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2 F.(2d) 971 the sides of the truck. Each of these sock- Geo. A. McGowan, of San Francisco, Cal., ets was open, but had a slight ridge at the for appellant.. bottom, which prevented a stanchion from Sterling Carr, U. S. Atty., and T. J. slipping through and held it in place. By Sheridan, Asst. U. S. Atty., both of San this arrangement the stanchions extended Francisco, Cal., for appellee. . five or six inches into the sockets. The Dis
Before GILBERT, HUNT, and RUDtrict Court was of opinion that the evidence
. failed to disclose any negligence of fellow KIN, Circuit Judges. servants, and awarded the appellee $1,000 as damages.
RUDKIN, Circuit Judge. On April 19, Appellant furnished a safe appliance. 1923, the appellant applied to enter the There was no defect in the truck, or in the
United States at the port of San Francisco manner by which the stanchions were made
as the foreign-born son of Fong Kim, a secure in the sockets. The accident occurred,
native-born citizen of the United States. not because of the furnishing of an unsafe His application was denied by the Daappliance, but in the manner of using a safe partment of Labor, and a petition for appliance. Appellant was held liable on
a writ of habeas corpus in his behalf the theory that the stanchions were not in
was likewise denied. From the latter orplace in the sockets. If the stevedores who der this appeal is prosecuted. loaded the truck took the stanchions out of
The principal controversy in the case was the sockets and failed to place them secure
over the age of the appellant. He claimed ly back, their negligence was the cause of
that he was born on the 23d of August, appellee's injury. If the truck was loaded
1907, and was therefore under 16 years of without removing the stanchions, and any
age at the date of the hearing before the of them were not in position in the sockets,
board of special inquiry. If he was the it was the duty of the stevedores loading son of Fong Kim, as claimed, he was nece3the truck to place them in such position. sarily of approximately that age, because In either event, the accident would be attrib
of the date of his father's visit to China. utable to the negligence of fellow servants
The surgeon connected with the United in the use of a safe appliance. The evidence
States Public Health Service at Angel Isdoes not disclose any negligence on the part
land was of opinion that the appellant was of the steamship company.
way of 20 years of age; The decree of the District Court is revers- one of the inspectors placed his age at not ed, and the cause remanded for further pro
less than 22; another at from 20 to 22; ceedings not inconsistent with this opinion.
another at 25; another at from 24 to 27; and still another at 24. On the other hand, three physicians in private practice certified that they found nothing in the appearance of the
appellant to impair the credibility of his FONG LIM V. NAGLE, Immigration Com'r. claim as to age.
The chief reliance of the appellant is on (Circuit Court of Appeals. Ninth Circuit. the decision of this court in Woo Hoo v. January 5, 1925.)
White, 243 F. 541, 156 C. C. A. 236, where No. 4264.
it was held that the certificate of two surAliens 32(8)-Evidence held to sustain geons, based upon the general appearance
findng excluded Chinese person was over 16 of an applicant who claimed to be 20 years years of age at time of hearing. Where all witnesses except physicians cer
of age, was of little, if any, probative value tifying in behalf of excluded Chinese person
to show a difference in age of only 2 years. were of opinion that he was from 4 to 10 years The diversity of opinion in this case demonolder than he claimed, held, that this was suffi cient to sustain finding that he was over 16 strates the correctness of the views there years of age at time of hearing before board of expressed, but a far greater discrepancy is special inquiry.
here shown. All the witnesses, save the
three physicians who certified on behalf of Appeal from the District Court of the United States for the Southern Division of from 4 to 10 years older than claimed, and
the appellant, were of opinion that he was the Northern District of California.
in view of the fact that he claimed to be unPetition for habeas corpus by Fong Lim der the age of 16 years it cannot be said that against John D. Nagle, as Commissioner of the excluding decision is not supported by
Immigration of the Port of San Francisco. competent testimony. Ark Foo v. United From an order denying the writ, petitioner States, 128 F, 697, 63 C. C. A. 249; United appeals. Affirmed,
States v. Tod (C. C. A.) 290 F. 689; Wong
Fook Ngoey v. Nagle (C. C. A.) 300 F. The infringement claimed is in the use of 324.
the word "lemon" or the likeness of a lemon. The judgment of the court below is there. The prominent colorings, the appearance fore affirmed.
and the use of the word "lemon” with the pictures of lemons are essentially different
in the two packages. In very small type on CITRUS SOAP CO. OF CALIFORNIA V
each package is the information that one of
the constituents of the powder is from the ROYAL LEMON PRODUCTS CO. et al.
lemon. No one familiar with the appear(Circuit Court of Appeals, Eighth Circuit. De. ance of one of the packages would ever cember 10, 1924.)
mistake the other for it. The only possiNo. 6640.
bility of confusion in the public mind conTrade-marks and trade-names and unfair com cerning the two packages of powder would
petition m 70(1)-Trade-marks for washing be through the thought of lemon. Obviously powder held not infringed.
the fact that a lemon product is a constituThe fact that a lemon product is a constituent element of a washing powder does not
ent element in a washing powder cannot be give the maker the right to prevent another taken advantage of and monopolized to the manufacturer, who also uses a lemon product,
extent that no other maker of such powders, from stressing that fact to the public by the marks on his packages; but all he can ask is who, .also, uses lemon product, can be prethat the particular device used by him to desig
vented from stressing that fact to the pubnate his goods shall not be so closely simulated as to cause confusion in the minds of ordinary
lic. If the only or main practical effect of purchasers.
the trade-mark of the appellant has been to
identify his product with the thought of a Appeal from the District Court of the lemon, then his exclusive trade-mark monopUnited States for the District of Minnesota; oly is narrower than that effect. He canJohn F. McGee, Judge.
not prevent others who do use a lemon prodSuit in equity by the Citrus Soap Com- uct from so stating and so stressing. All pany of California against the Royal Lemon he can ask is that the particular device used Products Company and others. From an
by him to designate his goods shall not be so order denying preliminary injunction, com
closely simulated as to cause confusion in plainant appeals. Affirmed.
the mind of the ordinary purchaser of such
products. H. J. Bischoff, of San Diego, Cal. (Louis The decree should be and is affirmed. S. Headley, of St. Paul, Minn., on the brief), for appellant.
A. C. Paul, of Minneapolis, Minn. (Richard Paul and Maurice M. Moore, both of Minneapolis, Minn., on the brie“), for ap
BOATMEN'S BANK V. ATCHISON, T. & S. pellees.
F. RY. CO.. Before STONE and KENYON, Circuit (Circuit Court of Appeals, Eighth Circuit. De Judges, and FARIS, District Judge.
cember 5, 1924.)
No. 6532. STONE, Circuit Judge. From denial of Appeal and error 353, 354–Time for filing injunction to prevent claimed infringement writ of error cannot be extended by nuno
pro tunc order or by consent. of trade-marks, this appeal is brought.
The trial court is without power by a nunc The trade-marks relate to washing pow. pro tunc order to extend the statutory time for ders in which one of the elements is a prod- filing a petition for writ of error and assignuct from the lemon. The trade-marks are
ment of errors with the clerk, nor can it be
extended by consent. "a lemon supported on a twig and accompanied by leaves, and having the word 'cit
In Error to the District Court of the rus’ printed on the lemon” and a “repre- United States for the Eastern District of sentation of a lemon.” The mark on ap
Missouri; Charles B. Faris, Judge. pellees' goods is a combination of the letters R and L within blue circles on a yellow
Action at law by the Boatmen's Bank background supported by clusters of lemons against the Atchison, Topeka & Santa and leaves, below which in white letters on a
Railway Company. Judgment for defendblue ground, are the words “Royal Lemon." ant, and plaintiff brings error. Dismissed. On the top and bottom of the cartons of ap- J. L. London and Walter H. Saunders, pellees is the RL device with clusters of both of St. Louis, Mo. (Sears Lehmann, lemons.
Leahy, Saunders & Walther, and Lehmann *Rehearing denied February 5, 1925.
2 F.(20) 073 & Lehmann, all of St. Louis, Mo., on the WESTFALL V. UNITED STATES. MERbrief), for plaintiff in error.
SEL V. SAME. TANSEY Homer W. Davis, of Chicago, Ill., and
V. SAME. Cyrus Crane, of Kansas City, Mo. (Homer (Circuit Court of Appeals, Sixth Circuit. DeHall, of St. Louis, Mo., and Gardiner Lath
cember 2, 1924.) rop, of Chicago, Ill., on the brief), for de
Nos. 4116-4118. fendant in error.
1. Criminal law Om 1086 (14), 1186(4) Before STONE and KENYON, Circuit Amendment authorizing reversal for miscar. Judges, and KENNEDY, District Judge.
riage of justice held not to obviate necessity of rulings by trial court on questions raised.
The appellate court reverses convictions STONE, Circuit Judge. This is a writ through sole dependence on Judicial Code, $ 269,
as amended (Comp. St. Ann. Supp. 1919, 8 of error from a judgment on verdict in fa- 1246), only where plain and vital error appears vor of defendant in a suit upon a warranty. such a case a contention that acquittal should The judgment was entered February 1, 1923. have been directed is not tenable, where record A motion for new trial was overruled March shows no motion for directed verdict, nor any 5, 1923. The time for suing out writ of objection or exception raising that point. error expired September 4, 1923. The peti- 2. Conspiracy Cw45–Evidence of other acts
tending to show conspiracy admissible. tion for writ of error, the assignment of er
Evidence of any act tending to show conrors and the bond thereon were all filed spiracy is relevant in prosecution for conspirupon October 17. The filing mark on all acy, though only one act be alleged. of these papers was "Filed Oct. 17th, 1923, 3. Criminal law Om 1159(2)-Appellate court nunc pro tunc as of Sept. 4th, 1923."
will not review weight of evidence. Upon October 17, 1923, an order allowing of the evidence on which conviction for con
Appellate court will not review the weight the writ was made, the record entry being spiracy was had. as follows: "And thereafter, to wit: On October 17, 1923, nunc pro tunc as of Sep- In Error to the District Court of the tember 4, 1923, the following among other United States for the Western Division of proceedings were had and appear of record the Southern District of Ohio; Smith Hickin said cause, to wit: Order allowing writ enlooper, Judge. of error, etc., September 4, 1923."
Ella Westfall, Jessie Mersel, and Nettie The writ of error is witnessed as follows: Tansey were convicted of conspiracy, and “Witness, the Honorable C. B. Faris, Judge they severally bring error. Judgments afof the District Courts of the United States firmed. within and for the Eastern District of Mis- Hugh Nichols, of Cincinnati, Ohio (Nichsouri, this 16th day of October, in the year ols, Morrill, Stewart & Ginter, of Cincinof our Lord one thousand nine hundred and
ati, Ohio, on the brief), for plaintiffs in twenty-three, but same is allowed nunc pro tunc, as of the 4th day of September, 1923,
A. Lee Beatty, Asst. U. S. Atty., of Cinas per stipulation filed herein."
cinnati, Ohio (Harry A. Abrams, of CinFrom the foregoing, it is clear that this cinnati, Ohio, on the brief), for the United court has no jurisdiction of this writ of er
States. ror unless the trial court has power through a nunc pro tunc order to extend statutory
Before DENISON, MACK, and DONAtime for filing with the clerk of the trial HUE, Circuit Judges. court the petition for a writ and the assignment of errors. This time cannot be ex- PER CURIAM. Complaint is made that, tended by consent. Clark v. Doerr, 143 F. in this prosecution for conspiracy, evidence 960, 75 C. C. A. 146 (5th C. C. A.). Hence, was received of overt acts other than those the stipulation upon which the nunc pro specified in the indictment. The record tunc order seems to have been based can be shows no objection or exception. of no avail. That such time cannot be ex-  We are also told that for lack of nectended by nunc pro tunc order is directly essary proof a verdict of acquittal should held in Credit Co. v. Ark. Central Ry. Co., have been directed; but, again, the record 128 U. S. 258, 9 S. Ct. 107, 32 L. Ed. 448. shows no motion for a directed verdict, nor And this decision has been further approved any objection or exception raising that in Old Nick Williams Co. v. United States, point. It is the settled rule in this court 215 U. S. 541, 544, 30 S. Ct. 221, 54 L. Ed. that section 269 of the Judicial Code, as 318.
amended (Comp. St. Ann. Supp. 1919, § For want of jurisdiction, the writ of er 1246), was not intended to promote reverror should be and is dismissed.
sals by removing the necessity for any ruling
by the court below upon the point before it Before WALKER and BRYAN, Circuit can be raised on review, but that, just as Judges, and CLAYTON, District Judge. before the amendment, in such a case we reverse only where it appears that there
WALKER, Circuit Judge. This is a writ had been a plain and vital error, indicating of error to review a judgment convicting a miscarriage of justice in the result. Ro- the plaintiff in error of violations of the bilio v. U. S., 291 F. 975, 980.
National Prohibition Act (Comp. St. Ann. [2,3] We see no such error. Evidence Supp. 1923, $ 1013814 et seq.). The only of any act tending to show the conspiracy action of the court which is complained of was relevant, though only one act need be is the overruling of a motion made by the alleged. The inference that the separate accused to quash a described seareh warsales made by the individual defendants rant. In reference to that motion the bill were pursuant to a precedent common plan, of exceptions states that "prior to the trial and therefore showed a conspiracy, rather of this cause defendant filed a motion and than sales merely, was not a necessary in- supplemental motion to quash the search ference, but was one which the jury might warrant issued on November 24, 1922, and rightfully draw from all the circumstances. used by the agents of the Prohibition DeWhether the sales occurred depends solely partment to obtain evidence used in the trial on the respective credibility of the witnesses, of this cause before a jury," the grounds of and we cannot review the weight of evi- the motion being set forth, and that the dence.
court overruled that motion. The bill of exThe judgment in each of the three cases ceptions gives no information as to any eviis affirmed.
dence introduced in the trial, and does not show that any evidence offered was objected to by the accused. It is not made to ap
pear that the evidence referred to as "used D'ANGELO v. UNITED STATES.
in the trial of this cause before a jury” was (Circuit Court of Appeals, Fifth Circuit. De- offered or introduced by the prosecution. cember 5, 1924.)
Nothing contained in the record is incon
sistent with the conclusion that none of the No. 4314.
evidence so referred to tended to support Criminal law Om 1086(4), 1163(3)-Admission the charges made or involved any prejudice
of evidence not ground for reversal, in ab- to the accused. The record does not show sence of showing of prejudice or objection.
that either over or without objection any Admission of evidence was not ground for reversal, where bill of exceptions did not show evidence that was subject to objection by that it was introduced by prosecution over ac- the accused was introduced in the trial by cused's objection, or that it prejudiced accused.
the prosecution. Complaint of action of a
trial court resulting in the admission of eviIn error to the District Court of the dence is not available in an appellate court United States for the Eastern District of
as a ground of reversal, where the record Louisiana; Rufus E. Foster, Judge. fails to show what that evidence was, or
Salvatore D'Angelo was convicted of vio- what it tended to prove, or that it involved lating the National Prohibition Act, and he prejudice to the party complaining. Marybrings error. Affirmed.
land Casualty Co. v. Simmons, Receiver (C.
C. A. 5th Circuit) 2 F.(20) 29, at present Salvador Roccaforte and Hugh M. Wil- term. The record fails to disclose any subkinson, both of New Orleans, La., for plain- stantial basis for the conclusion that the tiff in error.
accused was injured or prejudiced by the Louis H. Burns, U. S. Atty., and Edwin ruling complained of, whether that ruling H. Grace, Sp. Asst. U. S. Atty., both of was or was not free from error. New Orleans, La.
The judgment is affirmed.
2 F.(20) 978 POWE v. UNITED STATES,
that he probably would be indicted. Even (Circuit Court of Appeals, Fifth Circuit. De- after he was indicted, he waited three cember 12, 1924.)
months before filing his plea in abatement. No. 4399.
We are of opinion that the irregularitios Indictment and information om !96(3).Plea fore the indictment was returned, and also
complained of should have been raised bein abatement, alleging irregularities in finding indictment, filed three months after indict that the filing of the plea in abatement was ment returned, held too late.
delayed too long after the finding of the Plea in abatement, alleging irregularities
indictment. in finding indictment, held too late, where ac
Agnew v. United States, 165 cused was arrested in May, 1923, and indicted in U. S. 36, text 44, 45, 17 S. Ct. 235, 41 L. December, and plea was filed in March, 1924, Ed. 624. though he was not placed under bond, since he was chargeable with knowledge that he proba
The judgment is affirmed. bly would be indicted, and should have com
cert. denied plained of irregularities before indictment was returned.
// تا دیر کر
In Error to the District Court of the
LUCIS v. UNITED STATES.
uary 5, 1925. Rehearing Denied
February 9, 1925.) Samuel Powe, alias Sam Powe, was in
No. 4322. dicted for illegal possession and transportation of intoxicating liquor, in violation of Criminal lawmal 036 (8)–Objections as to
lack of proof of venue and insufficiency of the National Prohibiton Law. Plea in evidence, made for first time on appeal, not abatement overruled, and defendant brings
considered. error. Affirmed.
Objections that there was no proof of
venue, and that evidence was insufficient to Alexander D. Pitts, of Selma, Ala., and sustain charges in information, will not be conJere Austill, of Mobile, Ala., for plaintiff sidered when raised for first time on appeal
except to prevent obvious miscarriage of jusin error.
tice. Aubrey Boyles and Joseph W. John, Asst. U. S. Attys., both of Mobile, Ala.
In Error to the District Court of the (Nicholas E. Stallworth, Sp. Asst. Atty. United States for the Southern Division of Gen., on the brief), for the United States.
the Northern District of California; Ben-
Pete Lucis was convicted of violating the
George D. Collins, Jr., of San Francisco, erred in overruling plaintiff in error's plea Cal., for plaintiff in error. in abatement to an indictment charging him
Sterling Carr, U. S. Atty., and T. J. with the illegal possession and transporta- Sheridan, Asst. U. S. Atty., both of San tion of intoxicating liquor in violation of
Francisco, Cal. the National Prohibition Law (Comp. St.
Before GILBERT, HUNT, and RUDAnn. Supp. 1923, § 1013874 et seq.). The KIN, Circuit Judges. plea in abatement sets up mere irregularities in the finding of the indictment, and RUDKIN, Circuit Judge. This is a writ that the plaintiff in error was not under of error to review a judgment of convicbond to await the action of the grand jury, tion under the National Prohibition Act and therefore was not required to appear (Comp. St. Ann. Supp. 1923, § 1013814 et and challenge the proceedings before the seq.). The only assignment of error is the grand jury.
general one that the court erred in rendering Plaintiff in error was arrested in May, judgment against the plaintiff in error. Un1923, and a grand jury was impaneled No- der this assignment it is urged that there vember 26. Additional grand jurors were was no proof of venue, and that the evidence sworn in to take the place of some discharg- is not sufficient to support the charges coned on December 13. The indictment was tained in the information. These questions returned December 15. The plea in abate- were not raised in the court below by moment was not filed until March 19, 1924. tion for a directed verdict or otherwise, and Plaintiff in error, having been arrested, al- they cannot be raised in this court for the though the plea alleges he was not placed first time. While the bill of exceptions conunder bond, is chargeable with knowledge tains no proof of venue, there was nothing