settlement of Boerman's estate of upwards of $100,000, and in giving to his adjudicated natural daughter the relief to which she was entitled, calls for disapproving comment, and for such present action as lies within the power of this court to prevent any further delay. As already noted, Boerman died in January, 1915, over thirteen years ago. His daughter, the appellee, moved promptly within a year to the assertion of her right to filiation. But the widow, executrix and administratrix, has, by various devices, prevented a settlement of her husband's estate, and kept the acknowledged natural daughter out of a substantial part of her rights. Under these circumstances, affirming mandate from this court should go down in 15 days, instead of in 2 calendar months, as provided by rule 32, so that speedy action in the courts below may be taken to effect full payment, with accruing interest, of the amount due from the appellant, and generally to accomplish final settlement of this estate in accordance with the decisions already made. The judgment of the Supreme Court of Porto Rico is affirmed, with interest and costs to the appellee. MANCUSCO v. UNITED STATES. Circuit Court of Appeals, Sixth Circuit. July 6, 1928. 1. Poisons No. 5165. 9-Evidence held to sustain conviction for unauthorized sales of narcotics (Harrison Anti-Narcotic Act § [26 USCA § 692]). Evidence held to sustain conviction, under Harrison Anti-Narcotic Act, § 1 (26 USCA § 692; Comp. St. § 6287g), for unauthorized sales of narcotics. 2. Criminal law 776(1), 829(9, 15, 18)-In prosecution for sale of narcotics, special Instructions affecting good character, presump. tion of innocence, reasonable doubt, and circumstantial evidence held properly refused (Harrison Anti-Narcotic Act, § 1 [26 USCA § 692]). In prosecution under Harrison Anti-Narcotic Act, § 1 (26 USCA § 692; Comp. St. § 6287g), for unauthorized sales of narcotics, special instructions touching evidence of good character, presumption of innocence, reasonable doubt, and circumstantial evidence held properly refused. Appeal from the District Court of the United States for the Northern District of Ohio; John M. Killits, Judge. James Mancusco was convicted of selling narcotics, and he appeals. Affirmed. Martin A. McCormack, of Cleveland, Ohio, for appellant. A. E. Bernsteen, U. S. Atty., and Howell Leuck, Asst. U. S. Atty., both of Cleveland, Ohio. Before DENISON, MOORMAN, and HICKS, Circuit Judges. HICKS, Circuit Judge. An indictment of four counts charged Mancusco and D'Angelo with violating the Harrison Anti-Narcotic Act, c. 1, § 1, 38 Stat. 785 (title 26 U. S. C. § 692 (26 USCA § 692; Comp. St. § 6287g), by making unauthorized sales of narcotics on different occasions. The first count alleged a sale to Brown on May 6, 1926, the second count a sale to Stewart on May 6, 1926, the third count a sale to Stewart on May 24, 1926, and the fourth count a sale to Stewart on May 28, 1926. D'Angelo pleaded guilty. Mancusco was convicted on all counts, appealed, and assigned errors. [1] Assignments 2, 4, 7, and 8 attack the denial of a directed verdict. We dispose of these assignments together. There is substantial evidence to sustain the first count. The substance of Brown's testimony is that on May 6, 1926, he bought an unstamped can of cocaine from Mancusco and D'Angelo, for which he paid $45. The evidence touching the second count is not so clear. On May 6th Stewart, a narcotic agent, proposed to buy cocaine from D'Angelo. Thereupon D'Angelo got in touch with Mancusco nearby and returned, and Stewart and D'Angelo drove around a corner of a street, and D'Angelo delivered to Stewart an ounce of cocaine, for which Stewart paid him $45. If this evidence were unaided by other proofs, its sufficiency might be doubtful; but, when considered in connection with that relating to count 1, above recited, and to counts 3 and 4, now to be mentioned, there was substantial basis for the jury to conclude that the sale was an incident in the selling business being carried on by Mancusco through D'Angelo. We treat the third and fourth counts together. On May 24, 1926, Stewart, at Fourteenth and Woodland avenue, Cleveland, near a gasoline station, proposed to buy morphine from D'Angelo. D'Angelo immediately came in contact with Mancusco at the gasoline station; Mancusco drove away; Stewart went around the corner; D'Angelo drove away, and soon returned, and delivered 27 F.(2d) 323 an ounce of morphine to Stewart, for which Stewart paid him $60 in marked money. On May 28, 1926, Stewart paid D'Angelo $20 in marked money on a proposed purchase of more than $300 worth of morphine. This was to be delivered at 6 o'clock that evening on Twenty-Third street, between Scoville and Woodland. Stewart kept the appointment. Mancusco drove to a point nearby and signaled Stewart to approach him, which signal Stewart ignored. D'Angelo drove up, and Mancusco started away. D'Angelo and Stewart were in the act of passing the money and drugs, when D'Angelo was arrested, and On the Mancusco's arrest soon followed. way to the police station, Mancusco was seen to drop several hundred dollars in currency from his car. This currency was recovered, and on examination the $20 given by Stewart to D'Angelo on May 28th and $30 given by Stewart to D'Angelo on May 24th were found therein. In our view, Mancusco's act in dropping this money justified the jury in drawing an unfavorable inference against him, and, taking this in connection with the other circumstances above indicated, we are not warranted in declaring that the verdict on the third and fourth counts is not sustained. Of the remaining assignments, appellants stress only three. Several excerpts from the charge are criticized; appellant insisting that, taking the charge as a whole, it coerced the jury into returning an improper verdict, that it was partisan, that it contained comment unfavorable to the defendant, and that it assumed facts to be established that were sharply disputed. We have examined the charge in its entirety, in connection with the opinion of this court in Russell et al. v. United States, 12 F. (2d) 683, and find nothing of which appellant may complain. The law upon the point is set out clearly in that case and It will serve no good purthe cases cited. pose to again set forth the limit to which a judge may go in commenting upon the evidence. BEATTY v. UNITED STATES. whether any 1. Jury 131 (6)-Question In liquor prosecution, under 27 USCA § 33, defendant was entitled to have question whether any member of jury was member of or contributed to any organization for purpose of enforcing prohibition law put to jury by judge examining jury, since reasonable amount of inquiry in aid of right of peremptory challenge should be permitted. 2. Criminal law 1129(1)—Single assignment of error directed against court's action, which was partly right, is insufficient. Single assignment of error, alleging that it was error for judge to refuse to put six questions to jury, was insufficient, where judge properly declined to put several of such ques tions to jury. 3. Criminal law 1048, 1129(1)-Appellate court will not take notice of error without proper exception or assignment, where record did not indicate unjust result (Circuit Court of Appeals rule 11). Under rule 11, Circuit Court of Appeals will not take notice of error in refusing to put proper question to jury, without any proper exception or assignment, where record showed that defendant, as witness, admitted full knowledge of maintaining nuisance on farm operated by him and his brother, but defended on ground that he had warned brother to desist, and had no personal share in its conduct or proceeds, and thus record did not indicate unjust result. In Error to the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge. James Beatty was convicted of maintaining a nuisance, and he brings error. Affirmed. Charles A. Higgs, of Bay City, Mich., for plaintiff in error. of C. Frederic Stanton, Asst. U. S. Atty., Detroit, Mich. (John R. Watkins, U. S. Atty., of Detroit, Mich., on the brief), for the United States. Before DENISON, DONAHUE, and HICKS, Circuit Judges. [2] Neither was there error in refusing to give special instructions touching the evidence of good character, presumption of inPER CURIAM. Beatty and his brother, nocence, reasonable doubt, and circumstantial evidence. There was no basis for instructions in partnership or as cotenants, were operattouching the matter of good character, and ing a farm. On this farm the business of the remaining points were covered by the manufacturing intoxicating liquor was carcharge, and, if the instructions given were ried on, the still and other apparatus and different from those asked, the variance was materials being kept in the barn. The brother admitted responsibility. The respondent not so material as to be important. Upon the whole record the judgment is pleaded not guilty to an indictment with several counts, but was convicted of maintainaffirmed. ing a nuisance. U. S. C. tit. 27, § 33 (27 single assignment of error, directed against USCA § 33). [1] The conviction must be affirmed, but the record discloses what we think is a misapprehension as to the practice. Upon examination of the jury by the judge, respondent's counsel proposed six questions which he wished to have put. The request was declined, and the judge asked questions which he thought covered the ground of these requests, so far as they were proper. The matter was apparently regarded by counsel, and perhaps by the trial judge, as if the criterion were whether the questions suggested, if answered in one way, would disclose grounds for challenge for cause, overlooking the right of respondent to get information aiding him to determine whether he wished to make a peremptory challenge. Obviously the quest for this information is subject to the reasonable discretion of the trial judge, and cannot be carried too far without minimizing the good effect of examination by the judge, instead of by counsel; but a reasonable amount of such inquiry in aid of the right of peremptory challenge should be permitted, and we think one of these questions was of that permissible character. It inquired whether any member of the jury was a member of or contributed to any organization for the purpose of enforcing the prohibition law. In Remus v. United States, 291 F. 501, 507, we held that an affirmative answer to this question would not disclose legal basis for challenge for cause; but, quite plainly, it would be a natural inducement as to the exercise of a peremptory challenge. While it would not be presumed that a juror would have, from such association, any prejudice which would prevent him from obeying the instructions of the court, yet we must regard such information as this as within that minimum which respondent is entitled to have as the basis of a peremptory challenge. See Armborst v. Cincinnati Co. (C. C. A. 6) 25 F. (2d) 240, 241. [2] This point, however, does not require reversal. It is insufficiently saved for presentation here. As to several of the six questions proposed, we think it clear that the judge properly declined to put them to the jury. Counsel took no separate exception to the refusal to put the particular question which we have thought was proper, but took only a general exception to the general refusal. If we might overlook this imperfection in the basis for review, we then find that there is only one assignment, alleging that it was error to refuse to put these six questions. This action was not wholly erroneous, and a an action which was partly right, is insufficient. Anthony v. Louisville Co., 132 U. S. 172, 173, 10 S. Ct. 53, 33 L. Ed. 301. [3] The remaining question is whether, under rule 11, we should take notice of the error without any proper exception or assignment. This we do only when the record plainly indicates an unjust result. Here respondent, as a witness, admitted full knowledge of the maintaining of the nuisance. His only defense was that he warned his brother to desist and had no personal share in its conduct or proceeds. He did not take any step to force a discontinuance, or insist upon his rights as a cotenant. It may be that under these circumstances he was not guilty even of aiding and abetting the maintenance; but his acquittal would be unlikely, even if it could not be said that upon his own statement he was guilty of such abetting. Such a case does not call for the application of rule 11. The other assignments of error are either unfounded or plainly unimportant. The judgment is affirmed. J. C. PENNEY-GWINN CORPORATION v. MCARDLE et al. THE MASSACHUSETTS. THE LAWRENCE. Circuit Court of Appeals, Fifth Circuit. June 30, 1928. Rehearing Denied July 27, 1928. Nos. 5268, 5269. 1. Maritime liens 3-Vessel must have been engaged in maritime venture, to give admiralty llen thereon for supplies or advances. It is essential, in order to maintain an ad miralty lien on a vessel for supplies or advances, that she be at the time engaged in a maritime venture. 2. Maritime liens 3-One furnishing supplies and advances for dredges, engaged in pumping sand from bottom of bay to fill in lands held not entitled to maritime lien. One furnishing supplies, equipment, labor, and advances for steam suction dredges employed solely in pumping sand from bottom of bay and distributing it over land for purpose of filling in the land, owned by the owners of the vessel, in order to sell the land, held not entitled to maritime lien, since dredges were not engaged in any maritime venture. Appeals from the District Court of the United States for the Southern District of Florida; Lake Jones, Judge. Libels by Robert J. McArdle and others against the Shoreland Company, claimant 27 F.(2d) 324 of the dredge Massachusetts and of the dredge Lawrence, in which the J. C. Penney Gwinn Corporation intervened. From a decree adverse to it, intervener appeals. Reversed in part and remanded. Wm. E. Kay, Thos. B. Adams, R. Ragland, and L. Kurz, all of Jacksonville, Fla. (Kay, Adams, Ragland & Kurz, of Jacksonville, Fla., on the brief), for appellant. Worth W. Trammell, of Miami, Fla. (Rollin L. Smith and Frederic R. Sanborn, both of New York City, on the brief), for appellee McArdle. Lee Guest, of Jacksonville, Fla., for appellee J. C. Christopher Co. S. J. Barco, of Miami, Fla., for appellee Clark Dredging Co. Wallace F. Perry and Roscoe C. Evans, both of Miami, Fla., for appellee Lancaster lowing claims wholly, or in part, as maritime liens, and allowing the claim of appellant under its mortgage, but subordinating it to the maritime liens allowed. After that the dredges were sold. The sale was confirmed and the proceeds were deposited in the The claims allowed registry of the court. as admiralty liens will absorb the entire proceeds. The record supports the conclusion that most of the supplies for which claims were allowed were furnished on the credit of the owner and not on that of the vessels; but, in the view we take of the law, it is unnecessary to go into details as to this. [1, 2] There is no doubt that a dredgeboat engaged in navigation, or in doing work for the purpose of improving a channel, or that will be an aid to navigation, in certain circumstances, is subject to admiralty jurisdiction; but a distinction is made where a ves Iron Works. FOSTER, Circuit Judge. These two cases involve the same questions of law and practically the same facts, and may be disposed of in one opinion. It appears that the Shoreland Company, a Florida corporation, owned a tract of land in Dado county, Florida, on Biscayne Bay, and was engaged in filling it, by pumping sand and other material from the bottom of the bay. For the purpose of doing this work the Shoreland Company acquired the steam suction dredges Lawrence and Massachusetts, and they were employed solely in doing this work, pumping the material from the bottom and distributing it over the land through pipes. In October, 1926, Robert McArdle filed separate libels in rem against the said dredges, claiming maritime liens for supplies, equipment, and labor, and for money advanced, and they were seized under admiralty process. A number of other parties filed similar libels. Eventually the various causes were consolidated for trial. Appellant is the holder of a mortgage for $300,000, covering both dredges, which was far in excess of their value, and was allowed to intervene to assert its rights and oppose the other claims. Testimony was taken before a commissioner, and all the claims were proved up. A decree was entered October 6, 1927, al gaged. It is essential, in order to maintain an admiralty lien on a vessel for supplies or advances, that she be at the time engaged in a maritime venture. It is clear that such. is not the case here. Of course, the dredging deepened the water where the material was removed; but that was merely incidental to the work being done. The dredges were not engaged in either commerce or navigation. The purpose of employing them was to make improvements on land, not for the purpose of aiding maritime commerce, but to fill up the land, in order to bring it to the required grade, for the purpose of sale. The principle underlying maritime liens is that the supplies furnished are intended to benefit the ship, and not the owner. No maritime liens were created on the dredges for any of the supplies or advances shown to have been made. In re Hydraulic Steam Dredge No. 1 (C. C. A.) 80 F. 545; The W. T. Blunt (D. C.) 291 F. 899; North Pac. Steamship Co. v. Hall Bros. Co., 249 U. S. 119, 39 S. Ct. 221, 63 L. Ed. 510; Piedmont, etc., Coal Co. v. Seaboard Fisheries Co., 254 U. S. 1, 41 S. Ct. 1, 65 L. Ed. 97. The judgment appealed from will be reversed, to the extent that it allows the claims of appellees and subordinates that of appellant. Reversed and remanded, for further proceedings not inconsistent with this opinion. NORFOLK & W. RY. CO. v. HOLBROOK. Circuit Court of Appeals, Sixth Circuit. July 6, 1928. Nos. 5026-5028. I. Railroads 316(2, 3)-Traffic and obstacles at railroad crossing may make customary high speed of train negligent, in absence of special warning signals. The character and extent of the traffic on a highway, and the extent and kind of the obstacles, both artificial and natural, which obscure the view of a traveler approaching a railroad track, may in their composite effect be such as to authorize a finding that they require the railroad company to maintain some special warning signals at the crossing, if it wishes to run its train at the customary high speed, and that, lacking such protection for highway travelers, the speed is negligent. 2. Railroads 348 (9)-Evidence held to authorize finding that driver of automobile, approaching crossing in heavy fog, met applicable standard of conduct. The circumstances in evidence in action for crossing collision of train with automobile, when a heavy fog prevented seeing any distance, held to authorize finding that driver met the applicable standard of conduct, and so was free from ⚫ contributory negligence. In Error to the District Court of the United States for the Eastern District of Kentucky; Andrew M. J. Cochran, Judge. Three actions, tried together, one by James F. Holbrook, Jr., individually, and the others by him as administrator, against the Norfolk & Western Railway Company. Judgment for plaintiff in each case, and defendant brings error. Affirmed. Homer E. Holt and John H. Holt, both of Huntington, W. Va. (Holt, Duncan & Holt, of Huntington, W. Va., on the brief), for plaintiff in error. the latter question, the result which we reach makes unimportant any distinction there might be between the three cases. [1] Relying upon our holding in B. & O. R. Co. v. Reeves, 10 F. (2d) 329, the railroad insists that it was error to submit to the jury whether the speed of the train was an element upon which a finding of negligence could be rested. The situation of this railroad crossing may well distinguish it from that involved in the Reeves Case. It was within the right of the jury to find that the character and extent of traffic on this highway (one of the great transcontinental highways under the adopted general plan), and the extent and kind of the obstacles, both artificial and natural, which obscured the view of a traveler approaching the track as Holbrook did, were in their composite effect such as to require the railroad to maintain some special warning signals at this crossing if it wished to run its train at the customary high speed, and that lacking such protection for highway travelers, the speed was negligent. The case in this respect is to be classified with Erie v. Weinstein (C. C. A.) 166 F. 271 (and see note page 72, 22 F.[2d]), rather than with Murphy v. Pa. R. R. (C. C. A.) 1 F. (2d) 929, and the Reeves Case. [2] As to Holbrook's contributory negligence, the railroad insists that the case is covered by B. & O. R. Co. v. Goodman, 275 - We U. S. 66, 48 S. Ct. 24, 72 L. Ed. think not. Under the circumstances here existing, the jury had the right to find that Holbrook met the applicable "standard of conduct." His testimony is: He was driving a closed car-a Ford coupé-sitting on the left and with the window at his side down and open. He was entirely familiar with the the rails and at a point where his view down crossing; at a distance of 15 or 20 feet from the track towards his left was wholly obstructed, he stopped and looked and listened; Before DENISON, MOORMAN, and he did not see nor hear the train, which was KNAPPEN, Circuit Judges. John M. Waugh, of Ashland, Ky. (Waugh & Howerton, of Ashland, Ky., on the brief), for defendant in error. DENISON, Circuit Judge. When his automobile was struck by a railway train at a highway crossing, Holbrook was badly injured and his wife and child killed. On his own behalf and as administrator of each deceased, he brought these suits in the court below; they were for convenience tried as one, and there was a verdict for the plaintiff in each. This appeal sharply presents two questions of law: Was there a lack of any evidence showing the railroad's negligence? and was there contributory negligence by Holbrook, conclusively barring recovery? As to in fact approaching from that side; he had heard no whistle and no bell was ringing; there was a heavy fog, which prevented him from seeing any distance. As he started forward in low gear and was approaching the rail, the train appeared out of the fog 200 feet away. He endeavored to back out of danger, and barely failed. Goodman did not stop or look after he had reached a point where he could, and while he could do so effectively. Holbrook, after reaching that position, did stop, look, and listen; he could have taken no precaution in the way of looking which he did not take. It is, of course, true that in such a fog the traveler must ex |