Western wherein the former did "agree to sell and assign" to the latter portions of the leased premises "to be selected by the president" of the Pen-O-Tex. So far as the record shows the promised assignment was never made and the reserved right of selection never exercised. Then there was the contract between the Pittsburgh Western and the Big Four, executed the same day, whereby the Pittsburgh Western in turn did "agree to sell and assign" to the Big Four a one-half interest in the premises it then "owned"; but again the record fails to show that the Pen-O-Tex ever made the assignment it promised or that it owned the premises as recited.

[4] We construe these agreements not as assignments of the lease but as agreements to assign a portion of the leasehold. render an instrument a lease as distinguished from an agreement to lease, it must contain words importing a present demise. 18 A. & E. Enc. of Law (2d Ed.) 598. A mere agreement for a lease does not create a tenancy or give to the party with whom it is made a right of possession. Billings v. Canney, 57 Mich. 425, 24 N. W. 159. And so, an agreement merely to assign a lease is not an assignment of the lease itself, for in such an agreement no present transfer of the estate or of a lesser interest in the estate is intended or involved. In consequence such an agreement does not establish privity of estate in the parties or cause covenants of the lease to run to either of them.

As the District Court was right in finding no privity of contract and no privity of estate between the parties to the suit, its judgment must be Affirmed.

KASTEL v. UNITED STATES. Circuit Court of Appeals, Second Circuit. December 19, 1927.

No. 8.

1. Criminal law295-Defendant, on plea of double jeopardy, has burden of proof.

On a plea of double jeopardy, defendant has the burden of proof, and must make out his

case.

abandoned.

4. Indictment and information 140(2)-Defendant's affidavit on information and belief held insufficient to sustain motion to quash indictment.

Defendant's affidavit, on information and belief, that grand jury had no competent evidence on which to indict him, held insufficient to sustain motion to quash indictment.

5. Post office 50-Failure of charge, in prosecution for using mails to defraud, to limit jury's consideration to certain representations alleged, held not erroneous.

In prosecution for using the mails to defraud, by soliciting customers to buy stocks by falsely representing that shares would be kept for them, charge held not erroneous for failing to limit jury's consideration to representations of inducing defendant's customers to pay interest, and other charges on debit balances as alleged held not erroneous, since such allegation was merely an incident, and to confine charge thereto would defeat plain intendment of indictment as a whole.

6. Criminal law 784(2)-Trial judge need not characterize evidence as direct or circumstantial.

Trial judge, in prosecution for using mails to defraud, by soliciting customers to buy stocks by folse representations, need not characterize the evidence either as direct or circumstantial.

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

Phil Kastel was convicted for using the mails to defraud, and he brings error. Affirmed.

The fraudulent scheme laid was that the defendant and two accomplices should solicit customers to buy stocks, by falsely representing to them that they would buy and keep for them their shares, when in fact, though they bought, they at once sold, "thereby inducing such customers to pay interest and other charges" upon their unpaid debit balances. These representations were meant to induce the customers to part with their money, which the defendants might then convert.

Four questions arise upon this writ: First, a plea of former jeopardy; second, a motion to quash the indictment; third, an error in the charge; fourth, the refusal of a request to charge.

The first point arises from a former trial upon the same indictment, which resulted in a disagreement of the jury. Upon that trial, at the conclusion of the evidence, the judge charged the jury and sent them out at 1 p. m. He then waited until about 4 o'clock without word from them, and called the assistant district attorney and one of the counsel for the defendant to his chambers, where he asked them whether "we wanted to keep the jury here all night." Neither party expressing any such wish, the judge instructed the clerk to discharge the jury if they had not agreed at 9:30 p. m. He thereupon left the building, and in his absence the jury asked for certain exhibits and to hear read the testimony of a witness. As the clerk's efforts to reach the judge were unsuccessful, this could not be granted, and they sent no other message. At 9:30 a bailiff opened the door of the jury room and asked if they had been able to agree. They asked for 15 minutes more, at the end of which the bailiff again asked them if they had been able to agree, and they again said, "No," whereupon they were discharged.

The second point arises upon the denial of a motion to quash the indictment because the grand jury had no competent evidence before it upon which to indict. This motion was supported by an affidavit of the defendant, alleging on information and belief that one Keyes Winter, the receiver in bankruptcy of the defendant, was the only witness sworn by the grand jury, and that it was impossible that he should have given competent proof

of the facts.

The third point is that the judge, in charging the jury, did not limit their consideration to such representations as induced the defendant's customers to pay interest and other charges upon their debit balances. On the contrary, he allowed them to convict if they found that the defendant had procured any money by falsely assuring them that he would buy and hold their shares.

The fourth point was a refusal by the judge to charge that there was only circum

stantial evidence of the crime.

Vincent T. Follmar, of New York City, for plaintiff in error.

Charles H. Tuttle, U. S. Atty., of New York City (David W. Peck and Laurens Hastings, Asst. U. S. Attys., both of New

York City, of counsel), for the United States.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge (after stating the facts as above). [1] Upon the plea of double jeopardy the defendant has the burden of proof, and must make out his case. Com. v. Wermouth, 174 Mass. 74, 54 N. E. 352; People v. Schepps, 231 Mich. 260, 203 Ν. W. 882; State v. Ackerman, 64 N. J. Law, 99, 45 A. 27, State v. Williams, 43 Wash. 505, 86 P. 847; Harlan v. State, 190 Ind. 322, 130 N. E. 413; Price v. State, 104 Miss. 288, 61 So. 314; Barber v. State, 151 Ala. 56, 43 So. 808; Territory v. West, 14 N. M. 546, 99 P. 343; State v. Freeman, 162 N. C. 594, 77 S. E. 780, 45 L. R. A. (N. S.) 977; Jacobs v. State, 100 Ark. 591, 141 S. W. 489; Storm v. Territory, 12 Ariz. 109, 99 A. 275; 1 Bishop, New Crim. Proc. § 816 (2). Three questions arise under the plea at bar: First, whether the judge exercised a proper discretion in instructing the clerk to discharge the jury at 9:30 and then absenting himself; next, whether the discharge interrupted the jury's deliberations before they had come to a permanent deadlock; last, whether, if it did, this operates as an acquittal.

The last question, as we view it, is not presented, and we may pass it. Some of the cases turn upon local statutes. People ex rel. Stabile v. Warden, 202 N. Y. 138, 95 N. E. 729; People v. Greene, 100 Cal. 140, 34 P. 630; State v. Klauer, 70 Kan. 384, 78 P. 802; State v. Shuchardt, 18 Neb. 454, 25 N. W. 722. The common-law doctrine in

Pennsylvania (Com. v. Fitzpatrick, 121 Pa. 109, 15 A. 466, 1 L. R. A. 451, 6 Am. St. Rep. 757), and originally in California (People v. Cage, 48 Cal. 323, 17 Am. Rep. 436), has been carried to lengths that would scarcely be followed elsewhere. On the other hand, the original rule in New York apparently was that breaking up the jury's deliberations did not effect an acquittal. People v. Green, 13 Wend. 55. Cullen, C. J., dissenting, in People ex rel. Stabile v. Warden, so announced, and nothing in the majority opinion suggests the opposite. Whatever the right doctrine, we will assume arguendo that the jury must not be interrupted, at least until they themselves wish to be discharged. [2] In the case at bar it appears to us that the defendant has not shown that they were so interrupted. We must concede that, had the bailiff merely discharged them at 9:30, this would have been proved; prima facie,

they have hope of agreeing till they say the contrary. Yet it was not a strain upon their request to read it as meaning that, if they could not agree in 15 minutes, they could not agree at all. Indeed, the probabilities are that this is what they did mean; else it is hard to see why they put a period to their further consultation. At best, we think that the defendant has failed affirmatively to prove that they were discharged before they themselves gave up, or even that they had not in substance announced that they did give up. Coming next to the question of the judge's discretion, it is at least debatable whether, if exercised at all, it can be reviewed by writ of error. Winsor v. Queen, L. R. 1 Q. B. 289. But we may pass the point, because the period set of 81/2 hours was so plainly long enough that no objection could be taken to it, and, indeed, none has been, as we understand it. What the defendant complains of is that the judge, by absenting himself at 4 o'clock, could not, and, indeed, never did, discharge them himself, but rigidly bound the clerk to do so when the time arrived, regardless of what might meanwhile happen. He thus cut himself off from revising his original decision, which, though perhaps proper enough when made, he might have seen fit to change later.

[3] That the judge was not justified in leaving the jury without means of communicating with him we entirely agree. He should have been always accessible to them, for the trial was still on. Nevertheless, he had in fact fixed the time for their discharge, reasonable in that he was under no duty to keep them out all night, and at most the defendant lost nothing but the chance that he might change his mind, and that further confinement might result in an acquittal. Such straws will not outweigh proven guilt, nor need we be to-day ridden by such nebulous possibilities. There must always be a compromise between the convenience of the jury

and the protection of the accused, or we should revert to archaic barbarities, though now committed with an opposite purpose. While, therefore, we concede the possibility and the impropriety, we decline to make them an excuse.

(4) The next point requires little discussion. The only evidence to support the motion to quash was the defendant's affidavit on information and belief that the grand jury had no competent evidence upon which to indict him. If this were enough, we should be obliged to try over the proceedings before the grand jury in every case. If it turned out that there was competent evidence, the accused would none the less have the prosecution's case in advance to contrive against at his leisure. In any event the trial would be complicated to an inordinate extent, and our criminal procedure become even more unwieldy, dilatory, and uncertain. We agree with the rulings in the Eighth Circuit, never insensitive to the protection of personal rights. McKinney v. U. S., 199 F. 25; Murdick v. U. S., 15 F. (2d) 965. See, also, U. S. v. Morse (D. C.) 292 F. 273, 278; U. S. v. Reed, Fed. Cas. No. 16,134; U. S. v. Cobban (C. C.) 127 F. 713.

[5,6] As to the third point, the indictment was for a scheme to defraud customers of their money by falsely saying that their shares would be kept for them. The allegation that thus they would be induced to pay interest on their debit balances was merely an incident. To confine the charge to that feature would have defeated the very plain intendment of the indictment as a whole. Finally, the judge was not called upon to characterize the evidence as direct or circumstantial. In the case relied on, People v. De Martini, 218 N. Y. 561, 112 Ν. Ε. 542, there had been an error in describing circumstantial evidence as direct, and that, too, upon a trial for murder.

Judgment affirmed.

Where pictures appeared from inspection to be similar in subject, coloring, and general effect, finding of infringement, for which preliminary injunction was granted, was proper.

2. Copyrights67-It is no defense to suit for infringement of copyrighted picture that close scrutiny reveals slight differences.

In suit to restrain infringement of copyrighted picture, where two pictures appear to be similar from inspection, it is no defense that close scrutiny may reveal slight differences.

3. Courts 347 (2)-Bill for preliminary injunction is bill for special relief pending suit, which must be verified (equity rule No. 25).

Bill for preliminary injunction is one for special relief pending the suit, within the meaning of equity rule No. 25, which requires such

bill to be verified.

4. Courts 347 (2)-Verification on information and belief as to matters in bill not within plaintiff's knowledge is sufficient (equity rule No. 25).

Verification of bill on information and belief is sufficient compliance with equity rule No. 25 as to such matters as are not within plaintiff's knowledge.

5. Copyrights 82-Averment on information and belief that painting was original work of art held sufficient, in suit for infringement of copyright (equity rule No. 25).

Allegation on information and belief that plaintiff's painting was a new and original work of art, and as such copyrightable, held sufficient compliance with equity rule No. 25 in infringement suit, since allegation involved matter of opinion.

6. Copyrights85-Bill, affidavits, and exhibits must be examined in determining whether plaintiff proved prima facie case for preliminary injunction for copyright infringement (Copyright Act, § 55, as amended by Act March 2, 1913 [17 USCA § 55]).

To determine whether plaintiff proved prima facie case for preliminary injunction for copyright infringement, affidavits and exhibits, as well as bill, must be examined, under Copyright Act, § 55, as amended by Act March 2, 1913 (17 USCA § 55), making certificate of registration prima facie evidence of facts stated therein.

8. Copyrights 12-That theme of plaintiff's picture was not original did not prevent preliminary injunction to restrain infringement of copyright, where picture was not mere copy.

That theme of plaintiff's picture was taken from another picture did not prevent granting of preliminary injunction against infringement of copyright, where picture was not mere copy,

but distinguishable variation appeared.

9. Copyrights 85-Plaintiff, seeking preliminary injunction for infringement of copyright of painting, must prove proprietorship.

To obtain preliminary injunction against infringement of copyright of painting, under Copyright Act (17 USCA § 1 et seq.), plaintiff must prove that he is the proprietor of the painting.

10. Copyrights 82-Allegation in bill to restrain infringement of copyrighted picture that plaintiff, after receiving picture, copied and published it, held sufficient allegation of proprietorship.

Bill alleging that plaintiff, "after receiving the aforesaid picture," copied and published the same and gave notice of copyright, held equivalent to direct averment that plaintiff obtained possession by sale and assignment, constituting prima facie evidence of title, in suit to restrain infringement of copyright, under Copyright Act (17 USCA § 1 et seq.).

11. Property-Possession of chattel is prima facie evidence of title.

Prima facie evidence of title is shown by proof of possession of chattel.

12. Copyrights 24-Ownership of unpublished composition presumptively includes privilege of publication and securing copyright.

Ownership of unpublished composition presumptively includes all rights therein recognized by common law, including privilege of publication and securing of statutory copyright.

13. Copyrights 83-Where plaintiff, suing for infringement of copyright, prima facie proves title, burden of going forward with evidence shifts to defendant.

Where plaintiff in suit to restrain infringement of copyright makes prima facie case of title, burden of going forward with evidence to show plaintiff's title is defective shifts to de-. fendant.

14. Equity341-Denial on information and belief does not constitute evidence overcoming plaintiff's prima facie showing of title in copyright infringement suit.

Defendant's denial on information and belief cannot be regarded as evidence overcoming plaintiff's prima facie case of title on bill for preliminary injunction to restrain infringement of copyright.