no exceptions were taken and no reviewable question arises. Those which were requested and denied were 14 in number and voluminous in various definitions of the offenses charged, references to phases of the testimony with inferences to be drawn therefrom as to the nature or intent of the scheme, and directions to consider the evidence upon theories thus stated. Without extending this opinion to their review in detail, or to comment upon the correctness or incorrectness of various propositions or inferences embodied in one or the other, we deem it sufficient to state our conclusion that no error was committed in the denial of either requested instruction, upon the following premises: That the instructions which were submitted to the jury were correct and clear in the interpretation of the statute and definition of the elements and issues to be established by proof beyond reasonable doubt to authorize conviction; that, in so far as either requested instruction stated correctly propositions of law to be observed by the jury in considering the evidence, such rule was plainly and sufficiently embodied in the charge of the court; that the evidence was not detailed or reviewed by the court, but was submitted for determination by the jury, under the issues as defined, without comment upon its force or direction as to inferences of fact; that the course so adopted by the court was rightly adhered to, without following either the form or the matter of the requested instructions, when the rules of law applicable to the issues were fully stated; and that the accused was not entitled (Coffin v. United States, 162 U. S. 664, 674, 16 Sup. Ct. 943, 40 L. Ed. 1109) to the requested instructions upon the evidence referred to and inferences of fact thereupon. 3. The complaint that the court "refused to consider the motion for a new trial and the motion in arrest of judgment" remains to be considered. The right of the accused is unquestionable to have both of these motions entertained and to a ruling upon each by the court; and it is settled that denial of such right may constitute reversible error, although the motion for a new trial is addressed to the discretion of the court, and when that discretion is exercised the action thereupon is not reviewable. Clyde Mattox v. United States, 146 U. S. 140, 147, 151; 13 Sup. Ct. 50, 36 L. Ed. 917; Ogden v. United States, 112 Fed. 523, 526, 50 C. C. A. 380; Felton v. Spiro, 78 Fed. 576, 581, 24 C. C. A. 324. In this record, however, it appears that leave was granted to make and file both motions, and that each was overruled instanter, without hearing arguments or specifications of grounds. The contention. is that such action infringed the rule referred to-was in effect a refusal to exercise the discretion of the court upon the motion for a new trial— and under the above-mentioned authorities cause for reversal, without reference to the merits of either motion. So, while no proposition was raised, under either motion thus overruled, which had not received careful consideration in the course of the trial-as remarked by the trial court in overruling the motion-reversal is sought upon the ground alone of denial by the court of further time to present and reargue such propositions. We are of opinion that the record establishes no violation of the wholesome rule upheld in the authorities cited, as the motion for a new trial appears to have been entered on behalf of the accused, upon suggestion and leave of the court, "to protect any rights he may have," and was thereupon overruled, with an exception entered to such ruling by direction of the court. Subsequently, leave was given the accused to "file a written motion for a new trial with specifications of grounds," on the following day, as of the day of hearing; and the bill of exceptions states that the accused excepted to a "ruling of the court in refusing to permit" him to state the grounds for such motion, and "in refusing to consider said grounds," and for "refusing to hear argument on behalf" of the accused in support thereof. The record further states that the accused "moved the court that the judgment be arrested" and asked time to prepare written motion and specifications, but was refused such extension of time, and the court "also declined to hear argument in support of the motion." This refusal of the trial court to grant time and hear further arguments upon questions which had been argued and considered throughout the trial appears to be the sole ground of complaint. Upon motion. for a new trial, neither stay of proceedings nor extent of deliberation is prescribed by rule or authorities, and the course in each case necessarily rests in the exercise of judicial discretion under the circumstances presented. With no suggestion of cause arising after the case was submitted to the jury (as in Clyde Mattox v. United States, supra, and Ogden v. United States, supra), or of newly discovered evidence, and offer only to "show variance between the allegations in the indictment and the proof as presented"-appearing in the record on like prior motion on behalf of Dalton-error is not well assigned for mere denial of stay and rehearing upon such motion. The only question tendered for argument was raised and considered upon the trial. Such prior consideration was applicable as well to the motion, and presumptively was so applied by the court in overruling the motion-a ruling upon the merits, and not a refusal to entertain the motion without consideration. As no reversible error appears, the judgment of the District Court is affirmed. (154 Fed. 461.) DALTON v. UNITED STATES. (Circuit Court of Appeals, Seventh Circuit. April 16, 1907.) No. 1,296. 1. POST OFFICE SCHEME TO DEFRAUD-USE OF MAILS-EVIDENCE. Where accused had been a party to a scheme to defraud during a period when the persons conducting the same had done so solely by means of express and telegraph companies, but was not shown to have had any connection with his former confederates after they commenced to unlawfully use the mails for such purpose, he was not guilty of violating Rev. St. § 5480 (3 U. S. Comp. St. 1901, p. 3696), prohibiting the use of the mails for the furtherance of a scheme to defraud. [Ed. Note. For cases in point, see Cent. Dig. vol. 40, Post Office, § 55.] 2. CRIMINAL LAW-PRESUMPTION OF INNOCENCE-EFFECT. The presumption that accused would not remain a party to a conspiracy to defraud after his co-conspirators had adopted a criminal course by using the United States mails in furtherance of their scheme overcame the inference of fact that he was still a party to such conspiracy arising from proof of his former connection therewith. In Error to the District Court of the United States for the Eastern Division of the Northern District of Illinois. The plaintiff in error, John H. Dalton, was convicted with one Louis A. Gourdain, upon their joint trial under indictment for violations of section 5480, U. S. Rev. St. (3 U. S. Comp. St. 1901, p. 3696), and reversal is sought of the judgment thereupon against him. The indictment is the same described in the opinion upon the writ of error of the above-mentioned Gourdain (handed down herewith), and both cases are presented in a single transcript of record, under leave of this court, as the questions raised are identical, except in reference to evidence of participation in use of the mails for execution of the alleged scheme to defraud, and in minor particulars mentioned in this opinion. In the case referred to of Gourdain v. United States (No. 1,297) 154 Fed. 453, the averments of the indictment are sufficiently stated, and other material facts involved in this review are stated in the present opinion. William S. Forrest, for plaintiff in error. Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges. SEAMAN, Circuit Judge. The errors assigned for reversal of this judgment against the plaintiff in error, Dalton, are numerous, and all questions raised are exhaustively and clearly presented in the arguments, printed and oral. The decision upon each of the various contentions in the case of the codefendant below (Gourdain v. United States, in opinion handed down herewith), in reference to the sufficiency of the indictment and of error in denial of instructions, is equally applicable here. The contentions are substantially identical, and in that view the arguments in both cases were carefully considered, so that the opinion there is referred to for like conclusion upon each proposition and assignment on behalf of this plaintiff in error thus predicated. Upon the complaint, however, of the plaintiff in error, Dalton, that the evidence was insufficient for his conviction of the offense charged, the records are plainly distinguishable. The question was raised by his motion for a direction to acquit-and as well by subsequent motions and is reviewable. As the gist of the offense charged is complicity in execution of the alleged scheme to defraud through use of the mails, the sole inquiry is whether the testimony was sufficient for submission to the jury upon that issue. The evidence tends to estab'lish that the alleged fraudulent scheme originated in 1903, and for more than a year was carried on through the use of express and telegraph companies, with no use of mails appearing prior to April, 1905— the dates of mailing averred in the several counts. The connection of the accused with such scheme appears from testimony of conversations with him long prior to the offense charged, and from strong circumstantial evidence of his participation up to the autumn of 1904. But beyond the complicity so appearing, there is no proof of his presence or participation in the business during a period of about six months prior to the first use of the mails in evidence, or at any subsequent time. Moreover, while several witnesses state conversations. with the plaintiff in error to arrange for transmissions of the (socalled) literature by express in 1903 and 1904, the record is without proof, not only of the fact of using the mails during those years, but of facts to charge the plaintiff in error with purpose at such times to use the mails in execution of the scheme. The occasion of this departure from the original means to carry on the scheme presumptively not criminal-does not appear, nor the time when the change occurred, except from the dates of mailing the letters in evidence, with April 5, 1905, as the earliest date; and the evidence which connects the codefendant, Gourdain, with these transactions, under the change in plan, is not applicable to convict the plaintiff in error of participation therein, as the essence of the offense charged, without further proof tending to establish his connection after such departure. In thus seeking use of the mails for the fraudulent scheme, section 5480 was obviously violated, while the scheme and operation during 1903 and 1904, when the plaintiff in error appears as a party, however obnoxious otherwise, was (presumptively) free from the offense charged not within the statute referred to. The chain of circumstances tending to establish his relation before the change to prohibited methods cannot serve, in the absence of a connecting link of proof, to raise an inference of fact that he not only continued in the operation during the intervening months, but deliberately joined in the criminal conduct then inaugurated. The rule for which counsel contends in support of the submission to the jury of "the inference or presumption of continuance arising from the facts and circumstances proven" is inapplicable, as we believe, in any view of the strength of "the presumption of innocence, as evidence in favor of the accused, introduced by the law in his behalf" (Coffin v. United States, 156 U. S. 432, 458, 460, 15 Sup. Ct. 394, 39 L. Ed. 481), under these changed conditions. With the chain of evidence incomplete to connect the accused with such criminal change of course, by presence, acquiescence, or other coincident circumstance, the citations from the ruling and opinion in Dunlop v. United States, 165 U. S. 486, 503, 17 Sup. Ct. 375, 41 L. Ed. 799, are not deemed applicable; and we are not satisfied that facts were presented to authorize an inference that the plaintiff in error remained in the venture at and after the change. Under the established rule of our criminal law, however, as well defined in Coffin v. United States, supra, the "presumption of innocence is an instrument of proof created by the law in favor of the accused," and the presumption that the accused would not remain in the concern when it turned into a criminal course would set aside or overcome the assumed inference of fact relied upon. We are of opinion, therefore, that error is well assigned for the above-mentioned cause, which includes the exceptions to the charge, in so far as the issues against the plaintiff in error were submitted to the jury. The errors assigned upon the record in respect of the motions for a new trial and in arrest of judgment require no discussion in view of the opinion in the Gourdain Case, supra, as the differences in the records are not deemed substantial. The judgment of the District Court is reversed, accordingly, and the case remanded with direction to grant a new trial. (154 Fed. 480.) BUSH v. PIONEER MINING CO. et al. (Circuit Court of Appeals, Ninth Circuit. May 20, 1907.) No. 1,409. APPEAL-REVIEW-DISCRETION OF COURT-INJUNCTION-PRELIMINARY INJUNC TION. The discretion of a court in granting or refusing a preliminary injunc tion, where the evidence is conflicting and the rights of the parties cannot properly be determined except on final hearing, is not subject to review by an appellate court unless there has been a plain disregard of facts or of settled principles of equity. [Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3818.] Appeal from the District Court of the United States for the Second Division of the District of Alaska. Clay Allen and Hobbes & Bell, for appellant. Joseph Hutchison, J. C. Campbell, W. H. Metson, and F. C. Drew, for appellees. Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge. ROSS, Circuit Judge. The appellees being in possession of a certain piece of mining ground near Nome, Alaska, and engaged in extracting gold therefrom, the appellant, claiming to be the owner of an undivided one-fourth of the ground by virtue of a location thereof under the name "Big Clid Fraction Claim," made on the 1st day of August, 1900, by one F. F. Bowers, and by virtue of a subsequent location made by Bowers of the same ground on the 12th day of January, 1901, under the name "Daisy Placer Mining Claim," commenced in the court below an action at law to recover the possession of the ground from the defendants, and on the same day commenced, in the same court, a suit to enjoin the defendants from working the ground or extracting therefrom any material, which actions, it appears from the record, were consolidated in the court below. An application was made by the appellant to the trial court for a preliminary injunction, which was heard upon numerous and voluminous affidavits filed on behalf of the respective parties, and resulted in an order denying the temporary writ applied for, from which order the present appeal comes. The appellees, who were defendants in the court below, based their alleged rights to the ground mainly upon a location of the ground in controversy made by one Axel Olsen on the 11th day of June, 1899, under the name "Bear Cub Claim," and also under an attempted relocation of the same ground by one Elmer Reed on the 5th day of January, 1901. The affidavits filed on behalf of the respective parties are very conflicting, many of those filed on behalf of the defendants being to the effect that the boundaries of the Bear Cub Claim-the older location-were so marked on the ground that they could be readily traced, and that the locators thereof, and their successors in interest, performed the annual assessment work thereon required |