These two accounts are entirely inconsistent and lead to very different results. If the second, made after Dam's death, be adopted, the conclusion of the majority of the court is clearly right because the law provides for but one copyright, and, as I think, that the right of translation and dramatization is covered by it as an incident of the ownership of the copyrighted work. On the other hand, if the account given by Dam himself is adopted, no right except to publish the story in the magazine was secured. Certainly under the case of Mifflin v. White, 190 U. S. 260, 23 Sup. Ct. 769, 47 L. Ed. 1040, the notice of the entry of the magazine in the name of the Ess Ess Company was not notice to the public of Dam's reserved rights in the story if he had any, and they were capable of protection. The form of certificate provided by section 4957, Rev. St. U. S. contains no provision for ownership of the right to dramatize or translate separate from ownership of the copyrighted work. The person getting the copyright is described as claiming "as author (originator, or proprietor, as the case may be)," and section 4964 permits the dramatization or translation of a copyrighted work with the consent of the proprietor. Congress could not have intended that the assignee of the author, not being actually the proprietor, should authorize the translation or dramatization of the work; such rights belonging to some one else. The experienced attorney for the complainant undoubtedly amended his bill because he saw that there could be no recovery under it as originally drawn. The majority of the court take the same view, but hold that the only possible conclusion to be drawn from what was done by the parties is that the Ess Ess Company in the face of Dam's verified statements to the contrary, became the absolute proprietor of the work.

I think, however, that sending a story to a periodical and receiving back a check for the same is as consistent with selling the story for publication in the periodical only as it is with selling it outright. If to this be added a receipt for the check as payment in full for the story, the case is not advanced. A receipt is always open to explanation. 17 Cyc. 629. If a contest as to title had arisen between Dam and the Ess Ess Company and he had been plaintiff, he would have been permitted to show, if he could, that the sale was not absolute but with reservations, and for this purpose he could have availed himself of any act or declaration of the Ess Ess Company inconsistent with an absolute sale. Similarly, if the Ess Ess Company had been plaintiff, it would have been permitted to use any declarations of Dam, if he had made any, to the effect that the contract was an absolute sale as an admission of that fact. And, treating the receipt as a contract, a stranger to the transaction like the defendant would be allowed to contradict it by parol testimony. McMaster v. Insurance Co., 55 N. Y. 222, 234, 14 Am. Rep. 239; Condit v. Cowbrey, 123 N. Y. 463, 25 N. E. 946.

Adopting the account given by Dam himself of the transaction, which by the way is consistent with the gratuitous assignment to him by the Ess Ess Company of its copyright, I think the bill should be dismissed.

On Petition for Modification of Order for Mandate.

PER CURIAM. Upon the denial of the petition for a rehearing this court directed that the mandate should contain a provision that the affirmance of the decree of the Circuit Court should be without prejudice to the right of that court to amend its decree so as to provide for the recovery of damages if the court should be satisfied that there is a lawful and practicable method of ascertaining substantial damages sustained by the complainant, and that for such reason the decree is too broad. The complainant now insists that such a modification should not be permitted, contending that the Circuit Court has no power to award damages in copyright suits in equity. The complainant in her complaint asks for damages as well as profits, and it may be that the equity powers of the Circuit Court are broad enough to award them. But it is unnecessary to decide this question, for there is a difficulty which arises in view of the complainant's present position. The decree awards profits, and the complainant expressly disclaims any desire to recover damages. We know of no principle upon which a court of equity can compel a complainant to take damages, instead of profits, when he insists upon the latter.

The order for the mandate will provide simply for the affirmance of the decree, with costs.

RICHARDS v. UNITED STATES.

(Circuit Court of Appeals, Eighth Circuit. December 3, 1909.)

Nos. 2,616-2,619.

1. CONSPIRACY (§ 43*)-OFFENSE-SUFFICIENCY OF INDICTMENT.

An indictment under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676), for conspiracy to defraud the United States of public lands and to commit an offense against the United States by suborning entrymen to commit perjury in making oath to homestead affidavits, held sufficient.

[Ed. Note.-For other cases, see Conspiracy, Cent. Dig. §§ 79-99; Dec. Dig. § 43.*]

2. CRIMINAL LAW (§§ 622, 1148*)-SEPARATE TRIAL OF CODEFENDANTS-DISCRETION OF COURT-REVIEW.

The request of defendants charged in the same indictment for separate trials is addressed to the discretion of the court, and its action in refusing the same will not be reviewed, in the absence of clear indications that serious prejudice resulted therefrom to one or more of the defendants. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1380, 3050; Dec. Dig. §§ 622, 1148.*]

3. CRIMINAL LAW (§ 116621⁄2*)—APPEAL and Error-REVIEW-PRESUMPTIONS— MATTERS NOT SHOWN BY RECORD.

The overruling of a challenge to a juror for cause by defendants in a criminal case is not ground for reversal, even if erroneous, where the record shows that the juror did not serve, and does not disclose by whom he was excused, or that defendants exhausted their peremptory challenges. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3117; Dec. Dig. 11661⁄2.*]

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes ↑ Rehearing denied April 15, 1910.

4. JURY (§ 131*)-EXAMINATION OF JURORS-DISCRETION OF COURT.

On the examination of jurors in a prosecution for conspiracy to defraud the United States of public lands, it was within the discretion of the court to exclude a question by defendants asking the jurors whether they would consider it fraudulent for a man to loan a homestead applicant money to pay his fees and commissions, which involved a question of law upon which the jury was subsequently instructed by the court at defendant's request.

[Ed. Note.-For other cases, see Jury, Cent. Dig. §§ 561-582; Dec. Dig. § 131.*]

B. CONSPIRACY (§ 48*)-TRIAL-SUFFICIENCY OF EVIDENCE.

Evidence considered, in a prosecution for conspiracy to defraud the United States of public lands by means of fraudulent homestead entries and to commit an offense against the laws of the United States by suborning entrymen to commit perjury, and held sufficient to justify the submission of the case to the jury.

[Ed. Note. For other cases, see Conspiracy, Ceft. Dig. § 110; Dec. Dig. 48.*]

6. CRIMINAL LAW (§ 671*)-TRIAL-PRESENCE OF JURY DURING INQUIRY AS TO ADMISSIBILITY OF EVIDENCE.

Permitting the exhibition of a map to witnesses in the presence of the Jury in a criminal case, in an attempt in good faith to lay a foundation for its introduction in evidence, was not error, although it was finally excluded, especially where it might properly have been received.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1591; Dec. Dig. § 671.*]

7. CRIMINAL LAW (§ 730*)—Argument of COUNSEL-ACTION OF Court.

A reference by the district attorney, on the argument in a criminal case, to a map which had been excluded when offered in evidence, was not prej udicial error, where the court promptly stated to the jury that the map was not in evidence.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.*]

8. CRIMINAL LAW (§ 720*)-TRIAL-ARGUMENT OF COUNSEL-SCOPE.

Comments by the district attorney, in argument in a trial for conspiracy. on evidence properly admitted as tending to establish the conspiracy, held within the proper scope of argument.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. § 720.*]

9. CRIMINAL LAW (§ 390*)-TRIAL EVIDENCE.

On the trial of defendants charged with conspiracy to defraud the United States by procuring fraudulent homestead entries of public lands, testimony of the entrymen that they did not intend to go upon the land and establish an actual residence was admissible.

[Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 390.*]

10. WITNESSES (§ 388*)-IMPEACHMENT-LAYING FOUNDATION FOR PROOF OF INCONSISTENT STATEMENT.

Where it is sought to impeach the testimony of a witness by a prior affidavit made by him containing a number of questions and answers, it is the duty of counsel to call his attention to the particular part claimed to be inconsistent with his testimony.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. § 1233; Dec. Dig. § 388.*]

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

11. CRIMINAL LAW (§ 338*)-TRIAL-RECEPTION OF EVIDENCE.

A wide latitude is allowed in the reception of circumstantial evidence in a criminal case.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 753; Dec. Dig. § 338.*]

12. CRIMINAL LAW (§ 1168*)—APPEAL AND ERROR-REVIEW-HARMLESS ERROR. It was not prejudicial error in a criminal case to permit a witness to identify, with others, certain papers and records which were not thereafter introduced in evidence.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 3129; Dec. Dig. 1168.*]

13. CRIMINAL LAW (§ 1059*)-APPEAL AND ERROR-EXCEPTIONS TO INSTRUCTIONS.

An exception to an instruction in a criminal case, to constitute the foundation for an assignment of error, should be so framed as to indicate definitely to the trial court just what is objected to, so that, if erroneous, it may at once be corrected.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2671; Dec. Dig. § 1059.*]

14. CRIMINAL LAW (§ 798*)-TRIAL-INSTRUCTIONS.

In a trial for conspiracy, where circumstantial evidence was relied on to prove the conspiracy, it was not error to refuse an instruction that, to warrant a conviction, each juror must be satisfied beyond a reasonable doubt of each fact necessary to be proved.

[Ed. Note. For other cases, see Criminal Law, Dec. Dig. § 798.*] 15. CONSPIRACY (§ 33*)—OFFENSE-CONSPIRACY TO PROCURE FRAUDULENT EN.

TRIES.

In a prosecution for conspiracy to procure fraudulent homestead entries of government land, if a conspiracy is shown, and persons were procured to make entries in pursuance thereof, who did not in fact intend to live on the land, it is not essential to conviction that it should be proved that defendants had actual knowledge of such intention.

[Ed. Note. For other cases, see Conspiracy, Cent. Dig. § 60; Dec. Dig. § 33.*]

Philips, District Judge, dissenting.

'In Error to the District Court of the United States for the District of Nebraska.

Bartlett Richards, Will G. Comstock, Charles C. Jameson, and Aquilla Triplett were each convicted of conspiracy, and each brings error. Affirmed.

See, also, 149 Fed. 443.

R. S. Hall, John W. Lacey, and Charles J. Hughes, Jr., for plaintiffs in error.

S. R. Rush and Charles A. Goss, for the United States.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

HOOK, Circuit Judge. The plaintiffs in error were jointly indicted under section 5440 Rev. St., for conspiracy with various persons, some named in the indictment and others unknown to the grand jurors, to defraud the United States of the title, possession, and use of public lands in Cherry and Sheridan counties, Neb., by means of "false, feigned, fraudulent, untrue, illegal and fictitious entries" under home

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 175 F.-58

stead laws and to commit an offense against the laws of the United States by suborning entrymen to commit perjury in making oath to homestead affidavits. They were tried and found guilty as charged in 35 out of 38 counts in the indictment. They were sentenced, Richards and Comstock each to pay a fine of $1,500 and to be imprisoned in a county jail for one year, and Jameson and Triplett each to pay a fine of $500 and to be likewise imprisoned for eight months. The punishment was within what might have been imposed upon conviction under any one of the counts. The assignments of error cover more than 400 pages of the printed record and those relied on more than 200 pages of the printed brief. We cannot do more than notice those which seem to merit attention.

The criticisms of the indictment are sufficiently answered by Dealy v. United States, 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545; Cochran v. United States, 157 U. S. 287, 290, 15 Sup. Ct. 628, 39 L. Ed. 704; Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278; Olson v. United States, 133 Fed. 849, 67 C. C. A. 21; Stearns v. United States, 152 Fed. 900, 82 C. C. A. 48; Ware v. United States, 154 Fed. 577, 84 C. C. A. 503; Thomas v. United States, 156 Fed. 897, 84 C. C. A. 477, 17 L. R. A. (N. S.) 720; Gantt v. United States, 108 Fed. 61, 47 C. C. A. 210. The complaint that the four defendants named were each denied separate trials is disposed of by United States v. Ball, 163 U. S. 662, 16 Sup. Ct. 1192, 41 L. Ed. 300; Krause v. United States, 147 Fed. 442, 78 C. C. A. 642.

It is also urged that the court should have sustained defendants' challenge for cause of proposed juror Seymour, because he said he had formed from reading newspapers an impression or opinion concerning such cases in general which it would take evidence to remove. Without considering the merits of this challenge, it may be said that Seymour was not a member of the jury which tried the case, and the record does not disclose when, how, or by whom he was excused. For aught that appears, the court may have afterwards excused him of its own motion, or it may have been done at the instance of the government. Even if it could be assumed that, after their challenge for cause was overruled, he was challenged peremptorily by defendants, the record does not show they exhausted their challenges of that character. So in any aspect the question of Seymour's competency as a juror is an academic one.

Upon the examination of jurors as to their qualifications, counsel for defendants asked a number of them this question:

"Would you consider it a fraudulent practice on the United States for a man to loan to a would-be homesteader the money to pay his fees, commissions, and expenses of his entry?"

The trial court sustained an objection thereto, and its action is assigned as error. In Connors v. United States, 158 U. S. 408, 15 Sup. Ct. 951, 39 L. Ed. 1033, the court said:

"It is quite true, as suggested by the accused, that he was entitled to be tried by an impartial jury; that is, by jurors who had no bias or prejudice that would prevent them from returning a verdict according to the law and the evidence. It is equally true that a suitable inquiry is permissible in order to