3. Criminal law 429 (2).

The indictment is not evidence.

4. Criminal law 429 (2).

Copies of affidavits and of search warrant attached to the indictment are not proof.

5. Criminal law 734, 736(1).

Court on the trial must finally determine as to sufficiency of charge or competency of proof. 6. Searches and seizures

3.

til overcome by the evidence. The indictment is not evidence. The copies of the affidavits and of the search warrant attached to the indictment are not proof. There is no proof that any affidavit had been filed or search warrant issued. No search warrant nor affidavits in support were offered. The court upon the trial must finally determine as to the sufficiency of the charge or competency of the proof.

7. Intoxicating liquors 248-Affidavits that affiant saw some one deliver and sell whisky, and receive money therefor two days before, held not to authorize search in nighttime (Act June 15, 1917, § 10 [Comp. St. § 1049641]). Affidavits, executed November 16, that affiant saw some one deliver and sell intoxicating liquor and receive money therefor on November 14, did not support a search warrant au

thorizing a search in the nighttime, in view of Act June 15, 1917, § 10 (Comp. St. § 104964j).

8. Searches and seizures 3-Where search warrant described premises as 23102 Seventh avenue, premises of named parties, and testimony disclosed no such number, and premises near by belonging to others were searched, description and identification were insufficient.

Where search warrant described premises as 23101⁄2 Seventh avenue, premises of named parties, and testimony disclosed no such number, and the second floor over 2308, 2310, or 2312 was searched, these three numbers being over three separate doors on Seventh avenue, and premises were a private residence, not of the parties named, held, premises were not sufficiently described nor identified by proof.

B. A. Sands and another were indicted for an offense, and they move for a dismissal. Motion granted.

Thomas P. Revelle, U. S. Dist. Atty., and C. T. McKinney, Asst. U. S. Dist. Atty., both of Seattle, Wash.

Hugh M. Caldwell and Eimon L. Wienir, both of Seattle, Wash., for defendants.

NETERER, District Judge. At the close of the government's case, the defendants moved a dismissal for failure to show that a search warrant had been issued, and absence

indictment was insufficient, was overruled, with permission to raise the point at the close of the government's testimony. This court, in U. S. v. Hallowell (D. C.) 271 F. 795, held that there can be no unlawful resistance without a valid search warrant. The Circuit Court of Appeals of the Seventh Circuit in Dovel et al. v. United States, 299 F. 948, reversing a conviction for resisting an officer, at page 949, says:

"An examination of the record shows that the search warrant, the execution of which it is claimed defendants resisted, was not offered in evidence. The commissioner testified that he issued a search warrant, and the prohibition agents testified that they had it in their possession when they met with the resistance. The proper foundation for the introduction of secondary evidence as to its conevidence as to its contents save only the pretents was not laid, however, and there was no sumptions that arose from its issuance. There was, moreover, an utter absence of evidence showing or tending to show that any made. Upon this affidavit the validity of the affidavit by one qualified to speak was ever warrant was solely dependent. The gist of the action is resistance to one serving a search warrant. There can be no unlawful resistance, unless there is a valid search warrant, and there can be no valid search warrant unless a proper showing is made to the court or commissioner disclosing facts which bring the petitioner within the statute."

[7] It may also be said that the copy of application and affidavit for search warrant attached to the indictment are insufficient to authorize search in the nighttime:

that a crime against the government of the United States, in violation of the National Prohibition Act of Congress, was and is being committed, in this: That in the city of Seattle, county of King, state of Washington, and within the said district of Washington, and division above named, one John Doe Anderson and Mrs. J. Anderson (true names unknown), proprietors and employees, on the 16th day of November, 1925, and thereafter, was and is possessing and selling intoxicating liquor, all for beverage purposes, and that in addition thereto affiant has supporting affidavit of H. Thompson therein, all on the premises described as 23102 Seventh avenue.

The supporting affidavit reads:

"H. Thompson, being first duly sworn, on his oath deposes and says that on or about the 14th day of November, 1925, at No. 23101⁄2 Seventh avenue, in the city of Seattle, county of King, state of Washington, affiant saw proprietors and employees furnish, deliver, and sell intoxicating liquor, to wit, moonshine whisky (D. S.), and receive money therefor." This was subscribed and sworn to on the 16th of November, 1925.

[8] The execution of the search warrant was authorized in the daytime or nighttime, at 23102 Seventh avenue, premises of John Doe Anderson and Mrs. J. Anderson. The testimony did not disclose any No. 23102. The second floor over 2308, or 2310, or 2312 was searched-these three numbers being over three separate doors on Seventh avenue. The premises searched were a private residencenot of John Doe Anderson or Mrs. J. Anderson-and search was made at 11 o'clock in the nighttime. Section 10, Act June 15, 1917, 40 Stat. 229 (section 104964j, Comp. St.), provides:

"The

commissioner must insert a direction in the warrant that it be served in the day time, unless the affidavits are positive that the property is on the person or in the place to be searched, in which case he may insert a direction that it be served" in the day or night time.

Or, as stated by the Circuit Court of Appeals in Siden v. United States, 9 F. (2d) 241, at page 243:

"If the affidavits on which the search warrant was based had disclosed the fact that this clothing store was a place where substantial quantities of intoxicating liquors, apparent ly for sale, were kept, or a place where a saloon or place of sale of intoxicants had been or was maintained, and where several sales

In Hagen v. United States, 4 F. (2d) 801, the affidavit for a search warrant stated that: "One 'Ed Hagen and employees, on the 20th of February, 1923, and thereafter, was, has been, and is possessing and selling intoxicating liquor, all for beverage purposes, on the premises used, operated, and occupied in connection therewith, all of said premises being occupied or under the control of Ed Hagen and employees, in violation of the statute,'" etc.

This court held the affidavit insufficient to support a search, but did, on trial, admit certain evidence as competent without search warrant support. On appeal the case was not presented by the government to the Circuit Court of Appeals upon the theory upon which it was tried, and the court determined it upon the sufficiency of the search, and said at page 802:

"We hold that the affidavit upon which the search warrant was issued was insufficient to support the issuance of the warrant. Not a fact was set forth which tended to establish the ground of the application for the warrant, or which tended to show probable cause for believing that the grounds for the application existed. Not even a circumstance was stated which would tend to show that the house was being used by Hagen for the unlawful sale of intoxicating liquor."

The Circuit Court of Appeals of this Circuit, in Lochnane et al. v. United States, 2 F. (2d) 427, at page 428, says:

"We are of opinion that the mere sworn general statements that a proprietor of a hotel at a certain place is unlawfully possessed of intoxicating liquor for beverage purposes, or is transporting or selling the same, is not sufficient to warrant a judicial finding of probable cause for the issuance of a search warrant which directs a search of the hotel named."

Again, on the same page:

"It should have affirmatively appeared that he had personal knowledge of facts competent for a jury to consider, and the facts, and not his conclusion from the facts, should have been before the commissioner."

In United States v. Edwards (D. C.) 296 F. 512, at page 515, Judge Tuttle held sufficient an affidavit as follows:

"Deponent further states upon his own knowledge that in and upon the premises aforesaid, occupied as a soft drink stand and cigar store, and used for the illegal sale of intoxicating liquors, and

particularly at the bar of the building aforesaid, ⚫ is now a certain quantity of intoxicating liquor fit for beverage purposes, used in connection with the aforesaid violation of the National Prohibition Act; ⚫ said intoxicating liquors consisting of whisky and certain other intoxicating liquors."

The Circuit Court of Appeals of this circuit, in affirming this court in sustaining a search warrant in the case of Riley Fry et al. v. United States, 9 F. (2d) 38, says:

"Affidavit for the search warrant was made by a federal prohibition agent, who set forth that one Riley Fry, Ernest Brown, and John Doe Kelley, and others unknown, 'proprietors, and their employees, on the 15th of May, 1924, and thereafter, was and is possessing, transporting, and selling intoxicating liquor, all for beverage purposes; that in addition thereto affiant was told on said date by one of the proprietors that they had liquor for sale and would sell this affiant, if he was properly introduced; that on previous occasions this affiant has seen drunken men come from said premises, has heard drinking and carousing in rooms 14 and 15, and has seen parties enter said premises without liquor and return with liquor, all on the premises described as 12032 First avenue, Seattle, Wash., and on the premises used, operated, and occupied in connection therewith and under control and occupancy of said above par

The court then, on page 39, says:

"We are of the opinion that the affidavit contained sufficient statements of evidentiary facts tending to show that defendants illegally possessed liquor. The statement by one of the proprietors of the described place to affiant that they had liquor for sale, and that he would sell to affiant if he were properly introduced, implies that the persons named kept some kind of a resort where they would sell liquor to one to whom they could sell without fear of prosecution. Further statement that affiant heard carousing in rooms 14 and 15 of the premises, coupled with the statement that affiant had seen persons enter the premises without liquor and return with liquor, impelled the belief that liquor was unlawfully possessed in the premises described."

The court further says:

"Further objection is based upon the fact that the warrant was executed at night, without positive showing in the affidavit that the liquor was then on the premises to be searched. Answer to the point is that the affidavit of the prohibition agent was positive that one of the defendants stated they had liquor for

sale, and that liquor was possessed by defendants in the place to be searched."

The most that can be said for the affidavits in this case is that Thompson saw some one deliver and sell intoxicating liquor, to wit, moonshine whisky (D. S.), and receive money therefor, on the 14th day of November. This statement, as said by the appellate court (Siden v. U. S., supra, at page 243), literally and logically is that liquor he saw sold and delivered on the 14th "was and continued to be kept for sale on those premises" on the 16th. There is not a scintilla of evidence which gives to the place any other relation than a private dwelling, or any suggestion of a fact that there was other liquor on the place on the 14th of November than that which was sold; nothing to intimate a fact of the presence of liquor on the 16th of November, nor to any circumstances or prior relation that would bring the search warrant within the meaning of section 104964j, Comp. St., supra, or the holding of this court, affirmed by the Circuit Court of Appeals in U. S. v. Riley Fry (9 F.[2d] 38).

I have referred to several matters to elucidate and clarify the several issues, although not necessary to a determination of this motion. The motion is granted, first, because there is no evidence that any search warrant was issued, nor was a search warrant or affidavits in support of the search warrant offered in evidence; second, because the copy of

the affidavits attached to the indictment does not set forth facts to support a search warrant authorizing a search of the premises in the nighttime; third, the premises searched were not described with sufficient particularity, or identified by the proof.

In re VAN ALLSBURG.

(District Court, W. D. Michigan, S. D. January 4, 1926.)

I. Bankruptcy 400(1)-Bankrupt, after inventory and appraisal of his property, may not select from inventory specific property for exemptions (Bankruptcy Act, § 7a [8], being Comp. St. § 9591; Comp. Laws Mich. 1915, § 12858, subd. 8, and sections 12861, 12862).

Where voluntary bankrupt made general claim for exemptions in his schedules, and exemptions were set aside by trustee, bankrupt, after completion of inventory and appraisal, may not claim exemption of specific articles therefrom, under Bankruptcy Act, § 7a (8), being Comp. St. § 9591, despite any provision of Comp. Laws Mich. 1915, § 12858, subd. 8, and sections 12861, 12862.

2. Bankruptcy 400(1).

While state law governs as to kind and amount of exempted property and as to per

sons entitled thereto, manner of setting it apart is governed by Bankruptcy Act (Comp. St. § 9585 et seq.).

In Bankruptcy. In the matter of Henry Van Allsburg, bankrupt. From an order of the referee, denying petition of bankrupt for an order directing the trustee to set apart, as exemptions, items of property selected by bankrupt after inventory and appraisal, appeal was taken. Order affirmed. James E. Sullivan, of Muskegon, Mich., for bankrupt.

Harold Smedley, of Muskegon, Mich., for trustee.

RAYMOND, District Judge. Bankrupt filed a voluntary petition in bankruptcy on October 15, 1925, and scheduled assets aggregating $2,200, consisting of stock in trade and store fixtures. In schedule B5 he made claim to exemptions to the amount of $500, no specific property being designated. After the property was appraised, and on November 14, 1925, bankrupt filed a selection of exemptions, consisting of certain items of fixtures and stock in trade, at the appraised value of each, to the amount of $248.50. On November 16, 1925, the trustee filed a schedule of property designated and set apart to be retained by bankrupt; the property aggregating in value $252.81. On November 19, 1925, the bankrupt filed a petition, praying for an order directing the trustee to set apart the items of property previously selected by bankrupt. The referee in bankruptcy entered an order denying this petition, and confirming the report of exemptions filed by the trustee. The matter is before this court on petition for review.

[1,2] It is the claim of bankrupt that, by reason of the provisions of sections 12858 (8), 12861, and 12862 of the Compiled Laws of Michigan of 1915, he is entitled, in event of levy under execution, to select as exempt from his stock of goods and fixtures property not exceeding in value $250, and, in event of bankruptcy, that after completion of inventory and appraisal he has the right to select articles from such inventory to the same amount. The claim of bankrupt must be denied. There is no sanction in the Bankruptcy Law for the practice followed 14 F. (2d)-43

by bankrupt in this matter. It is obvious that the Bankruptcy Act does not contemplate that a bankrupt may, after inventory and appraisal of his property, select from such inventory specific property which he desires to claim as exempt.

Bankruptcy Act, § 7a (8), being Comp. St. § 9591, provides that a bankrupt shall prepare and make oath to a schedule of his property, showing the amount and kind of property, the location thereof, its money value in detail, and a list of his creditors, showing their residences, if known, if unknown, that fact to be stated, the amounts due each of them, the consideration thereof, the security held by them, if any, and a claim for such exemptions as he may be entitled to. This section expressly requires the claim for exemptions to be in writing, to be sworn to, and to be filed with a schedule of assets and list of debts of the bankrupt. There is no provision in the Bankruptcy Act permitting the bankrupt to defer his claim for exemptions until after inventory and appraisal has been made. It is true that omitted or defective claims for exemptions may be later inserted or corrected by amendment of the schedules, but this can only be done by order or leave of court. It would be obviously unfair to creditors to permit a bankrupt to make a general claim for exemptions in his schedules, and to afterwards make claim for exemption of specific articles from the inventory and appraisal after · completion thereof.

[3] Bankrupt has assumed that he is entitled to select his exemptions in the same manner as is provided by the sections of the Michigan statutes above cited, applicable to levies by sheriffs and constables under executions. It has been repeatedly held that, while the state law governs as to the kind and amount of property allowed as exempt and as to the persons entitled thereto, the manner of setting apart exempt property is governed by the Bankruptcy Act, and not by the provisions of the state law. See Remington on Bankruptcy, § 1326; Collier on Bankruptcy, vol. 1, p. 326; In re Andrews and Simonds (D. C.) 193 F. 776; In re Moore (D. C.) 274 F. 645; Bank of Nez Perce v. Pindel, 193 F. 917, 113 C. C. A. 545.

In the case of In re Moore, it is said: "The manner in which such exemptions are to be claimed, set apart, and awarded is regulated and determined by the federal courts, as matter of procedure in the course of bankruptcy administration, as to which they are not bound or limited by state deci

doned.

The order of the referee is affirmed.

In re BAUKNIGHT.

G.-D. Corbett filed specifications of objection to the discharge of the bankrupt. This specification is not verified as required by the Bankruptcy Act (Comp. St. §§ 9585-9656), but the specification is virtually the same as No. 5 of Clarice N. Steiner. [1] The first specification is that the bankrupt committed an offense punishable by imprisonment under the Bankrupt Act, in that she did not file schedules within 10 days after adjudication, as required by section 7 (8), being Comp. St. § 9591. I do not find this failure denounced as a crime in section 29b

1926.)

No. 2921.

1. Bankruptcy 407(1)-Failure to file schedules in time specified not ground for denying discharge (Comp. St. §§ 9591, 9613).

Failure of bankrupt to file schedules within 10 days after adjudication, as required by Bankruptcy Act, § 7(8), being Comp. St. § 9591, not being denounced as a crime by section 29b (Comp. St. §§ 9613), does not constitute good ground for objection to discharge. 2. Bankruptcy413(3)-Specification of objection to discharge, not setting out false statement on which money obtained, insufficient.

Specification of objection to bankrupt's discharge, alleging that bankrupt obtained money on materially false statement, but not showing such statements, was insufficient.

3. Bankruptcy407(1)—Bankrupt, refusing to answer material question approved by court, not entitled to discharge (Comp. St. § 9598).

Under Bankruptcy Act, § 14b(6), being Comp. St. 9598, bankrupt, refusing to answer material question approved by court, is not entitled to discharge, though refusal was on claim of constitutional privilege.

In Bankruptcy. In the matter of Nellie M. Bauknight, trading as the Bauknight Realty Company. On motion of bankrupt to strike specifications of objection to discharge. Motion denied as to one specification, and

sustained as to others.

S. Bryan Jennings, of Jacksonville, Fla., for bankrupt.

Wm. T. Stockton, of Jacksonville, Fla., for petitioning creditors.

CALL, District Judge. This cause comes on for a hearing upon the motion of the bankrupt to strike the specifications of objection to the discharge of the bankrupt. These specifications of objection were filed by Clarice N. Steiner and are five in number. I understand

[3] The fifth specification is that the bankrupt refused to answer a material question approved by the court. The questions referred to in this specification were such that the bankrupt claimed her exemption from answering because the answers would tend to incriminate her. This she could do, and thereby deprive the bankruptcy court of the light that might have been thrown by such answers in administering the assets of the estate. It have a discharge after having done so? I was her constitutional privilege. But can she think not. The discharge of the bankrupt from provable debts is a privilege, granted in all cases except for the reasons and grounds set out in section 14b (6) of the act (Comp. St. § 9598).

The bankrupt, if he desires a discharge, must answer all material questions approved by the court in the bankruptcy proceedings, whether they would tend to incriminate him or not, or by his refusal he forfeits the right to discharge. The motion to strike the fifth specification will be denied.

As before noted, the specification of G. D. Corbett is not so worded as to constitute a good specification of objection. It is appar ent that the same question as is raised in specification No. 5 above discussed is sought to be raised. The motion to strike will be granted, but said specification may be amended upon leave of the court first had.

It will be so ordered.