* the ardor of counsel for long. A little later: "Mr. Stattler: I say you ought to say to Mr. Beck-you cannot make a sewer out of the United States Mail; you cannot use the arm of the United States Government for the purpose of defrauding; you cannot use the United States Mail to pray upon the yearning of the American people for a home; you cannot use the United States Mail for the purpose of robbing the widow and the orphan of their hard earned savings. "Mr. Oliver: Now, we object to that language and argument, as to robbing widows and orphans of any money. No testimony on that in this case, and ask that the Court rebuke counsel. "The Court: Sustain the objection to the word 'robbery." The reason for evidence as to particular items in the books likewise appears: "Mr. Stattler: -using funds of the Corporation to purchase automobiles for his own private use he did not tell you that, now. "Mr. Oliver: We object to that, now. That is not in evidence in this case. "The Court: Sustained." But again perseverance predominated. He came back to a check he had no right to comment upon. So he did not. He said: "-here is the one I want-The Packard Motor Company. He paid $2,100.00 for an automobile; the testimony don't show to whom that automobile went. I wish I could tell you-" The same attitude of counsel is exhibited in the manner of examining witnesses. For example, a witness on direct examination would testify that Mr. Barrett, or some one else, made a certain statement. Counsel would then ask, "Was Mr. Beck in the room?" The witness answered, "He was there sometimes." Counsel would then ask, "Did they tell you?" so and so, leaving a direct impression that Mr. Beck made the representations, an impression not intended by the witness. [10, 11] Reasonable allowance must be made for the heat of battle, and very wide discretion vested in the trial court. In view of the allegations of the indictment as to "the elaborate and luxuriantly furnished offices," in view of the witnesses called to testify as to the draperies at the windows and the leather in the chairs, it may be that these improper arguments cannot be all charged to the heat of battle. In any event, there is no excuse for offending twice, after the court has ruled upon the matter. A trial in the United States court is a serious effort to ascertain the truth; atmosphere should not displace evidence; passion and prejudice are not aids in ascertaining the truth, and studied efforts to arouse them cannot be countenanced; the ascertainment of the truth, to the end that the law may be fearlessly enforced, without fear or favor, and that all men shall have a fair trial, is of greater value to society than a record for convictions. The Supreme Court of the United States has very recently reversed a case because of improper argument by counsel. Although the case was one to which the government was not a party, the court spoke in strong language: "But a trial in court is never, as respondents in their brief argue this one was, 'purely a private controversy of no importance to the public.' The State, whose interest it is the duty of court and counsel alike to uphold, is concerned that every litigation be fairly and impartially conducted and that verdicts of juries be rendered only on the issues made by the pleadings and the evidence. The public interest requires that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict, uninfluenced by the appeals of counsel to passion or prejudice. See Union Pac. Ry. Co. v. Field (C. C. A.) 137 F. 14, 15; Brown v. Swineford, 44 Wis. 282, 293 (28 Am. Rep. 582). Where such paramount considerations are involved, the failure of counsel to particularize an exception will not preclude this Court from correcting the error. Brasfield v. United States, 272 U. S. 448, 450, 47 S. Ct. 135 (71 L. Ed. 345)." New York Cent. R. Co. v. Johnson (No. 455, Apr. 8, 1929) 49 S. Ct. 300, 73 L. Ed. The conduct of this case, in itself, requires a reversal, under this decision. The case will be reversed and remanded for a new trial. 33 F.(2d) 115 BARRETT v. UNITED STATES. Circuit Court of Appeals, Eighth Circuit. May 11, 1929. No. 7751. 1. Criminal law 444-Books of account identified by auditor, who said they were incomplete, and that he had gathered data from interviews with others, held inadmissible. In prosecution for using mails to defraud, books of account not identified otherwise than by testimony of auditor, who said books were incomplete, and that he had gathered certain data from interviews with individuals, and by testimony of former bookkeeper as to very few entries, were inadmissible; testimony of identification being based in part from unsworn hearsay statements. 2. Criminal law434-Books of corporation are admissible in prosecution of officers for misusing mails as against objection of Individual defendant that they are not binding on him. In prosecution of corporate officers for misusing mails to defraud, objection to admission of corporate books as not binding on general manager of corporation is untenable, the books not being offered as binding any person, but merely to show how much money was received and where it went. 3. Criminal law 446-That letters purport to bear manager's signature is Insufficient to convict him or other officers of using mails to promote frauds without proof that such defendants signed or mailed them (Pen. Code, § 215 [18 USCA § 338]). Evidence that letters purport to bear signature of manager, in absence of proof that he signed them or mailed them, is insufficient to warrant conviction of manager or other officers of corporation of using mails to promote frauds, in violation of Penal Code, § 215 (18 USCA & 338). 4. Post office35 (3)-Corporate officer, devising fraudulent scheme, and personally or through authorized agents making false pretenses or promises, and using mails In further ance of scheme, violates statute (Pen. Code, § 215 [18 USCA § 338]). Corporate officer, who devises scheme to ob tain money by false pretenses or promises, and personally or through another duly authorized makes false pretenses or promises, and personally or through duly authorized representative uses mails in furtherance of such scheme, is guilty of violating Penal Code, § 215 (18 USCA §338). 5. Criminal law417(9)-In prosecution for using mails to promote fraudulent building financing scheme, evidence of conversations between salesmen and contract holders not in presence of defendant, and not shown to have been authorized by him, held erroneous (Pen. Code, § 215 (18 USCA § 338]). In a prosecution for using mails to promote fraudulent building financing scheme, in violation of Penal Code, § 215 (18 USCA § 338), the admission of evidence of conversations between salesmen and contract holders not had in the presence of defendant, and not shown to have been authorized by him, was prejudicial error; the doctrine of respondeat superior applicable in civil actions not being applicable in criminal action. In Error to the District Court of the United States for the Eastern District of Missouri. Edward J. Barrett was convicted for wrongful use of the mails in violation of Penal Code, § 215, and he brings error. Reversed and remanded for new trial. James E. Carroll, of St. Louis, Mo., for plaintiff in error. C. J. Stattler, Asst. U. S. Atty., of St. Louis, Mo. (Louis H. Breuer, U. S. Atty., of Rolla, Mo., on the brief), for the United States. Before LEWIS, Circuit Judge, and WOODROUGH and MCDERMOTT, District Judges. MCDERMOTT, District Judge. This case grows out of the failure of the Federal Home Building Corporation, the plan and activities of which are described in Beck v. United States (C. C. A. No. 7993) 33 F.(2d) 107, this day decided, to which reference is made for a review of the facts. The defendants Barrett and Beck were tried under the same indictment, and that part of the Beck opinion referring to the indictment is adopted in this case. Barrett was convicted at the first trial; the jury disagreeing as to Beck. Moreover, the conspiracy count (10) was present in the indictment during the Barrett trial, although dismissed after the conclusion of the evidence but before submission to the jury. The claims of errors on the trial must therefore be separately treated. [1,2] 1. The Books of Account. Reference is made to the Beck opinion as to the admissibility of these books. There was even less identification at this trial of the books of account, for Lister, the bookkeeper who made and identified a few of the entries, was not called as a witness in the Barrett trial, as he was in the Beck trial; nor was his absence accounted for, save that the district attorney's office overlooked subpœnaing him until too late to find him. If the books are necessary evidence, they must be identified as required by the case of Phillips v. U. S. (C. C. A.) 201 F. 259. The objection of Barrett that the corporate books are not binding on him because he is neither an officer nor stockholder of the company is not sound. The government does not offer the books as binding on any one; the government seeks to show how much money came in to the corporation, and where it went, a circumstance bearing on fraudulent intent. If the books, properly identified, assist in proving that fact, they are admissible whether Barrett knew of the books or not. To make the fact of receipts and disbursements material, the government, of course, must show that Barrett knew, at least in general, how the money was being spent. That knowledge is clear as to Beck, for he signed the checks; and doubtless could be found as to Barrett, at least after he be came general manager. [3] 2. The Letters. The fact that Barrett's name is signed to the letters does not prove he signed them. This evidence is necessary, either by direct proof, admission, or comparison of signatures. Brady v. U. S. (C. C. A.) 24 F.(2d) 399. [4] 3. The Sufficiency of the Evidence. Barrett was first a salesman of the company, then sales manager, and then general manager. He shared in the commissions on the sale of contracts, but was not a stockholder in the corporation, and hence not in position to share in the profits of the corporation. He, like Beck, apparently overdrew his account, and the corporation was engaged in building him a house. He personally authorized the salesmen to make certain representations. It must be remembered that, as this case went to the jury, the case was simple: Had Barrett devised a scheme to obtain money by false pretenses or promises? Did he, personally or through another duly authorized, make false pretenses or promises? Did he, personally or through another duly authorized, use the mails in furtherance of such scheme? If this simple charge is kept in mind by counsel, the question he suggests as to Barrett not being a stockholder, and many others, will disappear. Otherwise, the comment made in the Beck Case applies. 4. The Scope of the Evidence. As the evidence was going in, the trial court was confronted with a count alleging a conspiracy among six men, and a joint charge of misuse of the mails as to the same six. The court's rulings on the evidence were made in the light of that situation. A great deal of evidence was properly admitted, doubtless with the idea in mind that the jury would be charged that, unless they found the conspiracy, that evidence should be disregarded. [5] But, with the evidence all in, the government dismissed the conspiracy count; four of the defendants were dismissed, two on motion of the government. Without laying down any hard and fast rule on the matter, we are impressed that it was unfair to the defendant, Barrett, to throw open the gates to all evidence that the government saw fit to offer, including, of course, statements of coconspirators, under either an implied or express promise to connect it up with the defendant, and then abandon the effort. In a trial of this length, it is a practical impossibility to undertake to unscramble the eggs at the close of the trial. The court could not, under these circumstances, go back through all the evidence and pick out the admissible from the inadmissible, and take from the jury the inadmissible; the jury, no matter how intelligent, could not put it out of their mind, if so instructed. The harm had been done. We are not intimating that the conspiracy count was put in the indictment to facilitate the proof of the other charge; but the result to the defendant is the same as if that had been the motive. Neither do we overlook the fact that, on the question of admissibility of the evidence of statements made by Beck or Barrett as against the other, authority to bind each other may be found in their relationship to the business and to each other; nor the fact that the circumstances are such that it might be found that the defendant authorized or encouraged the salesmen to say anything that would sell a contract. The difficulty with this trial was that the evidence was not let in after such determination; it was let in in light of the conspiracy charge, or by virtue of the doctrine of respondeat superior, as stated by the trial court in the Beck trial. Unless Barrett can in some legal way be connected up with these statements, it seems clear that he cannot be held criminally responsible for every statement or promise made by a salesman who drew upon his imagination, instead of his authority, to close a contract. Evidence of what salesmen said to prospective clients should have been excluded, unless such statements were either authorized or ratified. The authority to render them admissible may be found in the circumstances, in the scope of the plan, or from other pertinent facts, including, of course, the fact that each morning the defendant did explain to the salesmen what they should say. Nor should the defendant escape responsibility for such representations because the precise language authorized was not used. It is urged that a joint scheme to defraud is the equivalent of a conspiracy to defraud; and in many respects this is true. Brady v. U. S. (C. C. A.) 24 F. (2d) 399, 404. It still must be the law that a man may not be criminally held for representations he neither made, authorized, or ratified. Misrepresentations must be traced to the defendant through the doctrines of agency, although a conspiracy or a joint plan to do a certain 33 F.(2d) 117 thing in a certain way may meet the require ments. See Pandolfo v. U. S., 286 F. 8, loc. cit. 17 (7 C. C. A.); McDonald v. U. S., 241 F. 793 (6 C. C. A.); Shea v. U. S., 251 F. 440 (6th C. C. A.); Whitehead v. U. S., 245 F. 385, 396 (5th C. C. A.); Osborne v. U. S., 17 F.(2d) 247, 249 (9th C. C. A.); Ader v. U. S., 284 F. 13, 29 (7th C. C. A.). The cause will be reversed and remanded for a new trial. GILCHRIST-FORDNEY CO. v. WELCH DRY KILN CO. Circuit Court of Appeals, Fifth Circuit. June 19, 1929. No. 5506. Patents 328-1,517,928, for improvements in kilns for drying lumber, held valid and infringed. Welch patent, No. 1,517,928, consisting of improvements in kilns for drying lumber, held valid and infringed. Appeal from the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge. Suit by the Welch Dry Kiln Company against the Gilchrist-Fordney Company. Decree for plaintiff, and defendant appeals. Affirmed. Stone Deavours and Henry Hilbun, both of Laurel, Miss., and Vernon E. Hodges, of Washington, D. C., for appellant. Dean S. Edmonds and Merton W. Sage, both of New York City, and E. J. Ford, of Pascagoula, Miss., for appellee. in that end for a day, and then pushed forward daily, another truck load of lumber taking its place, until it finally emerges from the other end of the kiln, called the dry end. These kilns are heated, usually by steam pipes, and the process of drying usually consumes about seven days for pine lumber. Green lumber contains a high percentage of moisture, and in the drying process will necessarily shrink. If the surface is dried too rapidly, leaving the interior portions of the lumber still wet, the shrinkage will have a tendency to crack and check the lumber, greatly reducing its merchantable value. In the kiln-drying of lumber there are three essential factors, heat, humidity of the air, and circulation. It is necessary to have at the green end of the kiln high humidity, low temperature, and sluggish circulation, and at the dry end low humidity and high temperature. Longitudinal circulation is desirable, as transverse circulation tends to maintain the same temperature throughout the kiln. The ideal condition of drying in progressive kilns is to have the truck load of lumber enter a new air pocket each day, in which the humidity will be decreased and the heat increased progressively in just the right proportion. Before Welch's invention, this was sought to be accomplished by having more steam pipes and greater heat at the dry end, but results were not uniform. The improvement covered by the Welch patent consists principally of a by-pass conduit running from the green end along the bottom of the kiln and connected with a fresh air in take at the green end. Its function is to increase and improve longitudinal circulation. To accelerate the circulation, steam jets of Before WALKER, BRYAN, and FOS- small diameter are placed about midway of TER, Circuit Judges. the kiln. FOSTER, Circuit Judge. This is an appeal from an interlocutory decree holding patent No. 1,517,928, issued to John B. Welch, December 2, 1924, for improvements in kilns for drying lumber, to be valid and infringed. The record supports the following conclusions as to the material facts. After sawing, green lumber must be dried before using it. One method of drying is by the use of what are known as progressive kilns. These kilns are buildings varying in length from 100 to 150 feet, approximately 20 feet wide by 10 feet in height, and capable of being made practically air tight. Green lumber is run on trucks, traveling on tracks, into the kilns. A truck load of freshly sawed lumber is put in one end, called the green end, allowed to stay *Rehearing denied August 10, 1929. Appellant's 19, 1929. We entertain no doubt as to the validity of appellee's patent. The use of by-pass conduits and steam jets to improve circulation was unknown in the prior art, and their addition to progressive kilns constituted a new and useful improvement, greatly improving the process of drying lumber in such kilns and increasing the value of the finished product. Appellant's device consists of an air conduit running through the kiln for a certain distance and the addition of steam jets to accelerate the circulation. The only difference between this and the patented device is that instead of connecting directly with a fresh air intake appellant's air conduit is connected with a chamber created by constructing a wall across the green end of the kiln about three feet from its end and below the rail motion to reopen and remand case denied August line. The fresh air intake of the Welch device is omitted, but the construction of. the doors of the kiln, together with the spaces necessarily allowed through the doors for the rails on which the trucks of lumber move, supply sufficient fresh air to the conduit. It is apparent that appellant's device is substantially the same as that covered by plaintiff's patent and constitutes an infringement. The judgment appealed from is affirmed. WUNDERLICH v. CASH. Circuit Court of Appeals, Fifth Circuit. June 19, 1929. No. 5228. Trade-marks and trade-names and unfair competition93(3)-Use of words "White Cross" with figure of cross in white in connection with medicinal preparations held not unfair competition. Use of words "White Cross" and figure of cross in white in connection with medicinal preparations held not unfair competition, in view of evidence establishing that packages were dissimilar and such that those familiar with prod ucts could at once detect difference in package. Appeal from the District Court of the United States for the Southern District of Alabama; Robert T. Ervin, Judge. Suit by Edward Wunderlich, doing business under the name and style of the White Cross Medicine Company, against J. Nixon Cash, doing business under the name and style of the American Drug Company. Decree of dismissal, and plaintiff appeals. Af firmed. H. W. Robinson, of New Orleans, La., for appellant. Norville R. Leigh, Jr., and D. H. Edington, both of Mobile, Ala., for appellee. Before WALKER and FOSTER, Circuit Judges, and DAWKINS, District Judge. WALKER, Circuit Judge. This is an appeal from a decree dismissing appellant's amended bill, which complained of the use by the appellee on containers of medicinal preparations marketed by him of the name or words "White Cross" and the figure of a cross in white. The ground of the cause of action asserted is unfair competition, in that, after appellant had for many years used the name or words "White Cross," together with the figure of a white cross on the bottles or other containers of medicinal preparations marketed by him, and after medicinal prep arations put up in containers so marked had come to be known and recognized by wholesale and retail purchasers as appellant's medicinal preparations, appellee commenced the manufacture and sale in the same trade territory of similar medicinal preparations under the name "White Cross," together with the figure of a white cross on the containers, and so similar to the name and figure previously used in connection with appellant's medicinal preparations as to mislead purchasers into believing that medicinal preparations manufactured and sold by appellee were appellant's products. The appellant did not allege or prove that he had acquired the exclusive right to the use, in connection with medicinal preparations, of the name or words "White Cross" or of the figure of a cross in white. It was not alleged or proved that at any time appellant was the exclusive user in connection with medicinal preparations of the words or name "White Cross" or of the figure of a cross in white. The evidence showed that, after appellant had for many years been marketing a product put up in packages having on them the words "White Cross Kidney, Liver and Blood Tea" and a Maltese cross with lettering and fancy trimmings around it, the package being white and the printing on it black, and selling for 10 cents each, appellee began marketing in the same trade territory his medicinal preparations put up in packages having on them the words "White Cross Liver Medicine" and a plain Greek cross; his package having a red background with the printing on it in white, and the price 25 cents being stated in print. The packages are dissimilar and of different sizes. The evidence was without conflict to the effect that the differences between the packages are such that one who was familiar with appellant's product and called for it would at once detect the difference if appellee's product in his package was offered in response to the call. The use of the words "White Cross" and of the figure of a cross in white being open to both appellant and appellee, the use by the appellee in the dress of his products of the words "White Cross" and of the figure of a cross in white, unaccompanied by any deceptive imitation of appellant's manner of disclosing those words or that figure, or of any other feature of the dress in which appellant's products were marketed, was not a violation of the right asserted by the appellant. It was not enough to entitle appellant to relief sought that some purchasers might be influenced to accept appellee's product |