made in seasonable and proper time, to quash the indictment. In view of our conclusion as to this, it is unnecessary to discuss the other assignments of error. We turn therefore to the indictment. Laying aside the formal parts thereof it charges: "That heretofore, to wit, on or about the 7th day of December, 1922, at Pawhuska, in Osage county, in the Western district of the state of Oklahoma, and within the jurisdiction of this court, H. L. Lynch, whose more full, true, and correct name is to the grand jurors unknown, then and there being, did then and there knowingly, willfully, and feloniously have in his possession certain intoxicating liquors, to wit, one (1) pint of whisky, in and upon Indian country, to wit, Osage county, Oklahoma."

Is this a sufficient statement of the alleged crime? This court has many times stated the fact essentials of a valid indictment. In Miller et al. v. United States, 133 F. 337, 341, 66 C. C. A. 399, 403, it said: "It must set forth the facts which the pleader claims constitute the alleged transgression so distinetly as to advise the accused of the charge which he has to meet, so fully as to give him a fair opportunity to prepare his defense, so particularly as to enable him to avail himself of a conviction or acquittal in defense cf another prosecution for the same crime, and so clearly that the court, upon an examination of the indictment, may be able to determine whether or not, under the law, the facts there stated are sufficient to support a conviction." Again the same doctrine is enunciated in Fontana v. United States (C. C. A.) 262 F. 283; Goldberg v. United States (C. C. A.) 277 F. 211; Weisman v. United States (C. C. A.) 1 F. (2d) 696; Armour Packing Co. v. United States, 153 F. 1, 17, 82 C. C. A. 135, 14 L. R. A. (N. S.) 400.

In United States v. Hess, 124 U. S. 483, 8 S. Ct. 571, 31 L. Ed. 516, the Supreme Court declared: "The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had." [1] The defendant in a criminal case, in view of his presumed innocence, is not only

entitled to know from the statements of the indictment what facts the prosecution considers sufficient to make him guilty of the offense charged, with reasonable particularity, so that he may procure witnesses and make proper defense thereto, but he is also entitled to demand that the indictment charge the essential facts so specifically that the judgment rendered will be a complete defense to a second prosecution for the same offense. United States v. Hess, 124 U. S. 483, 8 S. Ct. 571, 31 L. Ed. 516; Armour Packing Co. v. United States, 153 F. 1, 82 C. C. A. 135, 14 L. R. A. (N. S.) 400; Floren v. United States, 186 F. 961, 108 C. C. A. 577. In the light of the decisions referred to and the foregoing observations, does the indictment meet the legal test? Does it set forth the facts, which the pleader claimed constituted the offense in this case, so distinctly as to appraise the defendant of the charge he had to meet, and so completely as to give him a fair opportunity to prepare his defense, so particularly as to enable him to avail himself of a conviction or acquittal in defense of another prosecution for the same offense?

The consideration and answering of these questions must be made under and in accordance with these established rules and principles.

[2] First. Where one is indicted for a serious offense, the legal presumption is that he is not guilty; that he is ignorant of the supposed facts upon which the charge is founded. A demurrer to the indictment must be considered and determined on that presumption, on the presumption that the defendant does not know the facts that the prosecutor thinks make him guilty, and that he is unable to procure and present the evidence in his defense and is deprived of all reasonable opportunity to defend unless the indictment clearly discloses the earmarks, the circumstances and facts surrounding the case of the alleged offense, so that the defendant can identify, procure witnesses and make defense to it. Fontana v. United States (C. C. A.) 262 F. 283, 287; Miller v. United States, 133 F. 337, 341, 66 C. C. A. 399. [3] Second. The time of the alleged offense stated in the indictment in this case, December 7, 1922, gives the defendant no notice or information that enables him to prepare his defense and in no way identifies the occasion referred to, because under that averment the prosecutor is privileged to prove the alleged offense, in this case the defendant's possession of the whisky, at any time within the three years prior to the filing of

the indictment, which constituted the time before the statute of limitations ran. Winters v. United States, 201 F. 845, 847, 120 C. C. A. 175; Carpenter v. United States (C. C. A.) 1 F. (2d) 314.

[4] Third. In determining the question whether or not the indictment set forth the facts which the prosecutor claimed constituted the offense so particularly as to enable the defendant to avail himself of a conviction or acquittal in defense of another prosecution for the same offense, the indictment and the judgment alone can be considered. The evidence cannot be considered because the evidence does not become a part of the judgment. Fontana v. United States (C. C. A.) 262 F. 283, 286; Floren v. United States, 186 F. 961, 962, 964, 108 C. C. A. 577; Winters v. United States, 201 F. 845, 848, 120 C. C. A. 175.

[5] So it was that because under this indictment the prosecutor might prove the possession of the pint of whisky by the defendant at any time within three years prior to the filing of the indictment, that document gave the defendant no information when within those three years the prosecutor would seek to prove the alleged offense. Pawhuska in Osage county, Oklahoma, is not an inconsiderable city; it covers a considerable area, has many residences, many places of business, many stores, many places where one might have the possession of a pint of whisky. The indictment gave the defendant no information at what place in that city, whether in his residence, in some store, on some street, in some restaurant or hotel, or in some other place in that city, the United States would endeavor to prove that the defendant had possession of the pint of whisky. The defendant could not have had that possession on any occasion when that occasion was not capable of identification, either by surrounding circumstances, persons or other earmarks, which would have given the defendant notice of the occasion on which the prosecutor would attempt to prove the offense charged. And the latter knew when the indictment was drawn what that occasion was, the time, place, circumstances surrounding it, persons present, the identifying earmarks of that occasion. Nevertheless the only information on this subject given the defendant by the indictment was that he had this whisky in his possession at some time within three years prior to the filing of the indictment at some place in the city of Pawhuska. If the United States had set forth in this indictment substantial identifying facts of the time, place or occasion where

owner's agent to sign bills of lading, and such contracts, entered into in good faith and within scope of his apparent authority, bind ship, irrespective of its ownership, whether master is agent of general or special owner.

10. Shipping 154-Where ship never breaks ground and voyage is abandoned, ship has no lien on goods.

Where ship never breaks ground and voyage is abandoned, ship has no lien on goods for freight.

11. Shipping 105-Action in rem lies for breach of contract of affreightment, where goods have been actually delivered on ship.

Action in rem lies for breach of contract of affreightment, where goods have been actually delivered on ship.

12. Shipping 143-Shipowner is not liable as carrier merely because of his ownership, but one having control of vessel is liable to shipper.

Shipowner is not liable as carrier merely because of his ownership, but is liable only if ship is within his employment, and party having control of ship and in whose business it is engaged is regarded as owner pro hac vice, and is liable to shipper.

13. Shipper 106-Master's authority to bind ship and shipowner by signing bills of lading stated.

Master cannot bind shipowner by signing bill of lading for goods never shipped, nor can he bind ship by signing second bill of lading for goods on board for which he has already signed one bill.

14. Shipping 39, 106-Where charter is demise of ship, shipowner is not liable on bilis of lading signed by master.

Where charter is demise of ship, shipowner is not liable to shippers on bills of lading signed by master, even if shippers do not know of charter; whether charter amounts to demise depending on whether owner has parted with full possession and control during period of charter party.

15. Shipping 39, 106-Charter held not a 'demise of ship, and master, in signing bills of lading, bound ship.

Charter whereby owners furnished ship, master, and crew, and charterers had no power to displace master or crew, master to be under charterer's orders as to employment, agency, or other arrangements, charterers to indemnify owners against consequences arising from master's signing of bills of lading, held not a demise, and master, in signing bills of lading. bound ship.

17. Principal and agent 161(2), 164(1), 175 (3)-Principal may repudiate or ratify unauthorized act; principal's ratification of agent's unauthorized act is equivalent to prior authority to perform it.

Principal may repudiate or ratify unauthorized act by one assuming to act as agent, and, if he ratifies such act, it is equivalent to prior authority, and relieves agent from any liability to third person, if such person is not thereby placed in worse position than he would have been, had agent acted under prior authority.

23. Shipping 106-Ship, discharging cargo for nonpayment of charter hire, held liable to shippers under bills of lading signed by master.

Though charterer's default in paying charter hire relieves shipowner from contract with charterer, it did not relieve ship from liability to safely transport goods under bills of lading signed by master, notwithstanding ship had not broken ground.

25. Shipping 131-Shippers' measure of damages for ship's wrongful discharge of cargo stated.

Where cargo is wrongfully discharged by ship, shipper's measure of damages

as to goods forwarded by other means is difference between market value at destination when they would have arrived by ship, and market value when actually received, plus freight and other necessary expenses; as to goods not reshipped it is difference between their market value at destination when they should have arrived and market value on arrival of next available ship; market value at place of shipment being considered only if goods cannot be

forwarded because of lack of other means or want of markets at destination.

Appeals from the District Court of the United States for the Eastern District of New York.

Separate libels by Cooper & Cooper, Inc., and by Harrisons & Crosfield, Limited, against the steamship Capitaine Faure, Reuben I. Cameron, the Fulton Steamship Corporation, and the Société de Navigatione a Vapor France Indo-Chine. From a decree for libelants (1 F.[2d] 406), granting relief less than that demanded, libelants appeal. Decree modified.

The libelant Cooper & Cooper, Inc., is a corporation organized and existing under the laws of the state of New York, and maintaining an office in the borough of Manhattan in the city of New York; and the libelant Harrisons & Crosfield, Limited, is a corporation organized and existing under the laws of Great Britain, and maintaining an office for the transaction of business in Montreal, in the Dominion of Canada.

The Fulton Steamship Corporation, hereinafter called the Steamship Corporation, is a corporation organized under the laws of the state of Delaware, and it maintains an office in the borough of Manhattan in the city of New York. It is the agent of the charterer of the Capitaine Faure. The charter provided that the charterers should have the option of subletting, giving notice to owners, but that original charterers were always to remain responsible to owners for due performance of the charter.

Thereafter a "berth agreement" was entered into between Reuben I. Cameron, styling himself "time-chartered owner" of the

ship, and the Fulton Steamship Corporation, called in the agreement the charterers. By this agreement "the time-chartered owner," Cameron, placed the ship at the disposal of the charterers, the Fulton Steamship Corporation, "for a voyage to Far East ports, to load the steamer on berth as advantageously as possible at the best rates and conditions obtainable." The agreement provided that:

"The time-chartered owners have to pay all port charges, pilotages, commissions, and so forth, at both loading and discharging ports, including stevedoring, tallying, and all expenses which will accrue in the interest of the cargo and against the steamer; whereas, the charterers undertake to do their best to secure the most profitable rate of freight, to load and ship as quickly as possible, and keep the expenses as low as possible. The time-chartered owners accept liability for proper stowage, dunnage and discharge of steamer, and for any claims on the cargo and for any claims made by and/or against the vessel.

"The time-chartered owners agree to instruct the captain to take all orders from the charterers or the agents just the same as if the charterers were the time-chartered owners."

The respondent Société de Navigatione a Vapor France Indo-Chine is a corporation organized and existing under the laws of the republic of France, and maintaining an office in the city of Paris. It is the owner of the steamship Capitaine Faure.

Reuben I. Cameron is an individual doing business in his own name in the borough of Manhattan, city of New York, and is the charterer of the steamship Capitaine Faure.

The two libels were filed against the steamship Capitaine Faure in rem and against her owner, Société de Navigatione a Vapor France Indo-Chine in personam, and also against Reuben I. Cameron, the charterer, and the Fulton Steamship Corporation, which booked the cargo for the voyage under a subcharter agreement with Cameron, the charterer.

The owner of the vessel appeared and filed a claim thereto, and a stipulation for value, under which the ship was released, and answered the libels as claimant and respondent. The other two respondents, Cameron and the Fulton Steamship Corporation, defaulted.

For purposes of trial the suits were consolidated. The court rendered an opinion allowing libelants a recovery against the ship on some of the bills of lading, but not