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allowance and settlement. That case is not in point, for there the findings and conclusions were filed March 24, 1897, and judgment was rendered on that day. Orders extending time to file exceptions to the findings and conclusions were made on that day, and several times thereafter during the term of court. The bill of exceptions was filed March 28th, and on June 2d a proposed amendment was filed and stipulation was had between counsel, extending time for further amendments until matters could be brought to the attention of the court. The February term was adjourned June 30, 1897, but the bill of exceptions was not signed until July, and doubtless upon the authority of Waldron v. Waldron, 156 U. S. 361, 15 S. Ct. 383, 33 L. Ed. 453, cited in the opinion, the signing of the bill of exceptions after the adjournment of the term at which judgment was rendered was sustained.

Nichols also moves to dismiss the writ of error upon the ground that the judgment entered by the District Court on June 2, 1924, was a final judgment entered in pursuance to the mandate of the Supreme Court.

[5] The case being restricted by what we have said upon the motion to strike the bill of exceptions, the present writ of error does not bring up the whole record for re-examination, but only such proceedings as may have arisen subsequent to the mandate. Stewart v. Salamon, 97 U. S. 361, 24 L. Ed. 1044; Tyler v. Maguire, 17 Wall. (84 U. S.) 253, 284, 21 L. Ed. 576. Examination of the record shows that the judgment

entered was in exact accordance with our

mandate and the mandate of the Supreme Court, and as nothing appears to have occurred in the progress of the execution of the judgment justifying re-examination, it follows the writ must be dismissed. Cook v. Burnley, 11 Wall. (78 U. S.) 672, 20 L. Ed. 29.

The motion to strike the bill of exceptions is granted, and the motion to dismiss the writ of error is allowed.

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it was rendered, unless proceedings for that purpose are begun during that term. 2. Criminal law 998-Court not given jurisdiction of motion to set aside judgment by consent of United States attorney.

District Court did not have jurisdiction to

grant motion to set aside or alter final judgment after term at which it was rendered, though United States attorney appeared and consented to consideration of motion.

3. Criminal law 1023 (12)-Writ of error does not lie to review order of commitment. view order of commitment which is regular in Writ of error does not lie merely to reform.

In Error to the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.

J. Al Pattison was convicted of misapplication of moneys of the Federal Reserve Bank, and brings error. Writ dismissed.

Alfred P. Dobson and John J. Beckman, both of Portland, Or., for plaintiff in error. John S. Coke, U. S. Atty., and J. O. Stearns, Jr., both of Portland, Or., for the United States.

Circuit Judges.
Before GILBERT, ROSS, and HUNT,

HUNT, Circuit Judge. On May 5, 1919, Pattison and Mann were indicted jointly for willfully misapplying moneys of a Federal Reserve Bank in Oregon. The charge against Pattison was that he knowingly and unlawfully aided and abetted Mann, who

was a director and cashier of the bank. The statute under which the indictment was drawn (section 5209, 40 Stat. p. 972, Act Sept. 26, 1918 [Comp. St. Ann. Supp. 1919, § 9772]) provides that any officer of a Federal Reserve bank who willfully misapplies any of the money of such bank with intent to defraud the bank or deceive any person, and every person who, with like intent, aids or abets any officer in violation of the section, shall be deemed guilty of a misdemeanor. On July 7, 1919, at the regular July term of the United States District Court at Portland, Or., Pattison, who was present with his counsel, pleaded guilty. Thereafter on July 12, 1919, at the same term of court, Mann pleaded not guilty and upon trial was acquitted. Thereafter, on October 31, 1919, during the July term, judgment was rendered, fining Pattison $500, and ordering that he be committed to jail until the fine be paid, or until he be discharged, according to law, and allowing him 30 days from October 31, 1919, within which to pay the fine, and on December 1, 1919, during the November, 1919, term, the court allowed Pattison 30 days' additional time within

2 F.(2d) 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 of the power of the court and that the extensions of time allowed for the payment of the fine were valid, still the extension only ran until January 1, 1920. It is therefore apparent that not until more than four years had elapsed after the July, 1919, term, when judgment against him was entered, did Pattison make any move to modify or alter or vacate the judgment. The judgment had long since become a finality as far as the District Court was concerned. Under such a state of facts we are of the opinion that the District Court was without power to set aside or modify the judgment theretofore entered. In United States v. Mayer, 235 U. S. 55, 35 S. Ct. 16, 59 L. Ed. 129, the Supreme Court has recently reiterated the general principle that a court cannot set aside or alter a final judgment after the expiration of the term at which it was rendered unless the proceeding for that purpose was begun during that term.

More than three years afterwards, during the regular July, 1923, term of court, the district attorney asked for an order for a bench warrant for the arrest of Pattison; it appearing that stay of the service of the commitment which had previously been ordered by the court had long since expired and the fine had not been paid. The court ordered a bench warrant, directing that Pattison be brought before the court forthwith to show cause why the fine had not been paid, or why he should not be committed in accordance with the judgment. Commitment was issued and returned "Not found." Afterwards, on April 7, 1924, during the regular March, 1924, term of court the matter was heard upon a motion by the United States attorney for a commitment, and upon the oral motion of defendant to set aside the judgment of October 31, 1919, for a remission of the penalty imposed, upon the ground that Mann, the principal, having been acquitted, Pattison, accessory, could not be legally guilty. The court denied the motion of the defendant and granted the motion for commitment in accordance with the judgment of the court theretofore rendered. Commitment issued, whereupon Pattison brought writ of error, and contends that the court erred in entering judgment of guilty against him and sentencing him to pay a fine and ordering his commitment, upon the ground that, the jury having found Mann not guilty upon a separate trial, he (Pattison) should not be adjudged guilty of being an accessory.

[1] While the question of jurisdiction of the District Court to grant defendant's motion does not seem to have been considered by the learned District Judge, it is so plainly involved in the record as to be decisive of the case. All the proceedings had were during regular terms of the District Court for Oregon, which (section 102 of the Judicial Code [Comp. St. § 1089]) are held at Portland on the first Monday of March, July, and November. It was on October 31, 1919, during the regular July, 1919, term that judgment was rendered, fining Pattison and giving him 30 days from October 31 within which to pay the fine, and it was during the regular November, 1919, term that he was allowed an additional 30 days within which to pay the fine. If we assume, merely for the present purpose, that the order of the court made on December

[2] And the rule must prevail, even though the United States attorney may have appeared and consented to the consideration of the motion. Defendant, therefore, was invoking an authority not possessed (United States v. Mayer, supra), and the District Court should have denied his motion for lack of jurisdiction.

[3] Writ of error merely to review the order of commitment, which is regular in form, does not lie. It was but the order by which the court directed a ministerial officer to take the defendant to jail.

The writ of error must be dismissed; and it is so ordered.

TURINETTI v. UNITED STATES.

AZZOLIN v. SAME.

(Circuit Court of Appeals, Eighth Circuit. October 23, 1924.)

Nos. 6475, 6476.

1. Criminal law 590 (1)-Denial of continuance to permit defendant to prepare defense held error.

Where defendant, though previously indicted, was not arrested until 9 o'clock on night preceding day on which he was brought to trial at 10 o'clock, it was error to refuse time within which to prepare defense, or within which to file formal motion for continuance. 2. Criminal law

552(3) Circumstances merely arousing suspicion of guilt are insufficient to sustain conviction.

guilt are insufficient to sustain conviction for criminal offense.

Circumstances merely arousing suspicion of

3. Conspiracy 47-Evidence held insufficient and (b) that there is no sufficient evidence to sustain conviction for conspiracy to violate the Volstead Act.

Evidence held insufficient to sustain conviction for conspiracy to violate the Volstead Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.).

4. Criminal law 559-Where circumstance is susceptible of inference in favor of defend ants' innocence, it has no probative value as evidence of guilt.

When a circumstance relied on as evidence

of guilt is susceptible of inference favorable to innocence, it is robbed of all probative value, though from other inference guilt may be fairly deducible.

5. Conspiracy 23-Reversal of conviction for conspiracy held necessary, in view of insufficiency of evidence to sustain conviction of alleged coconspirator.

Where on appeal evidence was held insufficient to sustain conviction of one of two defendants for conspiracy to violate Volstead Act (Comp. St. Ann. Supp. 1923. § 101384 et seq.),

a reversal as to other also was necessary, since he could not have conspired alone, notwithstanding evidence clearly establishes some offense or offenses by him.

Stone, Circuit Judge, dissenting in part.

In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge.

John Turinetti and Frank Azzolin were each convicted of conspiracy to violate the Volstead Act, and they separately bring error. Reversed.

William N. Jamieson, of Jamieson, O'Sullivan & Southard, of Omaha, Neb. (William E. Lovely, of Omaha, Neb., on the brief), for plaintiffs in error.

George A. Keyser, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., of Omaha, Neb., on the brief), for

the United States.

Before STONE and KENYON, Circuit Judges, and FARIS, District Judge.

FARIS, District Judge. Plaintiffs in error here, who were defendants below, were jointly indicted and jointly tried for a conspiracy to violate the Volstead Act (Comp. St. Ann. Supp. 1923, § 101384 et seq.), for that they formed such conspiracy with others, and thereafter, to carry it into effect, set up a still and manufactured whisky. On the trial, the wives, respectively, of Turinetti and Azzolin, and one Bertino, also jointly indicted with defendants herein, were or dered acquitted for lack of evidence. While separate writs of error were taken, the record here is a joint record, and the cases were argued and heard together, and may be disposed of in a single opinion. '

[1] On behalf of both defendants it is contended (a) that the indictment is bad;

to take the case to the jury. On behalf of Azzolin, it is urged that the court erred in refusing to allow him to present a formal motion and affidavits for a continuance or On this point postponement of the case. it is contended, and not denied, that, while he was indicted some 10 days before the trial, he was not arrested till only some 12 hours before he was actually put on trial; that is to say, he was arrested about 9 o'clock on a certain night, and compelled to go to trial at about 10 o'clock in the forenoon of the following day. His counsel asked for further delay within which to prepare his defense, which being refused, counsel thereupon requested time within which to file a formal motion for a continuance and to prepare and present affidavits in support thereof. The court refused to permit this to be done, and Azzolin excepted. We think this was error.

[2] We are further of the view that there was not any sufficient evidence to take the case to the jury as to Azzolin. He may be guilty; the facts and circumstances adduced arouse a suspicion of guilt, but mere suspicion is not a sufficient ground on which to convict a man of any criminal offense. State v. Gordon, 199 Mo. 591, 98 S. W. The most that the evidence offered 39. against Azzolin tended to show was (a) that he owned and himself occupied a disconnected part of the building in which his tenant and codefendant Turinetti, who occupied another part, set up and operated the still in question; (b) that Azzolin personally paid the water rates on the entire premises, including the apartments occupied by Turinetti; (c) that the still was so placed, of such size, capacity, and construction, that Azzolin must have known of its presence in the premises which he leased to Turinetti; and (d) that the premises, while divided for separate occupancy by two or more families, were L-shaped, thus making the distance between the respective rear entrances thereof only some 60 feet.

[3, 4] All these facts together do not make out a case against Azzolin. His knowledge even that the still was in Turinetti's apartment would not render him guilty under the charge here; whether knowledge by Azzolin of Turinetti's intent, if in fact he had such, to set up and run a still in the premises, at and before he leased them to the latter, would render Azzolin guilty, need not be decided, because there is no evidence or circumstance in the case indicating either that Azzolin had such knowl

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edge or that Turinetti harbored such intent. The fact of payment of the water rates is susceptible of an inference making for innocence; that is, that since this is often done by, and is usually required of, the landlord, such payment could well have been done in the usual compliance with a rule or an ordinance of the municipality. Whenever a circumstance, relied on as evidence of criminal guilt, is susceptible of two inferences, one of which is in favor of innocence, such circumstance is robbed of all probative value, even though from the other inference, guilt may be fairly deducible. We conclude that the court ought to have directed a verdict as to Azzolin, and so, for the two errors noted, the case as to him should be reversed.

[5] It is obvious that this conclusion renders reversal necessary also as to Turinetti. Clearly the latter is guilty of some offense or offenses against the National Prohibition Act. The trial court correctly found that Mrs. Turinetti, Mrs. Azzolin, and one Bertino, jointly indicted with Turinetti and Azzolin, were under the evidence not guilty of conspiracy. We are of opinion, as already said, that the court below erred in not making a similar ruling in favor of Azzolin, because of lack of sufficient evidence to show that he was guilty of a conspiracy. Therefore, since Turinetti could not have conspired with himself alone, he could not under the law be convicted of a conspiracy. It follows that there is no lawful way to avoid a reversal also as to Turinetti, although, under the evidence, he violated one or more provisions of the National Prohibition Act. For the latter violations, however, he was neither indicted nor convicted,

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

Since the case must, for the reasons already given, be reversed as to both defendants, we need not consider whether the indictment is bad, as urged, for that it fails to aver what particular provision or provisions of the National Prohibition Act defendants conspired to violate, and thus fails fully to inform defendants of the charge against which they are required to defend themselves. While the point is, upon principle, a fairly simple one, it is obvious that, unless the evidence shall be greatly strengthened upon another trial, defendants cannot be convicted on the charge here before

us.

Let the case, for the errors noted, be re2 F. (2d)-2

versed for further proceedings not inconsistent with the views herein expressed.

STONE, Circuit Judge (dissenting in part). I concur in the remand of the Azzolin Case. I base this solely upon the action of the court in refusing that defendant an opportunity to file a motion and affidavit for a continuance and to perfect his record upon that matter. Such was necessary to enable this court to pass upon the propriety of the refusal of the continu

ance.

I dissent from remand of the Turinetti

Case. While he had his writ of error here, it was not argued by counsel. I think there was evidence from which the jury might have found a conspiracy It is undisputed that Turinetti was making the whisky in a large still and had a large quantity of mash and new whisky on the premises. It is also undisputed that Azzolin furnished the water used and necessary in making this whisky. The evidence is clear, to my mind, that he knew this whisky was being made on his premises and with this water. I think one cannot knowingly permit his premises to be used for an unlawful purpose and knowingly contribute a necessary ingredient or element to the prosecution of that purpose without being a party to the unlawful act. Whether Azzolin had knowledge of the unlawful intentions of Turinetti at the time the lease was executed is not controlling. If thereafter he became aware of such usage of the premises and water and did not, within a reasonable time, take reasonable steps to terminate such unlawful usage, such inaction is evidence of a consent to such usage and of such community of accord and action as to constitute conspiracy.

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tion, power to supervise schools and to determine what schools should be established, discontinued, relocated, or consolidated, did not deprive itself and its members of right and power to sue its colleges and their trustees to prevent violations of trust and for accountings for property wrongfully disposed of. 3. Courts 3511⁄2-Bill not dismissed for misjoinder of causes of action.

A bill is not to be dismissed because of misjoinder of causes of action, but, if causes cannot be conveniently tried together, separate trials will be ordered, in view of federal equity rule 26.

4. Equity 90-Not Indispensable that all parties have interest in all matters contained In litigation.

It is not indispensable that all parties to suit should have interest in all matters contained in litigation, it being sufficient if there is common point of litigation, and that each party has interest in some essential matters involved,

which are connected with the others.

5. Equity 362- Bill not to be dismissed, though all parties did not have interest in ali matters contained in litigation.

A bill by members of unincorporated church association to prevent transfer by church college of endowment fund to another college for purposes of consolidation, and for an accounting by trustees of college for value of campus, and other relief, held not subject to dismissal, though all parties did not have interest in all matters contained in litigation.

6. Equity 148(1)-Where practical and convenient for court to deal with claims or causes of action presented in one suit pleading is not "multifarious."

Where it is as practical and convenient for court and parties to deal with claims or causes of action presented in one suit as in many, pleading is not "multifarious," and should be sustained.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Multifariousness.]

7. Courts 347-Cause of action at law intermingled with equitable matters triable in equity.

Causes of action at law intermingled with causes of action in equity are triable in equity court under federal equity rule 26.

8. Action 22-Claim by unincorporated church association against trustees of college for accounting held cause of action in equity for violation of trust.

A claim by unincorporated church association against trustees of college for accounting held within equity jurisdiction in cases of violation of trusts.

9. Colleges and universities

6(5)-College and trustees held not exempt from liability at law or in equity, at suit of cestuis que trust or contractees, for breach of trust.

College and trustees held not exempt from all liability at law or in equity at suit of cestuis que trust, or contractees, for breach of trust and violation of contracts under which they hold property of cestuis, or contractees, because Code Iowa 1897, § 1647, under which college was incorporated, provides that its trustees "have the control and management of its affairs and funds."

10. Equity 363-Where bill establishes trust in college for benefit of church, its allegations are admitted by motion to dismiss.

Averments in bill against college and trustees that defendants held endowment fund and

campus in trust for church are admitted by motion to dismiss bill, and if there is anything in articles of incorporation of college or elsewhere in conflict with or avoidance of averments, burden is on defendants to plead and prove it.

Appeal from the District Court of the United States for the Northern District of Iowa; George C. Scott, Judge.

Suit in equity by William E. Schell, as a member of the Church of the United Brethren in Christ, etc., against Leander Clark College, an Iowa corporation, and others. Decree for defendants, and plaintiff appeals. Reversed and remanded.

Lee Warren James, of Dayton, Ohio (Joseph Bradford Coolidge, of Dayton, Ohio, on the brief), for appellant.

H. E. Spangler, of Cedar Rapids, Iowa, and G. H. Struble, of Toledo, Iowa (Struble & Stiger, of Toledo, Iowa, and Deacon, Sargent & Spangler, of Cedar Rapids, Iowa, on the brief), for appellees.

Before SANBORN and LEWIS, Circuit Judges, and FARIS, District Judge.

SANBORN, Circuit Judge. This is a suit in equity to prevent alleged trustees from consummating an alleged breach of trust and for the restoration of, or accounting for, property alleged to have been disposed of by the alleged trustees in violation of their trust. The alleged trustees are Leander Clark College, a corporation of the state of Iowa, T. D. Crites and 20 other persons trustees of that corporation, and Coe College, another Iowa corporation, and these are the defendants in this suit.

The Church of the United Brethren in Christ, hereafter called the Church, is an unincorporated association, which for more than 100 years has conducted its religious, benevolent, and educational activities in the United States and foreign countries, and which is composed of members too numerous to join as plaintiffs in this suit. The plaintiff in this suit is William E. Schell, a member of the Church in good and regular standing, and he brings this suit as such member, on behalf of himself and the other members of the Church similarly situated.

The gravamen of the bill in equity here is that the defendants, who held in trust for the Church the campus of Leander Clark College and an endowment fund of $200,000, all of which were and are the property of the Church, in violation of their trust are about to turn over the $200,000 to the defendant Coe College, unless they are enjoined from so doing by the

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