only a few days before, the court had found that the place was being used as an intoxicating liquor saloon, and had issued the injunction; the place had no connection with Fryar's home; the search was made in the daytime, in an orderly and peaceable manner; it was not such a repetition of a search recently made as to be harsh or oppressive. Under these circumstances, we see nothing to indicate that unreasonable search or seizure, which the Fourth Amendment forbids; nor does any statute expressly require a search warrant. The case is like Hilsinger v. U. S. (C. C. A.) 2 F. (2d) 241.

The evidence tended to show only one sale and one act of substantial storage. Hence there was no necessity for specific findings as to the acts which constituted the contempt.

Before STONE, Circuit Judge, and MUNGER and MILLER, District Judges.

MILLER, District Judge. T. Sarkisian, a practicing physician at Denver, Colo., for 18 years, a graduate of Rush Medical College at Chicago, Ill., with postgraduate work in Vienna, Berlin, Paris, and London, was indicted in April, 1922, under nine counts charging violation of the Harrison AntiNarcotic Law (Comp. St. §§ 6287g-6287q), and again in June, 1923, under two counts charging violation of the same law.

Pleas of not guilty were entered on both indictments. On July 12, 1923, both cases were consolidated by order of the court and trial proceeded before a judge and jury.

On July 16th the jury returned verdicts of guilty on each count of both indictments, on which the trial judge sentenced the de

case is affirmed.

It was not error to refuse to permit a defendant to testify to alleged conversations, in the absence of any offer of proof to indicate the nature of the conversations, and therefore their relevancy or materiality.

In Error to the District Court of the United States for the District of Colorado.

Criminal prosecutions by the United States against T. Sarkisian. Two cases consolidated for trial. Judgment of conviction in each case, and defendant brings error. Affirmed.

to one year and six months in the federal penitentiary on each of the two counts, such sentences to run concurrently, and on the first-mentioned indictment defendant was sentenced to serve a term of three years in the federal penitentiary at Ft. Leavenworth on each count thereof, said sentences to run concurrently, and beginning on the expiration of the sentence under the second indictment.

No exceptions were saved during the trial to rulings of the court either on the admission or exclusion of evidence, or to any instruction given by the court. Nevertheless defendant now asks this court to consider errors now assigned, to wit: (1) That the lower court erred in refusing to permit the defendant to testify regarding two alleged conversations, one between him and H. V. Williamson and one between him and Dr. J. N. Chipley, both government narcotic agents at Denver. No offer of proof was made as to what such conversations were, or any exception saved to the ruling of the court. (2) That the lower court erred in the giving of certain instructions; (3) in receiving and entering the verdict of the jury; and (4) in passing sentence upon the

defendant.

Clarence L. Ireland, Asst. U. S. Atty., of Denver, Colo. (George Stephan, U. S. Atty., of Denver, Colo., on the brief), for the United States.

Des Moines (C. C. A.) 298 F. 71; Thompson-Caldwell Const. Co. v. Young (C. C. A.) 294 F. 145. Possible prejudice is not sufficient to invoke the exception to this salutary rule. Sebastian Bridge Dist. v. Missouri

Pacific Railway Co. (C. C. A.) 292 F. 345. It is not claimed that the evidence in this case does not sustain the verdicts of the jury. We have read the record, and we are convinced that defendant's guilt was proved beyond a reasonable doubt.

[2] There was no error in the court's refusal to permit defendant to testify regarding the alleged conversations between Narcotic Agents Williamson and Chipley and himself. No offer of proof being made to indicate the nature of, and therefore the relevancy or materiality of, such conversations, and no questions having been asked that might have permitted of an answer favorable to the defendant, no reviewable question is presented. Buckstaff v. Russell, 151 U. S. 626, 14 S. Ct. 448, 38 L. Ed. 292; Stanley v. Beckham, 153 F. 152, 82 C. C. A. 304; Harris v. Brown, 187 F. 6, 109 C. C. A. 60; Cleveland & Western Coal Co. v.

Main Island Creek Coal Co. (C. C. A.) 297

F. 60.

Petition to Revise Order of the District Court of the United States for the Eastern District of New York.

In the matter of the A. E. Richardson Company, Inc., bankrupt, Seymour K. Fuller, trustee, in which George Carrizzo filed a claim. On petition to revise order confirming order of referee disallowing and expunging claim. Petition dismissed. See, also, 291 F. 772; 294 F. 451.

Henry I. Fillman, of New York City, for trustee.

Wechsler & Wechsler, of New York City, for petitioner.

Before ROGERS and MANTON, Circuit Judges, and LEARNED HAND, District Judge.

ROGERS, Circuit Judge. The petitioner filed proof of claim in the sum of $44,614.66 against the estate of the bankrupt. The

claim is asserted to be for damages suffered

by the claimant for the breach of a lease because of the bankruptcy of the lesseethe lease being for the term of 10 years. The trustee in bankruptcy filed written objections to the allowance of the claim, and the matter in due course was heard by the referee, who disallowed the claim and entered an order expunging it. The petitioner then applied for a review of the order. When it came on to be heard, the District Judge dismissed the petition, and confirmed the order of the referee.

[1] The petitioner then filed the petition to revise; in other words, he is asking this court to review by a petition to revise the

vember 10, 1924.)

No. 73.

1. Bankruptcy 440-District Court's order, confirming order of referee disallowing and expunging claim for damages for breach of lease, not reviewable by petition to revise. . Order of District Court, confirming order of referee disallowing and expunging claim for damages for breach of lease, is not reviewable by petition to revise, under Bankruptcy Act, 8 24b (Comp. St. § 9608), since such order does not grow out of a controversy arising in a bankruptcy proceeding, and is appealable under section 25a (3), being Comp. St. § 9609.

2. Bankruptcy 440-Rule as to review by petition to revise stated.

If question to be determined arises in a bankruptcy proceeding, and does not fall within cases specified in Bankruptcy Act, § 25a (3), being Comp. St. § 9609, providing for review by appeals and writs of error in certain cases, review must be had by petition to revise, under section 24b (Comp. St. § 9608).

able against the estate of the bankrupt. He has, however, mistaken his remedy, and the question he seeks to bring before this court is not properly here and we cannot consider it.

Bankruptcy Act, § 25a (3), being Comp. St. § 9609, provides that an appeal may be taken in bankruptcy proceedings from a "judgment allowing or rejecting a debt or claim of $500 or over." This court has held again and again that the remedies by petition to revise and by appeal are exclu

sive.

[2] And the rule is that, if the question to be determined arises in a bankruptcy proceeding, and does not fall within either of the cases specified in section 25a, review must be had by a petition to revise. Matter of Loving, 224 U. S. 183, 32 S. Ct. 446, 56 L. Ed. 725; Matter of Kuffler, 127 F. 125, 61 C. C. A. 259. The order sought to

be reviewed is an order arising in a bankruptcy proceeding, and does not grow out of a controversy arising in a bankruptcy proceeding. It therefore is not reviewable by petition to revise under section 24b (Comp. St. § 9608). In re Mueller, 135 F. 711, 68 C. C. A. 349.

The petition to revise is dismissed.

THEOBALD v. UNITED STATES. (Circuit Court of Appeals, Eighth Circuit.

January 8, 1925.)

No. 6608.

1. Indictment and information 125 (27)—In

An indictment against an employé of a national bank, under Rev. St. § 5209 (Comp. St. § 9772), for abstracting checks from the funds and credits of the bank, held not duplicitous because it charged that he embezzled, abstracted, and willfully misapplied the checks.

2. Banks and banking 257 (1)—Indictment held to show sufficiently that abstraction was without authority.

Indictment charging employé of national bank with abstracting travelers' checks held to show sufficiently that the act charged was done without authority.

3. Banks and banking 256 (3)—Travelers' checks held by bank for issuance to customers held "credits," within meaning of embez

zlement statute.

The word "credits," as used in Rev. St. § 5209 (Comp. St. § 9772), making it an offense for an officer or employé of a national bank to embezzle, abstract, or misapply any of the money, funds, or credits of the bank, includes papers intended to represent, and which could perform and were intended to perform the

function of, credits, such as travelers' checks kept for issuance to purchasers.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Credits.] 4. Banks and banking 257(3)-Evidence held to sustain conviction of employé for abstracting credits of bank.

Evidence that an employé absconded, and that he cashed travelers' checks belonging to the bank, held sufficient to sustain a conviction for abstracting the checks.

In Error to the District Court of the United States for the Eastern District of Oklahoma; Orie L. Phillips, Judge.

Criminal prosecution by the United States against Paul Ernest Theobald. Judgment of conviction, and defendant brings error. Affirmed.

nying list

"50 Will pay to the order of .........50 "When not negotiated in the United States, this check is to be converted into local currency at the current buying rate for bankers checks on New York

"Fifty Dollars United States Currency "When countersigned with the signature of the holder as shown above

"The National City Bank of New York "Countersignature

66

"This signature must agree with that of the holder as shown above

"J. A. Stillman, President. "W. H. Tappan, Cashier."

On the reverse side of which travelers' check was the following directory matter, to wit:

"Wherever presented this check is to be considered as a draft on the National City Bank of New York, New York.

"In countries where revenue stamps are required the amount of same is to be paid by the holder."

These forms were deposited with the First National Bank of Ardmore, Okl., under an arrangement that made the depository responsible therefor and gave to it a stated commission for handling and issuing the checks to customers. The indictment charged (in a separate count as to each check) that Theobald "abstracted" the checks from the "funds and credits" belonging to the Ardmore Bank and thereafter transferred and put them in circulation.

as each one of these acts is a different of

fense. This objection is not well taken because the gravamen of this charge is the abstraction.

[2] It is also contended that the indictment is defective because it does not charge that accused did these things "without the authority from the directors." The charge in the indictment is that the acts were done "without the knowledge or consent of the said National Banking Association or any person authorized to give such consent, and with the unlawful, fraudulent and felonious intent of him, the said Paul Ernest Theobald, to convert and appropriate the said check and the proceeds to be derived from the transfer and sale of same to his own use

and benefit, and to permanently deprive the First National Bank of Ardmore of the said

check and of the value thereof. This is certainly sufficient.

[3] It is contended that these travelers' checks were not "money, funds, or credits" within the meaning of the statute. We think "credits," within the act, include papers intended to represent and which could perform and were intended to perform the function of credits. Such was the character of these travelers' checks.

[4] The last point is that there was no evidence that the accused "abstracted" these checks. There was evidence that he did abscond and that he had cashed these checks; also that he was employed in the bank and might have access to these checks. We think this is evidence of abstraction.

The judgment should be and is affirmed.

affd 26975 93 70 Led. 176, 45 Sup of. 64,

MARGOLIN v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. November 3, 1924.)

No. 76.

Constitutional law 298(1)—Army and navy 512, New, vol. 12A Key-No. Series -Statute limiting attorney's charges for services rendered beneficiary under War Risk Insurance Act held valid.

Act May 20, 1918, § 1 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 514kk), prohibiting attorneys from charging more than $3 for any services rendered beneficiary of War Risk Insurance Act, held valid under police power, and not to violate Fifth Amendment, as Congress may impose on any payments of public moneys such limitations as it chooses.

2. Army and navy 512, New, vol. 12A KeyNo. Series-Attorney not entitled to recover more than $3 for all services rendered to beneficiary of war risk policy.

Under Act May 20, 1918, § 1 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 514kk),

attorney is not entitled to recover more than $3 for all services rendered beneficiary of war risk policy, including his preliminary services in preparing papers, correspondence with bureau, and trip to Washington.

In Error to the District Court of the United States for the Southern District of New York.

Joseph P. Margolin was convicted of violating the War Risk Insurance Act May 20, 1918, § 1, and he brings error. Affirmed.

F. R. Serri, of Brooklyn, N. Y., for plaintiff in error.

Wm. Hayward, U. S. Atty., of New York City (Carl Brecher, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United

States.

Before ROGERS and MANTON, Circuit Judges, and LEARNED HAND, District Judge.

The

LEARNED HAND, District Judge. defendant was convicted by a jury and fined $250 for violation of section 13 of Act Sept. 2, 1914, as added by Act Oct. 6, 1917, § 2, and as amended by Act May 20, 1918, 8 1, "the War Risk Insurance Act" (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 514kk). The exceptions raise the questions whether the section is constitutional under the Fifth Amendment, and, if so, whether an attorney may charge more than $3 for any services rendered beneficiaries under the War Risk Insurance Act. One Yetta Cohen retained the defendant to press, and secure the allowance of, her claim as beneficiary under a policy taken out by Joseph Freeman, her nephew, who died while enlisted in the United States Army. He had some correspondence with the Veterans' Bureau and made one trip to Washington to examine the records and interview the officials. It may be assumed that his services were of substantial service in procuring an allowance of Yetta Cohen's claim, and under any appraisal were worth many times the sum of $3. For them he demanded $2,000 and received $1,500.

[1] On the constitutional point we need say little. The War Risk Insurance Act establishes in substance a kind of pension, and Congress may impose upon any payments made under it such limitation as it chooses. Frisbie v. U. S., 157 U. S. 160, 165, 166, 15 S. Ct. 586, 39 L. Ed. 657; Ball v. Halsell, 161 U. S. 72, 16 S. Ct. 554, 40 L. Ed. 622. Indeed, such legislation may even avoid preexisting contracts, Calhoun v. Massie, 253 U.

B. 170, 40 S. Ct. 474, 64 L. Ed. 843. The limitation in question was to protect from extortion a class of persons who might reasonably be thought subject to the practices of unscrupulous persons, and it was therefore well within the police power, even without the added power of Congress to appropriate the public moneys on such terms as it thinks best. We may pass without comment the second constitutional point; i. e., that the statute is too vague.

[2] The more substantial question is of the meaning of section 13. The learned trial judge must be taken as construing the statute, not only to forbid the defendant charging more than $3 for actually preparing and executing claim papers, but also to forbid him charging anything whatever for such preliminary services as in fact he rendered, and the conviction cannot stand unless this is the proper view. The actual words of the section are: "Payment to any ⚫ attorney for such assistance as may be required in the preparation and execution of the necessary papers shall not exceed three dollars." Again: "No attorney shall be recognized in the pres. entation or adjudication of claims under articles two, three and four," except that upon suit brought the court may allow him 5 per cent. of the amount recovered. The case in question fell under article 3, which deals with compensation for death, and the upshot of the language is that no attorney shall be recognized in presenting claims, unless there be a suit, but that he may be paid $3 for preparing and executing any necessary papers.

The learned trial judge was therefore right in saying that the defendant might recover nothing over $3 for all the services rendered Yetta Cohen. In his negotiations with the Bureau he must have been recognized as an attorney in the presentation of her claim, or his services could effect nothing. If he was so recognized, it was in the face of the statute, and he can recover nothing for services which he is forbidden to render. The act established a system designed to be self-executing. It makes no difference how well or ill it works. With obvious jealousy of the mediation of agents or attorneys, who might fleece the beneficiaries, it excluded them from any share in its operation, except to draw up the simple papers. The system must get along without their help, and if the beneficiaries suffer more than they would if they could employ attorneys with the risk of extortion, courts may rot correct the blunder. To allow such

In Error to the District Court of the United States for the District of New Jersey; John Rellstab, Judge.

Criminal prosecution by the United States against William A. Price and Theodore G. Price. Judgment of conviction, and defendants bring error. Affirmed.

Joseph Kraemer, of Newark, N. J. (Kraemer & Siegler, of Newark, N. J., of counsel), for plaintiffs in error.

Richard C. Plumer, of Newark, N. J., for the United States.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

revenue,

"Whoever shall forcibly assault, resist, oppose, prevent, impede, or interfere with any officer of the customs or of the internal him in the execution of his duties, or any or any person assisting seizures, in the execution of his duty, or person authorized to make searches and shall rescue, attempt to rescue, or cause to seized by any person so authorized; be rescued, any property which has been shall be imprisoned not more than ten years."

With respect to the authority of certain officers to make searches and seizures, section 3059, R. S. (Comp. Stat. § 5761), provides:

"It shall be lawful for any officer of the customs, including inspectors to go on board of any vessel, and to

*Certiorari denied 45 S. Ct. 514, 69 L. Ed.