Bill of interpleader in equity by Oscar T. Hamlin, administrator, against George H. Grogan and others. Decree for defendant Grogan, and complainant and the other defendants appeal. Affirmed.

Oscar T. Hamlin, of Springfield, Mo. (Lou L. Collins and Willard W. Hamlin, both of Springfield, Mo., on the brief), for appellants.

G. M. Sebree, of Springfield, Mo. (W. J. Orr, of Springfield, Mo., Frank P. Sebree, of Kansas City, Mo., and L. R. Patton, of Galveston, Tex., on the brief), for appellee.

Before CARLAND and STONE, Circuit Judges, and AMIDON, District Judge.

AMIDON, District Judge. [1] The controversy in this suit turns upon the question whether appellee, George H. Grogan, was the husband of Eliza Grogan at the time of her death. There is no charge of adultery or bigamy. It is entirely a matter of who is entitled to the estate of Mrs. Grogan. The marriage was established by cohabitation, by both of the parties holding themselves out as husband and wife, and by documentary evidence in the handwriting of Mrs. Grogan. The case was carefully tried by an able and experienced judge. He found in favor of the marriage. His finding is amply supported by the evidence. Unless we are to completely disregard the rule that the finding and decree of a chancellor, who has heard the witnesses, will not be disturbed, except in a clear case, the decree ought to be affirmed. Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764; Coder v. Arts, 152 Fed. 943, 946, 82 C. C. A. 91, 15 L. R. A. (N. S.) 372; Silver King, etc., Mining Co. v. Silver King Consolidated, etc., Co., 204 Fed. 166, 177, 122 C. C. A. 402. We have carefully read the record, and, if we were trying the case ourselves, we should reach the same conclusion as that arrived at by the chancellor. No questions of law are presented, except such as are deeply involved in the primary question of fact. We do not feel that any good purpose would be served by an elaborate marshaling of the testimony to justify the decree. Each case involving such a controversy must turn upon its own evidence. The law is well established, and has been recently declared by the Supreme Court and by this court. Travers v. Reinhardt, 205 U. S. 423, 27 Sup. Ct. 563, 51 L. Ed. 865; Great Northern Ry. Co. v. Johnson, 254 Fed. 683, - C. C. A.

[2] The most serious of appellants' contentions is that in the case of a common-law marriage the contract between the parties must be proven as a tertium quid anterior to and independent of cohabitation, declaration of the parties, and manner of life. Such is not the law. By the overwhelming weight of authorities the contract may be shown as an inference of fact from cohabitation, declarations, and reputation among friends and kindred. In such a case the fact of contract is not a "presumption," but is a fact proven by circumstantial evidence. Such circumstantial evidence, if clear and persuasive, establishes the existence of the contract of marriage between the parties as satisfactorily as if the contract had been reduced to writing, or had been expressed in the presence of living witnesses in the plainest form of contractual

(257 F.)

words. The cases are fully reviewed in Travers v. Reinhardt, 205 U S. 423, 27 Sup. Ct. 563, 51 L. Ed. 865. The law on the subject received an accurate statement by one of the greatest judges of our race in the language of Lord Westbury quoted in the Travers Case at page 441of 205 U. S., at page 569 of 27 Sup. Ct. (51 L. Ed. 865). See, also, Nelson v. Jones, 245 Mo. 579, 151 S. W. 80; Betzinger v. Chapman, 88 N. Y. 488; Adger v. Ackerman, 115 Fed. 124, 52 C. C. A. 568; White v. White, 82 Cal. 427, 23 Pac. 276, 7 L. R. A. 799; 18 Ruling Cases, 421, §§ 46 and 57, and cases there cited.

[3] The foregoing view as to the proof of the contract of marriage answers the contention of appellants that the trial court in reaching its conclusion proceeded by resting the presumption of the contract of marriage upon the presumption that appellee's former marriage had been terminated in some lawful way. No such double presumption exists in the reasoning of the trial judge. As already stated, the existence of the marriage contract between Mr. and Mrs. Grogan is proven as a fact by circumstances, and does not rest upon a presumption. So the court could properly base its decree upon the presumption that Grogan was qualified to enter into the contract of marriage by reason of his former marriage having terminated in some lawful way. also true that the burden of proof as to the existence of the former marriage at the time of entering into the second contract was upon appellants. They could discharge that burden only by proof. It could not be done by the metaphysics of presuming that the former wife was still living, and the marriage with her in force. The decree is affirmed.

HEYNACHER v. UNITED STATES.*

(Circuit Court of Appeals, Eighth Circuit. April 15, 1919.)

No. 5210.

1. CRIMINAL LAW 1134(3)—APPEAL-NECESSITY OF REVIEW. Where the punishment imposed did not exceed that authorized for one of two offenses, if no error was committed in respect to such offense, the other need not be considered.

2. ARMY AND NAVY 40-ESPIONAGE ACT-VALIDITY.

Espionage Act June 15, 1917, tit. 1, § 3 (Comp. St. 1918, § 10212c) is valid. The obstruction of the military service of the United States need not be by physical acts, but may be by written or spoken words, and the government is not required to show that some particular person was dissuaded from entering the service.

3. CRIMINAL LAW 683(1)-ESPIONAGE ACT-REBUTTAL EVIDENCE.

In a prosecution for violating Espionage Act, tit. 1, § 3 (Comp. St. 1918, § 10212c), by attempting to cause disloyalty in the military forces and by obstructing recruiting, a letter from defendant to the president of the German-American Alliance of his state, inclosing a newspaper clipping telling of the escape of a German soldier, who told of the brutality of German officers, conditions behind the German lines, etc., with defendant's comment, "What kind of a swine is this?" held admissible to rebut the effect of defendant's evidence that he was a member of the Red Cross and gave free posting to army and navy advertisements on his bill boards, etc.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Rehearing denied September 1, 1919.

In Error to the District Court of the United States for the District of South Dakota; Jas. D. Elliott, Judge.

Walter Heynacher was convicted of violating the Espionage Act, and he brings error. Affirmed.

W. F. Mason, of Aberdeen, S. D., for plaintiff in error.

Robert P. Stewart, U. S. Atty., of Deadwood, S. D. (Edmund W. Fiske, Asst. U. S. Atty., of Sioux Falls, S. D., and George Philip, of Rapid City, S. D., on the brief), for the United States.

Before HOOK and CARLAND, Circuit Judges, and AMIDON, District Judge.

HOOK, Circuit Judge. [1] The plaintiff in error was convicted of violations of section 3, title 1, of the Espionage Act of June 15, 1917 (40 Stat. 217 [Comp. St. 1918, § 10212c]), charged in two counts of an indictment-first, by causing and attempting to cause disloyalty, etc., in the military forces of the United States; and, second, by obstructing the recruiting and enlistment service of the United States when it was at war with the Imperial German government. The sentences under the two counts were the same and were to run concurrently. The punishment imposed did not exceed that authorized by the statute for the latter offense, consequently if no error was committed in respect of that offense the other need not be considered. Evans v. United States, 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830. [2] The charge was that on or about December 15, 1917, the accused willfully obstructed the recruiting and enlistment service by publicly saying to a young man who was eligible to enlistment and subject to conscription:

"That he should not enlist; that the present war was all foolishness and (a vulgar word which need not be repeated), and that my talk of enlisting was all nonsense; that the war was for the big bugs in Wall Street; that it was all foolishness to send our boys over there to get killed by the thousands, all for the sake of Wall Street; that he should not go to war until he had to."

There was substantial evidence in support of the verdict and it need not be recited here. The constitutionality of the clause of the Espionage Act in question, that the obstruction of the service need not be by physical act but may be by written or spoken words, and that the government is not required to show that some particular person was dissuaded from entering the service, have been so frequently decided by this and other courts that reference to the many cases is unnecessary. In Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. (March 3, 1919), the court said:

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present dan-` ger that they will bring about the substantive evils that Congress has a right to prevent."

See, also, Debs v. United States, 249 U. S. 211, 39 Sup. Ct. 252, 63 L. Ed. (March 10, 1919).

(257 F.)

The indictment and the evidence at the trial were sufficient under the statute.

[3] There is a complaint about the admission of evidence. In defense the accused showed that he was a member of the Red Cross and that he gave free posting on a system of billboards which he controlled of advertisements for the army and navy, the various government war loans, and the food and fuel administrations, amounting in value to several hundred dollars. This was to show his loyalty and the want of unlawful intent, and to give strength to his version of the language he used, which was quite different from that set forth in the indictment and testified to by witnesses for the government. To rebut this the government introduced as part of the cross-examination a letter of November 27, 1917, from the accused to the president of the German-American Alliance of his state, and a newspaper clipping inclosed with the letter. In the letter was the sen

tence:

"I cannot understand that you still won't recognize the services of Hans Demuth for the German interests of South Dakota."

This in itself was probably not very significant, but the newspaper clipping was an account of the escape of a certain German soldier to this country, who told of the brutality of some German officers, conditions behind the German lines, etc. Upon this clipping the accused had written, "What kind of a swine is this?" It is contended that the court erred in receiving this evidence, but it is clear that it was properly admitted. It tended to show that the public manifestations of loyalty on which the accused relied for the purposes mentioned should not receive the full consideration he claimed for them. There is nothing else in the assignments of error that is substantial. The sentence is affirmed.

CULVER v. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit. April 1, 1919.)

No. 5193.

CRIMINAL LAW 1170%1⁄2 (6)—REVIEW-PREJUDICIAL ERROR-CROSS-EXAMINATION OF DEFENDANT.

In a criminal prosecution for using the mails to defraud, it was prejudicial error to permit counsel for the government, on cross-examination of defendant, to inquire as to the property he owned at the time of the alleged offense and at the time of trial, even though some of such questions were excluded.

In Error to the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge.

Criminal prosecution by the United States against John Culver. Judgment of conviction, and defendant brings error. Reversed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

W. J. Crump, of Muskogee, Okl., for plaintiff in error.

C. W. Miller, Sp. Asst. U. S. Atty., of Muskogee, Okl. (W. P. McGinnis, U. S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before SANBORN and STONE, Circuit Judges, and TRIEBER, District Judge.

SANBORN, Circuit Judge. John Culver, one of the defendants below in this case, complains of error in his trial and conviction for devising a scheme to use the mails to defraud J. Moncrief, who, under the names of the Dyer-Bates Company of Winfield, Kan., and the Winfield Nursery Company, a corporation, owned and was selling nursery stock. On May 10, 1915, Moncrief made a contract with E. J. Luce, who was indicted and convicted with Culver, to furnish to him, at prices specified, nursery stock to fill orders to be taken by him from third parties on blanks to be provided by Moncrief, and Luce agreed to procure all his nursery stock from Moncrief, to pay him 10 per cent. interest on money he borrowed from Moncrief, and not to ask him for a loan of more than 20 per cent. of the orders he turned in. Under this contract Luce procured orders for nursery stock, turned them over to Moncrief, and borrowed from him or procured advances from him of about 20 per cent. of the amount of the orders for nursery stock. Culver was employed by Luce on a commission, or on a salary, or in some other way, to procure some of these orders which Luce caused to be mailed to Moncrief.

The scheme to defraud, which the government alleged in the indictment that Luce and Culver devised, was to obtain forged or otherwise worthless orders for nursery stock, to represent that the orders were genuine and valuable, that the makers were real persons when they were fictitious persons, that they were financially responsible. when they were not, and to borrow 20 per cent. of the amounts of the orders, and never to pay it back. There was a long trial, and much conflicting testimony regarding the orders that were obtained, and the character of them, but no testimony regarding the property of Culver or his financial responsibility, nor was he a party to the contract between Moncrief and Luce. After the plaintiff had rested its case in chief, and Culver had testified for the defense upon his examination by his counsel, who asked him nothing about his property, counsel for the government on his cross-examination inquired of him whether or not he owned property of his own in Muskogee, where he lived in the summer of 1915, when these orders for nursery stock were taken. He answered that he did not. Asked if he then owned his own home, he answered that he did not. Asked if he owned considerable property at the time of his examination, he answered, "Well, right smart; yes. Asked if he owned his own home in Muskogee, he answered, "Yes,

Asked if he owned several farms, he answered, "Yes, sir." Asked how many farms he owned, his counsel objected to this question as incompetent, irrelevant, and immaterial. The court overruled the