20 F.(2d) 376 7. Criminal law 776(1)-Refusal to instruct that evidence of good character should be considered held error. Refusal to instruct that evidence of good character should be considered held error, where the prosecution relied chiefly on testimony of admitted accomplices. In Error to the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge. Criminal prosecution by the United States against Tony Nanfito, Joe St. Lucas, Rosario Gibilisco, and Sam Gibilisco. Judgment of conviction, and defendants separately bring error. Reversed and remanded. E. D. O'Sullivan, of Omaha, Neb. (W. N. Jamieson, C. J. Southard, William E. Lovely, Joseph M. Lovely, John D. Wear, and Ray T. Coffey, all of Omaha, Neb., on the brief), for plaintiffs in error. George A. Keyser, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty, and Ambrose C. Epperson, Andrew C. Scott, all of Omaha, Neb., and William J. Froelich, of O'Neill, Neb., Asst. U. S. Attys., on the brief), for the United States. Before WALTER H. SANBORN and BOOTH, Circuit Judges, and KENNAMER, District Judge. KENNAMER, District Judge. Plaintiffs in error were charged by an indictment containing seven counts with the violation of section 3257 of the Revised Statutes of the United States (Comp. St. § 5993), in defrauding and attempting to defraud the government of a tax on distilled spirits; section 3281 of the Revised Statutes of the United States (Comp. St. § 6021), in distilling with intent to defraud the government of a tax; section 3282 of the Revised Statutes of the United States (Comp. St. § 6022), in making and fermenting mash on premises other than a distillery; and section 37 of the Penal Code of the United States (Comp. St. § 10201), in conspiring to violate sections 3257, 3281, and 3282 of the Revised Statutes. Certain other defendants were indicted with plaintiffs in error, but were not tried with them. The defendants, Joe St. Lucas, Tony Nanfito, Rosario Gibilisco, Sam Gibilisco, and Frank D. Close, filed a motion to quash the indictment, which motion was overruled on the day it was filed, the court refusing to admit any evidence offered in support of the same. A challenge to the array or panel of jurors filed by the defendants was overruled and thereafter, the above-named defendants filed a special demurrer, which was likewise overruled. Five of the defendants, to wit, Frank D. Close, Louise Vinciquerra, Sebastiano Vinciquerra, Earl C. Hanning, and Tony Cortese, pleaded guilty to the indictment. The defendants St. Lucas, Nanfito, Gibilisco, and Gibilisco pleaded not guilty, and were tried, found guilty on each of the seven counts of the indictment, and sentenced to imprisonment of six months and to the payment of a fine of $500, the imprisonment to run concurrently, as regards each of the seven counts. Thereafter a motion for a new trial and a motion in arrest of judgment were filed, both of which were overruled. From the judgment and sentence of conviction, the defendants have sued out a writ of error to this court. The facts disclosed by the record are that the plaintiffs in error, together with one Han ning, who, at and prior to the time of the entered into a conspiracy to manufacture indictment, was a federal prohibition agent, just outside the city of Omaha, Neb., where whisky. Suitable premises were obtained just outside the city of Omaha, Neb., where a distillery containing three stills was established. Each of the persons entering into the conspiracy for the manufacture of the whisky and for the carrying on of the business of a distillery either paid in a definite sum of money, or were to perform services, and all were to share in the profits and proceeds of the undertaking. The record further shows that a large quantity of whisky was manufactured and sold by the parties and the business of operating a distillery was carried on for a brief period of time. tain of those entering into the conspiracy, above enumerated, entered pleas of guilty and testified on behalf of the government at the trial of the case. The record discloses that several witnesses were called on behalf of the defendants who testified as to the good character of the defendants St. Lucas and Nanfito. Cer There are 19 assignments of error in the writ, many being without merit. Only those containing merit will be herein discussed, which are briefly the assignments setting forth the refusal of the trial court to quash the indictment, error of the trial court in overruling the special demurrer to the indictment, refusal of the court to define reasonable doubt when same was requested, refusal of the trial court to instruct the jury that the indictment should not be considered as evidence against the defendants, and refusal of the trial court to instruct the jury upon the consideration of the evidence of good character. [1] The first ground presented in support of the motion to quash the indictment is that no colored persons were called to serve upon the grand jury returning the indictment. The record does not disclose that any colored people were deliberately or intentionally not called for jury service, because of their race or color. In the absence of a showing that colored persons were excluded from jury service on account of their race or color, we are unable to see how these defendants were prejudiced or injured because of the absence of colored persons on the grand jury. It is further contended by plaintiffs in error that there was no competent evidence before the grand jury returning the indict ment. This contention is worthy of much consideration. At the trial of the case, the defendants, plaintiffs in error, made an offer of proof to establish the fact that the only witness who testified before the grand jury upon which the indictment is predicated, was Louise Vinciquerra, who was indicted in this cause along with Sebastiano Vinciquerra, her husband. It is insisted that the testimony of the wife was incompetent, because of the indictment of the husband in the same transaction involving the commission of a crime. The motion to quash the indictment was filed on the day on which the case was tried. However, the trial court considered the matter as having been timely filed and presented. The question of insufficiency of evidence before the grand jury cannot be taken advantage of for the first time at the opening of the trial. [2] A motion to quash an indictment is addressed to the discretion of the court and will ordinarily not be reviewed in an appellate court. United States v. Rosenberg, 74 U. S. (7 Wall.) 580, 19 L. Ed. 263; Lewis v. Unit ed States (C. C. A.) 295 F. 441; Durland v. United States, 161 U. S. 306, 16 S. Ct. 508, 40 L. Ed. 709. However, as the trial court did not predicate his ruling upon the delay in the attack on the indictment, we shall consider the same upon its merits. It has become accepted as a general rule that investigations before the grand jury should be made in accordance with the well-established rules of evidence, United States v. Bolles (D. C.) 209 F. 682; and ample justification exists for such a rule, in order that the time of the trial courts may not be consumed in disposing of matters incapable of proof by competent evidence; and further that persons may not be indicted upon mere suspicion. It well may be observed that grand juries are summoned for the purpose of inquiring into crimes. It is therefore an informing and accusing body, rather than a judicial tribunal. United States v. Belvin (C. C.) 46 F. 381; United States v. Kilpatrick (D. C.) 16 F. 765. [3] It has been established that the evidence received before a grand jury must be competent, legal evidence, such as is competent before a petit jury, United States v. Reed, Fed. Cas. 727, No. 16,134, 2 Blatchf, 435, and this is a proper rule for the guidance of grand juries. [4] In the instant case, the husband of the witness testifying before the grand jury, entered a plea of guilty. He was, therefore, not on trial with plaintiffs in error, and this court has held that the testimony of a wife of a codefendant is competent against a defendant, where the codefendant had, prior to the defendant's trial, pleaded guilty, upon the principle that the witness had no further interest in the matter. Astwood v. United States, 1 F. (2d) 639. We are thus presented with the proposition of the competency of Louise Vinciquerra to testify before the grand jury returning the indictment under which the plaintiffs in error have been convicted. A grand jury, in the course of its inquisitorial duties, should be permitted to accuse and indict all persons who have violated the laws when sufficient evidence is presented to them by competent witnesses. The competency of the witnesses and the competency of the evidence must be determined by the established rules of evidence. We are of the opinion that the testimony of the wife before the grand jury resulting in the indictment of her husband and plaintiffs in error for the commission of a crime was incompetent at the time it was given, and a subsequent plea of guilty by the husband cannot render the testimony competent which was incompetent when given. The trial court should have permitted the defendants to make a showing in support of their motion to quash. [5] Another proposition presented is that the court refused to define reasonable doubt in the charge to the jury. The record discloses that such a request was made by the defendants of the trial court, but the same was refused. The court should have defined reasonable doubt in the instructions to the jury. The accused is entitled to a clear and full instruction. as to what is meant by the term reasonable doubt and a failure to instruct upon request constitutes error. Schencks v. United States, 55 App. D. C. 84, 2 F. (2d) 185; Egan v. United States, 52 App. D. C. 384, 287 F. 958; 16 C. J. 989, par. 2396. [6] Error is assigned to the refusal of the 20 F.(2d) 379 trial court to grant the request of the defendants to instruct the jury that the fact that the government had accused the defendants in writing by the indictment of the alleged offenses did not overcome or impede the prima facie presumption of their innocence. At the trial, the defendants requested such an instruction, which was refused by the trial judge. This court, in the case of Cooper v. United States, 9 F. (2d) 216, held: "That the refusal of the defendants' requested instruction that the indictment is of itself a mere formal accusation, and not to be considered as evidence of guilt, and that jurors should not suffer themselves to be influenced by the fact that the indictment was returned against defendants, where the court's charge contained nothing to the same effect, held error, and to require reversal." [7] Plaintiffs in error requested the trial charged in the indictment in every material part. The law demands an acquittal unless every material fact upon which a conviction depends is proved beyond a reasonable doubt to the satisfaction of each individual juror. These are fundamental rights and safeguards that must be accorded every defendant. The errors presented herein were prejudicial and certainly affect the substantial rights of the defendants. Such errors exceed the bounds of technicalities and encroach upon substantive rights accorded every defendant in criminal actions. The judgment of the trial court is reversed, and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion. Circuit Court of Appeals, Second Circuit. 1. Carriers 194-Consignee, receiving ship- judge to charge the jury that the evidence of DARE et al. v. NEW YORK CENT. R. CO. good reputation should be considered together with all the other evidence in the case. The trial court refused to charge the jury as to the evidence of good reputation and this refusal is assigned as error. The refusal of the court to charge the jury concerning the good reputation of the defendants, Nanfito and St. Lucas was error. Egan v. United States, supra. It should be observed that in a case in which the government relies chiefly for its prosecution upon the evidence of admitted accomplices, as in the instant case, it is important that the jury be specifically instructed as to the proper consideration to be given evidence of good character. Section 269 of the Judicial Code (Comp. St. 1919, Supp. § 1246) has been relied upon by the government to sustain the conviction herein. It is, in part, as follows: "On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, eivil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." This section was applied in the case of Furlong v. United States, 10 F. (2d) 492, in which this court held that the errors complained of in the Furlong Case were technical and did not affect the substantial rights of the defendant. We have no fault to find with the application of the above statute in a case presenting merely technical errors, in which no prejudice has occurred to the defendant. In criminal cases, the government has the burden of proving, beyond a reasonable doubt, the case against the defendant Carriers 35-Freight charges must coincide with rate fixed by law, notwithstanding contrary agreements between consignee and carrier. Freight charges must coincide with the rate rangements between consignee and carrier to fixed by law, notwithstanding contractual ar the contrary. 3. Carriers 194-Consignee's direction for carrier to collect freight from another will not relieve it from liability therefor. Consignee's direction in order of delivery for carrier to collect freight from another is insufficient to relieve it from liability for freight charges. 4. Carriers 194-Defendant, loaning money to commission company, taking bills of lading indorsed in blank as security, directing delivery of shipments to vessels and collection of freight from commission company, held liable for freight on inability of railroad to collect from commission company (Bill of Lading Act, $$ 8, 31 [Comp. St. §§ 8604dd, 8604p]). Where defendant, making loan to commission company, received as security order bills of lading covering various shipments of oats indorsed in blank by consignees, which bills of lading it delivered to carrier with instructions to deliver the oats "for our account" to vessels for export, and to collect freight charges from commission company, held, defendant occupied position of consignee, and was liable in an action at law for freight charges, which carrier was unable to collect from commission company after delivery of shipments, in view of Bill of Lading Act, §§ 8, 31 (Comp. St. §§ 8604dd, 8604p). In Error to the District Court of the United States for the Southern District of New York. Action by the New York Central Railroad Company against Edward H. Dare and another, copartners trading under the name of E. H. Dare & Co. Judgment for plaintiff on stipulated facts, after waiver of jury, and defendants bring error. Affirmed. Hendrick & Hendrick, of New York City (John H. Hendrick, of New York City, of counsel), for plaintiffs in error. Alex S. Lyman, of New York City (William Mann, of New York City, of counsel), for defendant in error. Before MANTON, L. HAND, SWAN, Circuit Judges. comes legally bound to pay the freight charges. Pittsburgh, etc., Ry. Co. v. Fink, 250 U. S. 577, 40 S. Ct. 27, 63 L. Ed. 1151; L. & N. S. Ct. 441, 68 L. Ed. 900. Such charges must R. Co. v. Central Iron Co., 265 U. S. 59, 70, 44 coincide with the rate fixed by law, notwithstanding contractual arrangements between consignee and carrier to the contrary. N. Y. Cent. R. R. Co. v. York & Whitney Co., 256 U. S. 406, 41 S. Ct. 509, 65 L. Ed. 1016. Even if it be assumed that the consignee might substitute another's obligation for his own, a mere direction in the order of delivery to collect freight from another would not be sufficient. The case of N. Y. C. R. Co. v. Ross Lumber Co., 234 N. Y. 261, 137 N. E. 324, 24 A. L. R. 1160, so holds, and we concur in this view. There should be some effective substitution by and novation, or otherwise, so that the new debtor would become legally bound to the carrier for freight before the consignee is freed. [4] It is contended that the cases above mentioned are distinguishable, because in the case at bar the defendants were not consignees nor owners, but only pledgees for security. We think this difference immaterial. So far as plaintiff knew, the defendants were owners of the shipments. They held order bills of lading duly endorsed by the consignees named therein. Each bill of lading contained the provision: "The surrender of this original order bill of lading properly indorsed shall be required before the delivery of the property." SWAN, Circuit Judge. This is a suit by the railroad company, hereinafter referred to as plaintiff, against partners trading as E. H. Dare & Co., hereinafter referred to as defendants, to recover freight charges on 28 carloads of oats carried in interstate commerce over the plaintiff's rails. The oats were shipped from Illinois and Wisconsin under order bills of lading running to various consignees in New York City. The bills of lading were indorsed in blank by the consignees and were pledged to defendants as security for money loaned by them to Brainard Commission Company. The defendants then indorsed the bills of lading and delivered them to the plaintiff, with instructions to deliver the oats "for our account" to named vessels for export. The letter of instructions stated also: "Freight and all charges collect from Brainard Commission Company." The plaintiff made delivery to the vessels as ordered, and presented freight bills to Brainard Commission Company. Finding it insolvent and unable to pay, the plaintiff demanded payment from defendants. After the grain was received on the vessels, the shipping documents went to the defendants, and were released by them to Brainard Commission Company upon payment of the above-mentioned loan. The plaintiff had no knowledge of the relations between the defendants and the commission company. Neither plaintiff nor defendants knew that the commission company was insolvent. [1-3] It has been authoritatively established that a consignee who receives the goods be Under the terms of the Bill of Lading Act (39 Stat. 538; Comp. St. §§ 8604aaa-8604w), the carrier is justified in delivering the goods to one in possession of an order bill of lading duly indorsed, and is bound to deliver to such holder on the conditions stated in section 8 (Comp. St. § 8604dd). The act declares the order bill negotiable, and gives the person to whom it has been negotiated a direct right against the carrier (section 31 [Comp. St. § 8604p]). We see no reason why the holder should not stand in the shoes of the consignee in respect to the obligation to pay freight upon delivery of the goods to him. At least, this should be true where the carrier does not know that the holder of the endorsed bill of lading is not the owner. A delivery to the vessels upon the defendants' order and "for our account" was a delivery to the defendants. We agree with the District Court that such delivery, under the authority of the cases above cited, imposed upon them the obligation to pay the freight. The judgment is affirmed, with costs. 20 F.(2d) 381 CLYDE S. S. CO. v. CITY OF NEW YORK. Circuit Court of Appeals, Second Circuit. June 6, 1927. No. 330. 1. Collision 134-Collision damages are not abated because owner has other repairs made while collision repairs are being made. If owner of vessel damaged in collision puts vessel in dry dock to repair damages caused by collision, and while she is there has other repairs made, which do not extend time consumed in making collision repairs, tortfeasor may not abate his damages. 2. Collision 136-Vessel owner held not entitled to detention damages, where collision repairs were made during period when vessel In any event would have been overhauled. Where owner of vessel damaged in collision put vessel in dry dock to repair collision damages at a time when vessel in any event would have been given annual overhauling, and which did not delay ordinary interior repairing, collision deprived owner of no profits, and owner was not entitled to damages for detention during collision repairs. Appeal from the District Court of the United States for the Southern District of New York. Libel in personam by the Clyde Steamship Company against the City of New York for damages arising from collision between libelant's ship Arapahoe and respondent's ferryboat Brooklyn. From a final decree for libelant, disallowing part of libelant's claim, libelant appeals. Affirmed. Appeal from a final decree of the District Court for the Southern District of New York upon a libel in personam for damages arising from a collision between the libelant's ship, Arapahoe, and the respondent's ferry, Brooklyn. The District Court granted an interlocutory decree holding the ferry solely at fault and the respondent liable for full damages. Before the commissioner appointed to compute the damages, the question arose of the respondent's liability for the detention of the Arapahoe during her repairs. This item the commissioner disallowed and the District Court affirmed his report. Thereupon the libelant appealed, raising only this question. The collision took place on December 9, 1919, but as the Arapahoe's injuries were not severe enough to require her immediate repair, she continued to go about her business. It was her custom to lie off during the summer season for an annual overhauling, in accordance with which she was taken to a shipyard on July 19, 1920, for certain interior repairs, which consumed 30 days. While these were going on, her owner put her in dry dock, and in 10 days repaired the injuries suffered in the collision. This did not interfere with or delay the interior repairs, which went on meanwhile. The overhauling was not necessary for her certificate and could have been put off, but would in fact have been done at that season, regardless of the collision. The question is solely of damages for detention during the 10 days that the Arapahoe was in dry dock because of the collision damage. Burlingham, Veeder, Masten & Fearey, of New York City (Chauncey I. Clark and Roy H. Caldwell, both of New York City, of counsel), for appellant. George P. Nicholson, Corp. Counsel, of New York City, Charles J. Carroll, of Brooklyn, N. Y., and John T. Condon, of New York City, for appellee. Before MANTON and L. HAND, Circuit Judges, and CAMPBELL, District Judge. L. HAND, Circuit Judge (after stating the facts as above). [1] If the owner of a damaged vessel puts her in dry dock to repair damages done by a collision, and while she is there seizes the opportunity to make other repairs, which do not extend the time consumed in the collision repairs, the tortfeasor may not abate his damages. Hines v. Sangstad, 266 F. 502 (C. C. A. 1); Simpson's, etc., Co. v. Atlantic, etc., Co., 108 F. 425 (C. C. A. 1); The Acanthus, L. R. [1902] Prob. Div. 17. In such a case the tort-feasor cannot truly say that the detention and therefore the loss would have been less, had the owner deferred his own repairs. The ship by hypothesis had in any event to be taken out of commission, and must have lost her earnings during all the period she was laid off. It is that loss and that alone which is the basis of detention damage. The Conqueror, 166 U. S. 110, 17 S. Ct. 510, 41 L. Ed. 937; The Winfield S. Cahill, 258 F. 318 (C. C. A. 2); The Saginaw (D. C.) 95 F. 703. It must be treated as a matter of indifference to the tort-feasor that the owner gets an incidental benefit from the detention. He has as much lost the use of his vessel as though he did not make his own repairs, and he is not under any duty to share his windfall with the tort-feasor. [2] But if the ship would in any event go out of commission, collision or no collision, and if therefore, during the period when the collision repairs are actually made, she would have earned no profits for her owner, he cannot be said to have been damaged. The collision has not deprived him of earnings which he would have made at that season. This we understand to be the doctrine of the House of |