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3 F.(20) 699 only a few days before, the court had found Before STONE, Circuit Judge, and MUNthat the place was being used as an intoxi- GER and MILLER, District Judges. cating liquor saloon, and had issued the injunction; the place had no connection with MILLER, District Judge. T. Sarkisian, Fryar's home; the search was made in the a practicing physician at Denver, Colo., for daytime, in an orderly and peaceable man- 18 years, a graduate of Rush Medical Colner; it was not such a repetition of a lege at Chicago, Ill., with postgraduate work search recently made as to be harsh or op- in Vienna, Berlin, Paris, and London, was pressive. Under these circumstances, we

indicted in April, 1922, under nine counts see nothing to indicate that unreasonable charging violation of the Harrison Antisearch or seizure, which the Fourth Amend- Narcotic Law (Comp. St. $8 62878-62879), ment forbids; nor does any statute express- and again in June, 1923, under two counts ly require a search warrant. The case is charging violation of the same law. like Hilsinger v. U. S. (C. C. A.) 2 F.(20)

Pleas of not guilty were entered on both 241.

indictments. 'On July 12, 1923, both cases The evidence tended to show only one sale

were consolidated by order of the court and and one act of substantial storage. Hence

trial proceeded before a judge and jury. there was no necessity for specific findings of guilty on each count of both indictments

,

On July 16th the jury returned verdicts as to the acts which constituted the contempt.

on which the trial judge sentenced the deAs to Fryar's conviction and sentence, the fendant under the last-mentioned indictment case is 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 SARKISIAN V. UNITED STATES. sentenced to serve a term of three years in

the federal penitentiary at Ft. Leavenworth (Circuit Court of Appeals, Eighth Circuit. December 9, 1924.)

on each count thereof, said sentences to run

concurrently, and beginning on the expiraNos. 6511, 6512, 6582, 6583.

tion of the sentence under the second indict1. Criminal law em 1048, 1086(14)-Unless ment.

substantial rights are manifestly affacted, No exceptions were saved during the trial appellate court will not consider errors as.

to rulings of the court either on the admissigned, but not excepted to, or exceptions not shown in record.

sion or exclusion of evidence, or to any inUnless it manifestly appears from the rec

struction given by the court. Nevertheless ord that substantial rights are affected, the Cir- defendant now asks this court to consider ercuit Court of Appeals will not consider errors rors now assigned, to wit: (1) That the assigned, which were not presented to the trial lower court erred in refusing to permit the court by exceptions properly preserved in the defendant to testify regarding two alleged record.

conversations, one between him and H. V. 2. Criminal law Om670_Exclusion of evidence,

Williamson and one between him and Dr. not shown by offer to be relevant or material, not error.

J. N. Chipley, both government narcotic It was not error to refuse to permit a de

agents at Denver. No offer of proof was fendant to testify to alleged conversations, in made as to what such conversations were, or the absence of any offer of proof to indicate the any exception saved to the ruling of the nature of the conversations, and therefore their

court. (2). That the lower court erred in relevancy or materiality.

the giving of certain instructions; (3) in In Error to the District Court of the

receiving and entering the verdict of the United States for the District of Colorado.

jury; and (4) in passing sentence upon the

defendant. Criminal prosecutions by the United

[1] Unless it manifestly appears from States against T. Sarkisian. Two cases con

the record that substantial rights are affectsolidated for trial. Judgment of conviction

ed, this court will not consider errors asin each case, and defendant brings error. signed which were not presented to the trial Affirmed.

court by exceptions properly preserved in Thomas Ward, Jr., of Denver, Colo., for the record. Highway Trailer Co. v. City of plaintiff in error.

Des Moines (C. C. A.) 298 F. 71; ThompClarence L. Ireland, Asst. U. S. Atty., of n-Caldwell Const. Co. v. Young (C. C. A.) Denver, Colo. (George Stephan, U. S. Atty., 294 F. 145. Possible prejudice is not suffiof Denver, Colo., on the brief), for the cient to invoke the exception to this salutary United States.

rule. Sebastian Bridge Dist. v. Missouri

son

Pacific Railway Co. (C. C. A.) 292 F. 345. Petition to Revise Order of the District It is not claimed that the evidence in this Court of the United States for the Eastern case does not sustain the verdicts of the District of New York. jury. We have read the record, and we are

In the matter of the A. E, Richardson convinced that defendant's guilt was proved Company, Inc., bankrupt, Seymour K. Fulbeyond a reasonable doubt.

ler, trustee, in which George Carrizzo filed [2] There was no error in the court's re

a claim. fusal to permit defendant to testify regard- firming order of referee disallowing and ex

On petition to revise order coning the alleged conversations between Narcotic Agents Williamson and Chipley and punging claim. Petition dismissed. himself.

See, also, 291 F. 772; 294 F. 451. No offer of proof being made to indicate the nature of, and therefore the

Henry I. Fillman, of New York City, for relevancy or materiality of, such conversa

trustee. tions, and no questions having been asked

Wechsler & Wechsler, of New York City, that might have permitted of an answer fa- for petitioner. vorable to the defendant, no reviewable Before ROGERS and MANTON, Circuit question is presented. Buckstaff v. Russell, Judges, and LEARNED HAND, District 151 U. S. 626, 14 S. Ct. 448, 38 L. Ed. 292; Judge. Stanley v. Beckham, 153 F. 152, 82 C. C. A. 304; Harris v. Brown, 187 F. 6, 109 C. C.

ROGERS, Circuit Judge. The petitioner A. 60; Cleveland & Western Coal Co. v. Main Ísland Creek Coal Co. (C. C. A.) 297 66 against the estate of the bankrupt. The

filed proof of claim in the sum of $14,614.F. 60.

claim is asserted to be for damages suffered The record in this case shows that two by the claimant for the breach of a lease separate writs of error were taken by the because of the bankruptcy of the lessee defendant in the cases heretofore mentioned the lease being for the term of 10 years. in this opinion, but all involve the same

The trustee in bankruptcy filed written obfacts and the same questions of law. The writs numbered 6511 and 6512 are therefore jections to the allowance of the claim, and

the matter in due course was heard by the hereby dismissed. Nos. 6582 and 6583 are

referee, who disallowed the claim and enaffirmed.

tered 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. in re A. E. RICHARDSON CO., Inc.

[1] The petitioner then filed the petition Petition of CARRIZZO.

to revise; in other words, he is asking this

court to review by a petition to revise the (Circuit Court of Appeals, Second Circuit. No- question whether or not the claim is provvember 10, 1924.)

able against the estate of the bankrupt. He No. 73.

has, however, mistaken his remedy, and the

question he seeks to bring before this court 1. Bankruptcy Om 440—District Court's order, is not properly here and we cannot con

confirming order of referee disallowing and sider it. expunging claim for damages for breach of

Bankruptcy Act, 25a (3), being Comp. lease, not reviewable by petition to revise.

Order of District Court, confirming order St. § 9609, provides that an appeal may be of referee disallowing and expunging claim for taken in bankruptcy proceedings from a damages for breach of lease, is not reviewable "judgment allowing or rejecting a debt or by petition to revise, under Bankruptcy Act, $ claim of $500 or over." This court has 245 (Comp. St. $ 9608), since suck order does held again and again that the remedies by not grow out of a controversy arising in a bankruptcy proceeding, and is appealable under petition to revise and by appeal are exclusection 25a (3), being Comp. St. $ 9609. sive. 2. Bankruptcy Ow440-Rule as to review by

[2] And the rule is that, if the question petition to revise stated.

to be determined arises in a bankruptcy If question to be determined arises in a proceeding, and does not fall within either bankruptcy proceeding, and does not fall with- of the cases specified in section 25a, review in cases specified in Bankruptcy Act, $ 25a (3), must be had by a petition to revise. Matbeing Comp. St. $ 9609, providing for review by appeals and writs of error in certain cases,

ter of Loving, 224 U. S. 183, 32 S. Ct. 446, review must be had by petition to revise, un

56 L. Ed. 725; Matter of Kuffler, 127 F. der section 24b (Comp. St. $ 9608).

125, 61 C. C. A. 259. The order sought to 3 F.(20) 601 be reviewed is an order arising in a bank- Frank Lee, U. S. Atty., of Muskogee, ruptcy proceeding, and does not grow out Okl. of a controversy arising in a bankruptcy

Before STONE and KENYON, Circuit proceeding. It therefore is not reviewable Judges, and KENNEDY, District Judge. by petition to revise under section 24b (Comp. St. $ 9608). In re Mueller, 135 F. 711, 68 C. C. A. 349.

STONE, Circuit Judge. This is a writ The petition to revise is dismissed.

of error from a conviction upon an indictment charging Theobald to be guilty of abstracting travelers' checks in violation of section 5209, Rev. St. (Comp. St. $ 9772).

These travelers' checks were in the form THEOBALD V. UNITED STATES. following: (Circuit Court of Appeals, Eighth Circuit.

“Travelers' Check.
January 8, 1925.)
"Signature of Holder

No. C65321.
No. 6608.

"The National City Bank of New York 1. Indictment and information om 125 (27)-In

dictment against employé of national bank for through its correspondents as per accompaabstracting checks held not duplicitous. nying list

An indictment against an employé of a na- “50 Will pay to the order of ......50 tional bank, under Rev. St. 8 5209 (Comp. St. "When not negotiated in the United $ 9772), for abstracting checks from the funds States, this check is to be converted into loand credits of the bank, held not duplicitous because it charged that he embezzled, abstracted, cal currency at the current buying rate for and willfully misapplied the checks.

bankers checks on New York 2. Banks and banking Om 257(1)-Indictment

"Fifty Dollars United States Currency held to show sufficiently that abstraction was without authority.

"When countersigned with the signature Indictment charging employé of national of the holder as shown above bank with abstracting travelers' checks held

“The National City Bank of New York to show sufficiently that the act charged was done without authority.

"Countersignature 3. Banks and banking Om 256(3)—Travelers' checks held by bank for issuance to custom.

“This signature must agree with that of ers held “credits," within meaning of embez- the holder as shown above zlement statute,

"J. A. Stillman, President. The word "credits," as used in Rev. St. S

"W. H. Tappan, Cashier." 5209 (Comp. St. & 9772), making it an.offense for an officer or employe of a national bank to

On the reverse side of which travelers' embezzle, abstract, or misapply any of the mon

check was the following directory matter, to ey, funds, or credits of the bank, includes pa- wit: pers intended to represent, and which could perform and were intended to perform the considered as a draft on the National City

“Wherever presented this check is to be function of, credits, such as travelers' checks kept for issuance to purchasers.

Bank of New York, New York. [Ed. Note.-For other definitions, see Words

“In countries where revenue stamps are and Phrases, First and Second Series, Credits.] required the amount of same is to be paid 4. Banks and banking en 257 (3)-Evidence by the holder.”

held to sustain conviction of employé for ab- These forms were deposited with the First stracting credits of bank.

National Bank of Ardmore, Okl., under Evidence that an employé absconded, and an arrangement that made the depository that he cashed travelers' checks belonging to responsible therefor and gave to it a statthe bank, held sufficient to sustain a conviction ed commission for handling and issufor abstracting the checks.

ing the checks to customers. The indictIn Error to the District Court of the ment charged (in a separate count as to United States for the Eastern District of each check) that Theobald "abstracted” the Oklahoma; Orie L. Phillips, Judge.

checks from the "funds and credits” belong

ing to the Ardmore Bank and thereafter Criminal prosecution by the United States transferred and put them in circulation. against Paul Ernest Theobald. Judgment

[1] The first point here urged is that the of conviction, and defendant brings error. indictment is duplicitous because it charges Affirmed.

that accused embezzled, abstracted, and willCharles A. Coakley, of Tulsa, Okl., for fully misapplied the travelers' checks whereplaintiff in error.

as each one of these acts is a different offense.' "This objection is not well taken be- attorney is not entitled to recover more than cause the gravamen of this charge is the $3 for all services rendered beneficiary of war abstraction.

risk policy, including his preliminary services

in preparing papers, correspondence with bu[2] It is also contended that the indict

reau, and trip to Washington.
ment is defective because it does not charge
that accused did these things “without the
authority from the directors.” The charge

In Error to the District Court of the Unitin the indictment is that the acts were done

ed States for the Southern District of New "without the knowledge or consent of the

York. said National Banking Association or any Joseph P. Margolin was convicted of vioperson authorized to give such consent, and lating the War Risk Insurance Act May 20, with the unlawful, fraudulent and felonious 1918, § 1, and he brings error. Affirmed. intent of him, the said Paul Ernest Theobald, to convert and appropriate the said

F. R. Serri, of Brooklyn, N. Y., for plain

tiff in error.
check and the proceeds to be derived from
the transfer and sale of same to his own use

Wm. Hayward, U. S. Atty., of New York and benefit, and to permanently deprive the City (Carl Brecher, Asst. U. S. Atty., of First National Bank of Ardmore of the said Brooklyn, N. Y., of counsel), for the United

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

Before ROGERS and MANTON, Circuit
[3] It is contended that these travelers' Judges, and LEARNED HAND, District
checks were not “money, funds, or credits” Judge.
within the meaning of the 'statute. We
think "credits," within the act, include pa-
pers intended to represent and which could

LEARNED HAND, District Judge. The perform and were intended to perform the defendant was convicted by a jury and fined function of credits. Such was the charac- $250 for violation of section 13 of Act ter of these travelers' checks.

Sept. 2, 1914, as added by Act Oct. 6, 1917, [4] The last point is that there was no $ 2, and as amended by Act May 20, 1918, evidence that the accused "abstracted” these § 1, "the War Risk Insurance Act” (Comp. checks. There was evidence that he did ab- St. 1918, Comp. St. Ann. Supp. 1919, $ scond and that he had cashed these checks; 514kk). The exceptions raise the questions also that he was employed in the bank and whether the section is constitutional under might have access to these checks. We think the Fifth Amendment, and, if so, whether this is evidence of abstraction.

an attorney may charge more than $3 for The judgment should be and is affirmed. 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 FreeMARGOLIN V. UNITED STATES.

man, her nephew, who died while enlisted (Circuit Court of Appeals, Second Circuit. No- in the United States Army. He had some vember 3, 1924.)

correspondence with the Veterans' Bureau No. 76.

and made one trip to Washington to exam

ine the records and interview the officials. It Constitutional law w298(1)-Army and navy Cw51/2, New, vol. 12A Key-No. Series may be assumed that his services were of -Statute limiting attorney's charges for servo

substantial service in procuring an allowices rendered beneficiary under War Risk In. ance of Yetta Cohen's claim, and under any surance Act held valid.

appraisal were worth many times the sum of Act May 20, 1918, § 1 (Comp. St. 1918, $3. For them he demanded $2,000 and reComp. St. Ann. Supp. 1919, $ 514kk), probibit- ceived $1,500. ing attorneys from charging more than $3 for any services rendered beneficiary of War Risk

[1] On the constitutional point we need Insurance Act, held valid under police power, say little. The War Risk Insurance Act esand not to violate Fifth Amendment, as Con- tablishes in substance a kind of pension, and gress may impose on any payments of public Congress may impose upon any payments moneys such limitations as it chooses.

made under it such limitation as it chooses. 2. Army and navy Ow51/2, New, vol. 12A Key- Frisbie v. U. S., 157 U. S. 160, 165, 166, 15 No. Series--Attorney not entitled to recover

S. Ct. 586, 39 L. Ed. 657; Ball v. Halsell, more than $3 for all services rendered to 161 U. S. 72, 16 S. Ct. 554, 40 L. Ed. 622. beneficiary of war risk policy.

Under Act May 20, 1918, $ 1 (Comp. St. Indeed, such legislation may even avoid pre1918, Comp. St. Ann. Supp. 1919, § 514kk), existing contracts, Calhoun v. Massie, 253 U.

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3 F.(20) 603 8. 170, 40 S. Ct. 474, 64 L. Ed. 843. The charges as the defendant's for acting as a limitation in question was to protect from go-between would be exactly to frustrate the extortion a class of persons who might rea- plan. sonably be thought subject to the practices Judgment affirmed. 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

PRICE et al. v. UNITED STATES. * thinks best. We may pass without comment the second constitutional point; i. e., that (Circuit Court of Appeals, Third Circuit. the statute is too vague.

January 8, 1925.) [2] The more substantial question is of

No. 3189. the meaning of section 13. The learned trial

Customs duties Om 134 - Indictment for at. judge must be taken as construing the stat

tempting to rescue property seized held suffi. ute, not only to forbid the defendant charg- cient. ing more than $3 for actually preparing An indictment under Criminal Code, § 65 and executing claim papers, but also to for- (Comp. St. § 10233), for conspiracy to resist bid him charging anything whatever for customs officers in performance of their duties, such preliminary services as in fact he ren

an attempt to rescue property seized by a cus

toms inspector held sufficient. dered, and the conviction cannot stand unless this is the proper view. The actual words of the section are: “Payment to any

In Error to the District Court of the · attorney

for such assistance as United States for the District of New Jermay be required in the preparation and ex- sey; John Rellstab, Judge. ecution of the necessary papers shall not ex- Criminal prosecution by the United States ceed three dollars.” Again: "No

against William A. Price and Theodore G. attorney shall be recognized in the pres. Price. Judgment of conviction, and defendentation or adjudication of claims under ants bring error. Affirmed. articles two, three and four," except that upon suit brought the court may allow him

Joseph Kraemer, of Newark, N. J. 5 per cent. of the amount recovered. The (Kraemer & Siegler, of Newark, N. J., of case in question fell under article 3, which counsel), for plaintiffs in error. deals with compensation for death, and the

Richard C. Plumer, of Newark, N. J., for

the United States. upshot of the language is that no attorney shall be recognized in presenting claims, un- Before BUFFINGTON, WOOLLEY, and less there be a suit, but that he may be paid DAVIS, Circuit Judges. $3 for preparing and executing any necessary papers.

WOOLLEY, Circuit Judge. The parts of The learned trial judge was therefore

section 65 of the Criminal Code (Comp. St. right in saying that the defendant might recover nothing over $3 for all the services $ 10233) which are applicable to this case

read as follows: rendered Yetta Cohen. In his negotiations

“Whoever shall forcibly assault, resist, with the Bureau he must have been recognized as an attorney in the presentation of oppose, prevent, impede, or interfere with her claim, or his services could effect noth- any officer of the customs or of the internal ing. If he was so recognized, it was in the him in the execution of his duties, or any

revenue,

or any person assisting face of the statute, and he can recover noth

person

authorized to make searches and ing for services which he is forbidden to seizures, in the execution of his duty, or render. The act established a system de- shall rescue, attempt to rescue, or cause to signed to be self-executing. It makes no difference how well or ill it works. With seized by any person so authorized;

be rescued, any property which has been obvious jealousy of the mediation of agents shall be imprisoned not more than ten or attorneys, who might fleece the beneficiaries, it excluded them from any share in its

With respect to the authority of certain operation, except to draw up the simple pa- officers to make searches and seizures, secpers. The system must get along without tion 3059, R. S. (Comp. Stat. § 5761), protheir help, and if the beneficiaries suffer vides: more than they would if they could employ "It shall be lawful for any officer of the attorneys with the risk of extortion, courts customs, including inspectors

to may rot correct the blunder. To allow such go on board of any vessel,

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

years.

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