(263 F.) as a selection pro tanto by the debtor of his exemptions. Florida Loan & Trust Co. v. Crabb, 45 Fla. 306, 33 South. 523. The bankruptcy court follows the jurisprudence of the state in which it is administering, upon the matter of exemptions. Cowan v. Burchfield (D. C.) 180 Fed. 614; Bradenburg on Bankruptcy, pages 754, 755. The purpose of the rule is not to punish the bankrupt for committing fraud or for making preferential transfers, but it rests upon the theory that the unaccounted for assets are still in the possession of the bankrupt at the time of the filing of his petition, and should have been surrendered to his trustee for the benefit of his creditors, and that, if the bankrupt fails to make such surrender, he may be made to do so by the bankrupt court. To avoid circuity, his failure to surrender will be treated as a forced selection of the assets concealed or unaccounted for, as a part of his exemptions. This principle justifies the action of the District Court with reference to the moneys wholly unaccounted for. The amount of $300 paid his wife, shortly before bankruptcy, is in a different attitude. It is conceded that it was paid to liquidate a just debt owing by the bankrupt to his wife. It was an unlawful preference under the Bankruptcy Law, having been made within four months of the filing of the petition, and while the bankrupt was insolvent. That alone would not justify a charge against the bankrupt's exemption in equal amount. The case of Florida Loan & Trust Company v. Crabb et al., supra, holds that the concealment or removal beyond the reach of his creditors of a part of his personal property by a debtor in an attachment as a preliminary to claiming his constitutional exemptions will, where the property remains so concealed, be treated as a selection pro tanto by the debtor of his exemptions. [5] To bring this case within the Florida rule quoted, it must be made to appear, not only that there was a preferential payment by the bankrupt, but that there was a concealment of the payment by him, so as to endanger the recovery of the preference by the trustee. In that event, the transaction may be treated as analogous to a concealment of the money paid by the bankrupt. Especially is this true of a payment made to a wife, who is under the control of the bankrupt, and from which he is presumed to benefit. In this case the record shows that the bankrupt's books failed to show the payment to his wife, and that he himself did not disclose it, until upon an adjourned hearing he was called upon to account for assets coming into his hands shortly before bankruptcy and not surrendered by him to the trustee, and did so in part by then first testifying to the payment to his wife. It is also in evidence that the bankrupt greatly undervalued his stock, appraising it at approximately the amount he was entitled to claim as exempt, when it was reasonably worth three times the amount of his appraisement. It is also shown that the bankrupt paid his attorney an amount in excess of the fee fixed by rule of court, and that this payment was first disclosed by him upon his examination. Other facts in the record indicate a purpose on the part of the bankrupt not to deal in perfect fairness with his creditors. Taking them all together, we think the District Judge correctly inferred a purpose on the part of the bankrupt to conceal the payment to his wife and thereby prevent the trustee from recov 263 F.-5 ering the amount paid. This would bring the transaction within the rule announced by the court of last resort in Florida, in the case of Florida Loan & Trust Co. v. Crabb, supra, and justify the charge of the amount so paid by the bankrupt to his wife against his personal property exemptions. As this was what was done in the District Court, its order denying the petition to review referee's order was correct, and it is therefore affirmed. PENNACCHIO v. UNITED STATES. * (Circuit Court of Appeals, Second Circuit. January 14, 1920.) No. 115. 1. CRIMINAL LAW 452 (3)—TESTIMONY OF HABITUAL USER THAT SUBSTANCE HE PURCHASED WAS OPIUM COMPETENT. On trial of defendant for illegal sale of opium, testimony of the purchaser that the substance bought was opium held competent, although he was not a chemist, where he testified that he was a habitual user of opium, knew its taste, and that he used that purchased. 2. INTERNAL REVENUE 47-EVIDENCE OF ACT OF AGENT ADMISSIBLE. Evidence of a sale of opium by one introduced to the purchaser by defendant as his agent held admissible, under an indictment of defendant for making the sale, although no conspiracy was charged. In Error to the District Court of the United States for the Southern District of New York. Criminal prosecution by the United States against Thomas Pennacchio. Judgment of conviction, and defendant brings error. Affirmed. Samuel Furstenburg, of New York City, for plaintiff in error. Francis G. Caffey, U. S. Atty., of New York City (David V. Cahill, of New York City, of counsel), for the United States. Before ROGERS, HOUGH, and MANTON, Circuit Judges. MANTON, Circuit Judge. Plaintiff in error has been indicted on four counts. The first count is for unlawfully, knowingly, and willfully selling, on December 1, 1918, to one Gillies, two tins of smoking opium when he had not registered with the collector of internal revenue as a person who deals in, dispenses, or sells opium or coca leaves; the second count charges such sale to Gillies as not in pursuance of any written order of the person to whom it was made, on the blank issued for that purpose; the third count alleges the sale to Gillies, on the 10th of January, 1919, of four tins of smoking opium, and that the plaintiff in error, at the time of such sale, had not registered with the collector of internal revenue as a person who deals in, dispenses, or sells opium or coca leaves; and the fourth count alleges that such sale on the 10th of January, 1919, was not made in pursuance of a written order to the person to whom it was made on blank form issued for that purpose by the Commissioner of Internal Revenue. The plaintiff in error was convicted on the first three counts. After For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Certiorari denied 252 U. S. - 40 Sup. Ct. 588, 64 L. Ed. --. (263 F.) sentence, he sued out this writ of error. The assignments of error are very general and are as follows: (1) That the conviction was erroneous; (2) that the evidence of guilt was insufficient; (3) that evidence was improperly admitted; (4) that evidence was improperly excluded. [1] Under these assignments of error, the plaintiff in error contends that there is no evidence of a sale of opium. He contends that the witness Gillies, to whom the sale was made, could not testify that the contents of the tins sold to him were, in fact, opium, contending that it required expert testimony to establish this fact. It is true that, in order to establish the fact of the presence of alkaloid in opium, an analytical process must be followed, requiring the knowledge of the chemist to state positively that a substance is opium within the formula as defined in the United States Pharmacopoeia. Also, it is not contended by the government that Gillies was a chemist, or possessed of the knowledge or training such as would make him capable of discovering, after chemical analysis, the necessary ingredients to bring the substance examined within the definition of opium. But the government rightly contends that, it being established that Gillies was a habitual user of opium, his testimony as to the nature of the substance with which he was familiar was sufficient to require the submission of the question of whether or not the substance was opium to the jury as a question of fact. His testimony was given without objection, and he testified that he had been using the opium for about a year, and he was therefore familiar with it. However, a motion was subsequently made to strike out his testimony, which was denied. This was evidence as to a fact which the witness was competent to state, and its submission to the jury was therefore proper. The witness possessed greater knowledge than the jury as to the fact that it was opium, and therefore his testimony was of assistance to them. One who drinks fermented liquor and knows the taste of it, although not a chemist, may testify that a particular liquor was fermented. Merkle v. State, 37 Ala. 139. One familiar with the odor of carbolic acid, although not a chemist, may be permitted to testify that such an odor came from the corpse. Greene v. State, 125 Ga. 742, 54 S. E. 742. He may also testify to the odor of chloroform. Miller v. State (Tex. App.) 50 S. W. 704. The qualification to express an opinion that it was opium was gained from his habitual use of it, and the fact that he said he mixed the contents with water and drank it, and therefore tasted it. [2] As to the second assignment of error, the sale on January 10, 1919, was made through one Iannone, and it is contended that, before evidence was admissible to prove this sale, it was necessary to charge in the indictment a conspiracy between the defendant and the said Iannone; but the error of this contention is clear. The plaintiff in error fails to observe the testimony given on the trial that Iannone was the agent of the plaintiff in error, and accompanied him in person to Gillies, and that Gillies was told by the plaintiff in error that, when he wanted more opium after the first sale, he might have it by applying to Iannone. After the existence of this agency was established, whatever the agent Iannone did or said in reference to the business of the sale of the opium, it may be proved as against the principal, the plain tiff in error, in this criminal prosecution, and the evidence is binding upon him as if the statement or act applied to him personally. American Fur Co. v. U. S., 27 U. S. (2 Pet.) 358, 7 L. Ed. 450. Where two or more persons are associated together for the same illegal purpose, any act or declaration of one of the parties with reference to the common object, and forming a part of the res gestæ may be given in evidence against the other. Clune v. U. S., 159 U. S. 593, 16 Sup. Ct. 125, 40 L. Ed. 269. Iannone was operating with the defendant after his designation to Gillies by the plaintiff in error as his agent, for accomplishing the. unlawful trafficking in opium, and his acts were properly received as against the plaintiff in error, even though the indictment does not charge a conspiracy. Wiborg v. U. S., 163 U. S. 632, 16 Sup. Ct. 1127, 41 L. Ed. 289; Ú. S. v. Gooding, 12 Wheat. 460, 6 L. Ed. 693. Because of the relationship existing between the plaintiff in error and Iannone, the testimony of the police officer relating to the acts and conversations of Gillies and Iannone when the opium was delivered to Gillies was properly received. It was evidence of the transaction indicating the sale and delivery of the opium on the 10th of January, 1919. This was the subject of the charge in the indictment, and therefore properly received as evidence of the commission of the crime. The judgment is affirmed. STEVENS v. MARITIME WAREHOUSE CO., Inc. (Circuit Court of Appeals, Second Circuit. January 14, 1920.) No. 109. 1. WHARVES 20 (7)—LIBELANT, CLAIMING THAT BERTH WAS UNSAFE, HAS BURDEN OF PROOF. A libelant, claiming that a warehouse and dock owner maintained a berth in a dangerous condition, has the burden of showing that fact by a fair preponderance of the evidence. 2. WHARVES 20(1, 7)—WHARFINGER BOUND TO EXERCISE ONLY ORDINARY CARE; WANT OF CARE NOT PRESUMED. A wharfinger is bound to exercise only ordinary care, and lack of such care is never presumed, even though the circumstances shift the burden of producing further evidence to the wharfinger. 3. WHARVES 20(7)—EVIDENCE INSUFFICIENT TO ESTABLISH CAUSE OF AC TION FOR NEGLIGENCE. Evidence regarding the circumstances under which a lighter moored to respondent's bulkhead and warehouse listed while the tide was low, and later broke loose, floating to another mooring place, etc., held not to show whether the lighter suffered any damage at respondent's bulkhead, and, if so, of what such damage consisted, or how it was received. Appeal from the District Court of the United States for the Southern District of New York. Libel by William Stevens against the Maritime Warehouse Company, Incorporated. From a decree dismissing the libel, libelant appeals. Affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (263 F.) Theodore L. Bailey, of New York City (Oscar S. Blinn, of New York City, of counsel), for appellant. Foley & Martin, of New York City (George V. A. McCloskey and William J. Martin, both of New York City, of counsel), for respond ent. Before WARD, ROGERS, and HOUGH, Circuit Judges. HOUGH, Circuit Judge. The libel alleges that in September, 1917, respondent maintained a warehouse, and a dock or bulkhead in front thereof, in the borough of Queens, New York City, commonly known as the Ravenswood dock. At about 10 a. m. on the 1st of that month the lighter Dutch Boy arrived “opposite said warehouse and bulkhead," and at about 11 a. m. was tied up to the said bulkhead for the purpose of discharging the cargo with which she was laden. At about 3 p. m. the lighter was discovered to be listing heavily, and as the tide went out was "stranded on a rock or ledge or some other obstruction in the berth," as the result of which stranding the Dutch Boy was injured to the extent of several thousand dollars. Liability is asserted because the respondent maintained the berth in front of its dock in a dangerous condition, and failed to give to the master of the Dutch Boy due warning thereof. The answer alleged that the berth in question was safe for such vessels as the Dutch Boy, and that that vessel parted her lines and drifted away from said dock, and thereafter lay for a long time unattended at a wholly different mooring place, where "there were many rocks of considerable size and little water at low tide." [1, 2] The duty was on libelant, even under the generous pleading of admiralty, to prove by a fair preponderance of evidence the substance of its libel. The liability asserted against respondent was that of a wharfinger, who is bound to ordinary care and diligence and no more (Morey v. New Rochelle, 254 Fed. 425, 166 C. C. A. 57); and such lack of care is never presumed. This is true, even though circumstances may be shown by the libelant which shift the burden of evidence to the shoulders of respondent. [3] The principal testimony introduced by libelant was that of the Dutch Boy's master, a waterman of evident experience, but whose testimony largely consists in assenting to the suggestive queries of counsel a procedure "scarcely satisfactory," as was remarked in The Daniel Burns, 56 Fed. 605, 6 C. C. A. 49. By the master's evidence it appeared that his boat, drawing not over 81/2 feet at the bow and perhaps 2 feet less at the stern, was moored to the bulkhead at about 10:30 a. m. The exact relation which the boat occupied to the warehouse is very uncertain; the mooring was effected by the master himself. About 12:30 he noticed a list to port; he then felt the bottom with a pike pole and found it "uneven." The tide was low by about 3:30, at which time the Dutch Boy had a 2-foot list to port, and so remained until about 5:30, with the lines to the bow tight. The boat straightened up somewhat after the tide began to rise, and at about |