(289 F.) tions or habitual sales, and likewise no evidence from which such acts may reasonably be deduced, the penalties provided in the act for unlawful sale should alone apply; but, equally, evidence of a single sale in a place, from which the circumstances tend to show habitual violation, is enough to bring the prosecution within the terms of the nuisance section and to make applicable the severer penalties which its terms provide. Since all of this is true here, the judgment of the lower court should be, and is, affirmed. AULTMAN et al. v. UNITED STATES. (Circuit Court of Appeals, Fifth Circuit. May 4, 1923.) 1. Criminal law 37-Entrapment not a defense, where consisting only of affording facilities to one suspected of willingness to transgress law. Where the participation of government officers in a transaction which resulted in the commission of a crime amounts only to placing facilities for its commission in the way of one suspected of willingness to commit it, such facilitating or affording of an opportunity to commit the crime is not a defense available to the perpetrator of the crime. 2. Criminal law 37-Facts held not to constitute entrapment by government officers. Where government agents, learning from informers that persons were in town to purchase narcotics, and with reason suspected that defendant was engaged in illegal traffic in narcotics, procured a meeting between such persons and defendant, there was no entrapment, where defendants were willing to engage in the unlawful traffic whenever opportunity offered. In Error to the District Court of the United States for the Western District of Texas; William R. Smith, Judge. Criminal proceeding by the United States against H. O. Aultman and another for unlawful possession, sale, and importation of drugs. From a judgment of conviction, defendants bring error. Affirmed. Breedlove Smith, of El Paso, Tex., for plaintiffs in error. H. R. Gamble, Sp. Asst. Atty. Gen. (John D. Hartman, U. S. Atty., of San Antonio, Tex., N. J. Morrisson, Asst. U. S. Atty., of El Paso, Tex., and H. R. Gamble, Sp. Asst. Atty. Gen., on the brief), for the United States. Before WALKER, BRYAN, and KING, Circuit Judges. WALKER, Circuit Judge. The plaintiffs in error, H. O. Aultman and C. W. Warden (herein called defendants), were joined in an indictment with three other persons, Noble, Hughes, and Castro. Castro obtained a severance, and Noble and Hughes pleaded guilty and were witnesses for the government in the trial. Defendants were tried and convicted on the third, fifth, ninth, and tenth counts of the indictment, which, respectively, charged unlawful importation of cocaine into the United States from Mexico, unlawful possession of cocaine, unlawful For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes sale of morphine, and unlawful sale of cocaine. In behalf of defendants it was contended that the court's refusal to give a requested charge to the jury to find in their favor was erroneous, because the evidence adduced showed that they were enticed or entrapped by an agent or agents of the government into committing the offenses for which they were tried. In its charge to the jury the court gave instructions, which were not excepted to, on the subjects of instigation, inducement, and entrapment, which included instructions to find in favor of the defendants, if the jury found in accordance with some of the evidence in those regards which was adduced. Evidence adduced tended to prove the following: A government narcotic agent at El Paso, upon learning through an informer that Noble and Hughes, who lived in Oklahoma, were in El Paso for the purpose of making an unlawful purchase of narcotics, and suspecting, and having good reason to suspect, that Warden was engaged in illegal traffic in narcotics, by means of persons employed by the government brought about a meeting between Noble and Hughes and Warden, whereupon Warden, on learning from Noble and Hughes that they desired to buy narcotics illegally, agreed to aid them in doing so, procured the co-operation of Aultman and Castro, and assisted in bringing about the importation from Mexico of cocaine and morphine and the unlawful sale of it to Noble and Hughes. [1, 2] There was evidence to support a finding that the defendants, before anything was done to bring either of them into communication with Noble and Hughes, were willing to engage in unlawful traffic in narcotics when an opportunity to do so was presented. Where the participation of a government agency in a transaction which results. in the commission of a crime amounts only to placing facilities for its commission in the way of one suspected of a willingness to commit it, such facilitating or affording of an opportunity to commit the crime. is not a defense to the perpetrator of it. Grimm v. United States, 156 U. S. 604, 15 Sup. Ct. 470, 39 L. Ed. 550; Price v. United States, 165 U. S. 311, 17 Sup. Ct. 366, 41 L. Ed. 727; State v. Smith, 152 N. C. 798, 67 S. E. 508, 30 L. R. A. (N. S.) 946. It is not necessary to determine whether the rule stated would apply if the conduct charged was not a crime, if it was consented to by a person or persons who enacted the part of decoys or entrappers, as the consent or nonconsent of persons employed by the government was not an element of the offenses of which the defendants were convicted. The court did not err in its above-mentioned ruling, which is the only one that was relied on as a ground for reversing the judgment. The judgment is affirmed. (289 F.) McCOLGAN et al. v. LINEKER et al. (Circuit Court of Appeals, Ninth Circuit. May 7, 1923.) No. 3964. Appeal and error 76(1), 106-Order denying motion for designation of another judge not appealable. An order denying a motion, made under Judicial Code, § 20 (Comp. St. §987), for designation of another judge to try a case is not appealable to the Circuit Court of Appeals, since it is not an order made appealable, and it is not a final judgment. Appeal from the District Court of the United States for the Second Division of the Northern District of California; William C. Van Fleet, Judge. Suit in equity by Frederick V. Lineker, individually and as administrator of the estate of Norvena Lineker, deceased, and others, against Adelaide McColgan, administratrix with will annexed of the estate of Daniel A. McColgan, deceased, and another. Defendants appeal from an order of the District Court. Dismissed. Alfred J. Harwood, of San Francisco, Cal., for appellants. Wm. F. Rose, of San Francisco, Cal., and John L. Taugher, of New York City, for appellees. Before GILBERT and RUDKIN, Circuit Judges, and DIETRICH, District Judge. GILBERT, Circuit Judge. On January 22, on the trial of a suit of the appellees against the appellants herein, the latter interposed a defensive plea of res judicata. Argument was had on the plea on January 24, 1922. At the close of the argument certain comments upon the case were made by the trial judge, which were made the basis of an affidavit of personal bias and prejudice against the judge, and a motion that another judge be designated to try the case under the provisions of section 20 of the Judicial Code (Comp. St. § 987). But the affidavit and motion were not filed until March 16, 1922, 13 days after the decision of the court upon the plea. On August 21, 1922, an order was made denying the motion for designation of another judge. From that order the present appeal is taken, the appellants assigning error to the denial of their motion. No statutory provision is made for appeal from such an order. Nor is the order a final judgment from which appeal may be taken, within the grant of appellate jurisdiction to the Circuit Courts of Appeals. In Crooker v. Knudsen, 232 Fed. 857, 147 C. C. A. 52, this court said: "The Circuit Courts of Appeals are given no right to review other than final judgments, except injunction orders, and no judgment is final which does not terminate the litigation between the parties on the merits of the case, or on some severable phase thereof." In Ex parte Am. Steel Barrel Co., 230 U. S. 35, 45, 33 Sup. Ct. 1007, 57 L. Ed. 1379, Mr. Justice Lurton intimated that the order in For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes such a case might be excepted to and assigned as error, and taken advantage of when the case finally should come under the reviewing power of an appellate tribunal. The appeal is dismissed. CITY OF CHICAGO v. POSTAL TELEGRAPH CABLE CO. OF ILLINOIS. (Circuit Court of Appeals, Seventh Circuit. April 18, 1923.) Telegraphs and telephones fee for empty conduits. No. 3122. 10(9)—Ordinance held not to require payment of A municipal ordinance, requiring telegraph companies to pay a fixed fee per lineal foot traversed under ground by any single duct containing wires, and to pay for a conduit, the number of ducts, multiplied by the preceding fee for a single duct, does not require the company to pay any fee on empty ducts in a conduit. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit in equity between the City of Chicago and the Postal Telegraph Cable Company of Illinois, involving construction of a municipal ordinance. From a decree for the company, the City appeals. Affirmed. Frank W. Derby, of Chicago, Ill., for appellant. Jacob E. Dittus, of Chicago, Ill., for appellee. Before BAKER, ALSCHULER, and EVANS, Circuit Judges. BAKER, Circuit Judge. Chicago has an ordinance requiring telegraph companies to obtain a permit before putting underground wires in the streets, and exacts certain compensation for the privilege. This appeal involves the interpretation to be given to the following provision in the ordinance: "For such underground wires, cables, conduits, and appliances used in electrical or physical dispatch of telegraph messages, such companies shall pay annually seven-tenths of a cent per lineal foot, whether in main lines or laterals, traversed underground by any single duct containing wire, cable, or other appliances, and the amount of the fee to be paid for conduit shall be obtained by multiplying the number of ducts in such conduit by the preceding fee for single duct." Appellee had laid some stretches of conduit, containing several ducts, and not all of the ducts contained wire or other appliances for the dispatch of telegraph messages. By the decree appealed from it was adjudged that appellee was not required to pay for empty ducts. Appellant's contention that the ordinance contemplated payment for the space occupied by a conduit, whether or not all of the ducts of the conduit contained wire or other appliances for the dispatch of telegraph messages, is contrary, in our view, to the plain reading of the ordinance. The unit of compensation is the lineal foot charge for any single duct containing wire. When the charge for a conduit is di For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (289 F.) rected to be obtained by multiplying the number of ducts in such conduit by the precedingly named fee for a single duct, it is clear that only ducts containing wire or other appliances customarily used or usable for the dispatch of telegraph messages can be counted and measured, because the unit of compensation applies to no duct unless it contains wire or other usable appliance. The decree is affirmed. GLASER v. UNITED STATES. (Circuit Court of Appeals, Seventh Circuit. April 18, 1923.) No. 3042. Aliens 712-Evidence held admissible in suit to cancel naturalization cor tificate. In a suit to cancel a certificate of naturalization granted to an alien, on the ground of fraud, in that he deceived the court with respect to his belief in organized government and his adherence to the principles of the Constitution, his subsequent acts and declarations are admissible as tending to show his state of mind when he made his application, Appeal from the District Court of the United States for the District of Indiana. Suit by the United States against Paul P. Glaser for cancellation of certificate of citizenship. Decree for the United States, and defendant appeals. Affirmed. Paul P. Glaser, in pro. per. Homer Elliott, of Martinsville, Ind., for the United States. Before BAKER, ALSCHULER, and EVANS, Circuit Judges. BAKER, Circuit Judge. Appellant complains of a decree canceling his certificate of citizenship on the ground that it was fraudulently procured. Error is predicated on the insufficiency of the complaint and the proof, and on the admission of certain items of evidence. No attack upon the complaint by demurrer or otherwise was made in trial court. Appellant was plainly advised, in our view of the pleading, that cancellation was sought because appellant had deceived the naturalization court with respect to his belief in organized government and his adherence to the principles of the Constitution of the United States. Sections 7 and 27 of the Act of June 29, 1906, 34 Stat, c. 3592 (Comp. St. §§ 4363, 4382).. Subsequent acts and declarations of appellant were properly admitted as tending to disclose his state of mind when he signed his petition for naturalization. On the whole, we regard the evidence as adequate to sustain the finding of the trial court. Compare Luria v. United States, 231 U. S. 9, 34 Sup. Ct. 10, 58 L. Ed. 101; United States v. Aakervik (D. C.) 180 Fed. 137; United States v. Olsson (D. C.) 196 For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |