EX PARTE POOLE her tow directly at the pier nearest Newtown creek to the south. The testimony of the libelants is that the boats were made fast to boats already moored to the second pier south of the creek. Upon this disputed question of fact, I find for libelants. The cause of the going adrift of the boats was the failure of the Overbrook to make secure that part of her tow which she left. In placing the boats next to others lying at the pier (which had remained there in safety for some time before the tow arrived) the Overbrook caused strain to be put upon the lines which held the Lehigh No. 33 to the dock. These lines parted, as the tide turned and began to run out strong, aided by the wind, and the lines of the Lehigh No. 33 broke, thus setting adrift a number of boats, three of which, the Yankee, owned by McWilliams Bros., Incorporated, and the Blue Girl and the W. H. Elliot, owned by James McWilliams Blue Line, were finally injured. The Yankee actually was sunk. As the boats were safely moored until the Overbrook arrived, she is responsible for the damage. Authorities in point are: The Walter Green (C. C. A.) 266 Fed. 269; The Wm. Guinan Howard, 252 Fed. 85, 164 C. C. A. 197; The P. I. Nevius, 67 Fed. 158, 14 C. C. A. 355; The Ganoga, 257 Fed. 720, 169 C. C. A. 8. Two of the injured scows were at the mooring place when the Overbrook arrived. The third, The Yankee, was in the Overbrook's tow. It is claimed by the respondent that there is an additional reason for dismissing the suit brought by McWilliams Bros., Incorporated, for the sinking of the Yankee, in that the respondent wrote to the libelant, stating that the respondent would not be responsible for injuries to a boat damaged while in tow by any of respondent's tugs. The libelant, however, promptly replied stating in effect that it would decline to abide by any such disclaimer of responsibility. There was, therefore, no meeting of minds by which it was mutually agreed that there was to be any change in the respondent's liability. The libelant in each case may have a decree, with the usual references to a master to compute the damage. No. 908. 1. Intoxicating liquors 174-Violations of National Prohibition Act held Under the National Prohibition Act, the manufacture of intoxicating liquors without a permit, the failure to make a permanent record of such liquor, and the possession of property designed to manufacture liquor intended for use in violation of such act are separate offenses. 2. Criminal law 984-Single sentence, imposing fine and imprisonment for three offenses, held not void. Where defendant pleaded guilty to an information charging in three counts the manufacture of intoxicating liquor without a permit, the failure to make a permanent record of such liquor, and the possession For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes of property designed to manufacture liquor for illegal use, a single sentence, imposing a fine of $150 and imprisonment for 75 days, is not void, as the imprisonment will be assigned to the first count, which charged an offense punishable by imprisonment, and the fine to the other counts. Habeas Corpus. Application by Frank E. Poole for a writ to revise sentence after plea of guilty. Application denied. Russell, Madeen & Barron and Patterson & Heyfron, all of Missoula, Mont., for petitioner. Geo. F. Shelton, U. S. Atty., of Butte, Mont., for respondent. BOURQUIN, District Judge. Habeas corpus sought for that, upon petitioner's plea of guilty to an information charging three violations of the National Prohibition Act (Act Cong. Oct. 28, 1919, c. 85, 41 Stat. 305), viz.: (1) Manufacturing intoxicating liquor without a permit; (2) failing to make a permanent record of such liquor; and (3) possession of property designed to manufacture liquor intended for use in violation of said act-a single sentence and judgment were imposed that he be imprisoned 75 days and fined $150, which fine has been paid. The act provides for the first of said offenses imprisonment or fine, and for the second and third thereof fine. The sentence and judgment in imprisonment and fine are less than the possible maximum on the three counts. Petitioner's contention is that, though the act creates these separate offenses, they are in reality but one continuous offense, and subject to but one sentence and judgment of imprisonment or fine; that, having paid the fine, the sentence is void as to the imprisonment and he is entitled to the writ. To this he cites In re Snow, 120 U. S. 274, 7 Sup. Ct. 556, 30 L. Ed. 658; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; Stevens v. McClaughry, 207 Fed. 18, 125 C. C. A. 102, 51 L. R. A. (N. S.) 390; Halligan v. Wayne, 179 Fed. 112, 102 C. C. A. 410. [1] That the separate offenses are but one, and subject to but one penalty, is an unwarranted assumption. Congress having power to define offenses, to determine what acts shall constitute offenses, has declared clearly enough that these are separate offenses. See Morgan v. Devine, 237 U. S. 632, 35 Sup. Ct. 712, 59 L. Ed. 1153; Ebeling v. Morgan, 237 U. S. 625, 35 Sup. Ct. 710, 59 L. Ed. 1151. Neither is necessarily or at all included in any of the others. [2] The single sentence is other and greater than can be imposed on any one count, and common-law rules would probably hold it void. 1 Bishop, Cr. Prac. § 1327. Modern doctrine, however, seems to sanction it. See Brinkman v. Morgan, 253 Fed. 553, 165 C. C. A. 223.. Upon error, and in view of the record, a reasonable presumption of judicial regularity will assign the imprisonment to the first count of the information, and the fine to the second and third counts, and thus each offense is visited with the penalty the act authorizes. That the sentence herein is not of time excessive upon any count, but is of character impossible upon any count, is believed to be immaterial. The application is denied. (273 F.) MILLS v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. June 6, 1921. Rehearing Denied August 1, 1921.) No. 3595. 1. Aliens 59-In prosecution for attempting to re-enter after deportation, reference in warrant of deportation to wrong statute is immaterial. In a prosecution under Immigration Act Feb. 5, 1917, § 4 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894bb), for attempting to enter the United States after having been arrested and deported therefrom, it was immaterial that the warrant of deportation, dated before the act of 1917 went into effect, purported to be based on such act, as the previous Act Feb. 20, 1907, as amended by Act March 26, 1910, contained the same provision. 2. Aliens ~56—Statute as to attempt to re-enter after deportation not limited to re-entry within one year. Act Feb. 5, 1917 § 4 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894bb), providing that an alien deported under the provisions of that act relating to prostitutes, etc., and thereafter attempting to return or enter the United States, shall be guilty of a misdemeanor, applies to an attempt to re-enter more than one year after the deportation, though another provision of the act includes in the persons denied admission persons deported and again seeking admission within one year without the consent of the Secretary of Labor. 3. Aliens 56-Statute punishing attempt to re-enter after deportation not ineffective. Act Feb. 5, 1917, § 4 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894 bb), making it a misdemeanor for certain aliens, after being deported, to attempt to return to or enter the United States, is not ineffective as penalizing an attempt to do an act which is not in itself a crime, as the attempt is expressly made punishable, and is in itself a substantive offense, and not a mere attempt to commit another offense. 4. Criminal law ~695 (4) -Admission of evidence not error, when objection on particular ground not made. On the trial of an alien for attempting to enter the United States after being deported, the admission of a Canadian certificate of naturalization to show that her husband was an alien, without proof of the authority of the Canadian court issuing it, was not error, where such objection was not interposed to its admission. 5. Criminal law 315-Foreign citizenship presumed to continue until countershowing made. On the trial of an alien for attempting to enter the United States after being deported, where her Canadian citizenship was shown to exist on November 15, 1911, the presumption continued until a showing was made to the contrary. 6. Aliens 59-Canadian naturalization certificate held to show prima facie Canadian citizenship. On the trial of an alleged alien for attempting to enter the United States after being deported, a certificate of naturalization granted by a Canadian court under Revised Statutes of Canada, and certifying that defendant's husband had been naturalized as a British subject, was sufficient to show prima facie that at the date thereof he was a citizen of the Dominion of Canada. In Error to the District Court of the United States for the Northern Division of the Western District of Washington; Edward E. Cushman, Judge. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 273 F.-40 Elsie Mills was convicted of returning to the United States after deportation, and she brings error. Affirmed. Beeler & Sullivan and C. A. Brinkley, all of Seattle, Wash., for plaintiff in error. Robert C. Saunders, U. S. Atty., and George E. Mathieu, Asst. U. S. Atty., both of Seattle, Wash. Before GILBERT, ROSS, and HUNT, Circuit Judges. GILBERT, Circuit Judge. The plaintiff in error was convicted and sentenced under an indictment which charged that on January 18, 1920, she knowingly, willfully, and unlawfully attempted to return and enter the United States from foreign territory contiguous thereto, to wit, the Dominion of Canada; the Secretary of Labor not theretofore having consented to any reapplication by her for admission into the United States, she having been theretofore, on July 29, 1917, arrested and deported from the United States of America to the Dominion of Canada, on the charge that she had been found in the United States, connected with the management of a house of prostitution in the United States, and the arrest and deportation having been made by virtue of a warrant issued March 13, 1917, by the Department of Labor. The warrant was set forth in full, and it recited, among other things, that the plaintiff in error was found in the United States in violation of the Immigration Act of February 5, 1917 (39 Stat. 874). [1] Error is assigned to the order overruling the demurrer to the indictment, and it is contended that the indictment fails to charge an offense, in that the warrant of deportation therein set forth, which was dated March 13, 1917, was expressly based upon the Immigration Act of February 5, 1917, an act which went into effect on May 1, 1917, and was not in force at the date of the warrant. The previous Act of February 20, 1907 (34 Stat. 898), as amended in 1910 (36 Stat. 264), was in force, however, and the provisions of that law as amended are identical with the provisions of the Act of February 5, 1917, so far as they concern the charge against the plaintiff in error. A similar contention was presented to this court in Akira Ono v. United States (C. C. A.) 267 Fed. 359, where the order of the Secretary of Labor, directing the arrest of a Japanese person and ordering that he be granted a hearing to show cause why he should not be deported, recited that he had entered the United States in violation of the Act of February 5, 1917, although the entry occurred before the passage of the act, this court held that the erroneous mention of the statute of February 5, 1917, was unimportant, for the reason that the real question was whether the case showed that the appellant was found. illegally here, and, if so, whether there existed legal authority for his deportation. In Guiney v. Bonham (C. C. A.) 261 Fed. 582, 8 A. L. R. 1282, we held that, although a warrant of arrest for deportation is in terms based on a particular statute, the alien may be deported under a later statute, which, under the facts charged, is applicable. Other cases of like import are United States v. Uhl, 211 Fed. 628, 128 C. C. A. 560, United States v. Williams, 200 Fed. 538, 118 C. C. A. (273 F.) 632, Healy v. Backus, 221 Fed. 358, 137 C. C. A. 166, Siniscalchi v. Thomas, 195 Fed. 701, 115 C. C. A. 501, and Ex parte Pouliot (D. C.) 196 Fed. 437. [2] The plaintiff in error refers to the Act of February 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894b), which provides for the denial of admission to the United States of all "persons who have been deported under any of the provisions" thereof, "and who may again seek admission within one year from the date of such deportation, unless prior to their re-embarkation at the foreign port or their attempt to be admitted from foreign contiguous territory, the Secretary of Labor shall have consented to their reapplying for admission," and contends that by implication it follows that a deported alien has the right to re-enter the United States after the expiration of the one-year period. We find no merit in the proposition. Section 4 of the act (section 428914bb) provides in plain terms that any alien who shall, after he has been excluded and deported, or arrested and deported, in pursuance of the provisions of this act, which relate to prostitutes, procurers, or other like immoral persons, attempt thereafter to return to or enter the United States, shall be deemed guilty of misdemeanor. [3] Nor do we find merit in the contention that no offense against the United States is defined by the statute under which the plaintiff in error was indicted. The argument is that an indictment which alleges an attempt to return to and enter the United States, an act which is not in itself a crime, cannot be made a crime, citing 8 R. C. L. 352, where it was said: "For it would appear to be a palpable solecism in the law to declare' that a mere attempt to commit an act which is not penal is itself punishable.". Counsel for the plaintiff in error overlook the words which immediately precede the quotation, which are these: "In the absence of a statute expressly making an attempt to commit suicide a crime, there is no satisfactory ground on which it can be classed as such." In the present case the statute expressly makes the attempt a punishable offense. The attempt is in itself a substantive offense. It is the act of crossing the boundary line into the United States. It is not an attempt to commit an independently described offense, in the sense in which the word "attempt" is ordinarily used in criminal law. It is the actual re-entry into the United States. [4-6] The plaintiff in error was born in the United States, but she went to Canada with her husband, and there resided before returning to the United States and to the place in Montana from which she was ordered to be deported to Canada, on the charge that she was an alien. and a keeper of a house of prostitution in the United States. Her husband, L. L. Mills, had likewise been a citizen of the United States, but to show that on November 15, 1911, he became a naturalized citizen of the Dominion of Canada, the prosecution offered in evidence on the trial a certificate of naturalization, wherein, under the provisions of the Revised Statutes of Canada of 1906, it was certified that L. L. Mills had become naturalized as a British subject, "and is within Canada |