(289 F.) she was by a medical board declared insane, and orders were given to execute the warrant of deportation issued in 1920, whereupon this writ of habeas corpus was sued out, and under it the relator was remanded. Thus in the Markes Case the Department of Labor is the appellant, and in the other litigation Schnirmacher is the appellant. When both these aliens landed the Immigration Act of 1907 (34 Stat. 898) was in force. Sections 20 and 21 of that statute provided that aliens such as these were subject to deportation "within three years after the date of his entry" (section 20), or "within the period of three years after landing" (section 21). It was further provided that such aliens should be "taken into custody and deported" within said three years (section 20) or that within three years the alien should be "taken into custody and returned to the country whence he came" (section 21). This act was superseded by the statute of 1917, supra, which by section 19 gave "five years after entry" within which aliens such as these "shall upon the warrant of the Secretary of Labor be taken into custody and deported" (section 19 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42891⁄4jj]). The following section (section 20 [section 42894k]) regulates the deportation provided for by section 19, and adds: "If deportation proceedings are instituted at any time within five years after the entry of the alien, such deportation, including one-half of the entire cost of removal to the port of deportation, shall be at the expense of certain described persons, and "the deportation from such port shall be at the expense of the owner or owners of such vessels or transportation line by which such aliens respectively came, or, if that is not practicable at the expense of the appropriation for the enforcement of this act." William Hayward, U. S. Atty., and John C. Thomas, Asst. U. S. 'Atty., both of New York City, for Department of Labor. Archibald E. Stevenson, of New York City, for Schnirmacher. HOUGH, Circuit Judge (after stating the facts as above). [1] It may be assumed for purposes of argument that both these aliens belonged to classes which, under the act of 1907, had to be deported, if at all, within three years from their respective entries. But an alien unprotected by treaty is an intruder; his status is matter of statute, and irrespective of mere lapse of time may be regulated, declared, and redeclared by successive statutes. We thus follow the Ninth Circuit in holding that the provisions regarding deportation contained in the act of 1917 are retroactive, as was held in Akira Ono v. United States, 267 Fed. 359. Further, the retroactive validity of this statute was recognized by this court in Lauria v. United States, 271 Fed. 261. Thus the legality of departmental proceedings is to be ascertained from the act of 1917 alone. [2] Both these aliens belonged to classes which must under section 19 be "taken into custody and deported" within "five years after entry." If this section (19) were the whole of the applicable statute, the reasoning which prevailed with us in International Mercantile Marine Co. v. United States, 192 Fed. 887, 113 C. C. A. 365, and United States v. Oceanic, etc., Co., 211 Fed. 967, 128 C. C. A. 465, would require the holding that since, at the furthest, the aliens were not tendered to some vehicle of transportation for actual physical deportation within five years from their entry, the power to deport was exhausted. But the section must be read with and in harmony with section 20, which is as much a regulation of deportation as is section 19; and the latter section declares that, "if deportation proceedings are instituted at any time within five years after the entry of the alien," the proceedings shall continue and be effectual for certain enumerated purposes. If each section is held to declare the law, and the law declared be ascertained from one section alone, reconciliation is impossible. By section 19 deportation must actually begin within five years, while by section 20 it is enough if the proceedings be instituted within five years. The case seems to us a clear one for resorting, not to legislative de bates, but at least to the considered labors of committees to ascertain the true intent of Congress. In the report of the Senate committee on the bill which became the Immigration Act of 1917, the committee explained that: "By using the expression 'if deportation proceedings are instituted at any time within five years after the entry of the alien,' the situation of doubt as to the meaning of section 20 of the existing law (the act of 1907) is cared for. Some courts have held that the limitation of the statute ceases to run with the institution by department of deportation proceedings, and others that it does not." 64th Cong., 1st Sess. Report, 352. The committee then specifically cites the two cases from this court, supra, and also United States v. Redfern (C. C.) 180 Fed. 506, and Botis v. Davies (D. C.) 173 Fed. 996, and also the lower court decision which was the subject of review in International Mercantile Marine Co. v. United States, supra. The citations clearly show a marked divergence of judicial opinion as to whether the deportation limitation' period shall be treated (as this court treated it) as an absolute termination of all departmental power or like a statute of limitations which is ordinarily tolled by issuing process or its equivalent. When it is observed that Congress deliberately inserted in section 20 of the act of 1917 words exactly in accord with the ruling in United States v. Redfern, supra, all doubt is dispelled as to what Congress intended by its enactment. It meant to explain the words used in section 19 agreeably to the interpretation put upon the words of similar literal import by (inter alios) Foster J., in the Redfern Case, supra. We accordingly hold that the decisions in the above-cited cases of International and Oceanic Companies cannot be applied to limit the operation of the Department of Labor in respect of deportation proceedings under the act of 1917. Whether under the later statute, the cost of deportations effected after the expiration of the five-year period can be placed upon the original transportation companies is a matter not before us, and as to which therefore no opinion can be presently expressed. It follows that, as in each of these cases deportation proceedings were begun within the five-year period, each proceeding is valid; a result in agreement with Bun Chew v. Connell, 233 Fed. 220, 147 C. C. A. 226. The order of the lower court in Re Schnirmacher is affirmed, and that in Re David is reversed. (289 F.) CHARTERS v. UNITED STATES. (Circuit Court of Appeals, Seventh Circuit. March 29, 1923.) No. 3127. 1. Criminal law 149-Evidence held to show prosecution barred by limitations. In a prosecution for violating Act Sept. 26, 1918, relating to the duties and conduct of Federal Reserve Bank officers, evidence that the items alleged to have been embezzled by defendant were accomplished by indorsements on a depositor's time certificate, all the transactions being more than three years prior to the date of the return of the indictment, held to conclusively show the prosecution barred by limitations. 2. Banks and banking 257(3)-Evidence held insufficient to sustain conviction. In a prosecution for violation of Act Sept. 26, 1918, relating to the duties and conduct of Federal Reserve Bank officers, evidence held insufficient to sustain a verdict convicting defendant of having embezzled bonds belonging to a depositor. In Error to the District Court of the United States for the District of Indiana. Criminal proceeding against Charles M. Charters for embezzlement and defrauding depositors of a national bank. From a verdict and judgment of conviction, defendant brings error. Reversed. James W. Noel, of Indianapolis, Ind., for the United States. Frederick Van Nuys, of Indianapolis, Ind., for defendant in error. Before BAKER, EVANS, and PAGE, Circuit Judges. EVAN A. EVANS, Circuit Judge. Plaintiff in error, a former cashier of the Citizens' National Bank, of Peru, Ind., was tried, convicted and sentenced for violating the Act of September 26, 1918 (40 Stat. 967), relating to the duties and conduct of Federal Reserve Bank officers. He was charged in six counts of the indictment with embezzling, paying to himself, abstracting and defrauding the bank, and also defrauding a certain depositor of the bank. He was found guilty on all counts, and sentenced to serve a term of four years in the penitentiary and to pay a fine of $2,000 on each count. By the terms of the judgment, the separate imprisonment terms ran concurrently. Numerous assignments of error appear, but one only requires consideration. The defendant relies upon the statute of limitations. The indictment was returned the 9th day of December, 1920. The government's theory is that plaintiff in error, while cashier, transacted considerable business with a depositor, G. M. Tillett, whose deposits were always represented by certificates of deposit rather than by a checking account; that is to say, when the depositor had any money to deposit, or drew any interest upon certificates, and the same was placed in the bank, a new certificate was issued. If, between the date of its issuance and the date it matured or was canceled, the depositor. needed any money, he received it and there was indorsed upon the back of the certificate a statement of the amount thus withdrawn. On October 10, 1917, this depositor, through the Citizens' National For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Bank, subscribed for $8,000 of the Second Liberty Loan; the subscription being taken by plaintiff in error. On the 13th day of December, the depositor turned over certificates, aggregating approximately $8,000, in payment of these bonds and received a receipt from plaintiff in error for $8,000. The certificate for $7,000 later showed credits.as follows: March 26, 1917, $1,000; April 19, 1917, $2,000; May 29, 1917, $3,000. These indorsements must have been made on or after December 13, 1917, and by the plaintiff in error. The depositor stated he never withdrew any sum of money upon these three dates, and the receipt of plaintiff in error given December 13th for $8,000 rather conclusively substantiates the depositor's story. [1] All three of these transactions, these abstractions or embezzlements, however, were more than three years prior to the date of the return of the indictment. Concerning these transactions and their dates, the record is conclusive, and the defendant has, so far as they are concerned, brought his case within the protection of the statute. No controversy respecting the law has arisen between counsel, and we therefore take up the remaining transaction, which also is one purely of fact. Plaintiff in error, instead of purchasing $8,000 of Liberty Bonds, ordered only $2,000 of such bonds. The government contends that he never purchased the two bonds that were later found in an envelope with the name of G. M. Tillett written thereon until after December 13, 1920. Had Mr. G. M. Tillett received his $8,000 worth of bonds for which he had subscribed, and had the bonds when they arrived been placed in his box, he would have had $10,000 worth of Liberty Bonds of all issues. However, when he opened his box, there were but $4,000 of bonds. No satisfactory explanation of their absence was made, and plaintiff in error (no longer with the bank) purchased $6,000 of bonds of this second issue and turned them over to the bank for Tillett. It appears that in the bank among the depositor's papers there was found an envelope containing two bonds of the second issue of $1,000 each, numbered 1,442,328 and 1,442,329. But it is claimed that J. H. Tillett, a relative, who purchased $3,150 worth of bonds, received a receipt for the two bonds of the above serial numbers. To him, however, were delivered other bonds. In other words, G. M. Tillett purchased $8,000 worth of bonds, and J. H. Tillett purchased $3,150; the latter purchase being represented by five bonds of the second issue. J. H. Tillett received all of his bonds, three being in denominations of $1,000. But G. M. Tillett received but two $1,000 bonds. The receipts and other bank book records indicate two of the five bonds purchased by J. H. Tillett may have found their way to the box of G. M. Tillett and that two of the G. M. Tillett bonds were placed in the box of J. H. Tillett. In other words, J. H. Tillett obtained the correct amount of bonds and in the exact denominations represented by his subscriptions. The serial numbers, if indicative of the dates of issue, can have no significance, and are in this case not at all persuasive, in view of the large number of bank transactions in Liberty Bonds and the confusion incident thereto arising out of the (289 F.) failure of the bank to keep separate accounts showing the ownership of particular bonds. There is an utter failure on the part of the government to show that the two bonds delivered to G. M. Tillett were not purchased at the subscription date and transferred to Mr. Tillett immediately following their receipt by the bank. [2] J. H. Tillett received the bonds he subscribed for, and G. M. Tillett received two of the $1,000 bonds. The record fails to show, and the bank books fail to disclose, what serial numbered bonds either should have received, and we conclude there is no evidence to sustain the alleged embezzlement of $2,000.. There is no support for any finding of embezzlement of the $2,000 of bonds, and the other offenses which the testimony tends to establish occurred more than three years prior to the return of the indictment. It follows, therefore, that the judgment must be and it is hereby reversed. FOSTER v. E. I. DU PONT DE NEMOURS & CO. (Circuit Court of Appeals, Fourth Circuit. May 1, 1923.) No. 2068. 1. Master and servant 121 (1)—Statute requiring "vats" to be "properly guarded" held to extend to guarding vents. The requirement of Code Va. 1919, § 1830, that all "vats" shall be properly guarded, extends to guarding vents, troughs, or other appurtenances used in filling and emptying vats filled with hot water or acid; the term "properly guarded" meaning effectively guarded, in view of any danger to be anticipated. [Ed. Note. For other definitions, see Words and Phrases, Second Series, Properly Guard; Vat.] 2. Master and servant 286 (5)-Negligence in guarding vat held for jury. In action for injuries to servant from a spurt of boiling water from a vat, occasioned by a plug being forced out by the pressure of the water. whether it was practicable to guard the vat, within the meaning of Code Va. 1919, § 1830, held for the jury. In Error to the District Court of the United States for the Eastern District of Virginia, at Richmond; D. Lawrence Groner, Judge. Action by James C. Foster against E. I. du Pont de Nemours & Company. Judgment for defendant, and plaintiff brings error. Reversed. David H. Leake, of Richmond, Va. (John L. Lee,of Lynchburg, Va., H. G. Buchanan, Scott & Buchanan, and D. H. & Walter Leake, all of Richmond, Va., on the brief), for plaintiff in error. Robert H. Talley, of Richmond, Va., and J. Gordon Bohannan, of Petersburg, Va. (Plummer, Zimmer, Bohannan & Syme, of Petersburg, Va., on the brief), for defendant in error. Before WOODS and ROSE, Circuit Judges, and McCLINTIC, District Judge. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 289 F.-5 |