on this day the towing line again parted. The sea continued to be heavy, although the wind moderated some. The two vessels were kept from fouling, however, and the propeller was kept clear of the towing lines. At daylight, at about 7:35 a. m., a towing line was refastened and the towage proceeded. And at noon on June 17th, the vessels were making between five and six knots. When the vessels reached a point about 20 miles from the Delaware Capes, the master of the Western Pride, while his vessel was at longitude 72 42', latitude 38 18', and on the evening of June 21st, stated that his engines were in working order so that he could make about half speed, and requested that his vessel be cast off, and stated that she would proceed under her own power to New York. Later she signaled that she had received orders to make Norfolk and the Baron Polwarth cast off at about 11:35 p. m. on June 25th. The time lost consisted of four days, and the value of this time to the Baron Polwarth is given as $2,200 per day. The expenses incurred were $1,554.23, making a total of $10,354.23. The Western Pride's value was $1,830,000, and the Baron Polwarth's was $700,000. The district judge awarded a decree for $50,000. At the time the Baron Polwarth reach the Western Pride, a strong wind was blowing from the S-SW. There was a rough sea, but after the line was shot across and the cables made fast, the weather permitted towing until it became rough at 5:40 p. m. on the 15th as stated above. The master of the Western Pride testified that she left Plymouth, England, on May 20, 1919, bound for Hampton Roads. It had taken her 17 days to reach the point where the Baron Polwarth came to her assistance, which was approximately 800 miles from the Delaware Capes. Her engine trouble developed on June 10th, 5 days before she was picked up. When, on the 15th of June, she sent out an S. O. S. for help, she was completely disabled. When she requested the Baron Polwarth to cast her off, she had make such repairs as permitted her to continue, and the master said he did so in order to avoid incurring any more expense than was necessary. When she was picked up, there was no other vessel about to render her assistance. And it is apparent that for several days thereafter she was unfit to proceed at sea. We think there was no evidence of immediate danger of loss of the vessel, but there was skill required of the salvors, and the peril to which they and their vessel was subjected required a substantial reward. The Western Pride was towed in all 806 miles. The Baron Polwarth was delayed about 4 days while engaged in salvage services. Computing the value of this time, together with the expenses, leaves a sum awarded as salvage amounting to $39,645.77. [2] In ascertaining the value of the services, it is fair to consider the difficulty of safely handling the distressed vessel and the risk run of injury to the salving vessel. This court has said in the No. 92 (252 Fed. 117, 164 C. C. A. 229) : "The problem usually is not to award so little as to discourage salvage aid, nor so much as to encourage unnecessary or exaggerated service; and, as the trial court, in respect of the quantum has much the duty of a jury, the amount fixed by it will not be disturbed, if within those limits which define the maximum and minimum which reasonably should be awarded." (274 F.) We think, under all the circumstances, that the award below for salvage services is not so excessive as to require our modifying the decree. The Kia Ora, 252 Fed. 507, 164 C. C. A. 423; Melderskin (D. C.) 249 Fed. 776; The Varzin (D. C.) 180 Fed. 892. Decree affirmed. PENNSYLVANIA CEMENT CO. v. BRADLEY CONTRACTING CO. et al. (Circuit Court of Appeals, Second Circuit. June 30, 1921.) No. 262. Contempt 66 (2) -Order directing commitment held not appealable. An order to the United States marshal to forthwith commit one to jail, to be there detained as and for a contempt of court, until he should comply with orders thereof, was not appealable, where prior orders had determined such person guilty of contempt and subject to imprisonment, being merely incidental to the prior orders. Appeal from the District Court of the United States for the Southern District of New York. Suit by the Pennsylvania Cement Company against the Bradley Contracting Company and Frank Bradley, as president, etc. From an order directing that he be committed for contempt of court, the last-named defendant appeals. Appeal dismissed. Thomas Henry Keogh, of New York City, and Henry A. Foster, for appellant. Leo Oppenheimer, of New York City (Samuel H. Kaufman and Milton P. Kupfer, both of New York City, of counsel), for appellees. Before WARD, ROGERS, and MANTON, Circuit Judges. WARD, Circuit Judge. October 5, 1918, the Bradley Contracting Company was, upon a general creditors' bill consented to by the company, put into the hands of receivers. The bill alleged that the company was solvent and that the receivership was necessary to prevent a waste and sacrifice of its assets and to accomplish a fair distribution of them among its creditors. November 4 and December 3, 1920, respectively, the receivers entered into two contracts for the sale of two separate parcels of land belonging to the company; it being agreed in each case that the company should execute a deed in proper statutory short form, with the usual full covenants and warranty, and that the receivers would also give a quitclaim deed, if required. December 23, 1920, and January 7, 1921, the court entered an order in the case of each parcel approving the contract of sale, and directing the Bradley Company to execute such deeds, and authorizing the receivers to execute quitclaim deeds. January 13, 1921, the officers of the company having refused to execute warranty deeds, the receivers filed a petition that they be punished for contempt. January 15 an order was granted requiring the officers For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes to show cause why they should not be punished for contempt. January 18 they filed an answer denying that the court had any jurisdiction of the subject-matter of the action-that is, of the receivership-or of the parties to the action, or of themselves as officers of the corporation, and alleging that all orders theretofore entered in the course of the receivership were void, and particularly that the order requiring them to show cause why they should not be punished for contempt should be quashed, annulled, set aside, and held for naught. January 25 Hough, J., entered an order concluding as follows: "Ordered, adjudged, and determined that William Bradley, James Bradley, and Frank Bradley are guilty of a contempt of this court in having willfully and deliberately disobeyed the lawful orders of this court, filed herein on the 23d day of December, 1920, and on the 8th day of January, 1921, and in failing and refusing to execute deeds in accordance with said orders; and it is "Further ordered, adjudged, and determined that William Bradley, James Bradley, and Frank Bradley be forthwith arrested by the marshal of this district, and be brought before this court, to be committed for the contempt aforesaid, and to be imprisoned by the United States marshal for the Southern district of New York until they shall obey the lawful orders of this court heretofore entered on the 23d day of December, 1920, and the 8th day of January, 1921, and shall execute the deeds provided for in said orders, or until further order of this court." April 4 the defendant Frank Bradley was apprehended by the United States marshal. April 5 Judge Hough entered an order concluding as follows: "Ordered, that the United States marshal for the Southern district of New York forthwith commit said Frank Bradley to the Ludlow Street jail, to be there detained as and for a contempt of this court until such time as said Frank Bradley shall comply with the orders of this court duly entered herein on the 23d day of December, 1920, and the 8th day of January, 1921, respectively, and until the further order of this court." Bradley appeals from this order. A proceeding by habeas corpus would have been appropriate to this order; but, as the order was merely incidental to the orders of December 23, 1920, and January 8, 1921, which pronounced Bradley to be in contempt, it is not appealable. If he be entitled to any relief, it can only be by review of those orders. Appeal dismissed. MATTHEY v. UNITED STATES.* (Circuit Court of Appeals, Eighth Circuit. August 10, 1921.) No. 5464. 1. War 4-Indictment for aiding and abetting insubordination need not allege the means employed or the particulars of the incitement, aid, or assistance. The indictment for aiding and abetting in an attempt to cause insubordination, disloyalty, and refusal of duty in the military forces of the nations when it was at war, the conduct of the principal being set out, need not allege the means employed by the abettor or the particulars of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Rehearing denied November 8, 1921. (274 F.) his incitement, aid, or assistance, but it is enough to charge, in general terms, that he knowingly aided and abetted the principal and induced and procured him to commit the principal offense. 2. Criminal law 1129 (3)-Assignments of error on admission of evidence held insufficient. Assignments of error on admission of evidence are insufficient; they giving no information as to the character of the evidence, or of the objections made to it, but referring generally and at large to the "shorthand report of the trial." 3. War 4-Evidence of aiding and abetting seditious utterance held proper. Evidence on prosecution for aiding and abetting another in his seditious utterances held not to have gone beyond the proper limits, to show his unlawful intent and that his participation was not casual or inadvertent. In Error to the District Court of the United States for the Southern District of Iowa; Martin J. Wade, Judge. Criminal prosecution by the United States against Walter Matthey. Judgment of conviction, and defendant brings error. Affirmed. E. M. Warner, of Muscatine, Iowa, for the plaintiff in error. E. G. Moon, U. S. Atty., of Ottumwa, Iowa (John C. De Mar, Asst. U. S. Atty., of Des Moines, Iowa, on the brief), for the United States. Before HOOK and STONE, Circuit Judges, and JOHNSON, District Judge. HOOK, Circuit Judge. Walter Matthey was convicted of aiding and abetting one Daniel H. Wallace in attempting July 25, 1917, to cause insubordination, disloyalty, and refusal of duty in the military forces of the United States whilst it was at war with the Imperial German government. He contends that the indictment was bad and that the trial court erred in admitting evidence against him. [1] The indictment, which was against Wallace, Matthey, and others jointly, set forth the conduct of Wallace, the principal, with undoubted sufficiency of detail. It charged that he delivered an address at a public meeting in Davenport, Iowa, largely attended by members of the various military forces of the United States, and that he advised and counseled his audience that they could not be taken, and should not go abroad and fight, but should resist and disobey the acts of Congress in the premises; also that he derided the people and armies of the countries with which the United States was associated and praised those of Germany. As to Matthey the indictment charged in general terms, without particulars, that he knowingly aided and abetted Wallace, and induced and procured him to commit the principal offense. It is the settled rule in criminal pleading that in such cases it is not necessary to allege the means employed by the abettor, or the particulars of his incitement, aid, or assistance. United States v. Gooding, 12 Wheat. 460, 6 L. Ed. 693; Coffin v. United States, 156 U. S. 432, 15 Sup. Ct. 394, 39 L. Ed. 481. [2, 3] The assignments of error upon the admission of evidence are wholly unsufficient. They give no information as to the character of For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the evidence complained of or of the objections made to it, but refer generally and at large to the "shorthand report of the trial." Nevertheless we have examined the printed record before us which presumably is a reproduction of the stenographic report and find no error. The case of Wallace, the principal, was an aggravated one. His public address followed the lines of a previously prepared pamphlet the language of which was calculated to incite, not only general opposition to the participation of this country in the war, but also, which was of the essence of the offense, individual resistance to military orders, discipline, and service. There was substantial evidence that Matthey distributed some of the pamphlets as indicating the address to be delivered, helped get up the meeting, attended it, and applauded. The evidence against him did not go beyond the proper limits to show his unlawful intent and that his participation was not casual or inadvertent. The sentence is affirmed. UNITED STATES v. ONE HAYNES AUTOMOBILE. No. 3664. Internal revenue 2-Statutory provisions repealed by National Prohibition Act. Since the enactment of the National Prohibition Act, a suit cannot be maintained under Rev. St. § 3450 (Comp. St. § 6352), for forfeiture of a vehicle as having been used to remove and conceal distilled spirits whereon a double tax has been imposed under said Prohibition Act, with intent to defraud the United States of such tax. Appeal from the District Court of the United States for the Southern District of Florida; Rhydon M. Call, Judge. Suit by the United States against one Haynes automobile, Model 45, Type T, engine No. 35909. Judgment for respondent, and plaintiff appeals. Affirmed. H. S. Phillips, U. S. Atty., of Tampa, Fla., and William McL. Christie, Asst. U. S. Atty., of Jacksonville, Fla. W. A. Hallowes, Jr., and Miles W. Lewis, both of Jacksonville, Fla., for appellee. Before WALKER, BRYAN, and KING, Circuit Judges. KING, Circuit Judge. In this case a libel was brought to condemn the above-described automobile, under United States Revised Statutes, § 3450 (Corap. St. § 6352), on the ground that it was at the time of seizure being used in the removal, deposit, and concealment of distilled spirits, on which the taxes had not been paid, to a place other than one authorized by law, with intent to defraud the United States of the taxes thereon. The question presented is whether the libel can be sustained under Revised Statutes, § 3450; it being conceded that it For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |
