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9 F.(2d) 36

for contempt of court. Upon the hearing, the court found from the evidence that Dalton M. Redmon had in his possession $525 in money belonging to the partnership, that he had failed and refused to deliver this

money to the receiver in compliance with the former order of the court, and adjudged him guilty of contempt, and ordered and directed that he be imprisoned in the county jail of Hamilton county until he complies with the order of the court requiring him to turn over

to the receiver this $525 belonging to the partnership.

On January 12, 1925, Dalton M. Redmon filed a petition for writ of habeas corpus in the District Court, alleging that he was restrained of his liberty by Richard C. Witt, sheriff of Hamilton county, Ohio. This petition recited the fact that on the 31st day of December, 1924, the common pleas court of Hamilton county, in the action for the dissolution of the partnership, had ordered and directed the petitioner to pay to the receiver the sum of $525, and that upon his failure to do so an order of commitment had issued in said cause to Witt, as sheriff of Hamilton county. The petition further avers that on the 2d day of January, 1925, the petitioner filed in the United States Court for the Southern District of Ohio, Western Division, his voluntary petition in bankruptcy, and among other claims in the schedule filed therewith was the claim that was the basis of the order in the common pleas court of Hamilton county; that petitioner was duly adjudicated bankrupt on the 3d of January, 1925, and said claim is one from which a discharge in bankruptcy would be a release; and further avers that the common pleas court of Hamilton county was without authority or jurisdiction to make the order of

commitment.

Upon the hearing of this petition the District Court dismissed the writ of habeas corpus, and ordered the petitioner remanded to the custody of the sheriff. From this order and decree of the District Court the petitioner appeals.

Before DONAHUE, MACK, and MOORMAN, Circuit Judges.

but

DONAHUE, Circuit Judge (after stat[1] The claim of ing the facts as above). the appellant that this is a debt provable in bankruptcy, and from which a discharge in looks the finding of the common pleas court bankruptcy would be a release, wholly overthat this is not a debt due the partnership, in the possession of Redmon. If any error money belonging to the partnership then intervened to the prejudice of petitioners in the hearing in the common pleas court, or if the finding of the common pleas court in this respect was not sustained by the evidence, the petitioner's remedy was by appeal or erA habeas corpus ror from that decision. proceeding presents only a question of jurisdiction or invalidity of the order or judgment, and cannot be used as a substitute for error proceeding. McGorray v. Sutter, 80 Ohio St. 400, 408, 89 N. E. 10, 24 L. R. A. (N. S.) 165, 131 Am. St. Rep. 715; Ex parte McKnight, 48 Ohio St. 588, 28 N. E. 1034, 14 L. R. A. 128. This court must therefore accept the findings and orders of the common pleas court, made in the action brought for the dissolution of the partnership and for an accounting. [2] It necessarily follows that, if this money, then in the possession of Redmon, was money belonging to the partnership, as found by the common pleas court, then that court had jurisdiction to order and direct Redmon to turn it over to the receiver, and its jurisdiction was not affected in any way by the fact that Redmon had filed a voluntary petition in bankruptcy, and had listed the amount of money in his possession belonging to the partnership as a debt owing by him to the partnership.

[3] Nor would the trustee in bankruptcy have any interest or claim upon this money in the possession of Redmon that belonged to the partnership. His only interest therein would be the right to demand and receive

W. B. Mente, of Cincinnati, Ohio, for Redmon's interest, if any, in the partnership appellant.

Carl E. Basler, Asst. Pros. Atty., and Richard C. Swing, both of Cincinnati, Ohio, for appellee.

assets, after the accounting and the partnership debts are paid out of property belonging to the partnership. Judgment affirmed.

FRY et al. v. UNITED STATES.*

(Circuit Court of Appeals, Ninth Circuit.

November 23, 1925.)

No. 4638.

Shorett, McLaren & Shorett and Henry Clay Agnew, all of Seattle, Wash., for plaintiffs in error.

Thos. P. Revelle, U. S. Atty., and J. W. Hoar, Asst. U. S. Atty., both of Seattle,

I. Intoxicating liquors 248-Affidavit for Wash. search warrant held sufficient.

An affidavit averring that one of the proprietors had offered to sell affiant liquor if properly introduced, that affiant had seen drunken men come from the premises, and had heard drinking and carousing, and had seen persons enter premises without liquor and re

Before GILBERT, HUNT, and McCAMANT, Circuit Judges.

HUNT, Circuit Judge. Plaintiffs in error, hereafter called defendants, were convicted of conspiracy to violate the National

turn with liquor, held to state sufficient eviden- Prohibition Act (Comp. St. Ann. Supp.

tiary facts to warrant issuance of search warrant.

1923, § 101384 et seq.); the purpose of the combination being to possess and sell intoxi

2. Intoxicating liquors 249-Search war- cating liquor, and to conduct and maintain

rant held sufficient.

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Where affidavit stated that proprietor of rooming house had liquor for sale, and offered to sell affiant liquor, search warrant, which does not particularly describe rooms to be searched, is not invalid for indefiniteness.

4. Intoxicating liquors 249-Positive averments that liquor is on premises held to authorize search in nighttime.

A search warrant, directing that it may be served in the daytime or nighttime, is not invalid, in view of Espionage Act, tit. 11, § 10 (Comp. St. Ann. Supp. 1919, § 104964), where affidavit alleges defendant's offer to sell liquor, thus positively indicating that liquor was on the premises.

5. Intoxicating liquors

249-Command to sheriff to make return as provided by law held not to make warrant void for indefiniteness.

Command of a search warrant that officer executing it must make true report of his acts "as provided by law" held not so indefinite as to render warrant void, because not specifically requiring a return to be made within 10 days, as required by Comp. St. Ann. Supp. 1919, § 104964k.

In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Jeremiah Neterer, Judge.

Riley Fry and Ernest Brown were convicted of conspiracy to violate the National Prohibition Act, and they bring error. Affirmed.

Certiorari denied 46 S. Ct. 347, 70 L. Ed. —.

common nuisances at certain places known as the Post Hotel, on Yesler Way, and the Seneca Hotel, at 12032 First avenue, Seattle. Overt acts charged were that Fry and Brown at various times possessed and sold intoxicating liquor at the two places above named. Brown and Fry brought writ of er

ror.

The validity of the search warrant and Affidavit for the seizure is questioned. search warrant was made by a federal prohibition agent, who set forth that one Riley Fry, Ernest Brown, and John Doe Keeley, and others unknown, "proprietors, and their employés, on the 15th of May, 1924, and thereafter, was and is possessing, transporting, and selling intoxicating liquor, all for beverage purposes; that in addition thereto affiant was told on said date by one of the proprietors that they had liquor for sale and would sell this affiant if he was properly introduced; that on previous occasions this affiant has seen drunken men come from said premises, has heard drinking and carousing in rooms 14 and 15, and has seen parties enter said premises without liquor and return with liquor-all on the premises described as 12032 First avenue, Seattle, Wash., and on the premises used, operated, and occupied in connection therewith and under control and

occupancy of said above parties.

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9 F.(2d) 38

then and there search the same, and into and concerning said crime, and to search the persons of said above-named parties, and from him or her, or from said premises, seize any or all property so used in or about the commission of said crime, and any and all intoxicating liquor and the containers thereof," etc.

[1,2] We are of the opinion that the affidavit contained sufficient statements of evidentiary facts tending to show that defendants illegally possessed liquor. The statement by one of the proprietors of the described place to affiant that they had liquor for sale, and that he would sell to affiant if he were properly introduced, implies that the persons named kept some kind of a resort where they would sell liquor to one to whom they could sell without fear of prosecution. The further statement that affiant heard carousing in rooms 14 and 15 of the premises, coupled with the statement that affiant had seen persons enter the premises without liquor and return with liquor, impel the belief that liquor was unlawfully possessed in the premises described. In Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, the Supreme Court has recently said: "If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient." See, also, Steele v. United States, 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757. The warrant itself having been issued upon probable cause, supported by affidavit, named the persons "proprietors," and with sufficient particularity described the premises by number, street, and city, and directed search of the premises used, operated, and occupied in connection therewith, and under the control of the named persons. It is sufficient. Section 10496c, U. S. Comp. St. Supp. 1919. [3] The fact that the warrant did not particularly describe any certain rooms to be searched is not fatal, for the reason that the affidavit stated that one of the proprietors said defendants had liquor for sale, and would sell affiant some if he were properly introduced. It is not going too far to say that, if the keeper of a hotel or lodging house holds out that he has liquor for sale on his premises, and soon thereafter search warrant is duly issued to search the house or premises under control of the proprietor, he cannot set up that the warrant is void for indefiniteness merely because it omits to name any particular room or rooms in which he carries on the unlawful business.

[4] Further objection is based upon the fact that the warrant was executed at night, without positive showing in the affidavit that the liquor was then on the premises to be searched. Answer to the point is that the affidavit of the prohibition agent was positive that one of the defendants stated they had liquor for sale, and that liquor was possessed by defendants in the place to be searched. Section 10, title 11, c. 30, of the Espionage Act (Comp. St. Ann. Supp. 1919, § 104964j), provides: "The judge or commissioner must insert a direction in the warrant that it be served in the daytime, unless the affidavits are positive that the property is on the person or in the place to be searched, in which case he may insert a direction that it be served at any time of the day or night." The facts authorized the officer who issued the warrant to insert the direction which was contained in the warrant, empowering the agents to make search either in the daytime or nighttime.

[5] The command of the warrant provided that the officer executing it must true report make of his acts "as provided by law." This is said to be so incomplete as to render the whole proceeding void, and Giles v. United States (C. C. A.) 284 F. 208, is cited as supporting that view. There the Circuit Court of Appeals of the First Circuit disapproved of such a warrant, saying that the serving officer should not be left to ascertain and judge of the requirements of the statute (section 104964k, U. S. Comp. St. Ann. Supp. 1919), which requires a search warrant to be executed and returned to the judge or commissioner who issued it within 10 days after its date, and that after the expiration of that time the warrant, unless executed, is void. But we think that the command to the officer to make true report of acts done as provided by law is specific enough to require the return to be filed within 10 days. Making the return is a ministerial act, to be performed after executing the warrant (Rose v. United States [C. C. A. 6] 274 F. 245), and if it is made within' the 10 days it should not affect the search or seizure made by direct authority of the process.

Upon the whole case, the evidence was clear that search of rooms 14 and 15 revealed a quantity of liquor there, that defendants were jointly interested in the business, and that at various times during several months they had made many sales of liquor on the premises.

The judgment is affirmed.

BEDFORD CUT STONE CO. et al. v. JOUR states, largely in the principal cities of the

NEYMEN STONE CUTTERS' ASS'N

OF NORTH AMERICA et al. (Circuit Court of Appeals, Seventh Circuit. October 28, 1925.)

No. 3529.

Monopolies ~24 (l') —Trade unions 6—Union held within rights in ordering members not to cut stone already partly cut by nonunion labor so that refusal of temporary injunction was proper.

Stone cutters' union and its officers, who,

to induce quarries and fabricators of Indiana

limestone to renew contract for employment of only union stone cutters, simply ordered that none of its members should further cut stone that had already been partly cut by nonunion labor, held within their rights, so that, though the tendency of such action be to restrain interstate commerce, yet it not appearing that they have resorted to or threatened to resort to unlawful acts or means to accomplish their lawful purpose, refusal of temporary injunction was proper.

Appeal from the District Court of the United States for the District of Indiana.

Suit by the Bedford Cut Stone Company and others against the Journeymen Stone Cutters' Association of North America and From an order denying a temporary injunction, complainants appeal. Af

others.

firmed.

country. Appellants' product is very large, and most of it is sent to nearly all parts of the United States for use in buildings. Some is shipped in rough or sawed blocks of convenient sizes to be cut where sent, but most of it is, prior to shipping, partly cut for use in the different buildings, and the cutting is completed at place of building. Much of it is fully shaped and cut at or near the quarries, ready to be set into the buildings, but even this frequently requires some cutting at the building for more exact fitting.

After long negotiations and failure to reach a new working agreement, the union officers ordered that none of its members should further cut stone which had already been partly cut by nonunion labor, with the result that on certain jobs in different states stone cutters, who were members of the union, declined to do further cutting upon such stone. Where, as in some cases, there were few or no local stone cutters, ex

cept such as belonged to the union, the completion of the buildings was more or less hindered by the order, the manifest object of which was to induce appellants to make a contract with the union for employment of only union stone cutters in the Indiana limestone district. It does not appear that the quarrying of stone, or sawing it into blocks, or the transportation of it, or setting it in the buildings, or any other buildFrederick Van Nuys, of Indianapolis, ing operation, was sought to be interfered Ind., for appellees. with, and no actual or threatened violence Before ALSCHULER, EVANS, and appears, no picketing, no boycott, and nothPAGE, Circuit Judges.

Walter G. Merritt, of New York City, and Charles Martindale, of Indianapolis, Ind., for appellants.

ALSCHULER, Circuit Judge. The appeal is from an order denying temporary injunction under substantially these facts: Appellants are various quarriers and fabricators of Indiana limestone, a building stone found in large quantities in the district about Bedford and Bloomington. Appellees are the Stone Cutters' Association of North America, a labor union, and its of ficers, who, for many years prior to 1921, had contracts with these employers whereunder only members of the union were employed for cutting the stone after it was quarried. In 1921 the employers and the union failed to reach an understanding, and thereafter appellants employed nonunion stone cutters in their works, forming them into an association, membership in which was required to obtain employment as stone cutters with these employers. Appellee union has local organizations in most of the

ing of that character. The parties to the action reside in Indiana, and the sole ground of federal jurisdiction is the contention that appellees were conspiring to restrain interstate commerce, and that their conduct fell under the ban of the federal statute.

We are of opinion that under the facts appearing appellees were within their rights in thus undertaking to induce members of their craft to refrain from further cutting upon stone which had before been partly cut by nonunion labor, notwithstanding such refusal might have tended in some degree to discourage builders from specifying appellants' stone, and thus to reduce the quantity of their product which would enter interstate commerce. The tendency in greater or less degree thereby to restrain interstate commerce may be conceded, but, so long as it does not appear that appellees resorted or threatened to resort to unlawful acts or means to accomplish their lawful purpose, there was no impropriety in Judge Ander

9 F.(2d) 41

son's refusal to grant a temporary injune- 2. Criminal law 37-Refusal of requested tion, and his order denying same is accordingly affirmed.

The writer hereof, speaking for himself only, adds that, while it may be stating the same proposition somewhat differently, he is of the view that under the indicated facts interstate commerce within the purview of

the statute is not here involved.

That the order to the union men to desist from further cutting such partly cut stone was to be operative in various states other than Indiana does not affect the question. It would be the same if all the cutting was done in that state, and the order effective there only. Under the stated facts the writer deems that this case falls fairly within the rule announced by the Supreme Court in United Mine Workers of America v. Coronado Coal Co., 259 U. S. 344, 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762, and United

Leather Workers Union v. Herkert & Meisel Trunk Co., 265 U. S. 457, 44 S. Ct. 625, 68 L. Ed. 1104, 33 A. L. R. 566, as well as by this court in Danville Local Union et al. v. Danville Brick Co. (C. C. A.) 283 F. 909.

It is contended for appellants that the holding of the Supreme Court in the second Coronado Case, 268 U. S. 295, 45 S. Ct. 551, 69 L. Ed. 963 (opinion filed May 25, 1925), requires the conclusion here that this asserted conspiracy is in restraint of interstate commerce. In that case the court found there was new evidence appearing on the second trial tending to show that one of the very purposes of the extensive destruction of mines and other property, and of killing and injuring persons, was to prevent the large capacity of the mines destroyed, and other mines there, from entering into competition with the product of union operated mines in neighboring states. No evidence of any such purpose or conduct here appears nor of any purpose to restrain commerce. Wherefore the writer is of opinion that the District Court was in any event without jurisdiction to grant the demanded injunction.

CAPUANO v. UNITED STATES.

instructions and instruction given as to entrapment held error.

accused never conceived intention of bribing Refusal of instruction on hypothesis that prohibition agents, but was incited and lured into committing offense by government officers in order to entrap him, and charging instead chance for bribing them was no defense, unless that the fact that officers offered defendant agents went to defendant for purpose of framing him, or having defendant give bribe, held

error.

In Error to the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge.

Eugene L. Capuano was convicted of bribing federal prohibition agents, and he brings error. Reversed, verdict set aside, and case remanded.

(James A. Hatton, of Boston, Mass., on the Thomas J. Boynton, of Boston, Mass. brief), for plaintiff in error.

Boston, Mass. (Harold P. Williams, U. S. George R. Farnum, Asst. U. S. Atty.,. of Atty., of Boston, Mass., on the brief), for

the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge. Capuano was convicted of giving money as bribes to prohibition agents described in the indictment as "acting in behalf of the United States in an official function as agents for the Commissioner of Internal Revenue." [1] His contention that it is no offense under section 39 of the federal Penal Code (Comp. St. § 10203) to bribe a prohibition agent, is without merit. Sears v. United States (C. C. A.) 264 F. 257, 260, and cases cited. The indictments were sufficient. The only question calling for serious consideration is as to the instructions to the jury concerning entrapment.

Capuano held a denatured alcohol permit, under which he was allowed, monthly, 400 gallons of 39b alcohol for use in his business as a manufacturer of hair tonics and toilet preparations.

Shortly stated, the government's case was that at about 5:30 in the morning of October

(Circuit Court of Appeals, First Circuit. No- 23, 1924, two prohibition agents (inferentialvember 21, 1925.)

No. 1886.

1. Bribery 1 (2)-Bribery of federal prohibition agent is an offense.

Bribery of federal prohibition agent is an offense under Penal Code, § 39 (Comp. St. § 10203).

ly because of some prior information as to Capuano's selling alcohol) went to Capuano's premises in Everett; that as they approached a truck departed; that they found there Capuano and another man, who said they were about to leave on a hunting trip; that Capuano, of his own initiative, offered them

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