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347 (U.S.D.C.Del.) Under Rev. St. § 914 (Comp. St. § 1537), District Court for Delaware, in passing on pleadings, must be guided by laws of Delaware.-Oklahoma Gas & Electric Co. v. Bates Expanded Steel Truss Co., 11 F. (2d) 415.

348 (U.S.C.C.A.Mo.) Under Conformity Act Sept. 24, 1789, § 34 (Rev. St. § 721 [Comp, St. § 1538]), competency of evidence in civil case is determinable by law of state wherein

trial is had.-Von Crome v. Travelers' Ins. Co. of Hartford, Conn., 11 F. (2d) 350.

Certificate of state bureau of vital statistics, showing cause of insured's death, held properly admitted in evidence (Rev. St. Mo. 1919, § 5816; Conformity Act Sept. 24, 1789, § 34 [Rev. St. U. S. § 721, being U. S. Comp. St. $ 1538]).-Id.

352 (U.S.C.C.A.Ala.) Bill in equity by receiver to recover property subject of fraudulent and preferential transfer should have been transferred to law side of docket (Const. Amend. 7; Judicial Code, § 267 [Comp. St. § 1244]; Bankruptcy Act, §§ 60b, 70e [Comp. St. §§ 9644, 9654]).-Adams v. Jones, 11 F. (2d)

759.

356 (U.S.C.C.A.Miss.) Transcript of testimony of all witnesses in question and answer form held improper (Equity Rule 75, par. b.). -Buckeye Cotton Oil Co. v. Ragland, 11 F. (2d) 231.

Equity rule 75 does not contemplate order to send up all testimony in question and answer form, being designed to prevent such record. -Id.

357 (U.S.D.C.La.) Whether defendant can compel plaintiff to give security for costs is governed by state law, in absence of federal statute or rule of court.-Sermons v. Kansas City Southern Ry. Co., 11 F. (2d) 671.

(F) State Laws as Rules of Decision.

365 (U.S.C.C.A.Fla.) Federal courts sitting in equity are not bound by state court decisions relating to remedies or modes of procedure. Clark v. Andrew, 11 F. (2d) 958.

365 (U.S.D.C.Ala.) Federal courts will not follow decisions of state courts which impair vested constitutional rights.-Perry v. Town of Samson, 11 F. (2d) 655.

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366(1) (U.S.C.C.A.N.J.) Construction its own statute by state court is binding on federal courts.-Passaic Valley Sewerage Com'rs v. U. S. ex rel. Holbrook, Cabot & Rollins Corporation. 11 F. (2d) 748.

366(18) (U.S.C.C.A.N.Y.) In matters of lien law decisions of highest state court have controlling influence on federal courts, and, if local law is clear, federal courts will accept it. -New York-Brooklyn Fuel Corporation v. Fuller, 11 F. (2d) 802.

366(18) (U.S.D.C.N.Y.) Decree of highest state court that mechanics' lien is entitled to priority over bankruptcy trustee, though filed after adjudication, will be followed by federal court (New York Lien Law [Consol. Laws, c. 33] §§ 3, 10, 13).-In re New York-Brooklyn Fuel Corporation, 11 F. (2d) 796.

367 (U.S.C.C.A. Fla.) Rule of property established by state courts, whenever applicable, is binding on federal courts.-Clark v. Andrew, 11 F. (2d) 958.

~371(1) (U.S.D.C.Ohio) Federal courts will enforce new rights created by state statute.-Connecting Gas Co. v. Imes, 11 F. (2d)

191.

371 (7) (U.S.D.C.Ohio) Party suing to enjoin collection of illegal tax is in same position in federal as in state courts (Gen. Code Ohio, $12075).-Connecting Gas Co. v. Imes, 11 F. (2d) 191.

372 (8) (U.S.C.C.A.N.Y.) Extent to which one aiding another's suit to protect his own interest is bound by judgment therein is matter of general law, and state court decisions are

not controlling on federal courts.-Columbia Ins. Co. of New Jersey v. Mart Waterman Co., 11 F. (2d) 216.

(G) Supreme Court.

385(4) (U.S.C.C.A.Cal.) Whether vessel subject to process is jurisdictional question owned and operated by foreign government is The Nevada, 11 F. (2d) 511. (Judicial Code, § 238 [Comp. St. § 1215]).—

(H) Circuit Courts of Appeals.

405(16) (U.S.C.C.A.Alaska) Circuit Court of Appeals cannot notice assignment that findings are not supported by evidence, where_evidence is not part of record.-Isaacs v. De Hon, 11 F. (2d) 943.

405 (16) (U.S.C.C.A.Ariz.) Petition for certiorari and for diminution of record not filed until two terms of court had passed, and motion to join additional parties, will be denied (C. C. A. Rule 18).-Smith v. Hovland, 11 F. (2d) 9.

406 (1) (U.S.C.C.A.Hawaii) Doubt as to construction of ambiguous Hawaiian statute should be resolved in favor of construction thereof by Supreme Court of Hawaii.-U. S. Fidelity & Guaranty Co. v. Henry Waterhouse Trust Co., 11 F. (2d) 497.

406 (1) (U.S.C.C.A.N.Y.) Circuit Court of Appeals on writ of error from trial court's action setting aside verdict and directing verdict of his own, with judgment thereon, cannot review order setting aside verdict.-Clemence v. Hudson & M. Ry. Co., 11 F. (2d) 913.

406(2) (U.S.C.C.A.N.Y.) Trial judge, on setting aside verdict, had no authority to direct verdict of his own and enter judgment, and Circuit Court of Appeals can only reverse judgment and direct new trial.-Clemence v. Hudson & M. Ry. Co., 11 F. (2d) 913.

406 (2) (U.S.C.C.A.N.Y.) Person, punished for failure to obey order of bankruptcy court, cannot on appeal raise point of lack of jurisdiction to make original order, which had been ruled against him and appeal therefrom dismissed.-In re Silverman, 11 F.(2d) 970.

(K) Territorial and Provisional Courts.

438 (U.S.C.C.A.Porto Rico) United States District Court of Porto Rico would have had no jurisdiction to enjoin collection of $3,810.93 as illegal taxes, where only $585.33 thereof depended on determination of federal question, conceding there was such question (Judicial Code, § 24 [Comp. St. § 991]). Gallardo v. Santini Fertilizer Co., 11 F.(2d) 587.

(M) Court of Claims.

449 (3) (U.S.D.C.Pa.) Remedy for patent infringement in manufacturing goods for United States after July 1, 1918, is by suit against United States in Court of Claims (Act July 1, 1918, amending Act June 25, 1910 [Comp. St. Ann. Supp. 1919, § 9465]).—Luellen v. Baldwin Locomotive Works, 11 F. (2d) 390.

VIII. CONCURRENT AND CONFLICTING JURISDICTION, AND COMITY. (B) State Courts and United States Courts.

493 (3) (U.S.C.C.A.Mo.) State court, in which suit was brought to construe will, as affecting rights of legatees and remaindermen under trust agreement executed by life tenant, held not to have acquired exclusive jurisdiction of trust estate.-Franz v. Buder, 11 F. (2d) 854.

505 (U.S.C.C.A.R.I.) Suit against executors and legatee to enforce assignment of interest in estate held within equity jurisdiction of federal court, though res was in possession of probate court.-Chase Nat. Bank of New York v. Sayles, 11 F. (2d) 948.

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

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I. NATURE AND ELEMENTS OF CRIME
AND DEFENSES IN GENERAL.

25 (U.S.C.C.A.Mo.) Whether bankruptcy was voluntary or involuntary is immaterial, in prosecution for conspiracy to violate Bankrupt. cy Act (Penal Code, § 37 [Comp. St. § 10201]; Bankruptcy Act, § 29b [Comp. St. § 9613]).Morrow v. U. S., 11 F. (2d) 256.

29 (U.S.C.C.A.Ala.) The government cannot make several conspiracies out of one.Powe v. U. S., 11 F. (2d) 598.

V. VENUE.

(A) Place of Bringing Prosecution.

113 (U.S.C.C.A.Or.) District Court for Oregon had jurisdiction of prosecution for transporting girl from Oregon to California for immoral purpose (White Slave Traffic Act June 25, 1910, §§ 2, 3, 5 [Comp. St. §§ 8813, 8814, 8816]; Judicial Code, § 42 [Comp. St. § 1024]). -Hart v. U. S., 11 F. (2d) 499.

113 (U.S.C.C.A.Pa.) Defendant may be tried at any place where conspiracy took place, or overt act was committed.-U. S. ex rel. Tassell v. Mathues, 11 F. (2d) 53.

VI. LIMITATION OF PROSECUTIONS.

147 (U.S.C.C.A.S.C.) Six not three, years' limitation (Act Nov. 17, 1921 [Comp. St. Ann. Supp. 1923, § 17081), applies to violations of Criminal Code, § 35 (Comp. St. § 10199), by presenting false claim against government and false supporting affidavit.-Evans v. U. S., F. (2d) 37.

153 (U.S.D.C.N.Y.) Statute of limitations does not run while accused is fugitive from justice.-U. S. v. Dooley, 11 F. (2d) 428.

VII. FORMER JEOPARDY.

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Indictment for violating Anti-Trust Law held to sufficiently implicate individual defendant, so as to warrant his removal to trial jurisdiction (Clayton Act, § 14 [Comp. St. § 8835m]).-Id.

242 (5) (U.S.C.C.A.N.Y.) Fact of indictment is not necessarily conclusive in removal proceeding.-U. S. ex rel. Brody v. Hecht, 11 F. (2d) 128.

Federal judge should not consent to warrant of indietment (Rev. St. § 1014 [Comp. St.. § of removal to another district solely on strength

1674]).-Id.

Indictment found in district to which removal is sought makes prima facie case for removal. -Id.

242(5) (U.S.C.C.A.Pa.) Indictment raises presumption of probable cause, warranting removal from district.-U. S. ex rel. Tassell v. Mathues, 11 F.(2d) 53.

242 (6) (U.S.C.C.A.N.Y.) District Court should be satisfied in removal proceedings that indictment charges offense against United States, but, if sufficiency of indictment is merely doubtful, inquiry on habeas corpus not open. U. S. ex rel. Brody v. Hecht, 11 F. (2d) 128.

242 (6) (U.S.C.C.A.Pa.) Doubtful questions as to indictment left for court, where indictment found, and defendant removed to that district.-U. S. ex rel. Tassell v. Mathues, 11 F.(2d) 53.

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242 (7) (U.S.C.C.A.N.Y.) Government offer testimony in support of indictment in removal proceedings.-U. S. ex rel. Brody v. Hecht, 11 F. (2d) 128.

Removal of defendant to district where indictment was found held not justified by evidence as to place of crime (Harrison Narcotic Act).-Id.

11242 (7) (U.S.C.C.A.Pa.) On government's making prima facie case for removal of accused from district, burden shifts to defendant.U. S. ex rel. Tassell v. Mathues, 11 F. (2d) 53. 242 (7) (U.S.C.C.A.Tenn.) Removal from district for trial should be denied, where there is affirmative proof of innocence, challenged only by indictment, and made, if conclusion of no probable cause is put in substantial doubt by other proofs than indictment.-Meehan v. U. S., 11 F. (2d) 847.

202 (1) (U.S.C.C.A.Ala.) Prosecution for conspiracy to commit one or less number of offenses charged in former indictment for conspiracy is not authorized.-Powe v. U. S., 11 F. (2d) 598.

Conspiracy charged held no different from that charged in former indictment, because of different ownership of liquor purchased by defendant for sale (National Prohibition Act, tit. 2 [Comp. St. Ann. Supp. 1923, § 101381⁄2 et seq.]).-Id.

Defendant held to have been put in jeopardy under former indictment, though it referred to liquor sales in certain city, while present indictment referred to sales anywhere in district in which such city was located (National Prohibition Act, tit. 2 [Comp. St. Ann. Supp. 1923, § 101381⁄2 et seq.]).-Id.

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242(1) (U.S.C.C.A.N.Y.) Accused cannot be tried in one district on indictment showing commission of offense in another; removal to district other than one in which Constitution permits trial to be had is unauthorized (Const. Amend. 6; Const. art. 3, § 2).-U. S. ex rel. Brody v. Hecht, 11 F. (2d) 128.

242 (4) (U.S.C.C.A.Pa.) Removal from district for trial improper, if grand jury had no probable cause for finding indictment.-U. S. ex rel. Tassell v. Mathues, 11 F. (2d) 53.

242 (4) (U.S.C.C.A.Tenn.) Indictment charging violation of Sherman Act and supporting facts held sufficient in removal proceedings

Letter written by manager of corporation to association of which it was member held to establish probable cause, justifying his removal to another district for trial on charge of violating Anti-Trust Law (Sherman Anti-Trust Act [Comp. St. §§ 8820-8823, 8827-8830]). -Id.

242 (7) (U.S.C.C.A.Wis.) Indictment is not conclusive evidence of probable cause in proceeding to remove defendant to another federal district for trial and exclusion of evidence to rebut presumption was error (Rev. St. § 1014 [Comp. St. § 1674]).-U. S. ex rel. Nourse v. White, 11 F. (2d) 843, followed in U. S. ex rel. Rutz v. Anderson, 11 F. (2d) 845.

242 (8) (U.S.C.C.A.N.Y.) Under Rev. St. § 1014 (Com. St. § 1674), providing for removal of offenders to district where trial is had, duties of district judge are judicial.-U. S. ex rel. Brody v. Hecht, 11 F. (2d) 128.

District judge must issue warrant for removal of defendant, either if each of things required by removal statute is clearly established or if as to some of them he merely entertains doubts as to establishment thereof (Rev. St. § 1014 [Comp. St. § 1674]).—Id.

Disputed questions of fact or law cannot be decided by court in which removal proceeding is heard.-Id.

242 (8) (U.S.C.C.A.Pa.) Defendant, in removal proceedings, must be afforded opportunity to show want of probable cause.-U. S. ex rel. Tassell v. Mathues, 11 F. (2d) 53.

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304 (2) (U.S.D.C.N.Y.) District Court cannot take judicial notice, that a particular national bank is a federal reserve bank or member bank-U. S. v. Dooley, 11 F. (2d) 428.

304(17) (U.S.C.C.A.N.Y.) Failure of certificate to state why bill of exceptions was signed by another than trial judge, of whose death Circuit Court of Appeals takes judicial notice, not fatal.-Kreiner v. U. S., 11 F. (2d) 722.

304 (20) (U.S.C.C.A.Mass.) Court was not authorized to say that witnesses testifying concerning "moonshine" did not mean moonshine whisky, as affects necessity for proof of alcoholic content (National Prohibition Act [Comp. St. Ann. Supp. 1923, § 101384 et seq.]). Weinstein v. U. S., 11 F. (2d) 505.

304(20) (U.S.C.C.A.Mo.) Courts judicially know that whisky, alcohol, brandy, gin and other well-known intoxicants are "intoxicating liquors" (National Prohibition Act, tit. 2, § 1 [Comp. St. Ann. Supp. 1923, § 1013821).— Keen v. U. S., 11 F. (2d) 260.

Courts do not judicially know that home brew is "intoxicating liquor," within National Prohibition Act, tit. 2, § 1 (Comp. St. Ann. Supp. 1923, § 101382), in absence of proof of alcoholic content.-Id.

306 (U.S.C.C.A.Mo.) Presumption cannot be bottomed en a presumption.-Keen v. U. S., 11 F.(2d) 260.

317 (U.S.C.C.A.Ky.) Defendant's failure to cross-examine government witness concerning vital matters as to which government had not examined him or to call him as his own witness, held not to justify any conclusion injurious to him.-Oldham v. U. S., 11 F.(2d) 776.

322 (U.S.C.C.A.Ky.) No presumption obtains that prior search warrants were unlawfully issued merely because no arrests or seizures were made.-Keith v. U. S., 11 F.(2d) 933.

(C) Other Offenses, and Character of Accused.

369(1) (U.S.C.C.A.N.J.) Evidence of previous conviction not admissible to show likelihood that accused would commit crime again. -Mansbach v. U. S., 11 F. (2d) 221.

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371(1) (U.S.C.C.A.W.Va.) Evidence similar fraudulent transactions in prosecution for fraudulent use of mails in sale of worthless oil leases held admissible on question of intent (Penal Code, § 215 [Comp. St. § 10385]).-Tincher v. U. S., 11 F. (2d) 18.

Evidence of ventures involving fraudulent intent similar to one charged in indictment is admissible on question of intent.-Id.

376 (U.S.C.C.A.N.J.) Evidence assailing accused's character not admissible until accused puts character in issue.-Mansbach v. U. S.. 11 F. (2d) 221.

377 (U.S.C.C.A.N.Y.) Accused may introduce evidence of his good character.-Kreiner v. U. S., 11 F. (2d) 722.

eral.

(D) Materiality and Competency in Gen386 (U.S.C.C.A.Mich.) Telephone inquiry by one who gave accused's name was not admissible against accused, in absence of proof of identity.-Lewis v. U. S., 11 F. (2d) 745.

394 (U.S.C.C.A.Cal.) Morphine seized and facts connected with alleged unlawful seizure held admissible (Act Dec. 17, 1914, § 1, as amended by Act Feb. 24, 1919, § 1006 [Comp. St. Ann. Supp. 1919, § 6287g], Act Feb. 9, 1909, § 2, as amended by Act Jan. 17, 1914, and Act May 26, 1922, § 1 [Comp. St. Ann. Supp. 1923, § 8801]; Const. Amends. 4, 5).Mattus v. U. S., 11 F. (2d) 503.

394 (U.S.C.C.A.La.) Search without warrant of premises and garage, on detecting odor of mash, held reasonable, and evidence procured admissible (National Prohibition Act [Comp. St. Ann. Supp. 1923, § 101384 et seq.]).Schulte v. U. S., 11 F. (2d) 105. taken

395 (U.S. C. C. A. Cal.) Morphine 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.]).-Foster v. U. S., 11 F. (2d) 100.

395 (U.S.C.C.A.Cal.) Morphine seized and facts connected with alleged unlawful seizure held admissible (Act Dec. 17, 1914, § 1, as amended by Act Feb. 24, 1919, § 1006 [Comp. St. Ann. Supp. 1919, § 6287g]; Act Feb. 9, 1909, § 2, as amended by Act Jan. 17, 1914, and Act May 26, 1922, § 1 [Comp. St. Ann. Mattus V. U. S., 11 F. (24) 503. Supp. 1923, § 8801]; Const. Amends. 4, 5).—

395 (U.S.D.C.Pa.) Search and seizure of liquor in drug store by officer there to inspect records required to be kept held unreasonable, and liquor seized inadmissible in evidence (National Prohibition Act, tit. 2, § 34 [Comp. St. Ann. Supp. 1923, § 101382u]; Const. Amend. 4).-In re Lobosco, 11 F. (2d) 892.

(E) Best and Secondary and Demonstra

tive Evidence.

400(8) (U.S.C.C.A.Tex.) Deposit slips and ledger pages of bank account admissible to show failure to deposit checks and cash, as charged in indictment for conspiracy to conceal assets.-Kolbrenner v. U. S., 11 F.(2d) 754.

Testimony as to contents of bankrupt's books by trustee properly admitted in prosecution for conspiracy to conceal assets.-Id.

One familiar with books of account may testify regarding them, for purpose of facilitating jury in their inquiry.-Ïd.

400(10) (U.S.C.C.A.Or.) Admission of copy of lost letter to defendant, referring to his relations with girl unlawfully transported, held not error (White Slave Traffic Act June 25, 1910, §§ 2, 3 [Comp St. §§ 8813, 8814]).—Hart v. U. S., 11 F. (2d) 499.

404(4) (U.S.C.C.A.W.Va.) In prosecution for possessing goods stolen from interstate shipment, goods found in defendant's possession held properly admitted (Act Feb. 13, 1913, § 1 [Comp. St. § 8603]).-Thomas v. U. S., 11 F. (2d) 27.

(G) Acts and Declarations of Conspira

tors and Codefendants.

422 (3) (U.S.C.C.A.Mo.) As respects admissibility of evidence of acts of conspirators against one later joining when such a defendant joined conspiracy is immaterial, if he united with those already in, in carrying out common design.-Morrow v. U. S., 11 F. (2d) 256.

Acts of person committed prior to the formation of a conspiracy are not admissible against his subsequent coconspirator.-Id.

422 (9) (U.S.C.C.A.Ky.) Testimony in reference to liquor taken from person of one of defendants was properly admitted against him, in prosecution for conspiracy and for unlawful

For cases in Dec.Dig. & Am.Dig. Key-No.Series & Indexes see same topic and KEY-NUMBER

possession (National Prohibition Act, tit. 2, § 3 [Comp. St. Ann. Supp. 1923, § 101382aa).Keith v. U. S., 11 F. (2d) 933.

423(1) (U.S.C.C.A.Mo.) Act of one conspirator is act of all, and admissible against all, if done while conspiracy was pending and in furtherance of its object.-Morrow v. U. S., 11 F.(2d) 256.

423 (4) (U.S.C.C.A.Mass.) In prosecution for conspiracy to violate National Prohibition Act, testimony by members of alleged association, but not indicted, held properly admitted as coming from co-conspirators (Criminal Code, § 37 [Comp. St. 10201; National Prohibition Act, tit. 2, §§ 3, 6, 21, 25, 26 [Comp. St Ann. Supp. 1923, §§ 101382aa, 101382c, 101382jj, 101382m, 101382mm]).-Weinstein v. U. S., 11 F. (2d) 505.

423 (4) (U.S.C.C.A.Mich.) Statements by one conspirator in carrying out conspiracy were competent evidence against others, though he was not under process or on trial.-Lewis v. U. S., 11 F. (2d) 745.

423 (5) (U.S.C.C.A.Ky.) Testimony in reference to liquor taken from person of one of defendants was admissible against other defendants, in prosecution for conspiracy to violate prohibition law (National Prohibition Act, tit. 2, § 3 [Comp. St. Ann. Supp. 1923, § 101382aa]).-Keith v. U. S., 11 F.(2d) 933.

427 (3) (U.S.C.C.A.Mich.) Admission in evidence of incriminating statement by one defendant, without first permitting cross-examination of witness through whom it was offered, held not error.-Lewis v. U. S., 11 F. (2d) 745.

(I) Opinion Evidence.

448 (1) (U. S. C. C. A. Mich.) Objection to questions by defendants' counsel, calling for conclusions of witness. held properly sustained. -Lewis v. U. S., 11 F. (2d) 745.

(J) Testimony of Accomplices and Codefendants.

510 (U.S.C.C.A.Tex.) Conviction may be had for violations of Prohibition Act on evidence of an accomplice, if believed by jury.Roberts v. U. S., 11 F. (2d) 606.

(M) Weight and Sufficiency. 561 (3) (U. S. C. C. A. N. Y.) Previous good character does not, as matter of law, raise reasonable doubt of guilt, but should be considered with other evidence in determining guilt or innocence.-Kreiner v. U. S., 11 F. (2d) 722.

XII. TRIAL.

(C) Reception of Evidence. 673 (2) (U. S. C. C. A. Cal.) In prosecution for mailing poisoned candy, evidence of disposition of typewriter by other than defendant held admissible on instructing as to effect.-Kerr v. U. S., 11 F. (2d) 227.

673(4) (App.D.C.) Permitting evidence of automobile and revolver belonging to one defendant to go before jury held not error, in absence of request for proper instruction limiting effect thereof.-Holmes v. U. S., 11 F.(2d) 569.

Evidence competent against one defendant is admissible, and defendant against whom it is incompetent should offer instruction limiting its effect.-Id.

681 (3) (U.S.C.C.A.Mo.) Evidence of act of one alleged conspirator before date of conspiracy alleged held improperly allowed to remain in record, where no subsequent evidence showed conspiracy existed at time of such act (Penal Code, § 37 [Comp. St. § 10201]; Bankruptcy Act, § 29b [Comp. St. § 9613]).-Morrow v. U. S., 11 F. (2d) 256.

686 (2) (U.S.C.C.A.N.J.) Granting government's motion to reopen case for further testimony after it had rested held not error.-Mansbach v. U. S., 11 F.(2d) 221.

(D) Objections to Evidence, Motions to Strike Out, and Exceptions.

692 (U.S.D.C.Pa.) Druggist, furnishing bottles in which to carry away liquor unlawfully seized, held not to have waived his constitutional rights. In re Lobosco, 11 F. (2d) 892.

(E) Arguments and Conduct of Counsel.

704 (U.S.C.C.A.Mich.) Defendant's counsel should not have made opening statement, if he did not expect to introduce evidence to substantiate it.-Lewis v. U. S., 11 F. (2d) 745.

730 (7) (U.S.C.C.A.Mass.) Opening remarks of prosecuting attorney, in prosecution for conspiracy to violate National Prohibition Act, though unsupported by evidence, held not prejudicial, in view of court's statement (National Prohibition Act, tit. 2, §§ 3, 6, 21, 25, 26 [Comp. St. Ann. Supp. 1923, §§ 101382aa, 101382c, 101382jj, 101382m, 101382mm]).—Weinstein v. U. S., 11 F. (2d) 505.

(F) Province of Court and Jury in General.

737 (2) (U.S.C.C.A.Va.) Proof of venue in district of trial held sufficient, on prosecution for causing presentation of false claim against United States.-Summers v. U. S., 11 F. (2d) 583.

(A) Preliminary Proceedings. 620(2) (U.S.C.C.A.Va.) Compelling defend-763, ants separately indicted to go to common trial held unauthorized by statutes (Rev. St. §§ 921, 1024 [Comp. St. §§ 1547, 1690]).—Zedd v. U. S., 11 F.(2d) 96.

622 (1) (U.S.C.C.A.W.Va.) Granting of separate trials within sound discretion of trial court.-Tincher v. U. S., 11 F. (2d) 18.

629 (App.D.C.) Misspelling to extent of single letter of witness' name, given defendant under Rev. St. § 1033 (Comp. St. § 1699), held not prejudicial.-Holmes v. U. S., 11 F. (2d) 569.

(B) Course and Conduct of Trial in General.

656 (9) (U. S. C. C. A. Ind.) Expressions of opinion by trial court on ultimate issues is not to be commended in ordinary cases, even when accompanied by clear and positive statement that jury are sole judges of facts.-Fryer v. U. S., 11 F. (2d) 707.

Trial court's expression of opinion that government had proved scheme to defraud by use of mails held not error, where evidence of guilt was clear.-Id.

764(3, 4) (App. D. C.) In prosecution for murder of policeman, requested instruction that there was no evidence of arrest or attempt to arrest held properly denied, as invading province of jury.-Holmes v. U. S., 11 F. (2d) 569.

(G) Necessity, Requisites, and Sufficiency of Instructions.

776(3) (U.S.C.C.A.N.Y.) Evidence as to accused's "reputation" does not warrant charge that evidence of good "character" may create reasonable doubt of guilt.-Kreiner v. Ū. S., 11 F. (2d) 722.

789 (9) (U.S.D.C.Wash.) Instruction defining "reasonable doubt" held not erroneous.U. S. v. Thompson, 11 F. (2d) 875.

809 (U.S.C.C.A.N.Y.) Court should refuse accused's request for instruction in form which would mislead jury.-Kreiner v. U. S., 11 F. (2d) 722.

811(4) (U.S.C.C.A.N.Y.) Requested charge that evidence of good character may create reasonable doubt of guilt properly refused, as directing special attention to character evidence only.-Kreiner v. U. S., 11 F.(2d) 722.

823(2) (U.S.C.C.A.S.C.) Instruction thrice warning jury that defendants were interested parties, and to consider evidence accordingly, held not improper in view of further instruction. -Tolbert v. U. S., 11 F. (2d) 78.

(H) Requests for Instructions. 824(1) (U.S.C.C.A.N.Y.) In criminal case court should instruct on all essential questions of law involved, whether requested or not. Kreiner v. U. S., 11 F. (2d) 722.

coun

824 (4) (U.S.C.C.A.N.Y.) Accused's sel has no right to assume that court will instruct on character evidence without request. -Kreiner v. U. S., 11 F. (2d) 722.

826 (U.S.C.C.A.N.Y.) Refusal of request to charge, presented after jury was instructed, not error (rule 7 of District Court, Southern District of New York).-Kreiner v. Ú. S., 11 F. (2d) 722.

829(1) (U.S.C.C.A.Cal.) Rejecting portion of accused's requested instruction was not error, where rejected portion was covered by another charge given.-Meadows v. U. S., 11 F. (2d) 718.

829(1) (U.S.C.C.A.Tex.) Special charges, covered by general charge, held properly refused.-Kolbrenner v. U. S., 11 F. (2d) 754. 829(1) (App.D.C.) Denial of requested instructions covered by others given is not error. -Holmes v. U. S., 11 F. (2d) 569.

829(10) (U.S.C.C.A.Cal.) Refusal to give accused's requested charge relating to credibility of accomplice testimony was not error, where matter was fully covered by charge given. Meadows v. U. S., 11 F. (2d) 718.

830 (U.S.C.C.A.N.Y.) Court may refuse instruction, which is in any respect erroneous, without qualification. Kreiner v. U. S., 11 F. (2d) 722.

Failure to refer to character testimony in charge not error, where only request was for erroneous instruction thereon after jury was instructed.-Id.

835 (U.S.C.C.A.N.Y.) Court need not state reason for refusing requested instruction.Kreiner v. U. S., 11 F. (2d) 722.

(K) Verdict.

889 (U.S.C.C.A.Va.) Order discharging jury after verdict can be recalled for resubmission for error, where jury has not separated and is still in court's presence.-Summers v. U. S., 11 F. (2d) 583.

XIII. MOTIONS FOR NEW TRIAL AND IN ARREST.

911 (U.S.C.C.A.W.Va.) Refusing to set aside verdict of jury and grant new trial is within sound discretion of trial court.-Tincher v. U. S., 11 F. (2d) 18.

XIV. JUDGMENT, SENTENCE, AND FINAL COMMITMENT.

991(1) (U.S.C.C.A.Ind.) Judgment sentencing defendant to prison for two years on each of eight counts, terms to be cumulative until defendant has been imprisoned for ten years, held not void for uncertainty.-Fryer v. U. S., 11 F.(2d) 707.

991 (2) (U.S.C.C.A.Kan.) Where excessive portion of sentence is not separable, the whole is void.-Biddle v. Thiele, 11 F. (2d) 235.

XV. APPEAL AND ERror, and CERTIORARI.

(B) Presentation and Reservation in Lower Court of Grounds of Review.

1036 (8) (U.S.C.C.A.W.Va.) Reviewing tribunal will only in very exceptional cases exercise its discretion to review sufficiency of evidence to sustain conviction, where point was not appropriately raised in lower court.-Tincher v. U. S., 11 F. (2d) 18.

1043(2) (U.S.C.C.A.Fla.) Error cannot be assigned to court's charges, where no exception was taken to any particular charge, and several of them were correct (Rules of Circuit Court of Appeals, Fifth Circuit, rule 10).— Popham v. U. S., 11 F. (2d) 966.

1043 (2) (U.S.C.C.A.Ga.) Objection to evidence must be specific, and exception to court's ruling taken, before error can be predicated thereon.-Tenenbaum v. U. S., 11 F. (2d) 927.

1043 (2) (U.S.C.C.A.Or.) General objection to admission of testimony, in trial for violating White Slave Traffic Act, as to defendant's statements about another girl than one transported, unavailing on appeal (Act June 25, 1910, §§ 2, 3 [Comp. St. §§ 8813, 8814]).—Hart v. U. S., 11 F. (2d) 499.

1043(3) (U.S.C.C.A.Mont.) No objections to sufficiency of search warrant, other than those urged in trial court, may be considered by Circuit Court of Appeals.-Pera v. U. S., 11 F. (2d) 772.

1054(1) (U.S.C.C.A.Ga.) Objection to evidence must be specific, and exception to court's ruling taken, before error can be predicated thereon.-Tenenbaum v. U. S., 11 F.(2d) 927. 1054 (3) (U.S.C.C.A.Ky.) Failure to note exception in order overruling motion for new trial held not to preclude Circuit Court of Appeals from considering sufficiency of evidence, where ground for new trial alleged error in overruling motion and recited exception thereto.-Coleman v. U. S., 11 F. (2d) 601.

1054 (3) (U.S.C.C.A.W.Va.) Generally sufficiency of evidence to support verdict cannot be reviewed by writ of error, unless exception is taken before a verdict to a ruling thereon.Tincher v. U. S., 11 F. (2d) 18.

1056 (1) (U.S.C.C.A.Mont.) Error in refusing accused's requested instruction_cannot be reviewed, in absence of exception.-Pera v. U. S., 11 F. (2d) 772.

1059(2) (U.S.C.C.A.La.) Part of charge complained of, not separately excepted to, held not properly presented for review.-Incardonia v. U. S., 11 F.(2d) 607.

(D) Record and Proceedings Not in Record.

1091 (7) (U.S.C.C.A.La.) Bill of exception, complaining that jurors who heard testimony of officers on hearing preceding trial were permitted to serve, held insufficient.-Schulte v. U. S., 11 F. (2d) 105.

1092 (14) (U.S.C.C.A.N.Y.) Under Act June 5, 1900, § 1 (Comp. St. § 1590), certificate of bill of exceptions should state why another than the trial judge allowed and signed bill.Kreiner v. U. S., 11 F.(2d) 722.

~1119(4) (U.S.C.C.A.Mass.) Assignment of error, complaining of remark of prosecuting attorney, held not to present anything for review, in absence of showing of related facts (National Prohibition Act [Comp St. Ann. Supp. 1923. § 101384 et seq.]).-Weinstein v. U. S., 11 F. (2d) 505.

1120(1) (U.S.C.C.A.Cal.) Error in exclusion of evidence not available where bill of exception does not show nature of evidence or contents of motion to exclude (Const. Amends. 4, 5). Foster v. U. S.. 11 F. (2d) 100.

1121 (1) (U.S.C.C.A.Ky.) Designation of evidence as bill of evidence, instead of bill of exceptions, held not to preclude consideration thereof as bill of exceptions.-Coleman v. U. S., 11 F. (2d) 601.

1122(5) (U.S.C.C.A.Mo.) Exceptions to denial of requested instructions present nothing for review, where such instructions are not in record. Morrow v. U. S., 11 F.(2d) 256.

(G) Review.

1159(2) (U.S.C.C.A.Ky.) Circuit Court of Appeals cannot determine weight of evidence. -Keith v. U. S., 11 F. (2d) 933.

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