17 F.(2d) 9 supported by uncontroverted evidence. There being testimony to the effect that the possession of the coin and the amount of it were disclosed at the first opportunity afforded for doing so, the above-mentioned rulings of the court were erroneous. The judgment is reversed, and the cause is remanded for a new trial. Reversed. GALENA NAV. CO. et al. v. SINCLAIR NAV. CO. (Circuit Court of Appeals, Fifth Circuit. January 31, 1927.) No. 4766. 1. Shipping 58(24)-Towage 15(2)— Stranding of barge held due to negligence of charterer and towboat company, taking barge out of ship channel to prevent stranding. Evidence held to show that stranding of barge was caused by negligence of charterer and towboat company, in intentionally taking barge out of ship channel to prevent current of river from forcing it against opposite side of channel. 2. Shipping 58 (3)-Towage 15(3) Owner was entitled to recover for incidental repairs necessitated by others' negligence Libel in personam by the Sinclair Navigation Company against the Galena Navigation Company and another. Decree for plaintiff, and defendants appeal. Affirmed. John D. Grace, M. A. Grace, and Edwin H. Grace, all of New Orleans, La. (J. Y. Powell, of Houston, Tex., on the brief), for appellants. W. T. Armstrong and W. E. Cranford, both of Galveston, Tex., for appellee. Before WALKER, BRYAN, and FOSTER, Circuit Judges. BRYAN, Circuit Judge. This is an appeal from a decree in an admiralty suit in personam awarding to the owner of the oil barge Badger damages on account of the stranding of that barge while she was under charter to the Galena Navigation Company and being towed for it by the D. W. Ryan Towboat Company. The libel seeks to recover the cost of painting the entire bottom of the barge and replacing two indented plates, and, as incidental to such cost, the expenses of towing to and from dry dock, of dry-docking, and of a survey to ascertain the extent of the damage. The charterer and the towboat company, but not to profit out of injury by allowance appellants, defended on the grounds that the for painting not necessitated thereby. That other repairs were made to barge did not relieve charterer and towboat company, whose negligence caused stranding of barge, of incidental expense necessitated by their negligence; but owner was not entitled to make profit out of injury, and was therefore not entitled to allowance for painting bottom of barge, not necessitated by accident or by resulting ex posure. 3. Shipping 58(234)-Towage 15(2)Evidence held to show that stranding of barge, due to negligence of charterer and towboat company, indented two of its plates. Evidence held to show that two of barge's plates were indented by stranding of barge, resulting from negligence of charterer and towboat company, and owner was entitled to allowance for cost of replacing them. 4. Admiralty 39-In owner's suit for negligent stranding of barge, absence of evidence of protest held to justify refusal to dismiss case for suppression of facts. In suit by owner of barge against charterer and towboat company for damages resulting from negligent stranding of barge, absence of any evidence that protest was made at time of stranding, or ever existed, held complete justification for refusing to dismiss case for suppression of facts favorable to defendants. Appeal from the District Court of the United States for the Southern District of Texas; Joseph C. Hutcheson, Jr., Judge. *Rehearing denied March 11, 1927. stranding was not caused by negligence, but was the result of an inevitable accident, and, even if they were liable because of negligence, that they should not be held for the total cost of painting, for the reason that paint covering only a part of the bottom was damaged, or for any part of the cost of replacing the plates, because it was not shown by the evidence that the damage to the old plates was caused by the stranding. The Badger was a steel barge, about 265 feet in length, with a beam of 33 feet. On December 15, 1923, while she was under charter to the Galena Navigation Company to transport crude oil between points on the Houston ship channel, and, while loaded to a depth of 16.5 feet, she was being towed by a small tug against the current, and was taken 30 or 40 feet out of the ship channel to the starboard and toward the entrance of the San Jacinto river, where, because of a strong current in the river, due to a freshet, she went aground, and so remained for about 24 hours, after which, with the assistance of tugs, she was floated. The barge was taken out of the channel intentionally and for the purpose of preventing the current of the river from forcing it aground on the opposite side of the channel. The point of stranding was in an eddy formed by the current of the river, which, in times of freshet, such as this was, brought down logs and driftwood, and partially buried them in the sand, and left them sticking up out of the water at low tide. On December 20 a preliminary survey was made, without taking the barge out of the water, by a marine surveyor, who testified that at that time two plates on the starboard side near the bow had been indented, and that loose scales were found, indicating that the indentations had been made quite recently; that is, within two weeks. The Badger had been in dry dock about a month before the stranding. At that time her bottom had been painted and the indented plates were in good condition. Thereafter she was operated by her owner, until December 10, when she was chartered to the Galena Navigation Company, appellant, and was operated by it until the accident, and, with the exception of 2 days, from then on until December 28, when she was laid up for repairs. She was replaced on the dry docks in January, 1924, and her entire bottom was repainted at a cost of $457, although only the paint that covered about 40 per cent. of her bottom had been scraped off or damaged. The indented plates were replaced at a cost of $225. The incidental expenses of towing, drydocking, and survey appear to be reasonable, but they are objected to by appellant, because the barge remained in dry dock some time and underwent considerable additional repairs. The expense of remaining on the dry dock was charged to appellants only during the period that was necessary to make the repairs for which claim is made against them. The Badger's log book was produced at the request of appellants. The stranding in question is recorded in it, but it does not disclose that any other mishap or accident occurred after the dry-docking in November, 1923. The owner kept on board the Badger at all times during the period under investigation two employees, referred to in the evidence as a master and a deckhand. The master was 85 years of age, had ceased to work for appellee at the time of the trial, and did not testify. The deckhand, who was an experienced navigator, testified that his employment began on December 5, 1923, and continued for several years without interruption. He further testified that he made the entries in the log book at the master's direction, and that they were correct. Appellants also called for the master's protest, which they contend was made at the time of the stranding. The evidence shows that ap pellee's superintendent gave instructions that protest be made, but fails to show that one was in fact made. The District Judge's decree awards to appellee the entire cost of painting, and the incidental expenses of towing, dry-docking, and survey, but disallows the cost of replacing the indented plates. [1, 2] In our opinion, the evidence conclusively shows that the stranding was caused by negligence. To say the least, it is not good navigation to take a vessel drawing 16.5 feet out of a ship channel and into a position where sand bars, with sunken logs sticking up out of them, are likely to be formed in a few hours. It was a proper precaution to place the Badger in dry dock after the stranding. The fact that other repairs were made does not relieve appellants of the incidental expenses that were made necessary by their negligence. We recognize the doctrine of restitutio in integrum, as declared by the Supreme Court in The Baltimore, 8 Wall. 377, 19 L. Ed. 463, and followed by this court in Compania De Navegacion Interior v. Boston-Virginia Transportation Co., 278 F. 868. But the party injured is not entitled to make a profit out of the injury. There is no serious claim that the paint was damaged by being exposed to the air. Nor would any loss be incurred by painting the whole bottom when the regular time came for that, as new paint could then be put on the entire bottom without any additional cost to the owner. We therefore conclude that the allowance for painting should be reduced by 60 per cent., so as to allow to appellee a recovery of 40 per cent., or $182.80, on that item. [3] On the other hand, we are of opinion that appellee was entitled to recover the cost of replacing the indented plates, amounting to $225. It is a fair inference from the evidence that the plates were indented while the barge was stranded. The so-called deckhand was really the active man in charge of the barge. According to his testimony, there was no damage done after December 5, when he entered the owner's employment. The testimony of the surveyor, who discovered the injury upon the preliminary survey, was to the effect that the damage was done within the time of the deckhand's employment. The log book also negatives the theory that the injury occurred while the vessel was being operated by its owner. It is objected that the official log book was not produced, and on that ground appellants insist that a presumption arises of the suppression of evidence favorable to them, and that the libel 17 F.(2d) 11 should have been dismissed. However, it is clear that there was no other log book. The possibility of the damage complained of being done by the anchor while the vessel was loading or unloading at a dock is suggested, but that possibility is fairly rebutted by the evidence. [4] The circumstances are not similar to those in The Alabama (C. C. A.) 288 F. 170, relied on by appellants. There the vessel only bumped slightly, if at all, against a shoal or reef, was not placed in dry dock until after the lapse of about five months, and no evidence existed upon which could be based the conclusion of damage to her bottom. The absence of any evidence that any protest was made at the time of the stranding, or ever existed, afforded complete justification for refusing to dismiss the case for suppression of facts favorable to appellants. The decree of the District Court is modified, by a net reduction of $49.20, but with interest on the reduced amount in accordance with the provisions of such decree. As so modified, that decree is affirmed, at the cost of appellants. JOHNSON, Commissioner of Immigration, v. · No. 2091. Aliens 32 (8)-Evidence held to show 15 year old Chinese applicant for admission was foreign born son of American citizen. Evidence held sufficient to show that 15 year old Chinese applicant for admission to United States was foreign-born son of citizen of United States, and his deportation was not justified. Appeal from the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge. Petition for habeas corpus by Ng Ling Fong, on behalf of Ng Wah Sun, applicant for admission to the United States, against John P. Johnson, United States Commissioner of Immigration. From a decree ordering applicant's discharge from custody, respondent appeals. Affirmed. of John W. Schenck, Asst. U. S. Atty., Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Gloucester, Mass., on the brief), for the United States. BINGHAM, Circuit Judge. The applicant, Ng Wah Sun, seeks admission to the country as the foreign-born son of Ng Ling Fong, a citizen of the United States. He arrived at Boston, in company with his alleged father, on December 30, 1925, being then a few days over 15 years of age. The date of his birth was December 12, 1910. He was ordered deported by the Department of Labor (hearings having been had before the Board of Special Inquiry and the Board of Review) on the ground that the respective boards were not satisfied as to his relationship. The order of deportation having been made, a petition for habeas corpus was brought, and, a return thereto having been made, the District Court on May 24, 1926, after hearing, found that the applicant had not been accorded a fair hearing and ordered the writ to issue. On June 11, 1926, the cause was heard on its merits and on June 15, 1926, the court rendered a decision, in which it found that the claimed relationship was established, and ordered the applicant discharged from custody, and the government appealed. At the final hearing before the court the applicant and alleged father and oldest brother testified. The government offered no evidence, except the report of the proceedings before the immigration authorities. The only evidence here presented is that contained in the report. Why the additional testimony submitted to the court is not brought here no reason is suggested. The report shows that the applicant and the alleged oldest brother and father testified before the immigration authorities; that the government called no witnesses, but referred to and used certain immigration records made at different times on the departure and the return of the alleged father to and from China, upon the admission of the oldest brother to the country in 1921, and upon the admission in 1920 of a brother some 7 years older than the applicant, who at the time of the hearings before the immigration boards and the court in 1926 was in China. The testimony of the applicant and of before the immigration authorities, shows his alleged oldest brother and father, given that they were interrogated as to substantially every conceivable thing that occurred or would be likely to have occurred during their lives, of which each could be expected to have had any knowledge; that the applicant was required to testify in great detail as to the time and place of his birth, the place where Before BINGHAM, JOHNSON, and he was brought up and went to school, the ANDERSON, Circuit Judges. number and names of his teachers, the num Joseph F. O'Connell, of Boston, Mass., for appellee. ber of houses in the village where he lived, the number of occupants in each house, their names and ages, the number of brothers he had, the dates and places of their births, the dates and places of their marriages, if married, the names of their wives, where they came from, the condition of their feet (bound or natural), the number and names of their children, and the dates of their births, and many other things too numerous to recount. And the record shows that the alleged father and oldest brother, although testifying apart from each other and without knowledge of what the applicant had been inquired about, were in substantial agreement with the applicant as to all these matters; the only matter as to which the applicant differed from them being whether the father, on his last trip to China, remained at home all the time before returning to America, or was absent a portion of the time. plete, and the statements as to the number and births of his children have been so consistent, through this long period of time, that it is inconceivable that fair-minded men, free from bias and suspicion, should entertain any reasonable doubt as to the relationship of the applicant and the alleged father. We are therefore of the opinion that there was no substantial evidence on which to base the exclusion order, and that the District Court did not err in concluding that the applicant was not accorded a fair hearing. The decree of the District Court is affirmed. 1. BRONSTEIN v. UNITED STATES. (Circuit Court of Appeals, Eighth Circuit. January 10, 1927.) No. 7460. Criminal law 622(1)-Matter of separate It is claimed on behalf of the government that this single discrepancy was the reason for entering the exclusion order. The record, however, shows that, while the Board of Review gave this as its reason for the exclusion order, that board and the Board of Special Inquiry entertained a suspicion that 2. Criminal law 1169(5)—Any prejudice to the applicant's testimony was a "prepared story," although the Board of Review states that there is no proof that it was. According to the various records kept by the Immigration Department and put in evidence, it appears that the alleged father made a second trip to China in 1909, returning in 1911; a third trip in 1918, returning in 1920; and a fourth trip in 1924, returning in December, 1925; that, in addition to having given statements to the immigration authorities on these occasions, he had testified before these officials in 1920, when his second son Ng Wah Bow, and in 1921, when his oldest son, Ng Wah Tue, applied for and were admitted to the country. These records show that, when the alleged father returned to this country in 1911, he stated that he had three sons, Wah Tue, Wah Bow, and Wah Sun, and gave their ages; that Wah Sun was then about a year old, according to our method of reckoning time; and that at every time thereafter, when departing from the country or returning to it, when interrogated on the subject, the alleged father gave the names of these sons and their ages at the respective times, and the names and the ages of two other sons, born to him after 1911, and who have never applied for admission to the country. The records in the Immigration Department concerning the alleged father and his family since 1909 are so com trial of coindictee is in trial court's discretion. One of two coindictees has no absolute right to separate trial, but it is a matter of discretion with the trial court. defendant from evidence going only to coindictee's case held cured by striking evidence. Evidence admitted going only to credibility of coindictee, and having nothing to do with case against defendant, any prejudice to him therefrom was cured by striking it. 3. Criminal law 697-If not satisfied with ruling, "Objection sustained," on motion to strike and to instruct to disregard evidence, exception should be taken. If not satisfied with court's ruling, "Objec tion sustained," on motion to strike out testimony and instruct jury to disregard it, matter should have been called to court's attention by exception. 4. Criminal law 1168(2)—In view of other testimony and government's limited claim, jury could not have been misled, even if not understanding court intended to eliminate testimony. Where, after defendant M. had denied having certain conversation with S., government witness, S. answered "Yes" to the question whether he had the conversation denied with M. and B., the jury could not have been misled to B.'s prejudice, even if not understanding that court, by its ruling, intended to elminate such testimony of S.; he having previously testified that B. was not present at the time, and the government making no claim that he was then present. 5. Intoxicating liquors 223(3)-No fatal variance exists between information for sale or possession of intoxicating liquor, to wit, gin, and evidence that liquor was alcohol or moonshine. There is no fatal variance between information charging sale or possession of intoxicat 17 F.(2d) 12 7. Criminal law 844(1)—Exception to charge held insufficient, as not showing claimed fault. Exception to charge held to be insufficient, in that no one could tell from it what was claimed to be wrong with the charge. 8. Criminal law 1056(1)-In absence of proper exceptions, instructions need not be considered on appeal, unless containing serious errors fatal to defendant's rights. There being no proper exceptions, appellate court need not consider defects in charge, except, perhaps, to notice any serious errors therein fatal to defendant's rights. In Error to the District Court of the United States for the District of Colorado; John Foster Symes, Judge. Max Bronstein was convicted of violations that they were engaged as partners in the business of writing court bonds in civil and criminal cases, and not in the liquor business; that they were entrapped; that all that either of them did was to have possession of the liquor and to aid the government officers in buying liquor. There was abundant evidence to convince a jury beyond a reasonable doubt, if believed, that the apparent bonding business of these partners was a mere cover or a blind for the business of dealing in intoxicating liquor, and that the sales charged by the government were in connection with that business. While there are many assignments of error, the defendant Bronstein urges six reasons for a new trial, which are that: (1) He was not granted a separate trial. (2) Evidence was improperly admitted. (3) The information charged sale and possession of gin, while the proof showed alcohol or moonshine. (4) A requested instruction reading as follows: "You are instructed that in weighing the testimony greater care should be used by the jury in relation to the testimony of persons who are shown by the evidence to be interested in or employed to find evidence against the accused"—was refused. (5) The court did not correctly instruct of the National Prohibition Act, and brings the jury in the defense of entrapment. error. Affirmed. J. W. Kelley, of Denver, Colo. (J. D. Kelley and L. J. Crowley, both of Denver, Colo., on the brief), for plaintiff in error. Forrest C. Northcutt, Asst. U. S. Atty., of Denver, Colo. (George Stephan, U. S. Atty., of Denver, Colo., on the brief), for the United States. Before KENYON, Circuit Judge, and SCOTT and JOHN B. SANBORN, District Judges. (6) The court did not correctly instruct the jury on the question of aiding and abetting. [1] The defendant Bronstein was not entitled to a separate trial. It was a matter of discretion with the trial court. Buchanan v. United States (C. C. A.) 15 F. (2d) 496; Moore v. United States (C. C. A.) 2 F.(2d) 839; Waldeck v. United States (C. C. A.) 2 F. (2d) 243; Sullivan v. United States (C. C. A.) 7 F. (2d) 355; Allen v. United States (C. C. A.) 4 F. (2d) 688. [2] Evidence was admitted, and then stricken out, that a William Donald had been convicted in justice court of possessing intoxicating liquor; this upon the theory that, if the government could prove that William Donald and the defendant McDonnell were the same, it would go to the question of credibility. It was objected to, and, on motion, was stricken, and the jury told to disregard it. It had nothing to do with the case against Bronstein. If there was any possible prejudice, so far as he was concerned, it was cur JOHN B. SANBORN, District Judge. Max Bronstein and William McDonnell (alias William Donald) plaintiffs in error and defendants in the court below, were by an information in eight counts charged with four sales, and with having had possession on four separate occasions, of intoxicating liquor, in violation of the National Prohibition Act (Comp. St. § 101384 et seq.). They were tried and convicted on all counts, and jail sentences and fines were imposed under the counts charging sales. McDonnell served by being stricken from the record. ed his sentence, but Bronstein sued out a writ [3, 4] McDonnell had testified that he had of error, and was released on bail after serv- not had a certain conversation with Sutton, ing 60 days. a government witness. Sutton was called in The defendants, upon the trial, claimed rebuttal and asked whether he had had the |