However, such admission bears but little on the question of patentability. With Figs. 2 and 3 as part of the prior art, anticipation of claim No. 5 appears. With Fig. 3 eliminated, because, as appellant contends, it was never reduced to practice prior to his patent, we still have a disclosure, Fig. 2, which would defeat patentability based on the slight advance made by Milliken over the disclosure of Fig. 2. Moreover, Fig. 3 cannot be entirely removed from the picture, for it illustrates how readily an engineer or designer would step from Fig. 2 to Fig. 3, provided the height of the tower, and the number and weight of the wires required it. We have not overlooked the evidence tending to show how widely the Milliken towers have been used. This is, however, not a case where such testimony, construed most favorably to appellants, is controlling. The decree is affirmed. FELTMAN & CURME SHOES STORES CO. v. HELFAT et al. * (Circuit Court of Appeals, Eighth Circuit. August 7, 1926.) No. 7269. Receivers 204-Claimant whose petition in intervention was denied, without appeal, held to have no standing as a party to move to set aside order discharging receiver. Premises leased to a corporation were occupied by its receiver who paid rental for his occupancy, but without assuming the lease. He surrendered the premises, which were repos sessed by the landlord. Several months later, the latter filed an intervening petition asking damages for surrender of the premises before expiration of the term, which petition was denied, and no appeal taken. Held, that the land lord was no longer a party to the record, and was not entitled to notice of the receiver's application for discharge, and had no standing to move to set aside the order for discharge that it might file another claim for damages. Appeal from the District Court of the United States for the Eastern District of Missouri; Charles B. Faris, Judge. In the matter of ancillary receivership for the Ralph Full Dress & Tuxedo Company, J. Nathan Helfat, ancillary receiver. From an order denying its motion to set aside an order discharging the receiver, the Feltman & Curme Shoes Stores Company, intervener, appeals. Affirmed. George T. Priest, of St. Louis, Mo. (Boyle & Priest and Robert E. Moloney, all of St. Louis, Mo.), for appellant. Rehearing denied October 18, 1926. J. Nathan Helfat, of New York City, in pro per. Before SANBORN, Circuit Judge, and WOODROUGH and SCOTT, District Judges. WOODROUGH, District Judge. It ap pears from the record in this case that appellant was the landlord of certain retail store premises in St. Louis, Mo., leased for a term of years to the Ralph Full Dress & Tuxedo Company. Appellee became receiver of that company by appointment of a federal court in New York and thereafter ancillary receiver by appointment of the United States District Court for the Eastern Division of the Eastern District of Missouri. As such ancillary receiver in Missou ri, he came into possession of the premises and the merchandise there in store. Shortly after the institution of the ancillary receivership proceedings in Missouri, the landlord intervened therein to forfeit the lease and for ouster for nonpayment of rent by the Ralph Company and its ancillary receiver. The specific relief prayed for in the intervening petition was denied on hearing, but the ancillary receiver, on account of his possession, was ordered to pay rent according to the terms of the lease for certain months named in the order. Thereafter, upon application made to the court, the ancillary receiver was ordered by the court to sell the merchandise in his hands at a price specified, and to receive the moneys therefor. The following direction to the ancillary receiver was made a part of the order to sell: The moneys so received to remain within the jurisdiction of this court until lessor's claim for rent on premises occupied by receiver be determined and paid." The ancillary receiver continued to occupy the premises until he consummated the sale thus authorized by the court, whereupon he vacated and surrendered them to the landlord who repossessed itself of them. Some months after the landlord had retaken possession of the premises, it filed its second petition in intervention in the ancillary cause setting up its lease to the Ralph Company and the taking of possession by the ancillary receiver and the surrender to and repossession by the landlord. It admitted that the ancillary receiver had paid the rent for the period that he had been in possession, but complained that the ancillary receiver, by resisting the landlord's first petition for termination of lease and ouster, and by retaining possession and then vacating without reasonable notice to the landlord of in 14 F. (2d) 516 tention to quit, had occasioned loss and damage to the landlord. It is then alleged that, in equity and good conscience, the ancillary receiver ought to be required to pay the landlord $8,333.33, being four months rent, which would have accrued under the lease up to the time of filing the second petition of intervention. Hearing was had upon this petition and the court entered its order denying the same, and, no appeal being taken, said order became final. Thereafter, and on February 29, 1924, upon application of the ancillary receiver, the court entered its order directing the ancillary receiver to pay over to himself, as receiver in the main case under his New York appointment, all of the moneys and funds remaining in his hands as ancillary receiver and providing that he thereupon be discharged as ancillary receiver and his bond canceled. The transfer was thereupon made and the discharge became absolute. These proceedings are instituted by motion filed by the landlord with leave of court to set aside the above order of February 29, 1924. The motion is upon numerous grounds to the general effect that the order transferring the fund and discharging the ancillary receiver was improvidently entered without notice to the landlord. The interest which the landlord has in filing the motion to set aside the order of February 29th is disclosed by a third petition of intervention, which it has filed in the cause after the discharge of the receiver. In this third petition of intervention the landlord again alleges its lease to the Ralph Company, and the taking possession of the premises by the receiver and surrender thereof by him, and repossession by the landlord. It alleges that rents had gone down, and that it lost money because its lease was not carried out according to the terms thereof. It does not specify how much the loss was but prays that its "damages be liquidated and that the receiver be required to pay such damages." It may well be doubted whether this third petition in intervention presents any claim not finally adjudicated by the final order denying the second petition. The issue in both petitions appears to be the same. It is not alleged in either petition that the ancillary receiver ever took over the lease to the Ralph Company. On the contrary, it is stated in the record that he did not. The second petition was filed months after the ancillary receiver had finally vacated the premises and the landlord had repossessed them, and both petitions are predicated upon the inability of the landlord to realize from the premises the rents specified in the lease. But it is not necessary to decide that question on this appeal. No action has been taken in the trial court upon the third petition in intervention and it is only referred to here as presenting the claim of interest on the part of the landlord to support its motion to vacate the order of February 29th. Apparently assuming an interest on the part of the landlord, the court heard evidence upon the motion to vacate and overruled the motion and refused to set aside its order of February 29th. From this order, the landlord appeals and assigns the overruling of the motion as error. The main contention urged is that the landlord was entitled to notice of the application made by the ancillary receiver for direction to transfer the funds in his hands out of the jurisdiction and for discharge, and, it being conceded no such notice was given, that the order thereon of February 29th was erroneous. Careful consideration of the whole record satisfies us that the contention is without merit. On February 29th, the time when the ancillary receiver made his application for direction to disburse and for discharge.and obtained the order thereon, the landlord was not a party to the record in the ancillary receivership case. It had been twice before the court, once, by its petition for ouster and termination of the lease, and again, by its petition for $8,333.33 loss of rents accruing after the premises were vacated, and in each instance the court had fully and completely adjudicated its claims. The latter adjudication was made ten months after the ancillary receiver had vacated the premises and ceased to have anything to do with them. There was nothing in the record to indicate any possibility of further claims by the landlord, and certainly the landlord had not appeared in the cause by pleading or otherwise to make any other or further claim. Such being the state of the record, the landlord has no ground to complain because the court caused the funds to be disposed of and the receiver to be discharged without notice to it. Nor does the direction which the court made to the ancillary receiver in the ruling upon the landlord's first petition affect the conclusion. The direction was that the proceeds of the sale should "remain within the jurisdiction until lessor's claim for rent on premises occupied by receiver be determined and paid." As the ancillary receiver had not taken over the lease and had fully paid his rent for the period of his occupancy and had obtained an adjudication that he was not liable for any rent for the months following his surrender of the premises to the landlord, there was nothing in this direction of the court to keep the landlord in court as a party to the record, or to entitle it to notice of further proceedings to be had after all the claims it had presented had been adjudicated. No other irregularity of which the landlord would have any standing to complain has been found in the proceedings of the trial court, and its ruling and order upon the motion is in all respects Affirmed. It is so ordered. MANNING v. BIDDLE, Warden. (Circuit Court of Appeals, Eighth Circuit. August 7, 1926.) No. 7285. 1. Criminal law ~59(5)—Indictment for aid ing and abetting in acts not constituting crime does not charge offense (Cr. Code, § 332 [Comp. St. § 10506]). An indictment charging defendant as a principal for aiding and abetting in the commission of a crime, under Cr. Code, § 332 (Comp. St. § 10506), does not charge an offense, where the acts of the principal, in which it is alleged that defendant aided and abetted, did not constitute a crime. 2. Habeas corpus 4-Writ may issue for discharge of relator, convicted and imprisoned in violation of law, though no direct proceeding for reversal was taken. A defendant, convicted and imprisoned on an indictment which attempts, to charge an impossible offense and is wholly void, and who is therefore imprisoned in violation of law, may be discharged on writ of habeas corpus, though no direct proceeding for reversal was taken. Before SANBORN, Circuit Judge, and WOODROUGH and SCOTT, District Judges. WOODROUGH, District Judge. The appellant was denied a writ of habeas corpus by the district court in Kansas, and remanded to serve out a sentence of fine and imprisonment at Leavenworth for ten years imposed upon him by a district court in Missouri. The appeal is to review the order. Appellant claims that the indictment upon which his conviction and sentence are founded was merely an attempt to charge an impossible offense, colorless and wholly void, and that his imprisonment is without lawful authority or justification. [1] The indictment is very lengthy because of the number of counts which, however, differ from each other only in the matter of names and dates, the several transactions being of the same kind. The effort of the composition is to impute an offense to the accused, not as a principal in the ordinary sense of being an actor in the commission of a crime, but as a principal in the statutory sense in which an aider and abettor is defined to be a principal. Section 332 of the Criminal Code (Comp. St. 810506), provides: "Whoever directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal." This indictment entirely excludes any idea that the accused directly committed any act constituting an offense defined in any federal statute, but seeks to hold him as the aider and abettor of one Charles V. Eckert. The acts which are charged against Eckert constituting his alleged crimes are set forth in the same language contained in an indictment laid against Eckert and considered by this court in Eckert v. United States, 7 F. (2d) 258. The charge against Eckert, both in this indictment and in the indictment against him (omitting the last count in the Eckert indict Appeal from the District Court of the ment, which is not relevant) was, in sub United States for the District of Kansas. Petition by Thomas S. Manning against W. I. Biddle, warden of the United States Penitentiary, for writ of habeas corpus. From an order denying the writ, petitioner appeals. Reversed, with directions. stance, that as a druggist he filled certain prescriptions calling for narcotic drugs, and in accordance with the prescriptions so dispensed the drugs to the persons named therein who were addicts; that the prescriptions were issued by a duly registered physician, but with the purpose of satisfying the depraved W. W. Botts, of Mexico, Mo., for appel- appetites of the addicts and not as medicine, lant. all of which was well known to Eckert. Al. F. Williams, U. S. Atty., Alton H. Skinner, Frank H. McFarland, and John N. Free, Asst. U. S. Attys., all of Topeka, Kan., for appellee. On the review of the conviction of Eckert this court carefully considered the provisions of the Harrison Anti-Narcotic Drug Act, as amended (U. S. Comp. Stat. Ann. Supp. 14 F. (2d) 519 1919, § 6287g et seq.), under which the prosecution proceeded, but no language is found in the law penalizing the acts that were charged against Eckert. In the indictment he was admitted to be a licensed druggist registered with the collector of internal revenue, and this court finds that the statute expressly authorizes such licensed druggist to sell narcotic drugs on prescriptions issued by registered physicians, and for such druggist the prescription of a duly registered physician is the sole and sufficient warrant for the sale by him of the drugs therein prescribed, nor is any burden of inquiry into the intent and purpose of the physician issuing the prescriptions laid upon him by the statute. Such being the nonpenal character of the acts charged against Eckert, it is obvious that the mere aiding and abetting of the acts by another could not be punishable. Conceding that a person may be guilty as an aider and abettor and the person whom he is charged with aiding and abetting may not be guilty, for the reason that such accused is not the person who committed the crime, still it is an essential thing that a crime was actually committed. Without that, certainly the statute does not penalize an aider and abettor of acts that are not unlawful. We do not have to do here with conspiracy. No conspiracy is charged. This relator is shown by the recitals of the indictment to have been a practicing physician duly registered with the collector. He issued the prescriptions which were filled by Eckert, but on the face of them they were directed to any druggist in St. Louis, and, according to the indictment, were intended to be filled by any such druggist "whose custom and practice it was to fill such prescriptions for narcotic drug addicts." As any druggist in the city could fill the prescriptions without violating any law, the only reasonable inference is to exclude collusion or concert of any kind that might even suggest conspiracy between the relator and Eckert. There is therefore no sanction to be found in the law for the conviction, fine, and imprisonment of the relator as an aider and abettor of Eckert. [2] It is contended for the government that a review on direct proceedings was the only remedy available to this relator and such remedy was lost by lapse of time and his failure (or inability) to avail himself thereof. Many decisions of the Supreme Court and of this court are cited to the point that the writ of habeas corpus may not be used as a mere substitute for the writ of error, nor to correct errors occurring at the trial of one accused of crime, nor to relieve against defects in the in dictment or insufficiencies therein. And it is impressed upon us that the writ of habeas corpus is an extraordinary remedy not ordinarily to be issued after trial has been had, and that the issuance of the writ should be controlled by the judicial discretion of the court. But we are constrained to hold that the language of the indictment in this case comes within the complaint made against it by the relator, and that there was in fact merely an attempt to charge an impossible offense; that the facts charged were colorless and the indictment was void. The acts on the part of the accused which the indictment presents are not made penal and the court ought not to have taken cognizance thereof in a criminal proceeding as a basis for trial, nor could the court by reason of the commission of those acts impose a penalty upon the accused. There seems to be presented a rare and unusual instance of misapprehension of the law, leading, in the case of Eckert, to errors properly corrected on review, but proceeding in this case much farther to long imprisonment and heavy penalty inflicted upon the relator without any legal justification or sanction in law. The situation of this relator is brought to the attention of the court by proceedings in forma pauperis, and, save for the writ prayed for, no legal remedy of any kind exists. On account of the extraordinary situation presented by the record, the obvious absence of just cause for detention of the prisoner, and the lack of any other remedy, we think the trial court erred in denying the writ of habeas corpus. The order is reversed, with directions that the writ of habeas corpus be issued and the prisoner discharged. BAILEY v. SMITH et al. SMITH et al. v. BAILEY. (Circuit Court of Appeals, Eighth Circuit. August 2, 1926.) Nos. 7394, 7395. 1. Appeal and error 931 (1), 1009(4)-Findings of chancellor are presumably correct, and will not be disturbed unless clearly against weight of evidence or induced by erroneous construction of law. The findings of a chancellor are presumptively correct, and will only be disturbed by an appellate court if clearly against the weight of the evidence or induced by an erroneous construction of the law, especially where the evidence was heard orally with opportunity to note the demeanor of the witnesses and their manner of testifying. |