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10 F.(20) 981 decided that his status with reference to the mission within the meaning of section 34 of quota was to be determined as of the date of the Act of February 5, 1917, although it may the hearing.

be indispensable evidence thereof under the No other authorities have been cited ex- act of 1924, and the requirement of the latcept Ex parte Marchant (D. C.) 3 F.(20) ter statute that persons arriving in the Unit695, which is referred to hereafter.

ed States after July 1, 1924, shall possess It is quite apparent that the provisions such evidence is certainly not retroactive in of section 34 of the Act of February 5, 1917, the sense that those arriving before that date granting to alien seamen unlawfully in the should be similarly equipped. In section 31 United States because of entry in violation of (c) of the Immigration Act of 1924 (Comp. that act an examination as to their qualifica- St. Supp. 1925, § 428934n), Congress was tions for admission, and providing for de- careful to provide: "(c) If any alien arrives portation only if they shall not be ad- in the United States before July 1, 1924, his mitted after hearing, inhibits deportation right to admission shall be determined withfor the unlawful entry, which by the statute out regard to the provisions of this act, exis made merely ground for the arrest to be cept section 23.” Thus, so far as the right followed by examination with a view to ad- to admission is concerned, the statute not only mission. Undoubtedly the examination ac- was not retroactive, but its operation was corded is with respect to qualification at the carefully limited to persons arriving on or time of the examination as such qualification after July 1, 1924. may then be defined by law. It is there- Reference was made upon the argument fore contended that since the Immigration to the case of Ex parte Marchant (D. C.) 3 Act of 1924 requires as a prerequisite of ad- F.(20) 695. The question here presented mission the possession of an immigration does not seem to have been raised in that visa issued abroad by a consular or diplo- case, for it appears from the opinion that matic officer of the United States, alien sea- upon the argument it was in effect admitted men who arrived in this country before such that if the petitioners were unlawfully in visas could be issued can no longer be ad- the United States they were subject to arrest mitted after examination under section 34 and deportation. Section 34 of the Immigraof the Act of February 5, 1917, although tion Act of 1917, affording such petitioners, fully qualified for admission in every other although unlawfully in the United States, respect. There is no question here of an ex- the right to an examination as to their qualhausted quota. Deportation is justified sole- ifications, was not mentioned in the opinion, ly upon the absence of a visa. If the gov- and the questions raised in the case at bar ernment's contention is sound, the salutory were not presented or considered. provisions of the Immigration Act of 1924, Since there is no evidence to warrant exprimarily designed to prevent the depart- clusion upon any ground except the absence ure from foreign lands of inadmissible aliens of a visa, the writ in this case must be susby requiring the issuance of immigration tained and the petitioner discharged. visas abroad, have completely nullified the provisions of section 34 of the Act of February 5, 1917. That no repeal of that section was intended is clear not only from section 25,

AMERICAN TRADING CO. OF NEW

ORLEANS v. FAIRHAVEN CO. but from section 20 of the Immigration Act of 1924 (Comp. St. Supp. 1925, SS 42893411, (District Court, N. D. California, Third 428934), the latter section relating par

Division. July 18, 1923.) ticularly to alien seamen, and making no

No. 17332. change in section 34 of the Act of February Shipping am 138—Stranding of vessel without 5, 1917. It seems absurd to impute to Con

negligence is "peril of sea" within Harter gress the intention to afford alien seamen Act. unlawfully within the United States the right Stranding of vessel, in absence of unseato an examination as to their qualifications worthiness, improper manning, or negligence, for admission, and at the same time to deny is a “peril of the sea" within Harter Act, 3 them admission when fully qualified merely (Comp. St. $ $031). because not in possession of a paper which and Phrases, First and Second Series, Perils of

[Ed. Note.-For other definitions, see Words the law makes it impossible for them to have the Sea.] obtained without leaving the country. No such construction is necessary. The posses- In Admiralty. Libel 'by the American sion of a visa is not "a qualification" for ad- Trading Company of New Orleans against

a

the Fairhaven Company. On exceptions to In The Warren Adams, 74 F. 414, 20 C. libel. Exceptions sustained.

C. A. 488, the Court of Appeals for the SecJohn D. & M. A. Grace, of New Orleans, ond Circuit said: La., and Nathan H. Frank and Irving H.

"When goods in the custody of a common Frank, both of San Francisco, Cal., for libel- carrier are damaged after their reception, ant.

and before their delivery, there is a prima Farnham P. Griffiths and McCutchen, 01- facie presumption that the injury is occasionney, Mannon & Greene, all of San Francis- ed by the carrier's default, and the burden is co, Cal., for respondent.

upon him to prove that it arose from a cause

for which he was not responsible. If it apPARTRIDGE, District Judge. This case pears that the injury has been caused by the is before the court upon exceptions to the li- dangers of navigation, or some other cause bel. It is alleged that the American Trading within the exception of the bill of lading, then Company of New Orleans delivered to the it devolves upon the shipper to make out that Fairhaven 2,812 bags of sugar at Chinan- the damage might have been avoided by the dega. When the vessel was about half a mile exercise of reasonable care and skill upon out from Gordon Head Lighthouse, she the part of the carrier. No loss which is the stranded, and, although efforts were made to result of ordinary wear and tear, or a necesrelieve her, she settled by the head and took a sary consequence of the employment of the list to port. Water accumulated in the for- vessel in the usual course of navigation, is a ward part of the hold, and, in a short time, loss by 'perils of the seas.' That term may be the bilges showed over two feet of water aft defined as denoting ‘all marine casualties reand more than four feet of water over the sulting from the violent action of the eleship’s ceiling forward. The water extended ments, as distinguished from their natural, over dunnage, and came in contact with the silent influence, upon the fabric of the vessel; sugar, causing the damage and loss.

casualties which may, and not consequences There is no allegation whatsoever that the which must, occur." ship was unseaworthy, nor was not properly The third edition of Arnold on Insurance, manned, nor, indeed, any charge that the at page 687, defines "perils of the sea" as "all stranding was due to any negligence.

kinds of marine casualties such as shipwreck, Section 3 of the Harter Act (Comp. St. $ foundering, stranding, etc., and every species 8031) provides :

of damage to the ship or goods at sea, by the “That if the owner of any vessel trans- violent and immediate action of the waters porting merchandise or property to or from and waves, not comprehended in the ordiany port in the United States of America nary wear and tear of the voyage or directly shall exercise due diligence to make the said referable to the acts and negligence of the asvessel in all respects seaworthy and properly sured as its approximate cause." manned, equipped, and supplied, neither the It may perhaps be said that, prior to the vessel, her owner or owners, agent, or char- Harter Act, the question as to whether strandterers, shall become or be held responsible for ing was a peril of the sea and within the exdamage or loss resulting from faults or er- ception might depend upon the facts or cirrors in navigation or in the management of cumstances. This is perhaps indicated by the said vessel nor shall the vessel, her owner or general discussion of that subject in Carver owners, charters, agent, or master be held lia

on Carriage by Sea, p. 119, where it would ble for losses arising from dangers of the seem that, in the view of the author, strandsea or other navigable waters, acts of God, ing is a peril of the sea only when it is upon or public enemies, or the inherent defect, not generally known reefs, or upon known quality, or vice of the thing carried, or from reefs when the vessel has lost her course owinsufficiency of package, or seizure under le- ing to fog or other causes, without any want gal process, or for loss resulting from any act of skill or care. Such, however, is not the or omission of the shipper or owner of the case in this country since the enactment of goods, his agent or representative, or from the Harter Act. saving or attempting to save life or property I do not think the libel states a cause of at sea, or from any deviation in rendering action, and the exceptions will therefore be such service."

sustained.

10 F.(20) 983 CARRANZO V. DISTRICT OF COLUMBIA. provisions of article V of the Police Regula(Court of Appeals of District of Columbia tions relating to the several markets." Submitted December 7, 1925. Decided

The “congested section,” as defined in secJanuary 4, 1926.)

tion 2 of article XII of the regulations, is No. 4328.

bounded on the north by K Street Northwest,

on the east by Seventh street, on the south in District of Columbia O22-Regulations estab

part by B and D streets and Pennsylvania lishing stands for street vendors held valid. Police Regulations of District of Columbia,

avenue, and on the west by Fifteenth and art. 3, § 1, and article 12, § 2, designating partic.

Seventeenth streets. It will be noted that ular stands for licensed street venders within Center Market, being between Seventh and congested section of city, and imposing penalty Tenth streets and north of B street, is for violation, held valid.

brought within this congested section.

In Crane v. District of Columbia, 53 In Error to the Police Court of District App. D. C. 159, 289 F. 557, this court held of Columbia.

that the District commissioners were without John Carranzo was convicted of violat- authority to prohibit vending on the streets ing police regulations affecting street ven- or public places, but that they were authorizders, and he brings error. Affirmed.

ed to locate and change stands for licensed Robert Hardison, of Washington, D. C., venders, and to pass reasonable regulations for plaintiff in error.

F. H. Stephens and E. W. Thomas, both regulation in question was promulgated after of Washington, D. C., for the District of it applies (a) to the congested section and

the decision in the Crane Case. By its terms Columbia.

(b) to all other sections. The sale giving Before MARTIN, Chief Justice, and rise to the prosecution in this case having ROBB and VAN ORSDEL, Associate Jus

occurred in the congested section, and the tices.

provisions of the regulation as to that sec

tion being separable from the general proviROBB, Associate Justice. This is a writ sions of the regulation, we are not here conof error to the police court of the District of cerned with such general provisions. Columbia, to review a decision of that court The record discloses that, prior to the sustaining the validity of the so-called street promulgation of these regulations, there were venders police regulation, and convicting from 65 to 100 push-cart venders in the busiplaintiff in error, a licensed street vender, of ness of vending fruits and vegetables within selling peaches within the congested section the congested section; that to permit such of the city of Washington at a

lace other a comparatively large number of these pushthan that designated as a stand for licensed cart venders to ply their trade generally street venders.

throughout the most congested part of the The regulation in question (section 1 of city might have a tendency seriously to inarticle III of the Police Regulations of the terfere with traffic and be a menace to the District, as amended) reads in part as fol- safety of the general public may not be lows: “No licensed street vender shall be doubted. Recognizing this, the commissionpermitted to sell any article or thing from ers located within this area five stands, and or upon any highway or public space within restricted the activities of such venders to the 'congested section of the city, as defined those locations. On the record before us, we in section 2, article XII, of these regulations, would not be justified in saying that this except at the following locations, which are was an unreasonable exercise of power; that hereby designated as stands for licensed is, that it amounted to prohibition, rather street venders.” After locating five stands, than regulation. There is evidence to the efon one side of five city blocks, the regulation fect that, in some instances, these stands have continues: “Outside of the 'congested sec- been used in whole or in part for the parktion' no licensed street vender shall occupying of automobiles; but, as it does not appear a stand or remain in any one place upon any that any complaint was made to the authoriof the highways or public spaces for a longer ties of the District, it may not be assumed period than is necessary to making a sale that upon proper complaint those authorities after having been approached or stopped for would fail to prevent such encroachment upthat purpose, except upon such stands desig- on these stands. nated for that purpose by the commission- It results that the judgment is affirmed, ers:

Provided, however, that noth- with costs. ing in this section shall be held to impair the Affirmed

a

DE CAMP v. UNITED STATES.

Appeal from the Supreme Court of Dis(Court of Appeals of District of Columbia.

trict of Columbia. Submitted November 2, 1925. Decided

James De Camp was convicted of conJanuary 4, 1926.)

spiracy to use the mails in furtherance of a No. 4252.

scheme to defraud, and he appeals. Af1. Criminal law m438—Motion picture of firmed. manufacture of glass caskets held properly

T. M. Wampler, of Washington, D. C., excluded, in prosecution for fraud.

for appellant. In trial for conspiracy to use mails to defraud by selling stock in corporation to manu- Peyton Gordon, of Washington, D. C., facture glass caskets, which government charg- for the United States. ed could not be made, motion picture of manufacture of such caskets at company's plant held

Before MARTIN, Chief Justice; and properly excluded, as not proving actual occur- ROBB and VAN ORSDEL, Associate Jusrence apart from witnesses' testimony as to

tices. thing produced.

2. Criminal law em 1170(2) -Exclusion of VAN ORSDEL, Associate Justice. Ap

motion picture of manufacturing process, pellant, De Camp, appeals from a conviction verified by testimony, not prejudicial.

under an indictment charging him and Sam. In trial for conspiracy to use mails to de

uel M. Acker, Anderson B. Lacy, Edwin C. fraud by selling stock in glass casket corporation, exclusion of motion pictures of manufac- Reed, and Ralph A. Howe, of the crime of ture of such caskets, which government charged conspiring to use the mails in furtherance of could not be made, was not prejudicial, if pic- a scheme and device to defraud in connection ture was verified by testimony.

with the promotion and sale of the capital 3. Conspiracy Om 24.

stock of the Crystal Glass Casket Company, A single defendant cannot be guilty of con

a corporation. Acker and Lacy were grantspiracy.

ed a severance. On trial, appellant was con

victed, Reed was acquitted, and the jury dis4. Conspiracy Omw 23.

agreed as to Howe. Possible acquittal of codefendants not yet

The first assignment of error is based uptried, or retried after jury disagreement, does not warrant reversal of conyiction for con- on the action of the trial court in overruling spiracy.

a motion for a directed verdict. It is insist5. Criminal law m472—Expert testimony that consistent with innocence as with guilt, and

ed that everything proved at the trial is as glass burial caskets were not commercially feasible admissible in trial for conspiracy to

numerous authorities are cited to the effect defraud by selling stock in corporation man. that, where this condition is disclosed, a moufacturing them.

tion for a directed verdict should be granted. In trial for conspiracy to use mails to de- We have carefully examined the testimony, fraud by selling stock in glass casket corporation, expert testimony that making of glass

as disclosed in the record in this case, and burial caskets was not commercially feasible are satisfied that the evidence was amply held admissible,

sufficient to support the verdict of the jury,

and the denial of the motion accordingly 6. Criminal law 730(11)-District attorney's

misconduct in calling for production of origi. , was without error. nal documents held not prejudicial.

[1] Error is assigned on the admission and Misconduct of district attorney in calling exclusion of certain evidence. It appears for production of original documents, as that a reel of motion pictures was taken at whereabouts of which codefendant testified, held the company's plant in Oklahoma, purportnot prejudicial, in view of court's caution to jury that defendant must not be presumed ing to show the actual manufacture, in all against, because of failure to produce them. stages, of glass caskets of different sizes,

Defendants offered the reel in evidence, and 7. Criminal law Cw829(1) -Refusal of instruc- moved the court for permission to exhibit the tions requested by particular codefendant is pictures to the jury by a moving picture not error, where already covered by instruction given on behalf of a codefendant.

machine in the courtroom. The court denied Where court, in general charge as to all the motion and declined to permit the exhibidefendants, gave instructions requested by one

tion to be made to the jury. One of the prinof them, and with direct reference to like in- cipal criminating charges of the government structions requested by another defendant told in this case was that glass caskets could not jury that instructions theretofore read by counsel were instructions as to law asked, and were

be made, and evidence was introduced to given as court's instructions on law of case,

sustain this contention. It was to meet this refusal of such duplicate prayers was not error. evidence that the moving picture was pro

to

10 F.12d) 984 dnced and offered. We think the court was and a single defendant could not be guilty of right in refusing to admit the picture in evi- the crime. If the defendants in this case had dence. A motion picture does not of itself been jointly tried, with the result of defendprove an actual occurrence. The thing re- ant De Camp convicted, and the acquittal of produced must be established by the testi- the remaining four, we might have a differmony of witnesses. While the photograph ent case; but Acker and Lacy had obtained a may be a proper representation of the thing severance, and had not been tried at the time produced, yet the testimony of witnesses is of appellant's conviction. Howe had not required to verify the production. “Theoret- been acquitted, and the result of a retrial ically, of course, the moving picture can cannot be conjectured. There is abundance never be assumed to represent the actual oc- of evidence in this record showing conspiracy currence; what is seen in it is merely what between defendant and Howe, Acker, and certain witnesses say was the thing that hap- Lacy, and the mere fact that these codefendpened, and, moreover, the party's hired ants have not been tried will not avail this agents may so construct it as to go consid- defendant. “Where three persons are tried erably further in his favor than the witness- separately, under an indictment charging es' testimony has gone, and yet any moving them with conspiracy, and one is found guilpicture is apt to cause forgetfulness of this, ty before the trial of the other two, the possiand to impress the jury with the convincing bility that the others may be acquitted is not impartiality of Nature herself. In view of a sufficient reason for holding the judgment these inherent risks of misleading, the trial of conviction of the one irregular." Reg. v. judge may well deem a picture unsafe and Ahearne, 6 Cox, C. C. 6. inadmissible, when the introductory evidence [5] Error is assigned in the admission of has not convinced him that the risk is negli- the testimony of an expert witness in respect gible." 2 Wigmore on Evidence, 8 798. of testimony relating to certain phases of [2] Testimony was produced on behalf of making glass. The witness duly qualified as the defendants tending to show the process an expert and was asked the question: of manufacture of glass caskets of different “Considering the known methods of making sizes and in all stages, and with this evi- and annealing glass at that time, is it your dence before the jury it was for the trial opinion that glass burial caskets could be court to determine whether a photograph or made and annealed successfully 9" To which moving picture, such as was offered, was suf- he answered: “It would, in my opinion, be ficiently verified as a proper representation hardly feasible to do it commercially.” The of the process of manufacture as it actually question was relevant to the issue under conexisted. This court will not assume, on this sideration, and was propounded to a witrecord, to determine this question, and if, as ness who had qualified as an expert on the contended by counsel for appellant, the tes- subject. The objection was therefore withtimony relative to the process of manufac- out foundation, and properly overruled by ture completely verifies the picture, then he the court. cannot successfully claim injury from the re- [6] Error is assigned on the alleged misconfusal of the court to repeat this testimony duct of the district attorney in the cross-exto the jury by a moving picture display of amination of the codefendant Howe. The the facts already in evidence. This is not the witness was being interrogated as to the case of a photograph used to show the rela- whereabouts of certain original documents tive position of different objects, or to recon- which he last saw in the files of the Crystal cile disputed issues of fact. The proof as to Glass Casket Company. The district attorconditions of manufacture at the Oklahoma ney, having elicited this answer, said: "Now plant were testified to by witnesses presumed I call on counsel to produce those originals.” to be familiar with existing conditions; hence Counsel for appellant objected to the statethe admission of the motion pictures would ment, and asked the court to withdraw a have amounted to nothing more than a spec- juror and continue the case. The court tacular display of a situation based upon promptly denied the motion and cautioned facts in evidence.

the jury as follows: [3,4] It is urged by counsel for defendant "And, gentlemen of the jury, I will say that he could not be found guilty of conspir- to you that this matter that arose just as you acy, inasmuch as the codefendant Reed was were leaving, and which was continued with acquitted, and the jury disagreed as to the great animation after you left by counsel, guilt of Howe. It is true that a conspiracy looks in the direction of attempting to recan only exist between two or more persons, quire a defendant to furnish information

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