public of France, 96 Fed. 687, 694, 38 C. C. A. 483; Gashweiler v. Wabash, etc., R. R., 83 Mo. 112, 53 Am. Rep. 558; Butler v. Greene, 49 Neb. 280, 68 N. W. 496; Sanchez v. Blumberg (Tex. Civ. App.) 176 S. W. 904; Evans v. Nail, 1 Ga. App. 42, 57 S. E. 1020; Direct Nav. Co. v. Davidson, 32 Tex. Civ. App. 492, 74 S. W. 790; Memphis & Charleston R. R. Co. v. Jones, 39 Tenn. (2 Head) 517; 4 Elliott on Contracts, § 3002; 6 Corp. Juris, p. 1112. In the World's Columbian Exposition Case it was held: "Is there good reason why the notice given by the Exposition Company to exhibitors, that it would in no way be responsible for damages or loss of any kind, however originating,' should not be given full effect according to its terms? We perceive none." [2] The learned trial judge considered himself concluded by the decision of the Supreme Court of Oklahoma in Inland Compress Co. v. Simmons, 159 Pac. 262, where the court said: "The writers on bailments seem to agree that the parties to a bailment contract may regulate the responsibilities of the bailee by special contract." But he further held that a contract by a compress company, identical with that in the instant case, "is against the public policy of the state and therefore void." This opinion was filed July 11, 1916. It will be noticed that the decision in that case is not based on any statute of the state, but on a general proposition of law, declaring for the first time in the judicial history of the state that such a contract is against the public policy of the state. The only statute of the state cited in the opinion is section 1109 of the Revised Statutes of 1910, which provides: "A bailee for hire must use at least ordinary care for the preservation of the thing bailed" -which is merely declaratory of the common law and the general law on the subject, as was held in Clark v. United States, supra. Is that decision, rendered long after the contract involved was made, conclusive on the national courts? When a ruling of the highest court of a state is controlling, when the same question arises in an action pending in a national court of that state, has been determined by the national Supreme Court so frequently, that it has ceased to be an open question. Like most important legal principles, it has been of gradual growth, until it has finally become a well-established rule of law. In Kuhn v. Fairmont Coal Co., 215 U. S. 349, 360, 30 Sup. Ct. 140, 143 (54 L. Ed. 228), the court, after a full review of the former rulings of that court on the subject, epitomizes the law as follows: "We take it, then, that it is no longer to be questioned that the federal courts in determining cases before them are to be guided by the following rules: (1) When administering state laws and determining rights accruing under those laws, the jurisdiction of the federal court is an independent one, not subordinate to, but co-ordinate and concurrent with, the jurisdiction of the state courts. (2) Where, before the rights of the parties accrued, certain rules relating to real estate have been so established by state decisions as to become rules of property and action in the state, those rules are accepted by the federal court as authoritative declarations of the law of the state. (3) But where the law of the state has not been thus settled, it is not only the right, but the duty, of the federal court to exercise its own judgment, as it also always does when the case before it depends upon the doctrines of commercial law and general jurisprudence. (4) So, when contracts and transactions are entered into and rights have accrued under a particular state of the local decisions, or when there has been no decision by the state court on the particular question involved, then the federal courts properly claim the right to give effect to their own judgment as to what is the law of the state applicable to the case, even where a different view has been expressed by the state court after the rights of parties accrued. But even in such cases, for the sake of comity and to avoid confusion, the federal court should always lean to an agreement with the state court if the question is balanced with doubt." Applying these rules, giving full weight to that part of the decision in the Kuhn Case that, "for the sake of comity and to avoid confusion, the federal court should always lean to an agreement with the state court, if the question is balanced with doubt," we are of the opinion that the law is well settled that the contract of bailment in the case at bar is valid, and not against public policy, so far as it affects contracts entered into prior to the decision in the Inland Compress Co. Case, and that the court erred in refusing to give the instructions hereinbefore set out, asked by the defendant, and charging the jury "that the limitation of liability in the warehouse receipts was invalid, because contrary to the public policy of the state." The cause is reversed, with directions to grant a new trial and proceed in conformity with this opinion. HAMILTON v. UNITED STATES. (Circuit Court of Appeals, Eighth Circuit. January 15, 1919.) No. 5058. 1. PROSTITUTION 4-WHITE SLAVE TRAFFIC EVIDENCE TO SUPPORT CONVICTION. Evidence held sufficient to sustain a conviction of defendant for violation of the White Slave Act (Comp. St. §§ 8812-8819). 2. CRIMINAL LAW 829(1)—TRIAL-REFUSAL OF INSTRUCTIONS. Refusal of requested instructions in a prosecution for violation of the White Slave Act (Comp. St. §§ 8812-8819) held not error, in view of the charge given. 3. CRIMINAL LAW 1032(5)—REVIEW-HARMLESS ERROR-DEFECTIVE INDICTMENT. Where no demurrer or motion to quash was interposed, nor the attention of the trial court otherwise called specifically to an alleged defect in the indictment, and it clearly was not prejudicial to defendant, the objection is not entitled to so favorable consideration by the appellate court as if it had been raised by demurrer. In Error to the District Court of the United States for the Western District of Missouri; Arba S. Van Valkenburgh, Judge. Criminal prosecution by the United States against William A. Hamilton. Judgment of conviction, and defendant brings error. firmed. Af For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Ralph F. Potter, of Chicago, Ill. (George I. Haight, James H. Wilkerson, and Edwin H. Cassels, all of Chicago, Ill., on the brief), for plaintiff in error. Francis M. Wilson, U. S. Atty., of Kansas City, Mo. (William G. Lynch, Asst. U. S. Atty., of Kansas City, Mo., on the brief), for the United States. Before SANBORN and CARLAND, Circuit Judges, and BOOTH, District Judge. BOOTH, District Judge. Writ of error, to review judgment after verdict convicting Hamilton of violation of White Slave Traffic Act of June 25, 1910 (36 Stat. 825, c. 395 [Comp. St. §§ 8812-8819]). There were two counts to the indictment. From the record it appeared without dispute that Hamilton and the girl with whom it was alleged the offense was committed had formed a casual acquaintance in the state of Kansas, August 21, 1916, and came from that state to Kansas City, Mo., over the Atchison, Topeka & Santa Fé Railway, on the evening of that day. Thereafter and on the same evening the girl returned alone to Kansas City, Kan., by street railway, and immediately came back to Kansas City, Mo., also by street railway. The first count was based upon the transportation from Kansas to Missouri on the Atchison Railway; the second count, upon the subsequent transportation from Kansas to Missouri on the street railway. The defendant was acquitted on the first count, but convicted on the second count. Errors relied upon may be grouped as follows: First, as to the sufficiency of the evidence to justify the verdict; second, as to admission of certain testimony; third, as to refusals by the court to instruct the jury as requested by the defendant; fourth, as to sufficiency of the indictment. [1] First. The evidence discloses the following facts: August 21, 1916, a girl, not quite 18 years of age, living with her parents in Kansas City, Kan., walked to the neighboring town of Turner, in Kansas, to canvass for the sale of brushes, samples of which she had with her in a suit case. After canvassing a part of the town she went to a small restaurant for dinner. Defendant, a man of 45 years of age, resident of Kansas City, Mo., was in the restaurant at the time. After dinner the girl left the restaurant and had gone a short distance, when defendant drove up in his automobile and asked her if she wished to ride. She declined at first, but upon second invitation accepted, thinking, according to her testimony, that she would thus get to a part of the town which she had not canvassed. Defendant was on his way to Lawrence, and persuaded the girl to go with him to that city. On their return they stopped at De Soto and had supper. Defendant put his automobile in a garage, and said they would go the rest of the way by train. Defendant bought the railway tickets. They got off at the Union Station, Kansas City, Mo., took a street car, the defendant paying the fares, and took transfers. At a certain point they got off and defendant told her that she had better go back to Argentine, that he did not have any place fixed for them to stay that night, that he would have to get rid of his bucket of samples, and by that time she would be over and back again and he would have a place fixed, and that if she would do that it would save trouble, if anything came up afterwards. Defendant gave her some change and a transfer, and she took the street car for Argentine, in Kansas. Defendant also gave her his telephone number, and told her, when she got over there, to call him. The girl went to Argentine, called the defendant by telephone, and arranged to meet him at a certain point in Kansas City, Mo. She took the street car back to Kansas City, Mo.; the defendant met her as had been arranged by telephone, took her in an automobile, and after driving around some little time they stopped at a hotel. Defendant went in, left her at the foot of the stairs, went upstairs himself, and shortly came down and said it was all right; they went upstairs, and occupied a room together that night. The defendant had intercourse with her. The hotel clerk testified that the defendant and the girl came to the hotel on the night in question, and that the defendant registered them as man and wife, but under an assumed name. Many of the foregoing facts are disputed by defendant, but are amply sustained. The evidence in the case was voluminous, and it would serve no useful purpose to discuss it at length. It is sufficient to say that it has been carefully considered, and our conclusion is that the verdict was fully justified. Second. Mrs. Winterbower, an osteopathic doctor, witness for the defendant, testified that she made physical examination of the girl two or three days after the occurrences set forth above, that she found no evidence that intercourse had been had. Later the mother of the girl was called as a witness, and was asked whether, in the district attorney's office, the time being specified, she did not hear the doctor say that the hymen had been broken, and so far as she could tell the girl had had sexual intercourse. Objection was made that no foundation for impeachment of the doctor had been laid when she was upon the witness stand. Objection was overruled. While the precise words used in the question put to the mother were not specifically called to the attention of the witness doctor, yet the exact substance of the words was particularly called to her attention, and the time and place of the alleged statement. Under the circumstances there could have been no unfair surprise of the witness; we think the foundation laid was sufficient. [2] Third. The requests made by the defendant to instruct the jury, which were refused by the court, may be divided into two groups. The first group relates to the proof of intent by circumstantial evidence. In the refused instruction set out in the fourth specification of error occurs the following: "You cannot find that such intent existed at the time alleged, unless all the circumstances shown in the evidence which are necessary to establish such intent beyond a reasonable doubt are consistent with each other and inconsistent with any reasonable theory of the defendant's innocence of such intent." 255 F.-33 This requested instruction was rightly refused. In the first place, it was confusing, inasmuch as it furnished no criterion to determine what circumstances were necessary to establish the intent. In the second place, if its meaning was that all circumstances bearing upon the question of intent must be consistent with each other, it is not a correct statement of the law. The eighth specification of error, bearing upon the same subject, is open to similar criticism. In the refused instruction set out in the seventh specification of error occurs the following: "To warrant a conviction of the defendant, he must be proven guilty so clearly and conclusively that there is no reasonable theory upon which he can be innocent, when all the evidence in the case is considered.” To tell the jury that, to warrant conviction, defendant must be proven guilty beyond a reasonable doubt, and then to follow it with. an instruction as to reasonable theory, would tend to confuse, rather than to aid, the jury. The instruction requested was properly refused. The second group of instructions requested and refused relates to the point of time at which the intent specified must have existed in the defendant's mind. The trial court at three separate times in its charge mentioned this matter and covered it accurately and fully. There was no occasion, therefore, to give the instructions requested. [3] The remaining specification of error challenges the sufficiency of the second count of the indictment. The count read, so far as here material, as follows: * "That on or about the 21st day of August, A. D. 1916, ar Kansas City, * William A. Hamilton Jackson county, Missouri, * did then persuade Luzon Koppenhaver and * ** there unlawfully * * ** purpose and intent * 申 * to insexual interdid * duce * * said Luzon Koppenhaver to engage in course with him, and the said William A. Hamilton then and there unlawfully * * * induce and cause her, the said Luzon Koppenhaver, to go and be carried and transported as a passenger in interstate commerce upon the line and route of the Kansas City Railways Company, from said city of Kansas City, in the state of Kansas, to the said city of Kansas City, in the state of Missouri. The objection was first raised after verdict, by motion in arrest of judgment, on the broad ground that: "The said second count of said indictment does not charge a public crime under the laws of the United States." The record fails to show that the real point now made in this court was at any time called to the attention of the trial court. The claim is this: That "the second count of the indictment does not charge a public crime under the laws of the United States, in that it does not allege that the defendant induced or caused the girl in question to go and be carried or transported as a passenger in interstate commerce in furtherance of the purpose denounced by the statute." The words "in furtherance of such purpose" are found in the statute, and might properly have been included in the indictment, and we |