tial evidence showing Wallace guilty beyond reasonable doubt. If the jury believed Davis' testimony, they were warranted in finding from it that Wallace, knowing Davis to be a man who, before the passage of the Harrison Act, was extensively engaged in illicit traffic in narcotic drugs through disposing of them to drug addicts, had an understanding with Davis after the act was passed whereby, for mutual profit, they would violate the provisions of the act through Davis unlawfully selling to drug addicts the drugs supplied by Wallace; that, pursuant to such understanding, Davis made sales of cocaine received from Wallace, to the persons named in the counts under which conviction was had; that Davis, on receiving the price, paid Wallace his agreed share thereof-Davis, to the knowledge of Wallace being unregistered, and not having paid the tax, as required by the act, in the First Internal revenue district of Illinois, within which, as contemplated, the sales were made, both well knowing that, if Davis complied with the act, the sales to these unfortunates would be seriously hampered, if, indeed, not practically barred.

We cannot say that Davis' testimony is of itself so unreasonable and improbable that a jury was not justified in believing it. It is corroborated by Taylor, who testified to long acquaintance with Wallace, who was instrumental in procuring employment for the witness with the city of Chicago; that he frequently purchased such drugs from Wallace prior to the Harrison Act, and that since the act became effective, he had occasionally seen Davis in Wallace's store, and that one night the witness carried to Davis a package which Wallace gave him, and on another night he and Wallace delivered a package to Davis, both deliveries being at places distant from the store, and under circumstances indicating intended secrecy of the transactions; and that Davis thus received the packages, containing, as Davis testified, large quantities of cocaine, which he "planted" in various places for future sale.

As to this witness complaint is made that on the trial he first testified denying all knowledge of any such transactions after March 1, 1915, and that when it appeared he had made prior statements under oath of such subsequent transactions, the court ordered him in custody of the marshal, and that the next morning he testified as above stated in regard to these subsequent transactions, implicating Wallace in an attempt to have the witness omit any reference to them. From what is disclosed in the record, the action of the court respecting this witness was not unwarranted. The jury was cautioned by the court to examine carefully the conflicting stories told by this witness, and to determine the truth from all the evidence before them. The testimony that Wallace induced him to falsely deny these subsequent transactions was unquestionably prejudicial to the defense. But not more so in this than in any case where it is testified that a party to a transaction has attempted to suppress evidence bearing thereon. Evidence of such attempt is always admissible against the party making it, and is to be considered by the jury with all the other evidence, in determining whether or not that is true which was so sought to be suppressed or concealed. Wigmore on Evidence, § 278.

It cannot be said that the record is wholly barren of corroboration of these witnesses. Hauber, Moran, Johnson, and Foster testified to seeing Davis in Wallace's drug store at various times after March 1, 1915. On one occasion in April, Johnson and Foster wanted an ounce of cocaine, which Davis told them would cost $21, and they watched him go into Wallace's store, coming back with a bottle containing the drug, which he gave them on payment of the money. From other witnesses it appeared that before March 1st Davis had been convicted at least twice of selling such drugs in violation of the laws of Illinois, which drugs he had procured from Wallace, and that Wallace, on learning of his arrest, procured a bond for him and advanced him money to pay for the bond and for his defense against the charge, from all of which the conclusion is warranted that Wallace was no stranger to schemes for the unlawful disposition of such drugs by Davis, and that Davis was during such time a frequenter of Wallace's store, with apparently no business there except in connection with this surreptitious and unlawful output of narcotic drugs.

There was practically no evidence offered to refute the testimony of Davis and Taylor. The defense consisted substantially in the testimony of several witnesses to Davis' bad reputation for truth, some others who testified to Wallace's previous good character, and two medical experts who testified that "dope fiends," on becoming addicted to the habitual use of narcotic drugs, have no conception of truth, and that their testimony is utterly unreliable-Davis, Taylor, Johnson, Foster, Gibson, Doss, E. B. Davis, Crawford, Moran, and Hauber, all witnesses admitting they were habitual users of cocaine or opium. It is upon such facts, personal to the witnesses, rather than upon any inherent weakness of their testimony incriminating Wallace, that reversal is asked on the ground of want of substantial evidence to show guilt.

However useful and beneficial to mankind the proper and scientific employment of such drugs has proved to be, if part of the price paid for their habitual use is the blunting or distortion of the moral sense, whereby the addict is less likely to comprehend or to state the truth, this fact, if appearing in evidence, is one from which, with all the other facts and circumstances appearing, the jury must determine where and what the truth is. If witnesses to prove unlawful sales of narcotic drugs are as a matter of law to be disbelieved and their testimony discarded from the fact alone that they are numbered among the unfortunate victims of the drug habit, it is readily perceivable how laws such as the act in question, having for their real object the due regulation of the handling of such drugs, would in many instances become practically inoperative through want of evidence to enforce them. While the necessities of a case, and the desirability of enforcing the law, must not in any event permit conviction upon evidence less conclusive than such as shows guilt beyond reasonable doubt, a due degree of caution to avoid such outcome does not demand absolute rejection of the testimony of witnesses solely because the drug habit may tend to impair their perceptions, or to stimulate or dull the faculty for accurate observation, recollection, or relation. Where the witnesses relied on for conviction are such as those here indicated, the jury must consider everything which the evidence reveals bearing upon the truth or untruth of their testimony, and as to such witnesses, as with all others, should credit what under all the circumstances appearing they believe, and reject what they disbelieve. Nothing here appears from which it may be inferred, or even suspected, that the jury did not so test these witnesses and this evidence, and we cannot conclude from the record that it discloses no substantial evidence upon which the jury might predicate the guilt of plaintiff in error.

[15] 11. Respecting the assignment of error challenging the sentence upon the ground that it is excessive, while it seems that a smaller fine and briefer term of imprisonment might sufficiently have penalized the transgression and vindicated the law, we may not substitute our own discretion for that of the District Court; and under all the circumstances we cannot find there was abuse of that court's discretion in this regard.

Finding no substantial error, the judgment is affirmed.

(243 Fed. 310)

CROPPER et al., v. DAVIS.

(Circuit Court of Appeals, Eighth Circuit. April 14, 1917.)

No. 4498.

1. CONTRACTS 117(27) - RESTRAINT OF TRADE-LIMITATION AS TO TERRITORY. Plaintiff was engaged in a rating and collecting business, in which he solicited retail merchants, etc., as subscribers to a league, secured from such subscribers a list of unpaid accounts, and listed such debtors as did not pay when notified in a credit book or rating directory. In such business he used forms, the result of 17 years or more experience; the forms being changed from time to time. He employed defendant in such business for 5 years, under a contract by which defendant agreed to devote all of his time to such business, and during such time to work at no other employment and engage in no other business, except when plaintiff allowed him to withdraw for the purpose of entering a line of business or the employment of any individual, firm, or company not using the plan, forms, or plan and forms of plaintiff in competition thereof. Held that, it being possible to ascertain by evidence in what territory plaintiff did business, and whether another business of the same type would be in competition with him, the contract was limited as to territory, and moreover, in view of the peculiar character of the business, the contract would not be invalid, if unlimited as to territory.

2. EQUITY 65(2)-GROUNDS FOR DENIAL OF RELIEF-UNCLEAN HANDS.

Though debtors who paid were not specially rated, where those who failed to pay were rated in accordance with a key whereby it was shown how many members had reported the debtor, whether the account was disputed or outlawed, whether the debtor was bankrupt, and whether letters to the debtor were returned, there was such a rating as, in the absence of fraud, complied with subscribers' contracts and prevented the denial of injunctive relief, on the ground that plaintiff did not come into court with clean hands, in that he had been guilty of false and fraudulent representations because his business was not collecting by rating, or a system of rating, and because there was no rating in connection with the plan.

Appeal from the District Court of the United States for the District of Nebraska; Page Morris, Judge.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Suit by Will M. Davis against Walter L. Cropper and another. Decree for plaintiff, and defendants appeal. Affirmed.

Hugh A. Myers and Carl T. Self, both of Omaha, Neb., for appellants.

Irving F. Baxter, of Omaha, Neb. (Brown, Baxter & Van Dusen, of Omaha, Neb., on the brief), for appellee.

Before SANBORN and SMITH, Circuit Judges, and AMIDON, District Judge.

SMITH, Circuit Judge. Will M. Davis, the appellee and plaintiff below, is and has been for many years a resident and citizen of the state of Illinois, and Walter L. Cropper and the Mutual Rating & Adjustment Association are the appellants and defendants below, and they for several years have been residents and citizens of the state of Nebraska. The plaintiff has for between 15 and 20 years been conducting, with Chicago as his headquarters, a collection and so-called rating business throughout the North Central states under the name of the National Rating League. In connection therewith the plaintiff secured a copyright upon a book called "Collecting by Rating" in 1910. On February 7, 1910, the defendant Walter L. Cropper entered into a contract with the National Rating League by which he agreed to devote all his time during the next five years to the business of the League under its instructions, and during said time to work at no other employment and engage in no other business

"except when the National Rating League allows me to withdraw for the purpose of entering a line of business, or the employment of any individual, firm, or company, neither of which uses the plan, forms, or plan and forms, used by the National Rating League, in competition therewith. The National Rating League, by allowing me to engage at such other employment or business, does not thereby forfeit its rights under this contract."

Cropper remained in the employment of the League until about March 18, 1912. Shortly after leaving their employ he, as owner and manager, started a substantially similar business to that conducted by the League at Omaha, Neb., under the name of the Mutual Rating & Adjustment Association. In his new business he used substantially all the forms devised by plaintiff, and embraced in his copyrighted book mentioned, and so far as can be told from the record copied the entire system of the plaintiffs. An agreed statement of facts was filed in the District Court, from which the following is taken:

(1) It is hereby stipulated and agreed that the allegations contained in complainant's bill of complaint, for the purpose of review, are to be taken and considered as true in all respects, and that the copy of the contract between complainant, Will M. Davis, and the defendant Walter L. Cropper, referred to therein as "Exhibit G" and attached to the said bill, is a true copy of the instrument signed by said parties upon the date it bears, and that all other exhibits attached to said bill of complaint are true copies thereof.

(2) Complainant transacted his business under the name and style of "National Rating League." The defendant W. L. Cropper and Bessie M. Cropper transacted their business under the name and style of "Mutual Rating & Adjustment Association." Neither the League nor the Association were incorporated. The character or method of complainant's business was known to the business world by the term "Collecting by Rating." The defendants also used this term as descriptive of their business.

(3) That the general nature and plan of the business of the parties to this action is to secure contracts from retail merchants, doctors, and dentists, throughout the country, agreeing to become members and subscribers to said league and association, respectively, and at the same time, to secure from such subscribers a list of their unpaid accounts and take these up with such members and subscribers through a system of correspondence. These unpaid accounts, after notices to debtors, were printed in a rating book which is furnished to said subscribers. The solicitors are paid the compensation provided for under their contract "Exhibit G"-according to the number of accounts they secure, when 10 or more of said accounts are turned in, either by the solicitor or the merchants; frequently the solicitor was paid in advance by his employer. Complainant and defendant received their compensation out of collections made upon accounts sent in; they receiving, per agreement with subscriber, the first $10 collected. The accounts, when turned into the office, were taken up by means of regular correspondence for the purpose of preparing and getting data for the rating book. If the accounts were received at the office, the debtors are notified to settle the same at once, if correct, as otherwise their name would appear in the rating book as owing the account. The solicitors were furnished with the blank forms referred to in the bill of complaint, together with the rating book, which shows what business the man is in, and whether or not the account is past due or disputed; and upon the listing blank the subscriber is supposed to list all such accounts so turned into the office and he is furnished a rating notice, a personal notice sent out by the subscriber to his debtor, and with a rating statement, which the subscriber uses to make report to the office when the account has been adjusted. The debtor is supposed to adjust the account directly with the subscriber. Complainant relied upon members making reports to his office of collections made from debtors whose, names and accounts had been sent it.

(4) The forms used by complainant are the result of 17 years or more of experience and as the result of trying out different forms and changing them from time to time, but with few changes made during the past 6 years. Many of said forms were printed in the red book entitled "Collecting by Rating," attached to the bill as "Exhibit A." The book was duly copyrighted by complainant under the laws of the United States in the year 1910. No names were printed in the red guide credit book or rating directory, other than those sent in by the merchants to whom accounts or sums of money were due and owing by the parties therein designated. If, after sending notice to the debtor and his name was printed in the rating directory or credit book, he later paid the amount owing by him to the subscriber, the name was then omitted from such directory or record. The name of the book or directory used by the complainant, in which the names of delinquent debtors were listed, was "Red Guide and Credit Record";