more particular description of which intoxicating liquors is to the grand inquest unknown."

The indictment further charged that this conspiracy was to be affected by organizing as a corporation, the Maryland Drug & Chemical Manufacturing Company, and securing from the collector of internal revenue for the district of Maryland, in the name of such corporation, a permit to use denatured alcohol in the manufacture of hair shampoo, hair tonic, bay rum, theater disinfectants, and toilet articles, intending, nevertheless, not to use such alcohol in such manufacture, except such small part thereof as might be necessary to deceive the agents of the United States, but to sell the alcohol to divers persons, to the grand inquest unknown, well knowing that such alcohol was designed and intended to be used by such persons in the unlawful manufacture of intoxicating liquor. The conspiracy also included the making of false records in the office of the corporation of the disposition of the alcohol, for the purpose of deceiving the agents of the Treasury Department of the United States.

Three of their codefendants pleaded guilty. Three others were tried with them, and all were convicted. They alone sue out writs of error. They do not question that the government presented evidence which would justify the jury in finding, as it did find, that they were parties to a conspiracy to organize such company and to obtain for it a permit under which it would come into the possession of denatured alcohol of the character described in the indictment, under pretense that such alcohol was to be used in the manufacture of the articles mentioned in the indictment, and that they did not intend so to use any considerable part of it, and did not in fact do so, but that their purpose was to sell it to bootleggers, who would remove the chemicals that had been used to denature it, and would then sell it for beverage purposes. Not much time need be wasted upon the objection that it was not sufficiently proved that they knew that the persons to whom they intended to sell the alcohol, and to whom they did sell it, purposed to make out of it intoxicating liquors to be used for beverage purposes. On that subject the evidence is ample and conclusive.

[1] They do contend, however, that, whatever they were guilty of, they did not conspire to violate section 18, because they say that that section merely forbids the advertising, manufacturing, selling, or possessing for sale any utensils, contrivance, machine,

preparation, compound, tablet, substance, formula, direction, or recipe advertised, designed, or intended for use in the unlawful manufacture of intoxicating liquor. From its language they argue that the article, whatever it is, must be something which was itself made with intent that it should be used in the manufacture of beverage alcohol, and they say that the alcohol which they bought and sold was alcohol which, so far from being designed for use for beverage purposes, had been made unfit for such use by the employment of a formula approved by the government itself. The argument is ingenious, but scarcely convincing.

In our view, the defendants are no less guilty because the alcohol, before it came into their possession, had not been prepared with the intent that it should be used for the manufacture of an intoxicating beverage. They violated the statute, if they intended, when they conspired to offer it for sale and sold it, that it should be used in the manufacture of beverage alcohol, to be sold as such. The sole purpose of their elaborate conspiracy, extending over some months, was to put themselves in a position to sell denatured alcohol to persons who would pay them a high price therefor, in order that such other persons could take out the denaturing compounds and thereby turn it into beverage alcohol to be illicitly sold. It is clear that they advertised it by word of mouth to the persons to whom they sold it as suitable for use in the unlawful manufacture of intoxicating liquors.

[2, 3] There is but one other assignment of error. The indictment charged them, not only with conspiring with the other named defendants, but with others to the grand jury unknown. In the course of the trial it appeared that one Lerner had bought a large portion of the denatured alcohol from them. From this it is argued that he was a party to the conspiracy, and from the fact that certain persons who testified in the case as to Lerner's activities also testified before the grand jury it is said that the grand jury must have known what part he had played. It is contended that these facts disclosed a fatal variance between the indictment and the proof. The name or description of an individual other than the defendant may sometimes serve to identify a particular crime which is said to have been committed. If so, the accused is entitled to be told it, if the grand jury knows it, so that he may make ready his defense and be protected against the possibility of double jeopardy. Under such circumstances, if the grand jury says it

The reasons why the naming of conspirators other than those mentioned in the indictment can seldom serve any such purpose of identification, and why upon other grounds it would be both impracticable and useless to require the grand jury to set out all the names of the persons whom they think have participated in the conspiracy, but who upon one ground or another they do not choose to indict, were well stated in Jones v. United States, 179 F. 584, 103 C. C. A. 142 (C. C. A. 9), United States v. Heitler (D. C.) 274 F. 401, affirmed in Heitler v. United States (C. C. A.) 289 F. 1021 (C. C. A. 7) and Leverkuhn v. United States, 297 F. 590 (C. C. A. 5). They need not be repeated here. Affirmed.

FOSTER v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. February 23, 1926.)

No. 4724.

1. Poisons 9-Indictment for purchasing, selling, dispensing, and distributing narcotics held sufficient (Harrison Act, § 1, as amended by Act Feb. 24, 1919, § 1006 [Comp. St. Ann. Supp. 1919, § 6287g]).

Indictment charging defendant and others with having purchased, sold, dispensed, and distributed certain derivatives of opium, to wit, etc., held not insufficient for failure to state whether defendant purchased, sold, dispensed, or distributed the named narcotics, or for failure to allege that defendant was one required by Harrison Act, § 1, as amended by Act Feb. 24, 1919, § 1006 (Comp. St. Ann. Supp. 1919, § 6287g), to register with collector of internal

revenue.

2. Customs duties 134-Indictment for receiving, concealing, buying, selling, and facilitating the transportation and concealment of unlawfully imported narcotics held sufficient (Narcotic Drug Act 1922 [Comp. St. Ann. Supp. 1923, § 8800 et seq.]).

Under Narcotic Drug Act 1922 (Comp. St. Ann. Supp. 1923, § 8800 et seq.), indictment charging defendant with having willfully and knowingly received, concealed, bought, sold, and facilitated the transportation and concealment, after importation, of narcotics known to have been imported contrary to law, held sufficient to advise defendant of offense charged.

3. Indictment and information 129(1)— Counts of indictment for trafficking in narcotics held not improperly joined (Harrison Act [Comp. St. §§ 6287g-6287q]; Narcotic Drug Act 1922 [Comp. St. Ann. Supp. 1923, § 8800 et seq.); Rev. St. § 1024 [Comp. St. § 1690]).

Counts of indictment charging defendant, under Harrison Act (Comp. St. §§ 6287g-6287q), with having purchased, sold, dispensed, and distributed, and under Narcotic Drug Act 1922 (Comp. St. Ann. Supp. 1923, § 8800 et seq.), with having received, concealed, bought, sold, and facilitated the transportation of unlawfully imported opium derivatives, held not improperly joined under Rev. St. § 1024 (Comp. St. § 1690).

4. Criminal law 1120(1)-Error in exclu sion of evidence not available where bill of exception does not show nature of evidence or contents of motion to exclude (Const. Amends. 4, 5).

Error cannot be predicated on overruling motion for exclusion of evidence as obtained in violation of defendant's rights under Const. Amends. 4, 5, where bill of exception does not show contents of motion or nature of evidence

or facts.

5. Criminal law 395-Morphine taken from defendant's person held admissible as procured by search after arrest on reasonable grounds (Narcotic Drug Act 1922 [Comp. St. Ann. Supp. 1923, § 8800 et seq.]).

Morphine taken from defendant after arrest held admissible as procured by search after arrest by officers having reasonable grounds to believe that a violation of the Narcotic Drug Act 1922 (Comp. St. Ann. Supp. 1923, § 8800 et seq.), a felony, was being committed. 6. Poisons 9-Evidence held to sustain conviction for violation of Harrison Act and Narcotic Drug Act (Comp. St. §§ 6287g-6287q; Comp. St. Ann. Supp. 1923, §§ 6287g, 8800 et seq.).

Evidence held to sustain conviction for violation of Harrison Act (Comp. St. §§ 6287g6287q) and Narcotic Drug Act 1922, there being nothing to overcome the presumptions arising under Act Dec. 17, 1914, § 1, as amended by Act Feb. 24, 1919, and re-enacted by Act Nov. 23, 1921 (Comp. St. Ann. Supp. 1923, § 6287g), and section 8 (Comp. St. § 6287n), Act Feb. 9, 1909, as amended by Act Jan. 17, 1914, and by Act May 26, 1922 (Comp. St. Ann. Supp. 1923, § 8800 et seq.).

In Error to the District Court of the United States for the Southern Division of the Northern District of California; A. F. St. Sure, Judge.

Harold Foster was convicted of violating the Harrison Narcotic Act and the Narcotic

Drug Act, and he brings error. Affirmed.

Hilton & Christensen, of San Francisco, Cal., for plaintiff in error.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

HUNT, Cireuit Judge. [1,2] Writ of error by Foster to review his conviction under two counts of an indictment charging him and one Ida Higgins and others: (1) With having knowingly and willfully purchased, sold, dispensed, and distributed a certain derivative of opium, to wit, one bindle of morphine, which was not in or from the original stamped package containing said morphine; and (2) with having willfully and knowingly received, concealed, bought, sold, and facilitated the transportation and concealment after importation of a certain derivative of opium, to wit, five bindles of morphine and a certain derivative of coca leaves, to wit, one package and four bindles of cocaine, which said morphine and cocaine, as defendant well knew, had been imported into the United States contrary to law

It is contended that the first count is insufficient in that it does not charge whether Foster sold, purchased, dispensed, or distributed the above-named narcotics, and fails to charge that Foster was one of the persons required to register with a collector of internal revenue as, required by section 1 of the Harrison Narcotic Act, as amended February 24, 1919 (Comp. St. Ann. Supp. 1919, 6287g); and that the second count, which is drawn under the Narcotic Drug Act of 1922 (Comp. St. Ann. Supp. 1923, § 8800 et seq.), is fatally defective in that it does not advise defendant what offense he is charged with.

Upon the authority of our decisions in Wong Lung Sing v. United States (C. C. A.) 3 F. (2d) 780, and Lee Tung v. United States (C. C. A.) 7 F.(2d) 111, we hold

both counts sufficient.

[3] There is no merit in the assignment that the counts were improperly joined in the indictment. The crimes charged were of the same class, and under section 1024 of the Revised Statutes (Comp. St. § 1690) joinder in one indictment in separate counts was proper, Perez v. United States (C. C. A.) 10 F.(2d) 352, Feb. 8, 1926.

[4] It is contended that the court erred in overruling a motion for the exclusion of certain evidence. The bill of exceptions shows that when the case was called for trial the

defendant filed "a motion for the exclusion of certain evidence on the ground that the evidence had been obtained contrary to defendant's rights under the Fourth and Fifth Amendments to the Constitution." What the contents of the motion were, or what was the nature of the evidence or facts upon which the motion was based, does not appear in the bill of exceptions.

[5] During the examination of a witness for the government, the court overruled an objection to the introduction of a package of morphine that was taken from defendant's pocket when he was arrested. Exception was preserved. The objection was based upon the ground that defendant's constitutional rights were invaded, in that no crime was committed in the presence of the officers and that no search warrant had been issued. But as the fact showed that before the arrest of the defendant the officers had reasonable ground to believe that he had violated the Narcotic Drug Act and committed a felony in so doing, the arrest and search were lawful. Cline v. United States (C. C. A. Nov. 1925) 9 F. (2d) 621.

[6] Defendant argues that the evidence was insufficient to justify the verdict. Stated in briefest way, there was testimony that a marked $20 bill was given to an informer who purchased morphine from the defendant Foster; that defendant was arrested and a bindle of morphine was found in his vest . pocket; that immediately upon his arrest he dropped two bindles of cocaine on the sidewalk; that afterwards he admitted that he had received the $20 bill and that he had given it to Ida Higgins, who was jointly indicted with defendant., Defendant testified in his own behalf but failed to rebut the statutory presumption that possession of the drugs was

a violation of the act under which the first count was drawn (Act Dec. 17, 1914, 38 St. 785, § 1, 40 St. 1131, 42 St. 299, Comp. St. Ann. Supp. 1923, § 6287g, and section 8 [Comp. St. § 6287n]), and also failed to explain his possession of the drugs to the satisfaction of the jury as required by the act under which the second count was drawn (Act Feb. 9, 1909, 35 St. 615, as amended January 17, 1914, 38 St. 275, as amended May 26, 1922, 42 St. 596 [Comp. St. Ann. Supp. 1923, § 8800 et seq.]).

We find no error and affirm the judgment.

ÆETNA CASUALTY & SURETY CO. et al. v. UNITED STATES FIDELITY & GUARANTY CO. et al.

(Circuit Court of Appeals, Fifth Circuit. January 19, 1926.)

No. 4524.

1. Courts 269-Suit to cancel surety bonds alleged to have been fraudulently obtained held property dismissed (Jud. Code, §§ 5, 57 [Comp. St. §§ 1033, 1039]).

Where sureties on two bonds given to secure bank deposits of road district funds jointly sued board of bond trustees of district, receiver of

bank, and a former surety to cancel the bonds which it was alleged defendant surety company had procured bank to get in order to itself escape liability, knowing bank to be in solvent, in district wherein neither plaintiffs nor defendant surety was a resident, held suit was not a local action under Jud. Code, § 57 (Comp. St. § 1039), and, under section 51 (section 1033), was properly dismissed against defendant surety.

2. Cancellation of instruments 13-Sureties

on bonds alleged to have been fraudulently procured held to have adequate remedy by

defense to suit.

Sureties on bonds given to secure bank deposits of road district funds which it was alleged had been fraudulently procured by bank at instance of former surety, which, knowing bank was insolvent, was seeking to escape liability, held to have complete defense to any suit by bond trustees of district, and not to need equity aid by way of cancellation.

Appeal from the District Court of the United States for the Northern District of Florida; William B. Sheppard, Judge.

Suit by the Etna Casualty & Surety Company and another against the United States Fidelity & Guaranty Company and others. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

W. T. Stockton, Herman Ulmer, Richard P. Marks, Sam R. Marks, and Francis M. Holt, all of Jacksonville, Fla., for appellants.

Wm. Wade Hampton, Fred J. Hampton, and Edwin B. Hampton, all of Gainesville, Fla., and F. P. Fleming, of Jacksonville, Fla. (C. H. Lichliter, of Jacksonville, Fla., on the brief), for appellees.

had been designated by the board of bond trustees of a special road and bridge district as depository of the funds of that district, and is conditioned that the bank should safely keep, account for, and pay over to the board upon demand "all money that may come into its hands by virtue of its acting as said depository," etc.

Cancellation of the bonds was sought on the ground that they were procured as a result of fraud committed by the United States Fidelity & Guaranty Company in an effort to relieve itself of liability as surety upon a similar bond for $85,000.

The parties defendant to the bill were the United States Fidelity & Guaranty Company, the receivers of the bank, and the board of trustees of the special road and bridge district. Diversity of citizenship was averred to exist between appellants on the one hand and the Fidelity & Guaranty Company on the other; but none of them was a citizen of Florida where the suit was brought, and, because of this, the Fidelity & Guaranty Company claimed its privilege under section 51 of the Judicial Code (Comp. St. § 1033) to be sued in the district of the residence of either itself or the plaintiffs, and its motion to be dismissed from the suit was granted. Subsequently the motion of the board of trustees to dismiss the bill of complaint was also granted.

The averments of the bill relied on to sustain the charge of fraud are, in substance, as follows: On September 4, 1923, the board of trustees had on deposit in the bank the sum of $161,545.10, which was protected by bonds aggregating $160,500. The Fidelity & Guaranty Company was surety on one of these bonds for $85,000, which did not expire until December of 1923, but on September 17th it ascertained upon an examination of assets and liabilities that the bank was insolvent. It thereupon demanded of the bank that the latter secure a release of its bond, and procure bonds from other surety companies that did not have any knowledge of the bank's financial condition. In compliance with this demand the bank applied to

BRYAN, Circuit Judge. Appellants joined in a single bill of complaint to cancel two bonds; one for $20,000 upon which the Etna was surety, and the other for $30,000 upon which the Standard was surety. Each of the bonds recites that the principal, the Florida Bank & Trust Company, of Gainesville, Fla., on August 7, 1923,

bonds sought to be canceled, which the board of trustees, on October 2d, accepted and approved, and by resolution released the Fidelity & Guaranty Company from future liability on its $85,000 bond, but held that bond as security for any liability which already had accrued, and accepted from the bank and the Fidelity & Guaranty Company new bonds aggregating $35,000. In short, the charge of fraud is that the Fidelity