lons of alcohol, to them at their apartment; and that on April 27, 1925, Silk and Meek delivered the third purchase, five gallons of alcohol, to them at their apartment.

[1] Meek testified that he met Beazell and Bernard on March 30, 1925; that, while he was talking to them, Silk drove up; that he introduced Silk to Bernard and Beazell at Bernard's request; that Silk then went into the drug store; that Bernard had been a friend of his family for 20 years; that they talked about Meek's brother-in-law and his child at Kansas City; that Bernard said he wanted to get some alcohol; that he advised Bernard he was not in that business; that Bernard stated he had been in the bootlegging business in Kansas City, and had just lost a carload of alcohol through seizure by prohibition officers, that he had to leave Kansas City, that he was short of money, and that he had to get some business in Omaha.

Meek further testified as follows: "I met them out there on Twenty-Fourth street. He said, 'I can't get set right in Omaha, and you will have to get me some alcohol;' and I says, "That is out of my line,' and he told me about taking Tom Arnett into the Mason's lodge, and he showed me his credentials as being a Mason, and he says, 'Lou, you know I would never do nothing wrong to you, and I have got to have some help until I get acquainted;' so he said, 'If you will get me some alcohol, I will pay you for your trouble;' and I studied the thing over, and I said, 'If I was to get that for you, it would not be for the money; it would be for the friendship of the family;' and I said, 'I don't know whether I can get any or not.' So he says, 'Well, see what you can do.' So he left."

"The first time he was out, he said he was stopping at the Hotel Conant, and the third time he came out he said, 'I have rented an apartment;' and he said, 'I am all set right ready to go;' but he says, 'I can't get the stuff;' and he says, 'You will have to assist me in getting it.' So he called me at my house, and left a phone call for me; so I called him up, and he asked me if I had located anything, and I told him I had not. So the next day he came out-pretty sure it was the next day; it wasn't over a day or two-he came out here and says, 'Well, I have got to have some stuff now; can't you find any?' And I had seen a colored fellow by the name of Nigger Charley, and he said he has some alcohol; so Bernard asked me how much it would be, and I told him I didn't know the price of alcohol in Omaha, and he says

I said, 'You are in the business, and you should know the price.' He said, 'Well, Kansas City had three prices; eight, ten, and twelve;' and he says, 'I always use the best;' and he says, 'Here is sixty dollars and you get me five gallons.' I took the sixty dollars and I paid the sixty dollars for those five. They told me it was in one-gallon cans, but I never unpacked them or a thing. I delivered them just as they brought them to me."

Meek further testified that Bernard again came to see him and said: "Lou, I can't get fixed out here; they are afraid of me, you will have to get me five more;" that he said to Bernard, "Why, you should be all right now by this time, if you are in the game;" and Bernard replied, "I will tell you, if you will get me five gallons, I will never ask you to get any more;" that Bernard, then gave him $60, and he obtained five more gallons of alcohol and delivered it to the apartment.

Meek denied the sale and delivery of the third five gallons of alcohol. Meek's testimony was corroborated in certain particulars by the testimony of the prohibition agents. Silk denied the testimony of Bernard and Beazell with reference to him, except that he admitted meeting them and being introduced to them by Meek.

In rebuttal, Robert P. Samardick, chief of the prohibition field forces for the state of Nebraska, testified that the drug store had the reputation of being a "bootlegging joint," and Silk the reputation of being a "bootlegger," and that he had received a great many complaints against Silk on that account. Each defendant requested a charge upon entrapment. These requests were refused. The court, in his general charge to the jury, among other things, said:

"Much has been said, and much complaint and argument and discussion have been heard, about the conduct of officers who testified here, and who had to do with what is called 'making the case,' and much of that undoubtedly gives rise to deep consideration on your part as to the conduct of officers; but, generally speaking, certainly so far as this case is concerned, as to what officer shall be employed to detect crime, and how they shall go about it to detect crime, those are matters for the executive or other departments of the government to deal with, and are not anything that have to do with the court. As a matter of law it doesn't matter how he came to do it, whether officers persuaded him that by doing it he would help them to carry on a bootlegging

business or not; that is all outside of it. The statute denounces that transportation, and when a man transports intoxicating liquor knowingly and willfully hs is guilty under the law. Meek so stated, and he is guilty under the law."

The first proposition urged by counsel for defendants is that the court erred in refusing to give the requested charges on entrapment, and in charging the jury as above set out relative to the acts and conduct of the officers. This court had occasion to pass upon the question of entrapment, under a state of facts similar to those testified to by the defendant Meek, in Butts v. U. S. (C. C. A. 8) 273 F. 35, 18 A. L. R. 143. Butts was charged with a violation of the Harrison Anti-Narcotic Act (Comp. St. §§ 6287g6287q). One Rudolph was under arrest, also charged with a violation of that act. Both Rudolph and Butts were addicts. The narcotic officers induced Rudolph to go to Butts and attempt to buy morphine from the latter.

Butts testified that Rudolph called him over the telephone and asked him if he could get some morphine, telling him that he was sick and that his wife was sick; that he told Rudolph he did not have any morphine himself and could not get any, and that Rudolph replied he would call again the next day; that Rudolph called him again the next day, and that he again told Rudolph he had no morphine; that Rudolph then asked him if he could get him some from somebody, and thereupon he did get a box from one Joe Green, and arranged to meet Rudolph and Ideliver it to him; that he did not buy the morphine from Green, but was to give Green just what he got from Rudolph for it. Butts further testified that he had never sold or dealt in narcotics prior to the transaction in question. This court held that, if the facts testified to by Butts were true, there was an unlawful entrapment, which entitled Butts to a verdict of not guilty, and held that it was error to refuse to instruct upon the issue of entrapment.

In the opinion the court said: "It is not denied that, in cases where the criminal intent originates in the mind of the defendant, the fact that the officers of the government used decoys or truthful statements to furnish opportunity for or to aid the accused in the commission of a crime, in order successfully to prosecute him therefor, constitutes no defense to such a prosecution.

But when the accused has never committed such an offense as that charged against him prior to the time when he is charged with the offense prosecuted, and never conceived

any intention of committing the offense prosecuted, or any such offense, and had not the means to do so, the fact that the officers of the government incited and by persuasion and representation lured him to commit the offense charged, in order to entrap, arrest, and prosecute him therefor, is and ought to be fatal to the prosecution, and to entitle the accused to a verdict of not guilty."

Meek testified in substance that prior to the transactions in question he had never engaged in the unlawful sale or transportation of intoxicating liquor, that Bernard by means of false representations persuaded him to make two purchases of alcohol for Bernard to help the latter, and that he made no profit out of the transactions. Meek denied making the third sale testified to by the prohibition agents. On the other hand, the prohibition agents testified in substance that the drug store had the reputation of being a "bootlegging joint," and that Silk had the reputation of being a "bootlegger," and that, in order to obtain evidence on which to convict Meek and Silk, whom they suspicioned, they went to the drug store and afforded Meek and Silk an opportunity to sell alcohol to them.

If the testimony of Meek was true, as to him there was an unlawful entrapment. Butts v. U. S., supra; Peterson v. U. S. (C. C. A. 9) 255 F. 433; U. S. v. Eman Mfg. Co. (D. C.) 271 F. 353. On the other hand, if the testimony of the officers was true, there was an intent and purpose to violate the law on the part of Meek, and the officers merely furnished him with an opportunity to do so, and there was no unlawful entrapment. De Long v. U. S. (C. C. A. 8) 4 F. (2d) 244; Reyff v. U. S. (C. C. A. 9) 2 F. (2d) 39; Farley v. U. S. (C. C. A. 9) 269 F. 721; Billingsley v. U. S. (C. C. A. 6) 274 F. 86; Rothman v. U. S. (C. C. A. 2) 270 F. 31; Leon v. U. S. (C. C. A. 9) 290 F. 384; Partan v. U. S. (C. C. A. 9) 261 F. 515; Ritter v. U. S. (C. C. A. 9) 293 F. 187; U. S. v. Reisenweber (C. C. A. 2) 288 F. 520; Lucadamo v. U. S. (C. C. A. 2) 280 F. 653; Grimm v. U. S., 156 U. S. 604, 15 S. Ct. 470, 39 L. Ed. 550; Andrews v. U. S., 162 U. S. 420, 16 S. Ct. 798, 40 L. Ed. 1023. The evidence therefore presented a question of fact for the jury upon the issue of entrapment as to the defendant Meek, which should have been submitted under proper instructions. Cermak v. U. S. (C. C. A. 6) 4 F. (2d) 99.

Silk denied all of the charges against him, and denied the testimony of the agents Bernard and Beazell with reference to him,

and having tubes passing therethrough and open at their rear ends to said vertical passage and at their forward ends to said showcase constructed and arranged to permit a circulation of air through said unit and along the back thereof, and said unit being adapted in position to cause a current of air to circulate in a path from the bottom of said unit along the bottom of said showcase and in a return path along the top of the showcase into the top of said unit.

"3. A counter refrigerator, comprising an elongated showcase provided with transparent panels, a refrigerating unit adapted to receive a freezing mixture and mounted at one end of said showcase, said unit having passages constructed and arranged to permit a circulation of air therethrough and along the back thereof, and said unit being adapted and positioned to cause a current of air to circulate in a path from the bottom of said unit along the bottom of the showcase and in a return path along the top of the showcase into the top of said unit, and a pan extending along the bottom of the showcase beyond said unit and adapted to receive the brine from said unit."

The defense of invalidity involves prior use, anticipation, and, in a certain sense, want of patentable novelty. Upon the defense of anticipation 51 patents are cited, and upon the claim of prior use 9 firms and a great number of constructions are cited. The consideration of these citations consumes a great many pages of the record and would require minute and critical analysis; however, in the brief and argument of appellee and cross-appellant, chief reliance is placed upon nine of the patents cited, to wit, Joyce, Chase, Zimmerman, Pike, Wight, Weiss et al., Campbell, Crabtree, and Hall. In our judgment, the balance of such citations may be disregarded.

The Joyce patent was for a showcase, and the principal feature stressed was the arrangement with glass panels permitting the contents to be exhibited. Necessarily it had a refrigerating unit, which was placed in the center of the case, with no provision for directed currents of air. It had a waste pipe for the discharge of water accumulation.

The Zimmerman patent was for a refrigerator car, and while, of course, it provides refrigeration, with none of the elements of a showcase, it does have pipes passing through and from the refrigerating unit, which have discharging ends towards the center of the car, are preferably flaring in the center direction, and are intended to conduct the cold air into the central portion of the car. In

this respect these pipes correspond in a measure to the tubes described in claims 1 and 2. A circulation of the air is thus permitted, but not in the orbital method here disclosed. Furthermore, the location of the pipes as described would be impractical in a showcase construction.

The patents of Pike, Wight, Campbell, Crabtree, and Hall do not embody the principle here involved.

The Weiss patent is for a showcase and ice box, and discloses nothing more in substance than means of projecting refrigerated air into the food compartment, and glass panels for exhibition purposes. The combination of the Weiss and Pike patents, urged by counsel for the Gruendler Company, lacks the device in claim 3 of the patent in suit for compelling and directing the circulatory current of air, and, in any event, to produce the result here claimed would require the combination and coaction of the elements of these two patents. In such case the use of elements, old in the art, combined to produce a new result, is not vulnerable to the charge of anticipation. To the Chase patent reference will hereafter be made.

Turning now to the claims in their order, instead of the tubes specified in the patent in suit, defendant's device has what the trial court aptly described as "modified legs, with yoke-shaped, or A-shaped, openings between such legs." Counsel for the Hussmann Company in argument stated that this first claim was infringed, if these passages in defendant's structure are held to be equivalent to tubes. The charge of infringement was practically limited to this claim of equivalence. The trial court correctly found, from the many patents offered, and otherwise from the record, that modified legs or downward extending tubes similar to those employed in de

fendant's structure are old in the art of refrigeration; but, even if this were not so, a special function is by the patent attributed to these tubes. The specification says:

"It is to be noted that, because of the tapered flues having their larger ends disposed outwardly, a free passage of the air into and through these flues is induced, and, further, that the air entering the flues becomes chilled and contracts, for delivery, in such contracted condition, through the smaller or restricted ends of the flues into the chamber 9, where it will undergo a further chilling and consequent contraction, and finally pass from said chamber into the other flues of the series and outward therethrough into space 20. During its outward passage, the chilled or refrigerated air first enters the flues at their smaller