Appeal from the District Court of the United States for the Eastern District of Virginia, at Norfolk.

R. H. Bagby, of Portsmouth, Va., for defendant appellant.

Paul W. Kear, U. S. Atty., and Alvah H.

Va., for plaintiff appellee.

John P. JOHNSON and N. M. Johnson, Copartners Trading and Doing Business under the Firm Name and Style of Johnson Brothers, and John P. Johnson and N. M. Johnson, individually, Plaintiffs in Error, v. George B. POST, Arthur Turnbull, Benson B. Sloan, George B. Post, Jr., Henry Shaw, Alfred L. Dennis, Walter H. Sykes, Jr., Oliver D. Filley, and W. Allston Flagg, Copartners Trading and Doing Business under the Firm Name and Style of Post & Flagg, Defendants in Error.

Circuit Court of Appeals, Fourth Circuit. January 20, 1928.

No. 2695.

In Error to the District Court of the Unit

Charles F. Hille, of Chicago, Ill., for appellant.

L. H. Grettenberger, Asst. U. S. Atty., of Grand Rapids, Mich., for appellee.

PER CURIAM. Docketed and dismissed

pursuant to motion of counsel for appellee.

4

Fred MCGUIRE v. UNITED STATES. Circuit Court of Appeals, Sixth Circuit. May 8, 1928.

No. 5155.

In Error to the District Court of the Unit

Murray Allen, of Raleigh, N. C., and R. L. Godwin, of Dunn, N. C., for plaintiffs in error.

Cooke & Wyllie, of Greensboro, N. C., and Pou & Pou, of Raleigh, N. C., for defend

ants in error.

igan.

C. A. Higgs, of Bay City, Mich., for plaintiff in error.

John R. Watkins, U. S. Atty., of Detroit, Mich., and Otto J. Manary, Asst. U. S. Atty., of Bay City, Mich.

PER CURIAM. Docketed and dismissed

in error.

2

Harry LEHMAN v. UNITED STATES. Circuit Court of Appeals, Sixth Circuit. April 3, 1928.

No. 4983.

5

Frank NIGRO, Plaintiff in Error, v. UNITED STATES, Defendant in Error. *

ror.

A. V. McLane, U. S. Atty., of Nashville,

Tenn.

PER CURIAM. Dismissed pursuant to stipulation of counsel.

3

LUM JICK v. UNITED STATES. Circuit Court of Appeals, Sixth Circuit. May 8, 1928.

No. 5156.

Appeal from the District Court of the United States for the Western District of Michigan.

Circuit Court of Appeals, Eighth Circuit. June 22, 1928.

No. 7796.

In Error to the District Court of the UnitStates for the Western District of Mis

souri.

W. G. Lynch, of Kansas City, Mo. (Harvey Roney, of Kansas City, Mo., on the brief), for plaintiff in error.

Harry L. Thomas, Asst. U. S. Atty., of Kansas City, Mo. (Roscoe C. Patterson, U. S. Atty., of Kansas City, Mo., and William L. Vandeventer, Asst. U. S. Atty., of Springfield, Mo., on the brief), for the United States.

Before SANBORN and BOOTH, Circuit Judges, and PHILLIPS, District Judge.

PER CURIAM. This is a writ of error to a judgment of conviction for violation of the Harrison Anti-Narcotic Act (Act Dec. 17, 1914, 38 Stat. 785, amended February 24, 1919, 40 Stat. 1130, re-enacted November 23, 1921, 42 Stat. 298, and re-enacted June 2, 1924, 43 Stat. 328 (U. S. C. tit. 26, §§ 211, 692, 696, 700 [26 USCA §§ 211, 692, 696, *Rehearing denied August 28, 1928.

700]; Comp. St. §§ 6287g, 6287h, 6287n). The indictment contained two counts: One under section 8 of the act (26 USCA § 700; Comp. St. § 6287n) for unlawful possession; the other under section 2 (26 USCA § 696; Comp. St. § 6287h) for unlawful sale not in pursuance of a written order on the official blank. The defendant was convicted on both counts, but the sentence imposed was such as might have been given under either count alone.

This court upon a consideration of the cause was of the opinion that the conviction could not be sustained on the first count, inasmuch as the charge of the trial court was at variance with the views of this court as expressed in the cases of O'Neill v. United States, 19 F. (2d) 322, and Butler v. United States, 20 F. (2d) 570. As to the second count, this court, being in doubt with reference to the proper construction of the first sentence of section 2 of the act, certified several questions to the Supreme Court. Those questions have now been answered. Nigro v. United States, 48 S. Ct. 388, 72 L. Ed. opinion filed April 9, 1928.

In view of the answers to the questions certified, we now hold that there was no error involved in the conviction of defendant under the second count. The judgment of the trial court on the first count of the indictment is accordingly reversed; the judgment of conviction under the second count is affirmed; the sentences as to both counts are set aside; and the cause remanded to the trial court with instructions to impose and enter sentence on the second count without reference to the first count.

Judge SANBORN participated in the hearing and consideration of this cause, but died after certification of questions to the Supreme Court, and before the filing of this opinion.

NORFOLK & WESTERN RY. CO. v. Richard M. KELLEY.

Circuit Court of Appeals, Sixth Circuit. June 12, 1928.

No. 5171.

Appeal from the District Court of the United States for the Southern District of Ohio; Benson W. Hough, Judge.

See, also, 19 F. (2d) 808.

Booth, Keating, Pomerene & Boulger, of Columbus, Ohio, and Henry Bannon, of Portsmouth, Ohio, for appellant.

were paid to the superintendent and special disbursing agent for the Five Civilized Tribes.

On July 26, 1915, Miller Tiger, who was a minor, through his guardians, Rosanna Brown and Barclay Morgan, requested the county court of Okmulgee county to invest the sum of $3,000 of these royalties in 160 acres of agricultural land in Okfuskee county, Oklahoma. Upon a hearing the court authorized the purchase of said land, and on October 24, 1915, the superintendent of the Five Civilized Tribes purchased said land out of the royalties in his hands by a check drawn upon the Miller Tiger fund payable to his said guardians, and said check was by said guardians deposited in their general guardianship account in bank. On the same day the guardians drew their check against said account in favor of the vendor and delivered it to him in payment of the purchase price of the land. In the meantime, on July 26, 1915, the special form of deed had been executed in accordance with the conditions exacted by the department and by the court with the clause that said land should not be alienated or leased during the lifetime of the grantee prior to April 26, 1931, without the consent of and approval by the Secretary of the Interior.

Prior to the purchase of said land for Miller Tiger, the same was owned by C. L. Nelson, a non-Indian citizen, and such land was legally subject to state, county, and municipal taxation while so owned. Since the purchase of said land for Miller Tiger, for the years 1916-1925, inclusive, ad valorem taxes on such land have been paid the county treasurer of Okfuskee county by the United States Indian Agency at Muskogee, Okl., and the said Miller Tiger still owns his original allotment in Okfuskee county, Oklahoma. On February 10, 1919, Miller Tiger executed a