cer or employé acting under the authority of the United States, or any department, or any officer of the government thereof, and taking upon oneself to act as such; and (2) with intent to defraud either the United States or any person, the falsely assuming or pretend.ng to be an officer or employé, etc., and in such pretended character demanding or obtaining from any person or from the United States, or any department, or any officer of the government thereof, any money, paper, document, or other valuable thing. Plaintiff in error was indicted under this section. The first count, stripped of redundancy, charges, in substance, that the accused, with intent to defraud the Lockwood Automobile Company, of Memphis, Tenn., and others, falsely pretended to be an officer and employé of the United States, acting under its authority, and especially under the authority of its Department of Agriculture (specifically, pretending to be a regularly and duly appointed inspector of cattle and live stock infected with foot, mouth, and other diseases), and by so falsely representing himself to be such officer and employé fraudulently obtained from the Lockwood Automobile Company a certain quantity of gasoline and other property. The second count differs from the first, so far as material and substantial, only in charging the fraudulent obtaining of money and other property from the Owl Auto Company, at Memphis, Tenn. A motion to quash the indictment and a motion. made at the close of the trial to direct verdict for defendant were overruled. Following conviction upon both counts, defendant's motion in arrest of judgment was denied. [1] 1. The motion to quash the indictment was properly overruled. The argument pressed here seems to be in substance that the mere impersonation of an officer of the United States government is not an offense under section 32, and that the indictment is defective in failing to charge that the accused "took upon himself to act as such inspector" and "while so acting" obtained the property in question. But it is not necessary to a violation of the second subdivision that the accused "take upon himself to act as such" United States officer or employé; it is only necessary that the property be obtained by the accused "in such pretended character." United States v. Barnow, supra. We think the allegation that the accused did "falsely and fraudulently obtain" the money and property "by inducing" the automobile company to part with it, "by falsely representing himself to be such officer and employé," sufficiently charges that the money, etc., was fraudulently obtained "in such pretended character." Littell v. United States (C. C. A. 9) 169 Fed. 620, 622, 95 C. C. A. 148. Like considerations apply to the second count. [2] 2. The first ground of the motion to direct verdict is that there was a variance between the allegation and proof in this: (a) That in the first count the Lockwood Automobile Company is not charged to be a corporation, while it turns out to have been such; (b) that the Owl Auto Company, charged in the second count to be the victim of the fraud, is shown to have been merely a trade-name under which one Lee carried on business; it having formerly been a partnership name. It is clear, upon authority (if such were needed), that there is no variance with respect to the first ground. Fisher v. State, 40 N. J. Law, 169; People v. Mead, 200 N. Y. 15, 92 N. E. 1051, 140 Am. St. Rep. 616. We think the lack of variance with respect to the second ground equally clear on principle. The accused was better. informed by the use of the name under which alone the business was carried on than if Lee had instead been named. There is no suggestion of surprise, nor could there well be. [3] The remaining ground of the motion to direct is that there was no substantial proof of the offense charged. We cannot agree with this contention. Setting to one side, as without merit, the point urged in this connection also, that there was no such entity as the Owl Auto Company, we pass to the other evidence. In the case of the Lockwood Company there was express testimony that it refused to sell plaintiff in error gasoline on Sunday, November 3d, when the shop was closed in accordance with instructions from the "Conservation Board of Fuel Directors"; that plaintiff in error thereupon displayed a badge reading "Government Inspector," with the statement that he was called upon to inspect hoof and mouth diseased cattle at a point near Hernando, Miss., and did not have sufficient gasoline to get there and back (there was undisputed evidence of subsequent admissions by plaintiff in error that he was not a government inspector); that the company's treasurer, relying upon this representation and believing that plaintiff in error was a government officer on official business, and wanted the gasoline for use in that business, delivered to him several gallons of gasoline, taking his check dated the next day for the amount. The check was dishonored by the bank on which it was drawn. It appeared by other evidence that inspection of hoof and mouth diseased cattle is made by a veterinary inspector of the Department of Agriculture, Bureau of Animal Industry. It is immaterial whether or not there was any government officer or employé with the precise title assumed by plaintiff in error. The statute is aimed against the false pretense of office or employment under the United States, if done with intent to defraud and accompanied with any of the acts specified in the statute done in the pretended character. United States. v. Barnow, supra; Lamar v. United States, 241 U. S. 103, 114-116, 36 Sup. Ct. 535, 60 L. Ed. 912. It is likewise immaterial that the check has since been made good. U. S. v. Barnow, supra. [4] We see no merit in the proposition that the Lockwood Company could not have relied upon the false pretense of federal employment, for the reason that, as was testified, it would not have accepted the check, had it not supposed it would be paid. Lockwood's testimony was that he would not have accepted the check from a stranger, in the absence of such representations, without further investigation; that he believed the check would be paid on presentation, from the statement of plaintiff in error that he was an official inspector for the government; and that the acceptance of the check was made by reason of that representation. We think there was substantial evidence that the gasoline was obtained under the false pretense charged. It is unnecessary to a violation of the second subdivision of the statute that the gasoline be furnished on the credit of the government as debt It or. It is enough that the gasoline was procured by means of the representations stated. United States v. Ballard (D. C.) 118 Fed. 757; Littell v. United States, supra. The evidence with respect to the Owl Company transaction, while differing in details from that of the Lockwood Company, has similar features generally, and is governed by similar considerations to those we have discussed. There was evidence that plaintiff in error represented that "he was in the government service" and “displayed a badge, 'Government Inspector,' on it." There also was testimony that the check (which purported to be that of another person, and was indorsed by plaintiff in error) would not otherwise have been accepted. The witness said that he "did not think a man in the government service would give me a bum check," and that, while he thought the check would be paid on presentation (it was in fact dishonored), "he had [apparently meaning he thought he had] a man in the government service who would pay it if it was not." The motion in arrest of judgment was properly overruled. (250 Fed. 514) NORTHERN COMMERCIAL CO. v. BRENNEMAN, United States Marshal. (Circuit Court of Appeals, Ninth Circuit. July 7, 1919.) No. 3277. INTOXICATING LIQUORS 247-FORFEITURE-ILLEGAL POSSESSION-ALASKA PROHIBITION ACT. Under Act Feb. 14, 1917 (Comp. St. 1918, §§ 3643b-3643r), making it unlawful after January 1, 1918, to have in possession or to transport in Alaska any intoxicating liquors, and providing that no property right shall exist in such liquors, but that the same are forfeited to the United States and subject to seizure and destruction, liquors in possession of a common carrier in Alaska on or after that date, although in course of shipment in interstate commerce, are subject to seizure and forfeiture. Appeal from District Court of the United States for the Third Division of the Territory of Alaska; Fred M. Brown, Judge. Action by the Northern Commercial Company against R. F. Brenneman, United States Marshal for the Third Judicial Division of Alaska. Judgment for defendant, and plaintiff appeals. Affirmed. McGowan & Clark, of Fairbanks, Alaska, and Lyons & Ritchie, of Valdez, Alaska, for appellant. William A. Munley, U. S. Atty., of Valdez, Alaska, for appellee. Before GILBERT, ROSS, and HUNT, Circuit Judges. ROSS, Circuit Judge. The sole question involved in this case is the legality of the seizure for confiscation by the United States marshal of certain intoxicating liquors, at the time being in continuous transport by common carriers from the town of Fairbanks, in the territory of Alaska, to San Francisco, Cal., having been shipped in December, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 1917, by the appellant, then the owner and lawfully possessed of them, from Fairbanks to San Francisco, to a consignee there which had agreed to purchase the same from the appellant. The liquors were due to arrive at Cordova, Alaska, in the course of their transportation by the common carriers, prior to December 29, 1917, and were to be carried by ship from that port on that day to San Francisco; but the ship which was to receive them at Cordova and continue their carriage to destination did not reach Cordova until January 2, 1918, resulting in their seizure by the marshal, appellee here, January 1, 1918, or immediately thereafter. By section 14 of the act of May 17, 1884, providing a civil government for Alaska (23 Stat. 24, 28, c. 53), it was enacted that: "The importation, manufacture and sale of intoxicating liquors in said district except for medicinal, mechanical, and scientific purposes is hereby prohibited under the penalties which are provided in section 1955 of the Revised Statutes for the wrongful importation of distilled spirits. And the President of the United, States shall make such regulations as are necessary to carry out the provisions of the section." By section 1955 of the Revised Statutes the President was given— "power to restrict and regulate or to prohibit the importation and use of distilled spirits into and within the territory of Alaska, and any person willfully violating such regulations shall be fined not more than $500, or imprisoned not more than six months." * By executive order of May 4, 1887, the landing of intoxicating liquors at any port or place in the territory was prohibited, except upon a permit of the chief officer of the customs at such port or place, to be issued upon evidence satisfactory to such officer that the liquors were imported and to be used for sacramental, medicinal, mechanical, and scientific purposes. By executive order of March 12, 1892, their sale for medicinal, mechanical, and scientific purposes could be made only by such persons in the territory as should have obtained a special permit from the Governor of the territory to sell them therein upon certain specified conditions. Endleman v. United States, 86 Fed. 457, 30 C. C. A. 186. By the Penal Code of that territory of March 3, 1899, as subsequently amended and embraced in its Compiled Laws, the above-mentioned statutes and orders were repealed and the following provisions enacted: "Sec. 2569. That any person or persons, corporation, or company prosecuting or attempting to prosecute any of the following lines of business within the district of Alaska shall first apply for and obtain license so to do from a district court or a subdivision thereof in said district, and pay for said license for the respective lines of business and trades as follows, to wit: [Enumerating various classes of business and the amounts to be paid per annum.]" The next section provided a penalty for doing business in violation of the provisions of section 2569 just quoted. Section 2571 of the same statutes provided as follows: "That no person, corporation, or company shall sell, offer for sale, or keep for sale, traffic in, barter, or exchange for goods in said district of Alaska any intoxicating liquors, except as hereinafter provided; but this shall not apply to sales made by a person under provisions of law requiring him to sell personal property. Wherever the term 'intoxicating liquors' is used in this act, it shall be deemed to include whisky, brandy, rum, gin, wine, ale, porter, beer, hoochinoo and all spirituous, vinous, malt or other fermented or distilled liquors." And subsequent sections of the same statutes provided for the issuing of licenses and the proceedings to be taken therefor. Subsequently, and the day before the seizure here in question, there went into effect what is called in the record the "Bone-Dry Law," enacted by Congress February 14, 1917 (39 Stat. 903, c. 53 [Comp. St. 1918, §§ 3643b-3643r]), under the title "An act to prohibit the manufacture or sale of alcoholic liquors in the territory of Alaska, and for other purposes.' The first section of that act (Comp. St. 1918, § 3643b) declared, among other things, that on and after the 1st day of January, 1918, it should be "unlawful for any person, house, association, firm, company, club, or corporation, his, its or their agents, officers, clerks, or servants, to manufacture, sell, give, or otherwise dispose of any intoxicating liquor or alcohol of any kind in the territory of Alaska, or to have in his or its possession or to transport any intoxicating liquor or alcohol in the territory of Alaska, unless the same was procured and is possessed and transported" as therein specifically provided, which specific provisions are inapplicable to the present case. Other provisions of the act authorized the transportation of pure alcohol for scientific, artistic, or mechanical purposes or for compounding or preparing medicines, or for sacramental purposes, upon securing the prescribed permit and conforming to other prescribed requirements. Sections 13, 14, 23, and 29 thereof are as follows: "Sec. 13. That it shall be unlawful for any person owning leasing, or occupying or in possession or control of any premises, building, vehicle, car, or boat to knowingly permit thereon or therein the manufacture, transportation, disposal, or the keeping of intoxicating liquor with intent to manufacture, transport, or dispose of the same in violation of the provisions of this act." Comp. St. § 3643h. "Sec. 14. That it shall be unlawful for any person to import, ship, sell, transport, deliver, receive, or have in his possession any intoxicating liquors, except as in this act provided." Comp. St. § 3643hh. "Sec. 23. That no property right of any kind shall exist in alcoholic liquors or beverages illegally manufactured, received, possessed, or stored under this act, and in all such cases the liquors are forfeited to the United States and may be searched for and seized and ordered to be destroyed by the court after a conviction, when such liquors have been seized for use as evidence, or upon satisfactory evidence to the court presented by the district attorney that such liquors are contraband." Comp. St. § 3643m. "Sec. 29. That any person, company, or corporation who shall import or carry liquors into or upon the territorial waters of Alaska in or upon any steamship, steamboat, vessel, boat, or other water craft, or shall permit the same to be so imported or carried into or upon said waters, except under the provisions of this act, shall be guilty of a misdemeanor, and upon conviction shall be punished as provided in section one of this act." Comp. St. § 3643p. The complaint in the action, to which a demurrer was sustained, resulting in a judgment dismissing the action (the plaintiff having declined to plead further), shows that at the time of the shipment in question the plaintiff was the legal owner and possessor of the liquor |