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allowance and settlement. That case is not it was rendered, unless proceedings for that in point, for there the findings and conclu. purpose are begun during that term. sions were filed March 24, 1897, and judg. 2. Criminal law 998-Court not given ju.

risdiction of motion to set aside judgment ment was rendered on that day. Orders ex

by consent of United States attorney. tending time to file exceptions to the find- District Court did not have jurisdiction to ings and conclusions were made on that day, grant motion to set aside or alter final judg

ment after term at which it was rendered, and several times thereafter during the term though United States attorney appeared and of court. The bill of exceptions was filed consented to consideration of motion. March 28th, and on June 2d a proposed 3. Criminal law w 1023(12)Writ of error amendment was filed and stipulation was

does not lie to review order of commitment.

Writ of error does not lie merely to rehad between counsel, extending time for fur- view order of commitment which is regular in ther amendments until matters could be form. brought to the attention of the court. The February term was adjourned June 30,

In Error to the District Court of the 1897, but the bill of exceptions was not United States for the District of Oregon; signed until July, and doubtless upon the Robert S. Bean, Judge. authority of Waldron v. Waldron, 156 U. J. Al Pattison was convicted of misapS. 361, 15 S. Ct. 383, 33 L. Ed. 453, cited plication of moneys of the Federal Reserve in the opinion, the signing of the bill of ex- Bank, and brings error. Writ dismissed. ceptions after the adjournment of the term Alfred P. Dobson and John J. Beckman, at which judgment was rendered was sus- both of Portland, Or., for plaintiff in error. tained.

John S. Coke, U. S. Atty., and J. 0. Nichols also moves to dismiss the writ of Stearns, Jr., both of Portland, Or., for the error upon the ground that the judgment United States. entered by the District Court on June 2, 1924, was a final judgment entered in pur- Circuit Judges.

Before GILBERT, ROSS, and HUNT, suance to the mandate of the Supreme Court.

HUNT, Circuit Judge. On May 5, 1919, [5] The case being restricted by what we

Pattison and Mann were indicted jointly have said upon the motion to strike the bill for willfully misapplying moneys of a Fedof exceptions, the present writ of error does eral Reserve Bank in Oregon. The charge not bring up the whole record for re-exam- against Pattison was that he knowingly and ination, but only such proceedings as may unlawfully aided and abetted Mann, who have arisen subsequent to the mandate.

was a director and cashier of the bank. The Stewart v. Salamon, 97 U. S. 361, 24 L. statute under which the indictment was Ed. 1044; Tyler v. Maguire, 17 Wall

. (84 drawn (section 5209, 40 Stat. p. 972, Act U. S.) 253, 284, 21 L. Ed. 576. Examina- Sept. 26, 1918 (Comp. St. Ann. Supp. 1919, tion of the record shows that the judgment 9772]) provides that any officer of a Fedentered was in exact accordance with our

eral Reserve bank who willfully misapplies mandate and the mandate of the Supreme any of the money of such bank with intent Court, and as nothing appears to have oc- to defraud the bank or deceive any person, curred in the progress of the execution of and every person who, with like intent, aids the judgment justifying re-examination, it

or abets any officer in violation of the secfollows the writ must be dismissed. Cook tion, shall be deemed guilty of 'a misdemeanv. Burnley, 11 Wall. (78 U. S.) 672, 20 L.

On July 7, 1919, at the regular July Ed. 29.

term of the United States District Court at The motion to strike the bill of exceptions Portland, Or., Pattison, who was present is granted, and the motion to dismiss the with his counsel, pleaded guilty. Thereaftwrit of error is allowed.

er on July 12, 1919, at the same term of court, Mann pleaded not guilty and upon

trial was acquitted. Thereafter, on October PATTISON V. UNITED STATES.

31, 1919, during the July term, judgment

was rendered, fining Pattison $500, and or(Circuit Court of Appeals, Ninth Circuit.

dering that he be committed to jail until October 27, 1924.)

the fine be paid, or until he be discharged, No. 4307.

according to law, and allowing him 30 days 1. Criminal law ww998-District Court cannot from October 31, 1919, within which to pay set aside or alter final judgment after expira- the fine, and on December 1, 1919, during tion of term.

District Court cannot set aside or alter the November, 1919, term, the court allowed final judgment after expiration of term at which Pattison 30 days' additional time within

or.

2 F.(20) 15 which to pay the fine theretofore imposed. 1, 1919, at the November term, which was This extended the time for payment to Jan- the term following the July term at which uary 1, 1920.

judgment was rendered, was not in excess More than three years afterwards, during of the power of the court and that the exthe regular July, 1923, term of court, the tensions of time allowed for the payment of district attorney asked for an order for a the fine were valid, still the extension only bench warrant for the arrest of Pattison; ran until January 1, 1920. It is therefore it appearing that stay of the service of the apparent that not until more than four commitment which had previously been or- years had elapsed after the July, 1919, term, dered by the court had long since expired when judgment against him was entered, did and the fine had not been paid. The court Pattison make any move to modify or alter ordered a bench warrant, directing that Pat- or vacate the judgment. The judgment had tison be brought before the court forthwith long since become a finality, as far as the to show cause why the fine had not been District Court was concerned. Under such paid, or why he should not be committed a state of facts we are of the opinion that in accordance with the judgment. Com- the District Court was without power to set mitment was issued and returned "Not aside or modify the judgment theretofore found.” Afterwards, on April 7, 1924, dur- entered. In United States v. Mayer, 235 ing the regular March, 1924, term of court U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129, the the matter was heard upon a motion by the Supreme Court has recently reiterated the United States attorney for a commitment, general principle that a court cannot set and upon the oral motion of defendant to aside or alter a final judgment after the exset aside the judgment of October 31, 1919, piration of the term at which it was renfor a remission of the penalty imposed, up- dered unless the proceeding for that puron the ground that Mann, the principal, pose was begun during that term. having been acquitted, Pattison, accessory, [2] And the rule must prevail, even could not be legally guilty. The court de- though the United States attorney may have nied the motion of the defendant and grant- appeared and consented to the consideraed the motion for commitment in accord- tion of the motion. Defendant, therefore, ance with the judgment of the court there- was invoking an authority not possessed tofore rendered. Commitment issued, (United States v. Mayer, supra), and the whereupon Pattison brought writ of error, District Court should have denied his moand contends that the court erred in enter- tion for lack of jurisdiction. ing judgment of guilty against him and [3] Writ of error merely to review the sentencing him to pay a fine and ordering order of commitment, which is regular in his commitment, upon the ground that, the form, does not lie. It was but the order by jury having found Mann not guilty upon which the court directed a ministerial officer a separate trial, he (Pattison) should not to take the defendant to jail. be adjudged guilty of being an accessory. The writ of error must be dismissed; and

[1] While the question of jurisdiction of it is so ordered. the District Court to grant defendant's motion does not seem to have been considered by the learned District Judge, it is so plain

TURINETTI v. UNITED STATES. ly involved in the record as to be decisive

AZZOLIN V. SAME. of the case. All the proceedings had were (Circuit Court of Appeals, Eighth Circuit. during regular terms of the District Court

October 23, 1924.) for Oregon, which (section 102 of the Judi

Nos. 6475, 6476. cial Code [Comp. St. § 1089]) are held at

1. Criminal law 590(1)-Denial of continu. Portland on the first Monday of March, ance to permit defendant to prepare defense July, and November. It was on October 31,

held error. 1919, during the regular July, 1919, term ed, was not arrested until 9 o'clock on night

Where defendant, though previously indictthat judgment was rendered, fining Pattison preceding day on which he was brought to and giving him 30 days from October 31 trial at 10 o'clock, it was error to refuse time

within which to prepare defense, or within within which to pay the fine, and it was which to file formal motion for continuance. during the regular November, 1919, term

2. Criminal law Om552(3) - Circumstances that he was allowed an additional 30 days merely arousing suspicion of guilt are insuffiwithin which to pay the fine. If we as

cient to sustain conviction. sume, merely for the present purpose, that guilt are insufficient to sustain conviction for

Circumstances merely arousing suspicion of the order of the court made on December criminal offense.

3. Conspiracy Om47—Evidence held insufficient and (b) that there is no sufficient evidence

to sustain conviction for conspiracy to vio- to take the case to the jury. On behalf of late the Volstead Act.

Evidence held insufficient to sustain convic- Azzolin, it is urged that the court erred in tion for conspiracy to violate the Volstead Act refusing to allow him to present a formal (Comp. St. Ann. Supp. 1923, § 1013844 et seq.). motion and affidavits for a continuance or 4. Criminal law 559_Where circumstance is susceptible of inference in favor of defend. postponement of the case. On this point ants' innocence, it has no probative value as it is contended, and not denied, that, while evidence of guilt.

he was indicted some 10 days before the When a circumstance relied on as evidence of guilt is susceptible of inference favorable to trial, he was not arrested till only some innocence, it is robbed of all probative value, 12 hours before he was actually put on trial; though from other inference guilt may be fair- that is to say, he was arrested about 9 o'ly deducible.

clock on a certain night, and compelled to 5. Conspiracy em 23 - Reversal of conviction

for conspiracy held necessary, in view of in- go to trial at about 10 o'clock in the foresufficiency of evidence to sustain conviction noon of the following day. His counsel askof alleged coconspirator.

ed for further delay within which to preWhere on appeal evidence was held insufficient to sustain conviction of one of two de- pare his defense, which being refused, counfendants for conspiracy to violate Volstead Act sel thereupon requested time within which (Comp. St. Ann. Supp. 1923. $ 1013844 et seq.), to file a formal motion for a continuance and a reversal as to other also was necessary, since he could not have copspired alone, not to prepare and present affidavits in support withstanding evidence clearly establishes some thereof. The court refused to permit this offense or offenses by him.

to be done, and Azzolin excepted. We think Stone, Circuit Judge, dissenting in part.

this was error.

[2] We are further of the view that there In Error to the District Court of the United States for the District of Nebraska;

was not any sufficient evidence to take the

case to the jury as to Azzolin. He may be Joseph W. Woodrough, Judge.

guilty; the facts and circumstances adduced John Turinetti and Frank Azzolin were

arouse a suspicion of guilt, but mere suseach convicted of conspiracy to violate picion is not a sufficient ground on which the Volstead Act, and they separately bring to convict a man of any criminal offense. error. Reversed.

State v. Gordon, 199 Mo. 591, 98 S. W. William N. Jamieson, of Jamieson, O'Sul- 39. The most that the evidence offered livan & Southard, of Omaha, Neb. (Wil- against Azzolin tended to show was (a) liam E. Lovely, of Omaha, Neb., on the that he owned and himself occupied a disconbrief), for plaintiffs in error.

nected part of the building in which his tenGeorge A. Keyser, Asst. U. S. Atty., of ant and codefendant Turinetti, who occupied Omaha, Neb. (James C. Kinsler, U. S. another part, set up and operated the still Atty., of Omaha, Neb., on the brief), for in question; (b) that Azzolin personally the United States.

paid the water rates on the entire premises,

including the apartments occupied by TuriBefore STONE and KENYON, Circuit

netti; (c) that the still was so placed, of Judges, and FARIS, District Judge.

such size, capacity, and construction, that

Azzolin must have known of its presence FARIS, District Judge. Plaintiffs in er- in the premises which he leased to Turinetti; ror here, who were defendants below, were and (d) that the premises, while divided jointly indicted and jointly tried for a con- for separate occupancy by two or more famspiracy to violate the Volstead Act (Comp. ilies, were L-shaped, thus making the disSt. Ann. Supp. 1923, § 1013874 et seq.), for tance between the respective rear entrances that they formed such conspiracy with oth- thereof only some 60 feet. ers, and thereafter, to carry it into effect, [3, 4] All these facts together do not make set up a still and manufactured whisky. On out a case against Azzolin. His knowledge the trial, the wives, respectively, of Turinetti even that the still was in Turinetti's apartand Azzolin, and one Bertino, also jointly ment would not render him guilty unindicted with defendants herein, were or- der the charge here; whether knowldered acquitted for lack of evidence. While edge by Azzolin of Turinetti's intent, if separate writs of error were taken, the rec- in fact he had such, to set up and run a ord here is a joint record, and the cases still in the premises, at and before he leaswere argued and heard together, and may ed them to the latter, would render Azzolin be disposed of in a single opinion. guilty, need not be decided, because there is

[1] On behalf of both defendants it is no evidence or circumstance in the case incontended (a) that the indictment is bad; dicating either that Azzolin had such knowl

ance.

2 F.(20) 17 edge or that Turinetti harbored such intent. versed for further proceedings not inconThe fact of payment of the water rates is sistent with the views herein expressed. susceptible of an inference making for innocence; that is, that since this is often STONE, Circuit Judge (dissenting in done by, and is usually required of, the part). I concur in the remand of the Azlandlord, such payment could well have zolin Case. I base this solely upon the been done in the usual compliance with a action of the court in refusing that defendrule or an ordinance of the municipality. ant an opportunity to file a motion and Whenever a circumstance, relied on as evi- affidavit for a continuance and to perfect dence of criminal guilt, is susceptible of his record upon that matter.

Such was two inferences, one of which is in favor of necessary to enable this court to pass upon innocence, such circumstance is robbed of the propriety of the refusal of the continuall probative value, even though from the other inference, guilt may be fairly deduci- I dissent from remand of the Turinetti ble. We conclude that the court ought to Case. While he had his writ of error here, have directed a verdict as to Azzolin, and it was not argued by counsel. I think there so, for the two errors noted, the case as to was evidence from which the jury might him should be reversed.

have found a conspiracy It is undisputed [5] It is obvious that this conclusion ren- that Turinetti was making the whisky in a ders reversal necessary also as to Turinetti. large still and had a large quantity of mash Clearly the latter is guilty of some offense and new whisky on the premises. It is also or offenses against the National Prohibition undisputed that Azzolin furnished the waAct. The trial court correctly found that ter used and necessary in making this whisMrs. Turinetti, Mrs. Azzolin, and one Ber- ky. The evidence is clear, to my mind, that tino, jointly indicted with Turinetti and Az- he knew this whisky was being made on zolin, were under the evidence not guilty his premises and with this water. I think of conspiracy. We are of opinion, as al- one cannot knowingly permit his premises ready said, that the court below erred in not to be used for an unlawful purpose and making a similar ruling in favor of Az- knowingly contribute a necessary ingredient zolin, because of lack of sufficient evidence or element to the prosecution of that purto show that he was guilty of a conspiracy. pose without being a party to the unlawful Therefore, since Turinetti could not have act. Whether Azzolin had knowledge of the conspired with himself alone, he could not unlawful intentions of Turinetti at the time under the law be convicted of a conspiracy. the lease was executed is not controlling. It follows that there is no lawful way to If thereafter he became aware of such usavoid a reversal also as to Turinetti, al- age of the premises and water and did not, though, under the evidence, he violated one

within a reasonable time, take reasonable or more provisions of the National Prohi- steps to terminate such unlawful usage, such bition Act. For the latter violations, how

inaction is evidence of a consent to such ever, he was neither indicted nor convicted, usage and of such community of accord and

action as to constitute conspiracy. and so the fact of such other violations will not warrant affirmance of this conviction for conspiracy.

Since the case must, for the reasons al- SCHELL v. LEANDER CLARK COL. ready given, be reversed as to both defend

LEGE et al. ants, we need not consider whether the in

(Circuit Court of Appeals, Eighth Circuit. dictment is bad, as urged, for that it fails

October 8, 1924.) to aver what particular provision or provi

No. 6544. sions of the National Prohibition Act de- 1. Religious societies m31(2)—Single member fendants conspired to violate, and thus fails of unincorporated church association could fully to inform defendants of the charge

bring suit for himself and all other members. against which they are required to defend any enforceable equity against defendants, mem

If unincorporated church association bad themselves. While the point is, upon prin- ber of church, for himself and all other memciple, a fairly simple one, it is obvious that, bers similarly situated, could sue to enforce it. unless the evidence shall be greatly strength. 2. Religious societies m3! (2).

Association

held not to have deprived itself and members ened upon another trial, defendants can- of right to sue board of education to prevent not be convicted on the charge here before violation of trust by reason of having deleus.

gated to it power to supervise schools.

An unincorporated church association, by Let the case, for the errors noted, be re- delegating to its board of education, a corporation, power to supervise schools and to deter- campus in trust for church are admitted by momine what schools should be established, dis- tion to dismiss bill, and if there is anything in continued, relocated, or consolidated, did not articles of incorporation of college or elsewhere deprive itself and its members of right and in conflict with or avoidance of averments, burpower to sue its colleges and their trustees den is on defendants to plead and prove it. to prevent violations of trust and for accountings for property wrongfully disposed of.

2 F.(20)-2

Appeal from the District Court of the 3. Courts ww3511/2-Bill not dismissed for mis- United States for the Northern District of joinder of causes of action.

A bill is not to be dismissed because of mis- Iowa; George C. Scott, Judge. joinder of causes of action, but, if causes cannot be conveniently tried together, separate

Suit in equity by William E. Schell, as trials will be ordered, in view of federal equity a member of the Church of the United rule 26.

Brethren in Christ, etc., against Leander 4. Equity ww 90 – Not Indispensable that all Clark College, an Iowa corporation, and

parties have interest in all matters contained others. Decree for defendants, and plainin litigation.

It is not indispensable that all parties to tiff appeals. Reversed and remanded. suit should have interest in all matters contained in litigation, it being sufficient if there is

Lee Warren James, of Dayton, Ohio common point of litigation, and that each party (Joseph Bradford Coolidge, of Dayton, has interest in some essential matters involved, Ohio, on the brief), for appellant. which are connected with the others. 5. Equity 362 - Bill not to be dismissed,

H. E. Spangler, of Cedar Rapids, Iowa, though all parties did not have interest in all and G. H. Struble, of Toledo, Iowa (Strumatters contained in litigation,

ble & Stiger, of Toledo, Iowa, and Deacon, A bill by members of unincorporated church association to prevent transfer by church col. Sargent & Spangler, of Cedar Rapids, lege of endowment fund to another college for Iowa, on the brief), for appellees. purposes of consolidation, and for an account. ing by trustees of college for value of campus,

Before SANBORN and LEWIS, Circuit and other relief, held not subject to dismissal, Judges, and FARIS, District Judge. though all parties did not have interest in all matters contained in litigation.

SANBORN, Circuit Judge. This is a 6. Equity em 148(1)-Where practical and convenient for court to deal with claims or caus

suit in equity to prevent alleged trustees es of action presented in one suit pleading from consummating an alleged breach of is not "multifarious."

trust and for the restoration of, or accountWhere it is as practical and convenient for court and parties to deal with claims or causes ing for, property alleged to have been disof action presented in one suit as in many, posed of by the alleged trustees in violation pleading is not "multifarious,” and should be of their trust. The alleged trustees are Lesustained.

(Ed. Note. For other definitions, see Words ander Clark College, a corporation of the and Phrases, First and Second Series, Multi- state of Iowa, T. D. Crites and 20 other fariousness.) 7. Courts m347–Cause of action at law inter- Coe College, another Iowa corporation, and

persons trustees of that corporation, and mingled with equitable matters triable in equity.

these are the defendants in this suit. Causes of action at law intermingled with The Church of the United Brethren in causes of action in equity are triable in equity Christ, hereafter called the Church, is an court under federal equity rule 26. 8. Action 22. - Claim by unincorporated unincorporated association, which for more

church association against trustees of college than 100 years has conducted its religious, for accounting held cause of action in equity benevolent, and educational activities in the

of A claim by unincorporated church associa- United States and foreign countries, and tion against trustees of college for accounting which is composed of members too numerheld within equity jurisdiction in cases of violation of trusts.

ous to join as plaintiffs in this suit. The

plaintiff in this suit is William E. Schell, a 9. Colleges and universities Om 6(5)-College

and trustees held not exempt from liability at member of the Church in good and regular law or in equity, at suit of cestuis que trust standing, and he brings this suit as such or contractees, for breach of trust.

College and trustees held not exempt from member, on behalf of himself and the other all liability at law or in equity at suit of cestuis members of the Church similarly situated. que trust, or contractees, for breach of trust and violation of contracts under which they hold is that the defendants, who held in trust

The gravamen of the bill in equity here Code Iowa 1897, § 1647, under which col- for the Church the campus of Leander lege was incorporated, provides that its trustees "have the control and management of its

Clark College and an endowment fund of affairs and funds."

$200,000, all of which were and are the 10. Equity 363_Where bill establishes trust property of the Church, in violation of

in college for benefit of church, its allegations their trust are about to turn over the $200,are admitted by motion to dismiss.

000 to the defendant Coe College, unless Averments in bill against college and trustees that defendants held endowment fund and they are enjoined from so doing by the

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