Mr. Olsen told me that it had not matured. It was only worth $5,532 instead of $6,000. I did not wait until it matured. I sold it right there and then. I did not know whether the Loan Association had the money to pay it or not. They said they couldn't, according to their by-laws, declare the stock matured until it was matured. I said the reason it did not mature was because the bank examiner took out certain loans. I did not ask whether the Arizona Mutual had money in its treasury to pay off matured stock at its maturity. What I wanted to know was whether my stock had matured so I could get my money. I already testified exactly what the officer told me that the bank examiner threw out certain loans which reduced the value of the stockholders' stock. I made no other inquiry as to the financial condition of the Arizona Mutual, except of Mr. Christy, who claimed he was a stockholder of the Mutual. I am a bookkeeper. I only went to the books to which I could get access. I did not ask to see the ledger and account books. I only asked to see the stockbooks, to see who the stockholders were. I had no talk with Edwards about his plan to secure stock of the Arizona Mutual for the Arizona Trust Company. When Mr. Le Baron was in El Paso, he told me that he wanted to exchange my stock." It is perfectly clear, we think, from the complainant's own testimony, that he was well aware that the Loan Association was unable to pay its obligations to him prior to his sale of his stock in that corporation to the Trust Company, in consideration of the promissory note of the latter company secured by the collaterals that have been mentioned. Obviously he thereby secured an unlawful preference over the other shareholders of the insolvent Loan Association, which, as has been seen, had long before undertaken to sell and transfer all of its assets of every kind to the Trust Company-a part of which assets are those involved in the present suit. To sustain the appellant's exclusive claim to them would be to subordinate to that extent the rights of all of the other stockholders of the insolvent association, which would be manifestly contrary to the well-established law. upon the subject. Aldrich v. Gray, 147 Fed. 454, 77 C. C. A. 597, 8 Ann. Cas. 832; Standard Savings & Loan Association v. Aldrich, 163 Fed. 216, 89 C. C. A. 646, 20 L. R. A. (N. S.) 393, and the numerous authorities cited in those cases. The judgment is affirmed. (235 Fed. 701) TERRY v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. No. 2847. October 3, 1916.) 1. CRIMINAL LAW 639(3)-CRIMINAL PROSECUTION-PROCEDURE-APPOINTMENT OF SPECIAL PROSECUTOR. In a prosecution against a bankrupt for knowingly and fraudulently concealing from his trustee property belonging to his estate, the trial proceeds not under the state act but under the federal Act June 22, 1870, c. 150, 16 Stat. 162, and Act June 30, 1906, c. 3935, 34 Stat. 816 (Comp. St. 1913, § 534), and no complaint can be made that the attorney who represented the petitioning creditors was duly appointed special assistant to the United States district attorney and participated in the prosecution, though, under the state practice, such proceeding would have been improper. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1487, 1488, 1490, 1491; Dec. Dig. 639(3).] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes In a prosecution against a bankrupt for knowingly and fraudulently concealing property from his trustee, evidence held sufficient to take the case to the jury and warrant conviction. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 912; Dec. Dig. 495.] In Error to the District Court of the United States for the Eastern District of Michigan; Clarence W. Sessions, Judge. George W. Terry was convicted for knowingly and fraudulently concealing, while a bankrupt, from his trustee, property belonging to his estate in bankruptcy, and he brings error. Affirmed. N. C. Bigelow, of Detroit, Mich., for plaintiff in error. Clyde I. Webster, U. S. Atty., and B. B. Selling, Sp. Asst. U. S. Atty., both of Detroit, Mich. Before KNAPPEN and DENISON, Circuit Judges, and SATER, District Judge. SATER, District Judge. Terry, the defendant below, was indicted, convicted, and sentenced for knowingly and fraudulently concealing, while a bankrupt, from his trustee, property belonging to his estate in bankruptcy. He seeks a reversal of the judgment rendered against him. On December 24, 1907, his stock of goods, which was insured for $8,000, was substantially destroyed by fire. Aside from some uncertain small sums owing for household and living expenses, wages due clerks, and a bank indebtedness slightly in excess of $1,800, all of which liabilities he paid, he owed his merchandise creditors more than $5,400. By suffering a deduction of one per cent., he collected on his insurance policies, by January 10, 1908, $6,000. He also claims to have received $500 from a brother-in-law for his equity in a farm, and $500 from a son-in-law for the unconsumed portion of his goods. On January 11, he wrote his creditors that the insurance companies had taken advantage of the 60-day clause in their policies, but that when a full settlement was made he would at once inform them. On the following day, on account, as he claims, of the ill health of himself and wife, having reduced to cash the several payments made to him and the sums received from his son-in-law and brother-in-law, he and his wife left for California, but without giving any information as to his destination, unless to his immediate relatives. The cash carried with him on his person must have been more than $4,000. Excepting $490, he did not at any time deposit in bank any of the money received by him. He obtained possession of his funds so deposited by delivering checks to his daughter and son-in-law, who cashed the same and delivered to him the proceeds. He did not take with him a list of his creditors or any statement of how much he owed them, or "think very much about it." He was unable to give any reason why he did not pay his merchandise creditors after the fire, other than that there was a panic on and money was hard to get, and, considering the condition of his wife, he did not think it was right to use up all of his money, selfpreservation being the first law of nature. He visited various points in California, and in late January went to Callexico on the Mexican For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes border, where he claims some one took from him, when he was intoxicated, about $3,000, leaving him only his return ticket to Redlands and a few pieces of silver. At another time he states he does not know what became of that sum. He made no effort to ascertain how it disappeared, if it did so, or to recover it. He claims to have been drinking and dissipating heavily ever since the burning of his store occurred -a course of conduct hardly conducive to the restoration of alleged broken health. After his return to Redlands, he assigned to his brother his two remaining insurance policies, for which he received some time in January, $1,800, which, he says, he kept in a trunk at Redlands and spent in traveling about and in satisfying expenses of himself and wife. He is unable to detail, except in a single instance, any place they visited, or to name a single hotel at which they stopped. A petition in bankruptcy was filed against him on March 6th. Ten days later adjudication was had. A trustee in bankruptcy was elected April 21st. He knew of the bankruptcy proceeding as early as April 16th, for on that day he aided his wife in proving a claim against his estate. He did not give his wife any part of the funds which he at any time received, or, while in California, do any thing toward earning a livelihood. All efforts in that direction were made by his wife, to whose ill health he mainly attributes his going to California. He denies having possession of any funds belonging to his estate on or after the date of the election of the trustee in bankruptcy; but, excepting about $200 expended on the wardrobe of himself and wife, wholly fails to account for his money other than as above stated. [1] Defendant's main reliance for a reversal rests on the fact that the attorney who represented the petitioning creditors, the receiver appointed by the court, and the trustee in bankruptcy, aided, as a duly appointed special assistant United States district attorney in the prosecution of the case against him, taking an active part in the trial, although not as matter of fact (so far as shown) appearing before the grand jury. There is no claim that such assistant was paid for his services in this case otherwise than by the government, nor is his conduct upon the trial criticized. Under the law of Michigan, such counsel would have been disqualified from so acting. Howell's Mich. Stat. § 1158; Meister v. People, 31 Mich. 99; People v. Hurst, 41 Mich. 328, 1 N. W. 1027. The appointment, however, was made and the trial proceeded, not under the Michigan act, but under the federal statute, which imposes no such restriction. See Act of June 22, 1870, c. 150, 16 Stat. L. 162; Act of June 30, 1906, c. 3935, 34 Stat. L. 816; U. S. v. Rosenthal (C. C.) 121 Fed. 862, 872; U. S. v. Twining (D. C.) 132 Fed. 129, 132; Browne v. U. S., 145 Fed. 1, 4, 76 C. C. A. 31 (C. C. A. 2). A writ of certiorari was denied in the last-named case, 200 U. S. 618, 26 Sup. Ct. 755, 50 L. Ed. 623. The error assigned is without merit. [2] There was ample evidence to carry the case to the jury. The verdict is irreconcilable with any theory other than the jury's disbelief of the defendant's evidence. Its rejection required his conviction. A critical analysis and a more extended statement of it would not be helpful either to the bench or the bar. Its inconsistencies and unsatisfac tory character are manifest and justify the conclusion reached by the jury. The remaining 28 assignments go to either the introduction or the exclusion of evidence. We have carefully examined all of them and find no error. The judgment of the District Court is affirmed. (235 Fed. 704) UNITED STATES v. MAHAFFEY (COOPER, Intervener). 1. PUBLIC LANDS No. 2738. 120-PATENTS-HOMESTEAD ENTRIES-VACATION. In a suit to cancel a patent to land issued under the Homestead Law (Act May 20, 1862, c. 75, 12 Stat. 392), on the ground of fraud in the final proofs as to the entryman's residence, evidence held to warrant a decree dismissing the bill. [Ed. Note. For other cases, see Public Lands, Cent. Dig. §§ 332–335; Dec. Dig. 120.] 2. PUBLIC LANDS 120-PATENTS-PRESUMPTIONS. It is presumed that all preceding steps required to obtain a patent to public lands have been observed; and, in view of the importance and necessity of the stability of titles, a patent should be set aside for fraud in proofs only where the fraud is clearly established. [Ed. Note. For other cases, see Public Lands, Cent. Dig. §§ 332-335; Dec. Dig. 120.] Appeal from the District Court of the United States for the District of Montana; Geo. M. Bourquin, Judge. Suit by the United States against William A. Mahaffey, in which Nelson Cooper intervened. From a decree dismissing the bill, complainant appeals. Affirmed. The United States brought this suit in December, 1909, against Mahaffey to cancel a patent for land in Montana issued to Mahaffey under the Homestead Law. The complaint alleged fraud in final proofs, in that the depositions of Mahaffey and of his witnesses were false as to the residence of Mahaffey and cultivation and improvements made by him upon the land. As Mahaffey could not be found in the jurisdiction of Montana, order pro confesso was entered against him. Nelson Cooper intervened with an answer, and denied that Mahaffey's proofs, relating to his residence and improvements, were false. Cooper also pleaded that he was an innocent purchaser from Mahaffey in good faith and for full consideration, and that after purchase he had sold to one Heaton. After trial to the court, decree dismissing the bill was entered. The United States appeals, and assigns that the court erred in finding the evidence insufficient to sustain the allegations of the complaint. T. W. Gregory, U. S. Atty. Gen., Burton K. Wheeler, U. S. Atty., of Butte, Mont., Homer G. Murphy, Asst. U. S. Atty., of Helena, Mont., and Frank Woody, Asst. U. S. Atty., of Butte, Mont. James A. Walsh, of Helena, Mont., for appellee. Before GILBERT, ROSS, and HUNT, Circuit Judges. HUNT, Circuit Judge (after stating the facts as above). [1] A brief summary of the testimony will suffice. Mahaffey made his homestead entry in April, 1899, and made final proof in June, 1904. These proofs, which were taken before the land officials at Great Falls, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Mont., were that Mahaffey built a cabin and established his residence on the land in June, 1899; that his cabin was 16x18 feet; that the land was fenced; had a corral upon it; that the value of the improvement was $300; and that Mahaffey had resided continuously upon the land since he established his residence thereon in June, 1899. To sustain the averments of the present complaint that the original proofs in respect to these matters were false, the government introduced the testimony of five witnesses. One testified, in substance, that he lived within a mile or two of the land; that he first saw the land in March or April, 1904, and that there was then an old log cabin on it, with big cracks between the logs, no window, door, or floor, no stove pipe in the roof; that there was no fencing on the land except on the east end, and no corral except some lambing pens belonging to Cooper, father of intervener; and that he never saw Mahaffey on the place. Two other witnesses said, in substance, that they knew the land in 1902, 1903, and 1904; that they had seen the cabin on the land; that it had a dirt floor, was about 10x12 feet; that they had never seen Mahaffey or any one else living on the land, and saw no fence except on the east side; that there was a reservoir upon the place, the reservoir having been built after 1904. Another witness said that he knew the land in 1904; that the cabin then had no roof or floor or door or window, and that there were no other improvements, buildings, or fences of any kind, except a fence east of the land; that he never saw Mahaffey on the land. A special agent of the General Land Office testified that he first saw the place in 1909, and then found a 10x12 log cabin on the land; that at that time there was no floor, window, or door in the cabin; that the land was then inclosed in the fields of Cooper, the intervener's father. To meet this evidence the intervener introduced four witnesses. The intervener's father said that he purchased the land from Mahaffey for the intervener; that he saw Mahaffey on the land in 1900, and saw furniture in the cabin at that time; that the cabin had a board roof and floor, and that he (witness) had sold wire fence to Mahaffey to use upon the land; and that he saw a reservoir and ditch on the place. Another witness testified that he knew Mahaffey between 1900 and 1904; that the cabin, about 14x16 feet, was plastered, had a stove pipe in the roof, had a door and window, and that there was a reservoir and ditch and some fence on the land; that he had often seen Mahaffey, who had worked for Cooper under witness in 1904, and observed Mahaffey "traveling to and from the direction of his ranch." Another witness, who had lived near the land for 25 years, described the Mahaffey place as rough land only fit for grazing, and said that the Mahaffey cabin had a stove pipe through a board roof; that there was a floor, window, and door in the cabin in 1905; that there was a reservoir, ditch, and some fences on the east side; that Mahaffey was there, and "was considered a pretty good man in that community." Another witness for the intervener said that he knew Mahaffey; that he had been upon the land several times when Mahaffey lived there; that he had been in the cabin (about 1905), and had stayed there several days; that it was plastered between the logs and was furnished; that there was a little corral and |