those stated to be on information and belief, and he believes all facts so stated to be true." Reliance is placed on Hovnanian v. Bedessern, 63 Ill. App. 353. The injunction in this case was not granted without notice, but up on affidavits from both sides, after personal service, before a court which was familiar with many of the facts. No objection was made to the verification in the District Court, and no error is assigned thereon. We are satisfied that there was no abuse of discretion in granting the preliminary injunction, and that the order of the District Court should be, and it is, affirmed. with another officer, arrived in the vicinity of the apartment house, and about a half hour after giving the order they saw the plaintiff in error drive up in an automobile, and saw him get out of his car and walk to the apartment house, and examine, at the side of the entrance, the register of the occupants. The register had names and numbers only, and no apartment lettered K. The plaintiff in error stood there a minute or two and then turned away. Thereupon the prohibition agent walked up to him, showed him his badge, and told him who he was, and asked him if he had the gin. The plaintiff in error answered, "Yes, here it is," referring to his coat pocket, and took out of his pocket a bottle and dashed it on the sidewalk. The officers then placed him under arrest, and mopped up the gin on the sidewalk, and took it away for evidence. The plaintiff in error offered no testimony on the trial, but at its close he made a motion for a directed verdict and finding bottle of gin from his pocket and destroyed of not guilty, on the ground that there was RALSTON v. UNITED STATES. Circuit Court of Appeals, Ninth Circuit. December 12, 1927. . No. 5115. Arrest 63(3)-Arrest, after defendant took it, held valid, as made on knowledge, not mere suspicion. Arrest of defendant on the street without a search warrant, after he had taken from his pocket a bottle of gin and destroyed it, when prohibition agent asked him if he had the gin which officer had previously ordered him, over the telephone, to deliver to a certain apartment, held valid, as made on knowledge, after commission of the offense, and not on mere suspicion. In Error to the District Court of the United States for the Southern Division of the Northern District of California; Adolphus F. St. Sure, Judge. no search warrant, no probable cause, and insufficiency of the evidence to justify a finding of guilty. Error is assigned to the denial of that motion. The plaintiff in error contends that the arrest was made upon suspicion, insufficient to justify a warrant and search of his person, and that at the time of the arrest the arresting officer could not see that the plaintiff in error had liquor in his possession. The contention is wholly without merit. The arrest was not made on suspicion. It was made after the plaintiff in error had taken from his pocket a bottle of gin and destroyed it. The evidence of his possession was thereby demonstated in the presence of the officers, and it furnished them ground to make the arrest. Roy L. Daily, of San Francisco, Cal., for The arrest was made, not in the building, plaintiff in error. Jack Ralston was convicted of violating the National Prohibition Law, and he brings error. Affirmed. Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal. but on the street. The plaintiff in error attempts to assimilate the case to that of Brown v. United States (C. C. A.) 4 F. (2d) 246; but in Before GILBERT, RUDKIN, and DIE- that case the arrest was made immediateTRICH, Circuit Judges. GILBERT, Circuit Judge. Upon an information charging him with violation of the National Prohibition law (27 USCA) the plaintiff in error was convicted and sentenced to pay a fine of $500. The facts attending his arrest are the following: A federal prohibition agent, acting on information he had received, telephoned to a certain number an order for a bottle of gin to be delivered at a designated apartment house, apartment K. Shortly thereafter he, ly after the accused had parked his car and started with a package, which failed to disclose its contents, and furnished the officer no knowledge of what it contained, and no information that a crime was being committed in his presence. In the present case the arrest was made after the officer had acquired actual knowledge of the contents of the bottle which the plaintiff in error had in his possession, and after knowledge of the commission of the offense with which he was thereafter charged. The judgment is affirmed. 22 F.(2d) 977 EVAN A. EVANS, Circuit Judge. The two Anderson patents, Nos. 1,360,256 and 1,528,178, both covering can openers, are involved in this appeal. The District Court held both invalid. A contrary conclusion was reached by the New York District Court, and its decision was affirmed on appeal A statement of the facts, including claims and the prior art, appears in the opinion of the Circuit Court of Appeals. 16 F. (2d) 353. We refer to this opinion for a statement of the facts. The District Judge reached his conclusion because of two prior art citations, the Wolfer patent, No. 1,024,543, and the German patent to Weigel, No. 282,768. The District Judge said: "Had Anderson been the first to have conceived such an instrument, his invention would doubtless be entitled to patent protection." With the field pre-empted by Weigel and Wolfer, he found no room for Anderson. Can we sustain this conclusion? The extent to which the Wolfer and Weigel patents anticipated or restricted the field for Anderson depends somewhat upon our construction of language of the claims and the disclosures of the specifications and drawings of these two patents. They were, we think, intended to cover a can opener that cut down through the lid of the can. Basing our conclusion upon an examination of the 22 F. (2d)-62 two patents, as well as the demonstrations in open court, we conclude that: (a) Neither intended to describe an implement that would cut through the wall of the can. (b) Neither implement, constructed according to the disclosures of either patent, could be made to satisfactorily cut through the wall of the can. (c) Anderson's implement was not anticipated by the prior art. Whether the novelty representing Anderson's advance over the citations of prior art was more than mere mechanical skill presents a different question. Upon the entire record, we conclude that it does. found that, aside from the question of patent Unfair Competition.-The District Judge infringement, the evidence failed to show that appellees were guilty of unfair trade practices. With this conclusion we agree. The decree is reversed, with directions to the District Court to proceed further in accordance with the views here expressed. KLEMM v. UNITED STATES. Circuit Court of Appeals, Ninth Circuit. December 5, 1927. No. 5039. 1. Larceny 32(1)-Ownership and title of salmon alleged to have been taken from fish trap depends on proofs. Under indictment for larceny of certain salmon from a fish trap, charging ownership in another, question of whether there was such ownership and title depends on proofs, since salmon, when reduced to possession, were subject to ownership.. 2. Criminal law 1048-Questions of minor importance will not be determined, without exceptions to rulings thereon. determined, in absence of exceptions taken or Questions of minor importance will not be reserved to rulings complained of. In Error to the District Court of the United States for Division No. 1 of the Territory of Alaska; Thomas M. Reed, Judge. Val Klemm was convicted of larceny from a fish trap, and he brings error. Affirmed. Harry G. McCain and Sherman Duggan, both of Ketchikan, Alaska, for plaintiff in error. Justin W. Harding, U. S. Atty., and Howard D. Stabler, Asst. U. S. Atty., both of Juneau, Alaska. Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges. RUDKIN, Circuit Judge. The indictment in this case charged the larceny from a fish trap of certain salmon, of the value of more than $35, of the personal property, goods, and chattels of the Pure Food Fish Company, a corporation. Upon the trial in the court below a verdict of guilty was returned, and to review the judgment on the verdict this writ of error was prosecuted. The first contention of the plaintiff in error is that it does not appear from the indictment that the Pure Food Fish Company had any property in the fish confined in the trap, and that therefore no crime was committed. It will be conceded, of course, that no person has any property in fish in the ocean; but, as said by the court in Miller v. United States (C. C. A.) 242 F. 907, L. R. A. 1918A, 545: "Fish in the Atlantic Ocean belong to nobody until they have been reduced to possession. After this has been done, the individual that has acquired the possession gains a qualified right of property, that may be the subject of larceny. They are reduced to possession when the individual so confines them within his immediate power that they cannot escape and resume their natural liberty." See, also, 3 C. J. 19. [1] The property described in the indictment, when reduced to possession, was the subject of ownership, and, inasmuch as the indictment charged ownership in the Pure Food Fish Company, the question whether there was such ownership and title would depend upon the proofs introduced at the trial. [2] The plaintiff in error assigns as error the exclusion of testimony tending to show the similarity between two boats, a statement by the court to the effect that two wrongs do not make a right, and the giving of certain instructions. No exceptions were taken or reserved to any of the rulings complained of, and in such circumstance the questions are not of sufficient importance to call for or justify discussion. See Bilboa v. U. S. (C. C. A.) 287 F. 125. The judgment is affirmed. Stat. 1095, whereby right of way across public domain was given for purpose of construcout Congress declaring a forfeiture, other than tion of an irrigation canal, is maintainable within such act provided for failure to construct within five years, or specifically giving the court jurisdiction for that purpose. Appeal from the District Court of the United States for the District of Utah; Tillman D. Johnson, Judge. Suit by the United States against O. N. Parsons. Bill dismissed, and the United States appeals. Reversed, with directions. Charles M. Morris, U. S. Atty., and Edward M. Morrissey and Jesse K. Smith, Asst. U. S. Attys., all of Salt Lake City, Utah. Before LEWIS, Circuit Judge, and POLLOCK and SCOTT, District Judges. PER CURIAM. This is a suit to cancel a permit granted by the Secretary of the Interior pursuant to the Act approved March 3, 1891 (26 Stat. 1095), by which appellee was given a right of way across certain parts of the public domain lying in the state of Utah, for the purpose of constructing an irrigation canal. The permit was granted in April, 1901. It is alleged in the bill, filed April 17, 1925, that appellee had failed to construct any part of the canal and the proof sustains that allegation. The trial court was of the opinion that it was with Congress to first declare a forfeiture, or to specifically give the court jurisdiction for that purpose, and that, neither having been done, the court was without jurisdiction. The bill was dismissed. The Supreme Court, in construing the act of March 3d, seems to have held in Kern River Co. v. United States, 257 U. S. 147, 42 S. Ct. 60, 66 L. Ed. 175, that the court had jurisdiction. This court so ruled in United States v. D. & R. G. W. R. Co., 16 F. (2d) 374, in considering a statute like this on the question of jurisdiction. See, also, U. S. v. Big Horn L. & C. Co. (C. C. A.) 17 F. (2d) 357. The court's jurisdiction in an action of this kind was again recently before this court in United States v. Beaver Irr. Land & Power Co., 21 F. (2d) 1001. That was a suit to cancel a right of way granted under the Act of March 3, 1891, for irrigation purposes, and we sustained the jurisdiction of the court. The opinion in that case was filed October 17, 1927. For the reasons stated, the order dismissing the bill is reversed, with directions to set it aside and enter a decree for appellant as prayed for in the bill. 22 F.(2d) 979 UNITED STATES ex rel. HASSEL v. MATHUES, U. S. Marshal. District Court, E. D. Pennsylvania. December 15, 1927. No. M-120. Criminal law 37-Charge of bribery against relator held result of illegal entrapment. Relator and his brother conducted a brewery. Two prohibition agents were sent to watch the brewery, and the brother approached them with offer of a bribe. They signified their willingness to accept, but sent the brother for relator, and in his presence bribe money was paid, and he was charged as a participant in the offense. There was no evidence that he previously had any connection with the matter. Held, that he was the victim of an illegal entrapment. Habeas Corpus. Petition by the United States, on the relation of Max Hassel against W. Frank Mathues, United States Marshal, for writ of habeas corpus. Writ granted. George W. Coles, U. S. Atty., of Philadelphia, Pa., for relator. Wm. T. Connor and John R. K. Scott, both of Philadelphia, Pa., for defendant. THOMPSON, District Judge. The relator, with one Morris Hassel, his brother, was taken before a United States commissioner upon a charge of bribery of two officers of the Prohibition Bureau. From a transcript of the evidence taken before the commissioner, it appears that Prohibition Agent Hurley and Prohibition Inspector Kirstetter had been assigned to watch the Fisher Brewery at Reading, Pa., conducted by Morris Hassel and Max Hassel, the relator, and to detect violations by them of the Prohibition Law. Upon arriving there on August 26, 1927, late in the evening, they proceeded to the brewery, where they were approached by Morris Hassel and an unknown man. Morris Hassel, having learned from them that the purpose of their presence was to watch the brewery, met them again on August 30 at night, and invited Hurley to get into his car and ride over a hill. The invitation was accepted, Kirstetter remaining at the gate of the brewery. Morris Hassel, while they were riding in his car with no others present, offered Hurley $500 for "good will." Hurley told Hassel that he would have to talk about it to Kirstetter, and refused to take the money at that time. When the matter was broached to Kirstetter, he said that, if it was agreeable to Hurley, it was agreeable to him. Hurley then told Morris Hassel that he did not want to talk to him; he wanted to talk to Max Hassel. This conversation was reported to Mr. Macphee, their superior in Philadelphia, who told them to go back to Reading and take anything that was offered to them. On the following night, August 31, Hurley and Kirstetter met Morris Hassel and Max Hassel in front of the Fisher Brewery, and the two Hassels agreed to give the two prohibition officers $1,000 for being allowed to ship out two carloads of beer. Hurley and Kirstetter told them it was worth $1,500 for their reputations to let them ship out the beer, whereupon Max Hassel agreed to "split the difference" and give them $1,250. In accordance with the arrangements made at that time, Hurley and Kirstetter drove in their car to a designated place that night. While waiting there, an automobile was driven up, and, in the darkness, they were handed a bag containing pears and $1,250. On the night of September 1, they met the two Hassels and sat with them in their Lincoln sedan, and it was agreed that the two Hassels give them $4 a barrel for two carloads of beer, which were to be shipped at 5 o'clock the next morning. Morris Hassel got out of the car, opened up his pocketbook, stepped back into the car, where he had a conversation with Max Hassel, and then handed $800 to Hurley, who was sitting on the rear seat. The commissioner, deeming the evidence sufficient to make out a prima facie case, held both the defendants in bail to await the action of the grand jury. Max Hassel, having been surrendered by his bondsman, obtained a writ of habeas corpus. It is contended by his attorney that, upon the state of the evidence before the commissioner, it clearly appeared that the relator was entrapped into the commission of the offense and should be discharged. There is no evidence to establish the fact that there was any thought in Max Hassel's mind of offering a bribe to the prohibition officers until Agent Hurley, after suggestion of bribery made by Morris Hassel, had made the latter his agent to bring Max Hassel to the officers and have him take part in the plans for bribery. It is against the public policy to sustain a conviction for crime where the party is induced to commit it by officers of the government, who thereafter ensnare and apprehend him in such commission. Sam Yick v. United States (C. C. A.) 240 F. 60. United States v. Whittier, 28 Fed. Cas. 591, No. 16,688. While the first suggestion, looking toward the commission of the criminal act, was made by Morris Hassel to the officers, the suggestion which induced a criminal intent in Max Hassel originated with the officers, merely to entrap Max Hassel into the commission of a crime suggested to him by them through the agency of his brother, Morris Hassel. There ST. LOUIS & O'F. RY. CO. et al. v. UNITED STATES et al. is a clear distinction to be observed between ber 10, 1927. No. 7859. measures used to entrap a person in crime in District Court, E. D. Missouri, E. D. Decemorder, by making him a criminal, to secure his conviction, and artifice used by officers in the performance of duty to detect crime in order that guilty persons may be prosecuted and convicted, to detect persons suspected of being engaged in criminal practices. In the latter class of cases, the officers employed by the government to detect crime have the duty placed upon them of detecting criminal acts, and not of inciting them. Where one is engaged in an unlawful business, or it is suspected that he is so engaged, one engaged in the detection of such unlawful acts may obtain evidence by procuring the suspected person to commit the suspected offense by means of decoys, as, for example, by a letter requesting that there be sent to a fictitious address through the mails articles or things prohibited to be carried in the mails, Andrews v. United States, 162 U. S. 420, 16 S. Ct. 798, 40 L. Ed. 1023, Price v. United States, 165 U. S. 311, 17 S. Ct. 366, 41 L. Ed. 727; by procuring one suspected of being a dealer in narcotic drugs to sell such drugs to one sent by the government agent, United States v. Pappagoda (D. C.) 288 F. 214; by associating with those engaged in a criminal conspiracy under a fictitious name and in disguise, so as to keep watch upon the conspirators and gain information as to their unlawful purpose and acts, Campbell v. Commonwealth, 84 Pa. 187. There is, however, a broad distinction between cases of that sort and a case where a government agent, whose duty it is to investigate and discover the commission of offenses connected with an unlawful business in which a person is engaged, or is suspected of being engaged, reveals himself as a representative of a bureau or department having charge of investigating and obtaining evidence concerning an unlawful business, and offers himself as a participator in a different offense not connected with the business under investigation. If, as in the instant case, the investigator induces the commission of an offense not an essential part of the business of manufacturing and selling intoxicating liquor unlawfully, but a crime to which he himself must be a party, and, under the evidence, there has been no intention on the part of the entrapped to commit such an offense until he was lured into it, the policy of the law will not permit a prosecution based on such entrapment to be carried on. 1. Carriers 26-Amount placed in carrier's reserve fund under recapture provisions is included with carrier's net revenue in determining whether carrier has fair return after deduction of money paid to government (Interstate Commerce Act, § 15a, pars. 4-9 [49 USCA § 15a]). In determining whether carrier is allowed fair return after recapture of excess earnings 4-9 (49 USCA § 15a; Comp. St. § 8583a), carunder Interstate Commerce Act, § 15a, pars. rier's return is measured by net revenue remaining after deducting only amount of excess paid over to government; "reserve fund" being considered as part of return of carrier. 2. Carriers 26-Recapture order, allowing railroad minimum net return of 6.97 per cent. for any one year after deducting amounts paid government, held not confiscatory (Interstate Commerce Act, § 15a, pars. 4-9 [49 USCA § 15a]). Where lowest net return of railroad for any one year after deducting amount taken by government under recapture provision of, Interstate Commerce Act, § 15a, pars. 4-9 (49 USCA § 15a; Comp. St. § 8583a), was 6.97 per cent. railroad was allowed fair return, and order of fiscatory, though it may have been based on Interstate Commerce Commission was not con 86-Interstate erroneous valuation; reserve fund being consid- Under Interstate Commerce Act, § 15a, par. 6 (49 USCA § 15a; Comp. St. § 8583a), relaings, Interstate Commerce Commission has tive to recapture of excess net railway earnduty to determine whether several carriers are under common control and management, and are operated as a single system, and to state its conclusions to determine whether group shall be considered together under recapture clauses (paragraphs 4–9). 4. Commerce 92-Federal District Court has jurisdiction to determine whether Interstate Commerce Commission's finding respecting operation of railroads as single system for purpose of recapture of excess earnings is supported by evidence (Interstate Commerce Act, § 15a, pars. 4-9 [49 USCA § 15a]). Federal District Court has jurisdiction to consider whether railroads subject to recapture provisions of Interstate Commerce Act, § 15a, pars. 4-9 (49 USCA § 15a; Comp. St. § 8583a), are under common control and management and are operated as a single system, under paragraph 6, at least to extent of ascertaining whether conclusion of Interstate Commerce Commission on It follows, therefore, that the relator must such issue was result of arbitrary action, with be discharged; and it is so ordered. out necessary basis of evidence. |