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26 F.(2d) 168

cide are to be considered as included under the doctrines of the common law. The inference to be drawn from the case is that, if crimes of less degree are specifically averred by separate counts in the information (that is, independently covered rather than inclosed within the charge of the offense of greater degree), the conviction could be sustained. So also in People v. Hall, the charge was murder only, which the evidence showed to have been committed, if at all, by poisoning. The jury found the defendant guilty of a lower degree of crime than first degree murder, and the court treated the verdict as if for murder in the first degree. Since murder by poisoning in Michigan must be first degree murder if homicide at all, the Supreme Court held that it was error to predicate sentence as if upon conviction for first degree murder when the verdict was guilty of a lower degree of homicide. The court suggests the question of how far the case could be reopened or whether it could be retried had the matter been properly assigned in error, but does not answer such question.

In People v. Repke, the homicide was committed by lying in wait and preconceived plan. There the defendant below complained of a charge that the jury must find the defendant guilty of first degree murder or of no crime. The charge of the trial court was approved. This case and those of similar purport (compare People v. Richmond, 59 Mich. 570, 26 N. W. 770; People v. Onesto, 203 Mich. 496, 170 N. W. 38; People v. Ackerman, 80 Mich. 588, 45 N. W. 367; People v. Neumann, 85 Mich. 98, 48 N. W. 290), throw but little light on the present subject of our inquiry. The doctrines announced go no further than that, where all facts essential to a conviction are admitted, a verdict of guilty may be directed, and, unless the proofs show that the jury would be justified in convicting of the offense of lower degree, there is no occasion for the court to instruct them in regard to it. To hold that an accused can not complain if the court refuses to submit to the jury an issue which does not arise under the information and facts proved is very different from holding that, where the information avers several degrees of offenses or crimes arising from the same transaction, and the evidence is amply sufficient to sustain a conviction upon any one of the several counts if tried separately, the court is not justified in submitting all to the jury, as was here done, with the instruction that a verdict of guilty can be returned upon not more than one of such counts. The court is cited to no case expressly sustaining the contention of

the plaintiff in error or holding that a verdict of not guilty, express or implied, under the count of higher degree, must operate as an acquittal upon the count of, lower degree, where the charge upon which conviction is based is the subject of independent averment in the information or indictment. The mere nonexistence of such precedent is persuasive of the absence of any such doctrine in our law.

Nor does the case of People v. Harrigan, 218 Mich. 237, 187 N. W. 306, support the contentions of the plaintiff in error. There the defendant was charged in three counts, first, with manslaughter through reckless driving; second, with manslaughter through driving while intoxicated; and, third, with manslaughter through driving an automobile while approaching or traversing a steep descent without having the automobile under control. He was found guilty under the third count and not guilty under the first and second. The evidence disclosed no scintilla of proof that at the time of the accident the defendant was approaching or traversing a steep descent, but, on the contrary, that he was driving up an ascending grade. With the acquittal upon the counts for reckless driving and driving while intoxicated, these two elements were eliminated as bases for a charge of manslaughter. The count upon which the defendant was convicted was wholly unsupported by the evidence, and the conviction was therefore set aside. [7, 8] The questions of the inconsistency of the verdict and of the right of the defendant to have the jury instructed that they must find such defendant guilty of manslaughter or not guilty are really the same question in different dress, and, in asserting the inconsistency between verdicts of not guilty upon counts 1 and 2 and a verdict of guilty upon count 3, the fallacy of the argument of plaintiff in error consists in assuming that the verdicts of not guilty under counts 1 and 2 must be predicated upon the justification urged by the defendant below under his plea of not guilty. This is a non sequitur. In a criminal case the burden of proof lies wholly with the prosecution. This means that the entire risk of nonpersuasion of the jury as to every essential ingredient of the crime lies with the prosecution. The medical testimony in the present case was that the cause of death was infection, septicemia, or pneumonia; that, while pneumonia frequently followed gunshot wounds, it might also be contracted through undue exposure and fatigue. It was entirely possible that the jury, reasonably or unreasonably, might have found themselves uncon

vinced and unpersuaded that the death was caused by the wound. Or it was equally possible that the recklessness and negligent disregard of the rights of the decedent were not considered so culpable and wanton as to raise the offense to the dignity or degree of manslaughter. Or the verdict of innocence may have been simply the exercise of that power of juries referred to in People v. Mortimer, 48 Mich. 37, 11 N. W. 776, "to disregard evidence, and to acquit persons whom they know to be guilty." The verdicts are not irreconcilably inconsistent when considered in connection with this risk of nonpersuasion resting upon the prosecution. "And, if counsel should convince us that the jury ought not to have found his client guiltless

of manslaughter "as charged, that would be no reason for setting aside the conviction" on the other count. Grey v. U. S., 172 F. 101, 103 (C. C. A. 7). In such a case, the inconsistency, if any, is not fatål to the verdict. There is as much reason to consider the verdict of innocence erroneous as there is to consider the verdict of guilt improper. Gozner v. U. S., 9 F.(2d) 603, 604 (C. C. A. 6); Carter v. Tennessee, 18 F. (2d) 850, 854 (C. C. A. 6).

In

While possibly it would not have been error under the law of Michigan to submit to the jury only the question of guilt or innocence under the first count, we are likewise of the opinion that it was not prejudicial error to submit all three counts to the jury. This is so both upon the ground just discussed and upon the ground that the acquittal of the charge of greater degree does not prejudice any right of the defendant. State v. Schell, 172 Iowa, 127, 153 N. W. 62, the charges involved were assault with attempt to rob and assault with intent to commit larceny. It is difficult to see how there could be an assault to commit larceny without its being likewise an assault with intent to commit robbery, for robbery consists of theft through assault. The verdict was not guilty on the count of assault with intent to rob and guilty under the count of assault with intent to commit larceny, a crime of less degree. It was held that the verdict could not be impeached on the ground of inconsistency, and the conviction was upheld.

In Corbin v. U. S., 205 F. 278 (C. C. A. 8), such a verdict was sustained; the court saying at page 280: "Here there was a single verdict covering both counts, not a prior acquittal of the same offense, and the rights of the accused were not prejudiced." So al

so in Griffin v. State, 18 Ohio St. 438, 445, the court said, after a review of authorities: "Hence it follows that the finding of the jury as to a particular count is independent of, and unaffected by, the finding upon another count. If the evidence justified a verdict of guilty as to the first, second and fourth counts, the prisoner was not prejudiced by an acquittal under the third count."

The jury were very fully instructed that they could return a verdict of guilty on one of the counts only if they should find that the acts of the defendant were not in self-defense and were without justification. The verdict of guilty on the third count must therefore be predicated upon the finding that the assault was unjustified, felonious, and not in self-defense. It is certain that, if this be the fact, and if death proximately resulted from the assault, the plaintiff in error should have been convicted of manslaughter. Certainly the fact that he was not so convicted must either have resulted from the failure of the prosecution to persuade the jury upon some essential element of the crime, such as cause of death, from open disregard of duty by the jury, or from a very human, though extralegal, unwillingness upon the part of the jurors to convict for offenses of greater degree when committed in the performance of an act of law administration. It is probable that upon this hesitancy upon the part of juries the plaintiff in error pinned his faith. Whatever the foundation of acquittal may have been, it is manifest that such acquittal was of benefit and not of prejudice to the defendant. [9] If the verdicts upon the several counts were not fatally inconsistent, the acquittal upon counts 1 and 2 cannot operate as an acquittal upon count 3 and so to discharge the defendant. This seems elementary, but precedent to such effect is not wanting. Thus in Dimmick v. U. S., 121 F. 638, 642 (C. C. A. 9), it was held that, under two counts charging cognate offenses with reference to the same transaction (mishandling of public moneys), acquittal under one count does not entitle defendant to acquittal under the other. And in Commonwealth v. Dow, 217 Mass. 473, 484, 105 N. E. 995, 1000, the court says: "It may be that proof of the same acts would constitute an offense under either section. But where counts of such nature are combined in one indictment, a verdict of not guilty upon one count does not involve the same result as to all."

We find no error apparent upon the face of the record, and the judgment is affirmed.

26 F.(2d) 173

JENSEN v. BANK LINE, Limited, et al.

THE AYMERIC.

Circuit Court of Appeals, Ninth Circuit. May 14, 1928.

No. 5352.

1. Shipping ~86 (23⁄4)—Finding that shipowner was not liable for injuries to stevedore, caused by breaking of alleged defective shackle bolt in connection with loading booms, held proper under evidence.

In libel by employee of stevedore company against ship for injury sustained by him while loading lumber, due to breaking of shackle bolt attached to end of pennant leading to one of loading booms of ship, finding of trial court that shackle was not defective or that defect was of such slight character that it could not be ascertained by exercise of ordinary care, and that shipowner was therefore not liable, held proper under conflicting evidence.

2. Shipping

86(2%)—Injured stevedore, in libel against ship for injuries sustained when shackle pin connected with loading booms broke, was required to prove negligence.

Fact that shackle connected with loading booms of ship broke under strain of lumber being loaded on ship, causing injury to employee of stevedore company, did not of itself prove shipowner's negligence in using the pin, under doctrine of res ipsa loquitur, and libelant was required to show that fracture was result of defect, and that claimant knew of that defect, or by the exercise of ordinary care could have discovered it.

3. Shipping ~84 (3)—Where stevedore continued to load ship with gear furnished without further complaint, stevedore company was not liable for failure to provide safe working conditions (Admiralty Rule 56).

In libel proceedings by employee of stevedore company for injury sustained in loading lumber on steamship by breaking of pin of shackle connected with loading booms, dismissal of ship claimant's petition against stevedore company under Admiralty Rule 56 was not error, where stevedore continued to load ship

with gear, which was furnished without further complaint, even if stevedore company improp erly rigged preventer guy and failed to provide stevedores with proper place to work.

4. Admiralty 50-Libefant who failed to adopt or answer claimant's petition against third party could not complain that petition was dismissed (Admiralty Rule 56).

Where in stevedore's libel proceedings against ship, in which claimant brought proceedings against stevedore company under Admiralty Rule 56, libelant failed to answer petition or to adopt allegations thereof and to request findings or to become party to proceed

ings against his employer, he was not entitled to assign error on account of court's dismissal of claimant's petition.

5. Admiralty 50-Libelant cannot be compelled to establish personal liability of third party brought into libel proceeding by claimant (Admiralty Rule 56).

By disregarding claimant's petition bringing in third party under Admiralty Rule 56,

libelant exercises right not to proceed against third party, and cannot be compelled to establish the personal liability of the third party; proceedings against third party being independent.

Appeal from the District Court of the United States for the District of Oregon; Robert S. Bean, Judge.

Libel by George Jensen against the Bank Line, Limited, as claimant of the British steamship Aymeric, in which W. J. Jones & Son, Inc., was joined on the claimant's petition. From a decree dismissing the libel and the claimant's petition, libelant appeals. Affirmed.

The

While the appellant was working as an employee of a contracting stevedore company, in loading lumber upon a steamship, the pin of a shackle attached to the end of a pennant leading to one of the loading booms of the ship gave way under the strain of a load of lumber which was being dragged across the dock to the ship, and the appellant was injured by a blow from a block and a guy when the boom swung around. gist of the allegations of the libel on which recovery was sought was that the loading gear of the vessel was not in seaworthy condition, that the shackle bolt which broke was defective, and that the defect could have been discovered by the vessel by the exercise of reasonable care, but that the vessel negligently failed to make inspection, and negligently turned over the loading gear to the stevedores and permitted them to use the same. The court below, in dismissing the libel, said:

"The shackle itself was introduced in evidence. Experts were called. Those called by the libelant testified positively that the shackle was manifestly defective and that the defect could have been ascertained by the exercise of reasonable care. Experts were called by the ship and testified directly to the contrary. All these experts examined the same shackle. One of them said, 'It is defective.' The other said, 'It is not defective.' So I suppose under these circumstances the court is justified in exercising its own judgment. I have carefully examined the shackle, and, so far as I can see, there is no substantial defect in it; certainly to my mind it is clear that, if there was a slight defect, it was of such a character that it would not have been ascertained by the exercise of ordinary care. Therefore the libel for this reason will be dismissed."

Lord & Moulton, of Portland, Or., for appellant.

Wood, Montague & Matthiessen and Erskine Wood, all of Portland, Or., for appellee the Bank Line.

of 1,800 pounds, shortly after a similar chain had broken under like conditions. It was held that there should have been a careful

E. L. McDougal, of Portland, Or., for and thorough test or examination before usappellee W. J. Jones & Son, Inc.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge (after stating the facts as above). [1] Concerning the condition of the shackle pin and the strain under which it broke, all the testimony on behalf of the appellant, with the exception of that of one expert, was heard before the court. There was evidence that the pin had been subjected to extraordinary strain in dragging a heavy slingload of lumber, estimated by the first officer of the ship to weigh 21⁄2 tons, a distance of 180 feet across the dock. An expert witness, who had been employed in the repair department of the Emergency Fleet Corporation, testified that in his judgment the pin was in prime condition prior to what he characterized as the enormous pressure which broke it, that otherwise it would not have distorted the eye of the pin or drawn the jaws of the shackle out of parallel. The chief engineer of the Willamette Iron & Steel Works testified that in his opinion the pin was a good piece of metal before it broke, and that its appearance indicated a tough and live metal. On the other hand, an instructor in a local polytechnic school testified that the appearance of the pin indicated that it was crystallized, and several witnesses, who were longshoremen, or sailors, or workmen, also testified that the pin was crystallized, and some testified that there were visible defects which should have led to its rejection for further use. There was undisputed testimony of officers of the ship that all shackles were discarded after six months of use. We are of the opinion that no ground is shown for setting aside the conclusion reached by the trial court upon the testimony of the witnesses and the appearance of the shackle pin.

[2] Nor do we find merit in the Ontention that the fact that the pin broke was in itself evidence of negligence in using the same or that this is a case in which the rule of res ipsa loquitur may be invoked. Citation is made of The Rheola (C. C.) 19 F. 926; Steel v. McNeil (C. C. A.) 60 F. 105; The Portland (D. C.) 213 F. 699; Neptune Steam Nav. Co. v. Borkmann (C. C. A.) 118 F. 420. In the Rheola Case, a chain which was in appearance old, rusted, and worn, and which, if in proper condition, should have sustained a weight of 6 or 7 tons, broke under a weight

ing the chain. In Steel v. McNeil, the injury was caused by the slipping of the pin from the eye of a shackle because of defects which had been noticed and pointed out to the mate by one of the longshoremen. In Neptune Steam Nav. Co. v. Borkmann, the fact that a piece of wire rope furnished by the ship for the stevedores broke under a weight only one-tenth of that which it should have supported if in good condition was held to be evidence that it was not in good condition. In The Portland, Judge Wolverton held the steamship liable by reason of the breaking of a rope sling which had become frayed, worn, and attenuated, as would have been apparent to one making an inspection thereof, and that the fact that it broke was proof positive that In the case at bar, the it was defective. evidence was conflicting as to whether the shackle pin should have sustained a weight as great as that which caused it to break, and there was conflict in the evidence as to whether it was defective, and as to whether, if defective, the defects were discoverable by inspection. The most than can in general be claimed for the occurrence of such an accident is that, while it may tend to prove that a defect existed in the appliance which was used, the libelant must go farther and show that the fracture was the result of a defect, and that the claimant knew of that defect or by the exercise of reasonable care could have discovered it. Patton v. Texas & P. R. Co., 179 U. S. 658, 21 S. Ct. 275, 45 L. Ed. 361; San Juan Light Co. v. Requena, 224 U. S. 89, 98, 32 S. Ct. 399, 56 L. Ed. 680.

Under Admiralty Rule 56, which permits either the claimant or the respondent to bring in a party jointly liable to any party to the suit by way of remedy over or contribution, and provides that the suit shall proceed as if such new party had been jointly proceeded against, and requires the other parties in the suit to answer the petition and the new party to answer the libel, the owner of the vessel filed a petition against the stevedore company, praying that it be cited to answer the petition and the libel, and alleging that the accident occurred through the stevedore's improper and negligent use of the ship's gear. The stevedore company answered, alleging that the gear which was turned over to it by the steamship was represented to be in good condition, and was rigged by the officers and employees of the ship, that, if there was negligence in the use there

26 F.(2d) 175

of, it was the negligence of the appellant and - his fellow servants, and, if there were defects in the gear which the stevedore company could not by the exercise of reasonable care discover, the accident was caused by the negligence of the steamship and not through the fault of the stevedore company. When the libel was dismissed, the petition was also dismissed.

[3] The appellant assigns error to the failure of the trial court to find that the stevedore company improperly rigged the preventer guy, and used an unseaworthy and defective shackle, and failed to exercise reasonable care in using said preventer guy, and negligently failed to provide the appellant with a reasonably safe place to work. The basis of the contention seems to be that the evidence showed the gear to be defective for want of preventer guys attached to the peak of the boom. The officers of the ship testified that at the request of the president of the stevedore company they installed preventer guys, one end of which was attached at the tip end of the boom, and the other to a bulwark stanchion below; each guy being a wire cable 70 or 80 feet in length and three-fourths of an inch in diameter, and that a day or two prior to the accident the preventer guys were removed by the longshoremen. As to this there was sharp conflict in the testimony. The longshoremen, in the main, testified that there was no preventer guy on the ship when they began their work; that they applied to the ship for preventer guys, and were told that there were none; that they were given short guys of 20 feet in length, which they pieced together and used as a preventer guy running only from the block down to the deck to safeguard the tackle in the event that the ropes broke. But the fact remains that the stevedores continued to load with the gear without further complaint of its condition, and, if there was negligence in that regard, it was their own negligence. We find nothing in the record which required the trial court to make findings on the issues brought in by the petition.

[4,5] Nor do we think that the appellant is in a position to assign the errors, if errors there were, which he now relies upon. He ignored the command of rule 56, and made no answer to the petition. Nor did he at any time adopt the allegations thereof or request findings thereon, or become a party to that proceeding. In New Jersey Shipbuilding & Dredging Co. v. Davis (D. C.) 291 F. 617, 619, Judge Learned Hand said: "The petition was a pleading requiring an actor and a reus just as much as though it had been a

libel in the admiralty, a bill in equity, or a declaration at law." In The Silverway (D. C.) 14 F.(2d) 154, 157, it was said: "The proceeding under rule 56 is an independent proceeding." In disregarding the petition as he did, the appellant exercised his right to elect not to proceed against a party as to whom he made no claim, and whom the appelleé had no right to substitute in its stead as the party primarily liable. Having elected to proceed in rem, he was not compellable to establish the liability in personam of a new party brought in by the claimant. The Providence (D. C.) 293 F. 595, 599. The decree is affirmed.

AKTIESELSKABET DEA v. WRIGHTSON. THE COPPERFIELD.

1.

Circuit Court of Appeals, Fifth Circuit. May 14, 1928.

No. 5208.

Admiralty 32-Corporation organized under laws of foreign country could be sued for admiralty tort in any District Court of United States where found or in which it had property.

eign country could be sued for an admiralty tort Corporation organized under laws of forin any District Court of United States where found or in which it had property that might be subjected to writ of foreign attachment. 2. Admiralty 25-By filing cross-libel, respondent, notwithstanding objection to jurisdiction in answer, submitted itself to court's jurisdiction.

tion organized under laws of foreign country, notwithstanding objection to jurisdiction which had been reserved in answer, waived any defect of service and submitted itself to jurisdiction of court, and attachment became merely inci

By filing cross-libel, respondent, a corpora

dental.

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