where the offense is not otherwise punishable by some statute of the United States, be fined not more than double the value of the money thus retained or converted or imprisoned not more than ten years, or both; and it shall not be a defense in such a case that the accused person had an interest, contingent or otherwise, in some part of such moneys or of the fund from which they were retained or converted."

[1] The plaintiff in error earnestly insists that the indictment is defective, because it appears on the face thereof that the plaintiff in error was not a trustee in bankruptcy at the time the demand for payment was made, and, further, that if the indictment in fact charges a crime under the Act of May 29, 1920, it nevertheless appears from the testimony that the funds were converted prior to its passage. Whether the indictment is good under the Act of May 29, 1920, we need not inquire, because it is clearly sufficient under section 29 of the Bankruptcy Act (30 Stat. 554 [Comp. St. § 9613]). The latter section provides:

"A person shall be punished, by imprisonment for a period not to exceed five years, upon conviction of the offense of having knowingly and fraudulently appropriated to his own use, embezzled, spent, or unlawfully transferred any property or secreted or destroyed any document belonging to a bankrupt estate which came into his charge as trustee."

The plaintiff in error does not question the sufficiency of the facts charged to bring the case within the purview of the latter section, but he contends that, inasmuch as the indictment on its face is based upon a particular statute, it must stand or fall by that statute, and cannot be sustained under any other. With this contention we are unable to agree. Thus in Vedin v. United States, 257 F. 550, 168 C. C. A. 534, the indictment was based on chapter 10 of the Session Laws of Alaska of 1915. The constitutionality of that statute was questioned, and in sustaining the indictment under a different statute the court said:

"We need not inquire into the question of the constitutionality of the Session Laws of 1915, for the facts charged in the indictment were sufficient to constitute an offense under section 162 of the Compiled Laws of Alaska of 1913, for the statute on which an indictment is found is determinable, as a matter of law, from the facts charged, and they may bring the offense charged within an existing statute, although the same is not

mentioned, and the indictment is brought under another statute."

See, also, Farley v. United States (C. C. A.) 269 F. 721.

[2, 3] There was, therefore, no error in the orders overruling the demurrer and denying the motion in arrest of judgment. The embezzlement was conceded, and the only other defense available to the plaintiff in error was the defense of the statute of limitations. That question was not raised in the court below, at the close of all the testimony, by motion for a directed verdict or otherwise, and the question is therefore not properly before us for review. But, assuming that the defense of the statute of limitations is sufficiently favored to justify an appellate court in considering it, where not properly raised below, we do not think that the defense was established in this case as a matter of law. The plaintiff in error commingled the trust funds in question with other trust funds and with funds of his own, and the jury was warranted in finding that some part of the commingled funds were under the control of the plaintiff in error and were converted by him within the statutory period. Had the plaintiff in error sufficient of the commingled funds in bank to satisfy the demand of the trustee, he would contend, and could successfully contend, perhaps, that there was no embezzlement at all, and the mere fact that the amount of the commingled funds had fallen below the amount of the trust funds did not compel a finding that the conversion was complete, and the embezzlement an accomplished fact, without the statutory period.

The judgment of the court below is therefore affirmed.

and possession of liquor found and seized therein held prima facie evidence that it was kept for the purpose of sale under National Prohibition Act, tit. 2, § 33 (Comp. St. Ann. Supp. 1923, § 101381⁄2t).

3. Criminal law 1169(11)-Admission of evidence of defendant's previous arrest held not prejudicial under the issues.

Where defendant admitted the ownership and possession of liquor seized on his premises and the only issue was as to whether it was kept for illegal purposes, and the prima facie case made under National Prohibition Act, tit. 2, § 33 (Comp. St. Ann. Supp. 1923, § 101381⁄2t), by its possession was not met, the admission of evidence of previous arrests of defendant, if erroneous, was not prejudicial. Ross, Circuit Judge, dissenting.

In Error to the District Court of the United States for the Southern Division of the Northern District of California; John S. Partridge, Judge.

Criminal prosecution by the United States against Charles Forni. Judgment of conviction, and defendant brings error. Affirmed. H. S. Young, R. G. Hudson, Frank T. O'Neill, Preston & Duncan, and B. F. Rabinowitz, all of San Francisco, Cal., for plaintiff in error.

Sterling Carr, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT, Circuit Judge. Writ of error in behalf of Forni, who was convicted under two counts of an information, one charging that he maintained a common nuisance by keeping for sale certain intoxicating liquor, and the other that he unlawfully possessed certain intoxicating liquor.

[1] The assignments present the question of the legality of the issuance of the search warrant and the right to use evidence obtained in making search under the warrant. In the affidavit upon which search warrant was issued, one Rinckel deposed that he had reason to believe, and did believe, that within a certain described house, store, building, or other place in the Northern district of California, to wit, "a certain basement garage at 2933 Webster street, San Francisco, Cal., and an outhouse or shed in the same lot in the rear, being the premises of parties unknown, there is located certain property, to wit, illicit liquors, which is being used as the means of committing a felony, to wit, a violation of the National Prohibition Act of the statutes of the United

States (Comp. St. Ann. Supp. 1923, § 101384 et seq.); that the facts tending to establish the grounds of this application and the probable cause of deponent believing that such facts exist are as follows: That this affiant on the 26th day of December, 1922, visited said premises and saw quantities of liquor without evidence of tax being paid; that affiant has been informed that liquors are taken to and from said garage both night and day; that affiant has reason to believe from said information and from inspection of the said garage that liquors in excess of one-half per cent. alcohol, illegally acquired, are stored and traded in from this garage." Eliminating those portions of the affidavit in which affiant states that he had been informed that liquors are taken to and from the garage, there still remains the positive and distinct averment that affiant visited the premises described; that he saw quantities of liquor in the premises without evidence of tax being paid; and that from his inspection of the garage he averred that liquors in excess of one-half per cent. alcohol, illegally acquired, were stored and traded in. We think the facts averred were sufficient to show probabe cause. They furnished ground of suspicion sufficiently strong to warrant the belief that the person or persons accused were guilty of the offenses charged.

[2] There was nothing in the affidavit upon which warrant issued tending to show that the premises were a private dwelling. However, by petition for return of the seized liquor and wine, the question whether or not the premises were the private dwelling of

Forni or others became a controverted issue,

upon which testimony was taken and reduced to writing. The court denied the petitioner's prayer. Afterwards, before trial, defendant moved for an order to prevent the government from introducing in evidence the liquors that had been taken from the garage under the warrant. The motion was In the affidavit of Forni, filed in denied. support of his motions, he averred that he owned and was entitled to possession of the seized liquors, wines, and brandy, described in part as 25 cases Scotch whisky; 5 50gallon barrels whisky, 1 50-gallon barrel whisky containing about 4 gallons, 1 50gallon barrel, partly filled, of sherry, 18 50gallon barrels red wine; 2 175-gallon puncheons of wine, 1 10-gallon barrel alcohol, 2 50-gallon barrels of brandy, 11 5-gallon jugs of wine, 93 quart bottles of red wine, 15 empty barrels, 1 hydrometer, and a glass

tube; that the prohibition agents entered the premises which constituted his private dwelling house where he actually resided; that the premises consisted of a two-story frame building, and basement, outhouse, and shed directly in the rear of the building; that the building and shed are within a common inclosure; that the basement and shed from time to time, and particularly on December 26, 1922, were used by affiant and his brother for the purpose of "storing, in addition to said property seized as aforesaid, other personal effects, such as furniture, clothing, pictures, and the automobile of affiant"; and that the prohibition agents gained access to the shed by scaling the wall. The answering affidavit by the prohibition agent Rinckel stated that the building involved had underneath it a garage disconnected from any portion of the building, in that there is no ingress nor egress therefrom to any other portion of the building, the main entrance to the garage being from Webster street; that before the 26th of December, 1922, he and other prohibition agents had information that intoxicating liquor was being stored underneath the building referred to, and that pursuant to such information he with another agent went went to the premises, and, "looking through an open door, saw in plain sight in said garage about 25 cases of intoxicating liquor, to wit, Scotch whisky, each case marked D. T. Company, Vancouver, B. C."; that the liquor was untax paid, and contained no internal revenue stamps whatever; that in the rear of the premises in a shed affiant saw through an open door a large number of barrels of whisky and wine (all particularly described in the affidavit) and a hydrometer and glass tube; that thereafter he obtained a search warrant, entered the garage, and seized 25 cases of intoxicating liquor from the garage, and also seized the liquor in the shed; that all the barrels, some full and some empty, were marked Vancouver, B. C. Affiant denied that there had been any entry by the prohibition agents into the dwelling of the defendant, and stated that, when the search and seizure under the warrant were made, one of the defendants, Blake, was arrested; that Blake said he owned the liquor so seized; that, about half an hour after the arrest of Blake, Forni came to the place, and, upon being arrested, stated to the agent that he was the owner of the liquor seized. Upon the trial of Forni much of the evidence of the search and property found was in substantial accord with what had been incorporated in the affidavit of the

agent. It also appeared that Forni stated to the agent that he had purchased the Scotch whisky from a boat lying outside. Defendant's evidence was to the effect that Forni lived in the premises. Forni did not testify.

[3] Under the facts we think the only reasonable inference was that the garage was used for a business purpose, the storage of a large quantity of contraband liquor. The possession of cases of liquor which bore no evidence of having been through the Customs House or stamped was prima facie evidence that the liquor was being kept for purposes of sale. Section 33, title 2, National Prohibition Act (Comp. St. Ann. Supp. 1923, § 101382t). And in this instance there is the uncontradicted statement that Forni said he bought the liquor "over the rail."

It is argued that the court erred in excluding testimony of the witness Forni, a brother of defendant, that the premises were the home of himself and the defendant. But all the facts as to the residence were before the court. It is true that Forni lived in the house above the garage and that the house was his home, but that does not affect the case, for the search warrant was valid, and the evidence showed that the garage under the house was used for the storage of a large quantity of intoxicating liquor that had been illegally acquired, and the presumption is that it was being kept for sale or other disposition in violation of law.

In the course of direct examination a prohibition agent testified that he had known the defendant, and that he had arrested him several times. No objection was made to the statement about arrest, nor was any motion made to strike it out. Witness was then asked by the prosecuting attorney, "About how many times?" This last question was objected to on the grounds that it was incompetent, irrelevant and immaterial. The court, without attempting to draw the welldefined distinction between evidence of mere arrest upon a charge and a judgment of conviction, overruled the objection, saying that, where the charge is maintenance of a nuisance involving the keeping for sale of intoxicating liquor, "previous offenses are admissible." (Italics ours.) Witness answered that he had arrested Forni four or five times. Defendant excepted. Apparently counsel for defendant had in mind an objection to the witness giving any detailed statement of the charges and of the number of times defendant had been arrested, but

did not intend to make the distinction we have referred to. While the better rule is that evidence of mere arrest for an alleged offense is incompetent, a prior conviction of maintaining a nuisance is relevant as connected with the charge as part of a continuing offense. Hazelton v. United States (C. C. A.) 293 F. 384. If defendant's counsel had drawn the court's attention to the distinction between conviction of misconduct and the mere charge of misconduct, doubtless the court would have ruled in recognition of it. But in this instance we fail to see that any possible prejudice could have resulted to the rights of the defendant, for the possession of the liquor and the storage of it was admitted. Defendant claimed to be the owner with right of possession, and thus the case narrowed to the single main issue of fact, whether defendant held possession for trade or business purposes. Upon this point the statute cited (section 33, title 2) makes possession prima facie evidence that the liquor was kept to be sold or otherwise disposed of in violation of the Prohibition Law. No attempt was made to meet this prima facie evidence, and the fact that Forni had been arrested before had so slight relation to the undisputed facts that it could not have affected the finding of the jury upon the undisputed evidence.

We find no error, and affirm the judgment.

ROSS, Circuit Judge (dissenting). I regret not to be able to agree to the judgment here given in this case.

The testimony of the defendant's witness Enrico Besozzi undoubtedly tended to show that the premises where the liquors in question were kept and found constituted the home of Forni. If so, I do not know of any law that requires its owner to make his liquors therein bear evidence of the tax thereon having been paid, much less any law that holds such owner responsible for the

failure of such officer to see such evidence.

The statement contained in the affidavit of the prohibition officer upon which the search warrant was based that from his inspection he had reason to believe that liquors in excess of one-half of 1 per cent. alcohol illegally acquired are stored and traded in from the garage is, it seems to me, simply a state ment as to what he believes; besides which that inspection, according to his own evi

dence, was (if it be true that the garage was part of Forni's home, as some of the evidence given on behalf of the defendant clearly tended to show) obtained by violating the sanctity of that home, contrary to the provisions of the Fourth Amendment of the Constitution, for the prohibition agent Rinckel expressly testified that he and two other prohibition agents first observed from another lot the liquor in the back shed and "climbed into the yard and saw into the basement and saw the liquor piled up there, and went to the United States commissioner and got a search warrant and went back and seized the liquor." He had, in my opinion, no more right to "climb" over the inclosure of a residence than he would have had to break open its front door, and any evidence so obtained would, if the premises constituted the home of Forni, be clearly inadmissible.

The record shows that the court refused to give either of the two following instructions requested by the defendant, to which action of the court exceptions were reserved:

"(1) If the premises in question were used and occupied by the defendant as a private dwelling, to justify a verdict of guilty you must find from the evidence either that it was being used for the unlawful sale of intoxicating liquor or that it was used in part for some business purpose."

"(2) The term 'private dwelling' includes the entire frame building in which the dweller resides as well as all buildings and outhouses situated within the common inclosure, provided that the same are used solely for the comfort and convenience of the dweller, and are not used for any business."

As has been above stated, the testimony of the witness Besozzi clearly tended to show that the premises where the liquors were kept and found constituted Forni's home. Whether it was or not, and whether or not they were so kept for sale, were questions

of fact for the exclusive determination of the jury. The mere fact that the quantity was large and suspiciously packed would not of itself make their possession illegal, for there is no provision of the National Prohibition Act to my knowledge (and certainly none has been called to our attention) which places any limitation as to the quantity that the owners of homes are authorized by that act to keep, possess, and consume.

AMERICAN R. CO. OF PORTO RICO v. ORTEGA.

(Circuit Court of Appeals, First Circuit. December 5, 1924.)

No. 1754.

1. Negligence 136 (9) - Contributory negligence questions for jury, on conflicting evidence.

Under the rule of the federal courts, which places the burden of proving contributory negligence on defendant, a plaintiff is entitled to have the question submitted to the jury, unless no other conclusion could be drawn from the evidence than that he was guilty of contributory fault.

2. Railroads 307 (6)-Company providing safeguards at crossing is under duty to operate same.

A railroad company, which has assumed the duty of maintaining gates or chains at a highway crossing, and of providing a watchman to operate the same, cannot avoid liability for failure to close the crossing on the approach of a train, on the ground that it was under no legal obligation to so protect the crossing.

3. Death 86(1) - Right to damages for wrongful death held not dependent on legal claim to earnings of deceased.

In an action for wrongful death, under Code Civ. Proc. Porto Rico, § 61, which gives such right of action to the heirs of deceased, if an adult, and provides that "such damages may be given as under all the circumstances of the case may be just," a plaintiff, who was the father and sole heir of deceased, was not required to prove that he was legally entitled to any part of her earnings, but it is sufficient to establish his right to damages that he had received, and had a reasonable expectancy of further receiving, pecuniary assistance from her.

In Error to the District Court of the United States for the District of Porto Rico; Odlin, Judge.

Action at law by Antonio Ortega against the American Railroad Company of Porto Rico. Judgment for plaintiff, and defendant brings error. Affirmed.

Francis H. Dexter, of San Juan, Porto Rico, for plaintiff in error.

ity of San Juan; he having been declared by the District Court of San Juan, Second division, the sole and universal heir of his daughter, pursuant to section 909 et seq. of the Civil Code and section 19 of the Act of March 9, 1905, relating to special legal proceedings. It was brought under section 61 of the Code of Civil Procedure of Porto Rico, which provides:

"When the death of a person, not being a minor, is caused by the wrongful act or neglect of another, his heirs or personal representatives may maintain an action for damages against the person causing the death. In every action under this and the preceding section such damages may be given as under all the circumstances of the case may be just."

There was a trial by jury, and a verdict for the plaintiff in the sum of $2,000, upon which judgment was entered, and this writ of error prosecuted.

The errors relied upon are the refusal of the defendant. five requests for instructions submitted by

[1] The first request was that the jury be instructed to find a verdict for the defendant. In support of this request the defendant contends that, on the evidence, no other conclusion could be reached than that the deceased was guilty of contributory negligence. The plaintiff's evidence tended to prove that the train of the defendant which caused the accident did not blow the whistle or ring the bell as it approached the crossing; that the defendant had erected posts supplied with chains for closing the crossing, and had provided a gateman to close the crossing on the approach of a train and to warn travelers upon the highway of the approaching train; that at the time of the accident the chains had not been put in place and the crossing closed, and the gatekeeper was in his gatehouse, and did not appear until after the accident occurred; that the deceased for some months prior to

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM, Circuit Judge. This action was brought in the federal District Court for Porto Rico by Antonio Ortega to recover damages occasioned by the death of his daughter, Zoila Ortega, through the alleged negligence of the defendant at a grade crossing over the defendant's railroad in Puerta de Tierra, a ward in the municipal

ity of the crossing and had occasion to pass over it, so that she was familiar with the conditions there existing and the protection afforded travelers; that, on the morning of the accident, she approached the crossing on foot, carrying a bundle; that, as she approached the crossing, her view of the track in the direction from which the train came was obstructed by a high fence until she was practically upon the track; and that she entered upon the track without notice of the approaching train, without warning