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23 F.(2d) 48

Winter v. U. S. (C. C. A.) 13 F.(2d) 53; Linde v. U. S. (C. C. A.) 13 F. (2d) 59. That rule was and is that, where evidence of good character is introduced in behalf of a defendant, he is entitled, and especially when a request is made, to an instruction to the effect (1) that the purpose and function of such evidence is to raise a reasonable doubt; (2) that it is entitled to be considered whether the effect of the other evidence in the case is clear or doubtful; and (3) that when it is considered with the other evidence, if a reasonable doubt is created as to the defendant's guilt, he is entitled to be acquitted. 19 F.(2d) 215. There is no doubt that the charge relative to the effect of the evidence of the good character of the defendant Salinger was insufficient and erroneous, and that the failure of the court, when further requested to charge the jury what the legal effect of that evidence was upon the creation and existence of a reasonable doubt of the defendant's guilt of the charge against him, was material, erroneous, and prejudicial to the defendant Salinger, Jr.

[6] Counsel for the government endeavor to escape from the serious effect of these errors (1) by challenging the claim of the defendant that the charge and failure to charge were erroneous and prejudicial to the defendant; and (2) by claiming that defendant's counsel waived and was estopped from successfully asserting these errors because there was a rule of the trial court to the effect that all requests for instructions to a jury must be submitted to the court before the argument to the jury is begun, and that all exceptions to the charge shall be taken in writing or indicated to the court reporter and called to the attention of the court before the jury retires. The first of these contentions has already been considered, and the reasons stated and the authorities cited which convince that it is not tenable. As to the second, it was the duty of the trial court in the first instance, when, as the court itself declared, the proof of the defendant's good character had been made and not denied, without request to instruct the jury clearly upon the legal effect of that evidence. The legal presumption was that the court would do so, the defendant's counsel

relied upon that presumption and filed no written request upon the subject. In this, in our opinion, counsel were chargeable with no culpable violation of the rule of the court or lack of diligence in complying with it. The court in its general charge gave an erroneous instruction to the jury on the subject, and after it had completed its general charge it said to counsel for the defendant, "I will ask counsel for defendant Salinger if you have any further instructions to request." In answer to this question, counsel for Salinger requested several instructions, some of which the court gave, and some of which it modified or refused. Among these requests for further instructions were those with reference to the effect of the proof of the good character of the defendant, and its effect upon the issues of the innocence or guilt of the defendant and the reasonable doubt of his guilt, which have been stated and discussed earlier in this opinion. Under these circumstances, we find no censurable violation of rule 25 of the court below, and no waiver of the defendant's right, in response to the court's request, after it had completed its charge, to except to the subsequent erroneous charge and failure to charge, and to seek in this court the correction of the errors of law therein substantially prejudicial to the defendant.

There are a great many assignments of error in this case which we have considered, but which we think it is unnecessary to discuss, because no benefit to either party would probably result from extending this opinion to treat them. Our conclusion is that, for the reasons already stated, there must be a new trial of this case. In that trial the evidence not competent, relevant, or material to the issue upon the seventh count of this indictment will not be before the trial jury, and it will not be as difficult for the court and jury to avoid errors of law, and to give a fair trial of the issues between the parties to this case upon the seventh count of the indictment, as it was at the trial we have been discussing.

Let the judgment below be reversed, and let the case be remanded to the court below, with instructions to grant a new trial.

DREYFUSS DRY GOODS CO. et al. v. MORGAN.

Circuit Court of Appeals, Fifth Circuit. December 12, 1927.

No. 5003.

Bankruptcy 467 (4)-Findings of judge against grounds of opposition to discharge being on sufficient evidence, whoever has burden of proof, are not disturbed (Act May 27, 1926, § 6, amending Bankr. Act, § 14b [11 USCA § 32]).

on

The evidence before the judge on application by bankrupt for discharge being such as to support the conclusion that none of the grounds of opposition to the discharge was established, whether or not the burden of proof was bankrupt under Act May 27, 1926, § 6, amending Bankruptcy Act, § 14b (11 USCA § 32), the court's findings and conclusion in favor of bankrupt on such grounds will not be disturbed, in view of sections 18 and 20 (11 USCA note) and Bankruptcy Act, § 29 (11 USCA § 52).

Appeal from the District Court of the United States for the Western District of Louisiana; Benjamin C. Dawkins, Judge.

Application of Walter L. Morgan for discharge in bankruptcy was opposed by the Dreyfuss Dry Goods Company and others. From a decree of discharge, they appeal.

Affirmed.

S. L. Herold, of Shreveport, La. (Thigpen, Herold, Lee & Cousin, of Shreveport, La., on the brief), for appellants.

an order setting the hearing on the petition for discharge on April 10, 1926, and gave the notices prescribed by rule.

On April 8, 1926, the appearance of attorneys for appellants for the purpose of opposing the petition was noted by the referee, and on April 21, 1926, appellants filed specifications of grounds of objection to the discharge, which included the following: That the bankrupt, with intert to conceal his financial condition, failed to keep books of account from which said condition could be ascertained; that the bankrupt knowingly and fraudulently made false oaths in specified parts of the schedules filed by him and on his examinations before the referee; and that in such examinations the bankrupt refused to answer material questions approved by the court.

The appellants filed with the referee a motion that the order fixing a date for a hearing on the petition for discharge and the opposition thereto be set aside, on the ground that the judge made no order referring that matter to the referee. with the referee a motion to dismiss the opThe appellee filed position to the discharge, on the ground that

the specifications of objections were not filed

within the time allowed by the rule. The referee proceeded with the hearing and heard evidence offered by the respective parties. The referee, acting as special master, filed his report on September 25, 1926. That report contained expressions of opinion to the effect that the motion of the appellants that

Jos. D. Barksdale, Otis W. Bullock, and Howard B. Warren, all of Shreveport, La., for appellee. Before WALKER, BRYAN, and FOS- the order fixing a date for a hearing on the TER, Circuit Judges.

WALKER, Circuit Judge. On his voluntary petition the appellee was adjudged bankrupt on October 24, 1925. On December 9, 1925, he filed his petition for a discharge. Pursuant to standing rules of the court, that petition was referred to the referee, who with reference thereto acted as a special master; the rules containing provisions to the effect that the referee shall, at least 30 days prior to the date set for hearing of the petition for discharge, issue to all creditors notice to show cause why the discharge should not be granted, and that any creditor opposing the discharge shall enter in writing an appearance before the referee, or clerk, in opposition to the discharge on the day he is required to show cause, and shall file with the referee within 10 days thereafter, unless the time is enlarged by special order of the judge or the referee, specifications of the grounds of such opposition. On March 11, 1926, the referee made

petition for a discharge and the opposition thereto be set aside was not well taken, and that the motion of the bankrupt to dismiss the opposition to the discharge should be sustained. That report showed that the referee found that none of the grounds of opposition to the discharge was sustained by the evidence.

On the hearing by the court on that report, the exceptions thereto, and the motions filed by the appellants, the court confirmed that report and decreed the discharge of the bankrupt; the presiding judge stating in his opinion or memorandum that he was of the view that the findings and recommendations of the master are correct and should be affirmed, and that he agreed with the master that upon the merits there is no sufficient showing to defeat the discharge.

The appellants invoke provisions of the Act approved May 27, 1926, amending the Bankruptcy Act. 44 Stat. 663. As amended by that act, section 14b of the Bankruptcy Act (11 USCA § 32) contains the following:

23 F.(2d) 55

"Provided, that if, upon the hearing of an objection to a discharge, the objector shall show to the satisfaction of the court that there are reasonable grounds for believing that the bankrupt has committed any of the acts which under this paragraph (b) would prevent his discharge in bankruptcy, then the burden of proving that he has not committed any of such acts shall be upon the bankrupt."

Section 18 of that act (11 USCA note) reads as follows:

"The provisions of this amendatory act shall govern proceedings, so far as practicable and applicable, in bankruptcy cases pending when it takes effect; but as to proceedings in cases pending when this act takes effect, to which the provisions of this amendatory act are not applicable, such proceedings shall be disposed of conformably to the provisions of said act approved July 1, 1898, and the acts amendatory thereof and supplementary thereto."

ord is consistent with the conclusion that the appellee assumed and sustained the burden of proving that he had not committed any of the acts alleged as grounds of opposition to his discharge. It clearly appears that, though the specifications of grounds of opposition to the discharge were not filed within the time prescribed by the above-mentioned rule, the court considered the case on its merits.

The requirement of the Bankruptcy Act (section 14, as amended) that "the judge shall hear the application for a discharge and such proofs and pleas as may be made in opposition thereto," etc., was complied with. The evidence before the judge was such as to support the conclusion that none of the grounds of opposition to the discharge was established, whether the burden of proof in that regard was or was not shifted after the proceeding for a discharge was instituted, or was or was not on the appellee when the decree was rendered. We do not think

Section 20 of that act (11 USCA note) that, under the evidence contained in the recprovides:

"This act shall take effect and be in force on and after three months from the date of its approval."

It is to be noted that that act was not in effect when the petition for discharge was filed, when the opposition to the discharge was filed, or when the report of the referee was filed, but was in effect when the decree appealed from was rendered. To say the least, it does not clearly appear from the language of that act that its provisions were intended to govern proceedings under an application for discharge which was filed and opposed by allegations and proofs before that act was passed. But, assuming that the first above set out provision of that act was applicable to the proceeding for discharge when the court below took action therein, the record does not show that a different result would have been required by treating that provision as applicable and giving it full effect.

It is disclosed that the appellee offered evidence to disprove the allegations of grounds of opposition to his discharge, testimony offered by him tending to prove that he did not knowingly and fraudulently make a false oath in or in relation to the bankruptey proceeding (Bankruptcy Act, §§ 14, 29 [11 USCA §§ 32, 52]), that his failure to keep books of account was unaccompanied by any intent to conceal his financial condition, and that he did not refuse to answer any question, or fail or refuse in answering to state facts within his knowledge. The rec

ord, this court would be justified in setting aside the findings and conclusion of the court below.

The decree is affirmed.

SOUTHERN SURETY CO. OF DES MOINES,
IOWA, v. UNITED STATES.*
Circuit Court of Appeals, Eighth Circuit.
December 12, 1927.

No. 7711.

6-Indict

1. Indictment and information
ment could lawfully be found by grand jury
in one division of District Court for offense
committed in another division, and court had
jurisdiction to try party for whose appearance
defendant gave bond.

Indictment could be lawfully found by grand jury in Western Division of United States District Court for South Dakota for an offense committed in Southern Division of the district, so that court had jurisdiction to try defendant, for whose appearance defendant surety company gave bond.

2. Bail 84-Defects of indictment constituted no defense to action against surety on bail bond adjudged forfeited for failure of principal to appear for trial.

Defects or invalidity of indictment constituted no defense to action against surety on bond adjudged forfeited for failure of principal to appear for trial or to comply with other terms of agreement.

3. Bail 75-Failure of principal to appear for trial at time stated, though case was not ready was ground for forfeiture of bail bond.

Where bond given for appearance of principal for trial provided that, if principal appeared for trial in District Court, where indictment *Rehearing denied February 27, 1928.

was filed on April 3, 1923, opening day of term, and complied with other conditions, bond should be void, failure of principal to appear for trial on April 3 was ground for forfeiture of bond, though case was not ready, because no jury was present, and because of counsels' agreement, since, where parties put engagements into writing in such terms as to import legal obligation, without uncertainty as to object or extent of engagement, it is conclusively presumed that whole engagement of parties and manner and extent of undertaking was reduced to writing.

4. Appeal and error 907 (4)-Court's findings raise presumption that there was competent evidence supporting them, in absence of certificate that bill of exceptions contains all evidence.

Findings of court below raise legal presumption that there was competent and relevant evidence supporting them, in absence of certificate by trial judge that bill of exceptions contains all evidence, or all evidence on particular issues, the findings concerning which are questioned.

5. Appeal and error

230-Question of evi. dence to sustain court's finding is reviewable only when question has been presented during trial, which ends when issues are submitted to court.

Question of law whether or not there was substantial evidence to sustain court's findings is reviewable only when request or motion is made, denied, or excepted to, or some other like action is taken, which fairly presents that question to trial court, and secures its ruling thereon during trial, which ends in trial of action at law without jury, when, after full hearing, issues of fact and law are submitted to trial judge for decision.

6. Appeal and error 842(7)-Appellate court cannot reverse finding by court in law action or judgment based thereon; "error of fact" (28 USCA § 879).

When an action at law is tried without jury by federal court, and it makes general or special finding of fact, Rev. St. § 1011 (28 USCA § 879), forbids reversal by appellate court of that finding or of judgment based thereon" for any error in fact, and finding of fact contrary to weight of evidence is "error of fact."

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Error of Fact.]

7. Appeal and error 969-In action at law tried by court, making special findings is discretionary, and refusal is not subject to review.

In action at law tried by court, on waiver of jury, making of special findings is discretionary, and court's action in making such findings, refusing to make requested findings, or refusing to amend findings made, is not subject to review.

8. Appeal and error 230-Request after close of trial for findings and rulings thereon are discretionary, and not subject to review.

Where no request for findings was made until subsequent to close of trial, it was too late, after court had filed its findings and its conclu

sion that judgment must be entered for plaintiff, to except to rulings on issues tried, and subsequent request and ruling thereon was discretionary, and not subject to review.

9. Appeal and error 977 (5)-Denying new trial, or any motion made therein, is not reviewable in appellate court.

Denial of motion for new trial, or of any motion or claim therein to sustain motion for new trial, is not reviewable in federal appellate court.

10. Bail 89(1)—In action on bail bond it was unnecessary to allege that bond had been forfeited as against defendant surety.

In action against surety on recognizance and bond given as bail, it was not necessary to allege that bond declared therein had been forfeited as against defendant surety.

11. Statutes 174, 175-Statute must be given rational construction, and, if consonant with terms one which advances remedy and represses wrong.

A statute must be given a rational, sensible construction, and, if this be consonant with its terms, it must have interpretation which will advance remedy and repress wrong.

12. Bail 79 (2)-Attempted exoneration of surety from bail bond by commissioner in district other than that wherein principal was indicted and was to be tried was void (18 USCA § 599).

Under Rev. St. § 1018 (18 USCA § 599), attempted exoneration of surety on bond given for bail by United States commissioner for Easttern district of Louisiana, when principal had been indicted and was charged with committing his offense, and was to be tried in district for South Dakota, was void for lack of jurisdiction.

In Error to the District Court of the United States for the District of South Dakota; Wilbur F. Booth, Judge. Transferred from Supreme Court of the United States.

Action by the United States against the Southern Surety Company of Des Moines, Iowa. Judgment for the United States, and defendant brings error. Affirmed.

Louis H. Salinger, of Carroll, Iowa, for plaintiff in error.

Byron S. Payne, Asst. U. S. Atty., of Pierre, S. D. (Olaf Eidem, U. S. Atty., of Sioux Falls, S. D., on the brief), for the United States.

Before WALTER H. SANBORN and KENYON, Circuit Judges, and JOHN B. SANBORN, District Judge.

WALTER H. SANBORN, Circuit Judge. The writ of error in this case presents for consideration alleged errors of law in the trial of an action brought by the United States on a recognizance and bond for $15,

23 F.(2d) 55

000 given as bail by B. I. Salinger, Jr., as principal, and the Southern Surety Company, as surety, on March 20, 1923, for the appearance of Salinger, Jr., for trial on an indictment against him at the District Court of the United States for the District of South Dakota on the first Tuesday of April, 1923, at 10:30 o'clock in the forenoon of that day, and on such other days as said court might direct, and to obey its orders. Salinger, Jr., made default in appearance and in compliance with the terms of the bond, upon notice to him and the surety company of the hearing of a motion by counsel of the United States for a forfeiture of the bond at a time and place specified, to wit, on April 4, 1923, argument on such motion was heard by the court below, and upon consideration it entered an order and judgment of forfeiture of the bond and undertaking.

In its complaint in the case now in hand the government alleged these and other facts and prayed for judgment against the surety company for the amount of the bond, interest, and costs. The surety company answered, the parties waived a jury, the court tried the case, made a clear and comprehensive finding of the facts, stated its conclusions of law, and rendered a judgment against the surety company for $15,000, interest, and costs on September 15, 1924.

On the 21st day of March, 1925, the defendant surety company filed a bill of exceptions, which had been signed by the trial judge on March 20, 1925. On April 11, 1925, counsel for the surety company filed an assignment of 77 alleged errors in the trial of this case and prayed for a writ of error, and this prayer was granted by the court below on April 16, 1925. He filed a printed brief of his argument in 17 divisions, in each of which he presented and argued an objection to the validity of the judgment, and he argued this case orally in this court. For convenience the chief position urged in each of the 17 divisions of his principal brief will be called his objection to the judgment. [1] His first objection was that the United States District Court of South Dakota had no jurisdiction to try Salinger, Jr., under the indictment against him in that court, because the indictment was found by the grand jury of that court in the Western division of its district, and it charged that the offense was committed in the Southern division of its district, where it has since been tried. But an indictment may be lawfully found by a grand jury in one division of a United States District Court for an offense committed in another division of that court. Ex parte Salinger (C. C. A.) 288 F. 752, 755;

Moffat v. U. S. (C. C. A.) 232 F. 522. In
Salinger v. Loisel, 265 U. S. 224, 235, 44 S.
Ct. 519, 523 (68 L. Ed. 989), the Supreme
Court said relative to this issue:

"South Dakota constitutes a single judicial district, with one District Court; but the district is divided into four divisions, where sessions are held at times fixed by law; such sessions, whether in one division or another, being 'successive terms of one and the same court.' Hollister v. U. S. [C. C. A.] 145 F. 773, 782."

In that case, after argument and deliberate consideration, the Supreme Court decided that the District Court of South Dakota had jurisdiction to try the offense charged in the indictment referred to in these proceedings in the Southern division of its district, where the offense was alleged to have been committed, notwithstanding the fact that the indictment was found by the grand jury and returned to the court while it was in session in the Western division of the district. 265 U. S. 224, 232, 237, 44 S. Ct. 519, 68 L. Ed. 989.

[2] The second and third objections to the judgment are that the indictment referred to in the bond was defective, insufficient, and failed to charge any offense against the United States. But the condition of the bond was not that its obligation should be void if the indictment was bad or defective, but that it should be void if Salinger, Jr., appeared for trial at the time and place specified in the bond and complied with its other terms. Salinger did not appear for trial at the time and place specified, and the court on notice adjudged the recognizance and bond forfeited. The position here taken by counsel for the defendant is untenable, because (1) the defects or invalidity of the indictment constitutes no defense to an action against the surety on a bond adjudged forfeited for the failure of the principal to appear for trial or to comply with other terms of the bond, Hardy v. U. S. (C. C. A.) 71 F. 158, 159; U. S. v. Graner (C. C.) 155 F. 679, 680, 681; and (2) in our opinion the indictment referred to was not fatally defective but was sufficient, Salinger v. U. S., 272 U. S. 542, 547, 47 S. Ct. 173, 71 L. Ed. 398.

[3] The fourth objection to the judgment is that the court below committed an error of law in holding that the failure of Salinger, Jr., to appear for trial at the District Court for the District of South Dakota at the city of Sioux Falls in said district on the third day of April, which was the first day of the April term of that court, at 10:30 o'clock in the forenoon, upon an indictment filed in

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