BARNES, Circuit Judge.
This is an appeal from a judgment entered by the District Court of the United States for the Southern District of California, Central Division, revoking and setting aside an order of the United States District Court of the State of New Jersey, made on or about May 12, 1930, admitting the defendant Joseph Stacher to United States citizenship; and cancelling his Certificate of Naturalization, No. 3275913.
The judgment appealed from was entered on an amended complaint filed by the United States Attorney for the Southern District of California pursuant to Section 340(a) of the Immigration and Nationality Act of 1952 (66 Stat. 260), 8 U.S.C.A. § 1451(a),
in which it is alleged that appellant’s naturalization in the New Jersey District Court on May 31, 1930, was procured upon sworn statements of appellant and his allegations under oath which amounted to concealment of material facts and material misrepresentation with respect to his moral character, his use of other names and his previous arrests.
The matter was tried by the court, sitting without a jury, no jury having been requested.
The material facts concealed and the misrepresentations charged related to (1) appellant’s moral character; (2) various arrests and charges of violation of law prior to January 22, 1930 (the date appellant’s petition for naturalization was filed); (3) the use of names other than Gdale Oistaczer and Joe (or Joseph) Stacher (including Joe or Joseph Rosen, J. P. Harris, Doc Harris, Doc Stacher, George Kent, and Harry Goldman) ; (4) his association with gang
sters and bootleggers, and membership in the “Third Ward Gang” of Newark, New Jersey. The amended complaint charged the following “arrests and charges” which appellant had failed to disclose:
(1) November 26, 1924, for breaking, entering, and larceny;
(2) April 21, 1926, for assault and battery;
(3) August 18, 1926, for assault and battery;
(4) June 7, 1927, for atrocious assault and battery;
(5) July 11, 1927, for atrocious assault and battery;
(6) August 15, 1927, for robbery;
(7) December 4, 1927, for interfering with officer guarding still for Federal authorities;
(8) December 9, 1927, for atrocious assault and battery, and fined $50;
(9) May 29, 1928, “open charge” (dismissed).
Defendant, by amended answer, denied the May 29, 1928, arrest and charge and explained the December 4, 1927, arrest and charge.
As to the other arrests appellant admitted “he was either arrested or notified to appear before, a court or courts in the City of Newark, State of New Jersey, having jurisdiction over the offenses filed in said courts, charging Joseph or Joe Rosen or Joseph Staeher with the commission of the [said] offenses.”
Appellant further raised the separate defenses that no cause of action was stated, res adjudieata, estoppel and laches, the Statute of Limitations, lack of jurisdiction over appellant because of his residence in a different jurisdiction (to-wit: Nevada) at the time the complaint was filed and served (February 2nd and 3rd, 1953, respectively
), and inadequacy of the affidavit filed with the complaint. By pretrial motion, all separate defenses were stricken.
Appellant made a motion to quash, dismiss or transfer the case, upon ground of improper venue, which was denied after hearing. This issue was again raised at the trial and extensive evidence was introduced by both sides. Again the court ruled that appellant, for the purposes of the Act under which he was here charged, “resided” within the Southern District of California.
The trial judge, by pretrial order pursuant to Rule 16, Federal Rules of Civil
Procedure, 28 U.S.C., ruled that evidence of specific acts or conduct would not be admissible at the trial to prove the good or bad character of defendant. However, he permitted the government to make an offer of proof for the record.
After hearing the evidence, the court below continued the matter to permit each side to put in additional evidence and briefs, largely on the question of jurisdiction. Thereafter, the said court ordered judgment for the government. Appellant’s counsel moved to set aside the submission of the case, to vacate the order for judgment and to re-open the case. This motion was granted. Voluminous additional testimony by deposition, and orally, was introduced by both sides. The court below thereafter re-submitted the case, and found against appellant by holding the government had established “by clear unequivocal and convincing evidence that the defendant under oath had stated he had no previous arrests,” while in fact appellant had had “a prior criminal record.”
The court further found with respect to the First Cause of Action, charging concealment, (a) that at the time he filed his petition for citizenship his name was Gdale Oistaczer, that he was known also as Joe or Joseph Rosen;
(b) that on September 16,1929, he signed his preliminary form for Petition for Citizenship and certified the statements therein were true;
“Said Preliminary Form contained the printed question:
“ ‘27. Have you ever been arrested or charged with violation of any law of the United States or state or ¡ any city ordinance or traffic violation?’ And the answer in longhand was, ‘No.’, which answer was false, as the defendant well knew.”;
(c) that on January 22, 1930, after being sworn to tell the truth, appellant, when asked by Naturalization Examiner Braden if he had ever been arrested or convicted of a crime, answered “no”; that Braden “made a notation in his own handwriting on the reverse side of the triplicate copy of the defendant’s Petition for Citizenship * * * ‘Arr: No’ that appellant’s said answer was false, as he well knew;
(d) that in the five years prior to appellant’s petition, he had been arrested for or charged with the commission of a crime on eight occasions ;
(e) that as a result of appellant’s concealment of such material facts, the Immigration and Naturalization Service was prevented from making a full and proper investigation of appellant’s qualifications for citizenship, and there resulted the Examiner’s recommendation to the court that citizenship should be granted;
(f) that the necessary affidavit showing good and sufficient cause for the present action had been filed.
Similar findings of fact, which amounted to wilful misrepresentation on appellant’s part, were made to support the government’s second cause of action.
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BARNES, Circuit Judge.
This is an appeal from a judgment entered by the District Court of the United States for the Southern District of California, Central Division, revoking and setting aside an order of the United States District Court of the State of New Jersey, made on or about May 12, 1930, admitting the defendant Joseph Stacher to United States citizenship; and cancelling his Certificate of Naturalization, No. 3275913.
The judgment appealed from was entered on an amended complaint filed by the United States Attorney for the Southern District of California pursuant to Section 340(a) of the Immigration and Nationality Act of 1952 (66 Stat. 260), 8 U.S.C.A. § 1451(a),
in which it is alleged that appellant’s naturalization in the New Jersey District Court on May 31, 1930, was procured upon sworn statements of appellant and his allegations under oath which amounted to concealment of material facts and material misrepresentation with respect to his moral character, his use of other names and his previous arrests.
The matter was tried by the court, sitting without a jury, no jury having been requested.
The material facts concealed and the misrepresentations charged related to (1) appellant’s moral character; (2) various arrests and charges of violation of law prior to January 22, 1930 (the date appellant’s petition for naturalization was filed); (3) the use of names other than Gdale Oistaczer and Joe (or Joseph) Stacher (including Joe or Joseph Rosen, J. P. Harris, Doc Harris, Doc Stacher, George Kent, and Harry Goldman) ; (4) his association with gang
sters and bootleggers, and membership in the “Third Ward Gang” of Newark, New Jersey. The amended complaint charged the following “arrests and charges” which appellant had failed to disclose:
(1) November 26, 1924, for breaking, entering, and larceny;
(2) April 21, 1926, for assault and battery;
(3) August 18, 1926, for assault and battery;
(4) June 7, 1927, for atrocious assault and battery;
(5) July 11, 1927, for atrocious assault and battery;
(6) August 15, 1927, for robbery;
(7) December 4, 1927, for interfering with officer guarding still for Federal authorities;
(8) December 9, 1927, for atrocious assault and battery, and fined $50;
(9) May 29, 1928, “open charge” (dismissed).
Defendant, by amended answer, denied the May 29, 1928, arrest and charge and explained the December 4, 1927, arrest and charge.
As to the other arrests appellant admitted “he was either arrested or notified to appear before, a court or courts in the City of Newark, State of New Jersey, having jurisdiction over the offenses filed in said courts, charging Joseph or Joe Rosen or Joseph Staeher with the commission of the [said] offenses.”
Appellant further raised the separate defenses that no cause of action was stated, res adjudieata, estoppel and laches, the Statute of Limitations, lack of jurisdiction over appellant because of his residence in a different jurisdiction (to-wit: Nevada) at the time the complaint was filed and served (February 2nd and 3rd, 1953, respectively
), and inadequacy of the affidavit filed with the complaint. By pretrial motion, all separate defenses were stricken.
Appellant made a motion to quash, dismiss or transfer the case, upon ground of improper venue, which was denied after hearing. This issue was again raised at the trial and extensive evidence was introduced by both sides. Again the court ruled that appellant, for the purposes of the Act under which he was here charged, “resided” within the Southern District of California.
The trial judge, by pretrial order pursuant to Rule 16, Federal Rules of Civil
Procedure, 28 U.S.C., ruled that evidence of specific acts or conduct would not be admissible at the trial to prove the good or bad character of defendant. However, he permitted the government to make an offer of proof for the record.
After hearing the evidence, the court below continued the matter to permit each side to put in additional evidence and briefs, largely on the question of jurisdiction. Thereafter, the said court ordered judgment for the government. Appellant’s counsel moved to set aside the submission of the case, to vacate the order for judgment and to re-open the case. This motion was granted. Voluminous additional testimony by deposition, and orally, was introduced by both sides. The court below thereafter re-submitted the case, and found against appellant by holding the government had established “by clear unequivocal and convincing evidence that the defendant under oath had stated he had no previous arrests,” while in fact appellant had had “a prior criminal record.”
The court further found with respect to the First Cause of Action, charging concealment, (a) that at the time he filed his petition for citizenship his name was Gdale Oistaczer, that he was known also as Joe or Joseph Rosen;
(b) that on September 16,1929, he signed his preliminary form for Petition for Citizenship and certified the statements therein were true;
“Said Preliminary Form contained the printed question:
“ ‘27. Have you ever been arrested or charged with violation of any law of the United States or state or ¡ any city ordinance or traffic violation?’ And the answer in longhand was, ‘No.’, which answer was false, as the defendant well knew.”;
(c) that on January 22, 1930, after being sworn to tell the truth, appellant, when asked by Naturalization Examiner Braden if he had ever been arrested or convicted of a crime, answered “no”; that Braden “made a notation in his own handwriting on the reverse side of the triplicate copy of the defendant’s Petition for Citizenship * * * ‘Arr: No’ that appellant’s said answer was false, as he well knew;
(d) that in the five years prior to appellant’s petition, he had been arrested for or charged with the commission of a crime on eight occasions ;
(e) that as a result of appellant’s concealment of such material facts, the Immigration and Naturalization Service was prevented from making a full and proper investigation of appellant’s qualifications for citizenship, and there resulted the Examiner’s recommendation to the court that citizenship should be granted;
(f) that the necessary affidavit showing good and sufficient cause for the present action had been filed.
Similar findings of fact, which amounted to wilful misrepresentation on appellant’s part, were made to support the government’s second cause of action.
The court below concluded that the appellant’s naturalization was procured by concealment of material facts and by wilful misrepresentation and revoked his citizenship.
Appellant subsequently moved for a new trial and to revise the Findings of Fact and Conclusions of Law. These motions were denied and this appeal followed.
Thus the case was tried on two issues —was there jurisdiction over the appellant in this proceeding; and did appellant make false answers to the examiner’s questions ? The court below decided both issues in favor of the government. We will consider the two points.
I.
Jurisdiction in the District Court, Southern District of California, Over the Appellant.
The government contended that appellant was a resident of California on February 2, 1953 (the controlling date), while appellant asserts he had been a resident of New Jersey for thirty-eight years prior to June, 1950, and of Nevada since June, 1950, up to and including February 2, 1953.
Section 340(a) of the Immigration and Nationality Act of 1952 provides that revocation proceedings shall be brought “in any court specified in subsection (a) of section 310 of this title, in the judicial district
in which the naturalized citizen may reside at the time of bringing suit.”
[Emphasis added.]
Section 310(a) vests “exclusive jurisdiction” to naturalize persons and provides that such jurisdiction “shall extend only to such persons
resident
within the respective jurisdiction of such courts.” [Emphasis added.]
28 U.S.C. section 1391(b) provides:
“A civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where
all defendants reside.”
[Emphasis added.]
We accept appellant’s position that there is an essential difference between “domicile” which generally involves intent, and “residence” which generally involves an actual place of abode. With this position the government agrees. We are then, not concerned with “intent.”
The court passed on this issue at least twice; first, by way of denying defend-
ant’s motion to quash, denied June 30, 1953, and a second time, at the trial after additional evidence had been presented on the issue.
In determining the issue of jurisdiction, we must first recognize that it is a question of fact, to be determined by the trial judge. Unlike the rule of law which governs us in the second phase of this case, here we are faced with the provisions of Rule 52(a), Federal Rules of Civil Procedure, which tell us that “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”
Further, the government was the prevailing party below, and hence we must take that view of the evidence most favorable to it. Appellee is entitled to the benefit of all favorable inferences from the facts proved relative to the issue of residence. If, when so viewed, there was substantial evidence to sustain the findings, then the judgment may not be reversed by this Court unless against the clear weight of the evidence or unless influenced by an erroneous view of the law. Lewis Food Co. of California v. Milwaukee Ins. Co., 9 Cir., 1958, 257 F.2d 525; John Hancock Mut. Life Ins. Co. v. Cohen, 9 Cir., 1958, 254 F.2d 417; United States v. First Trust Co. of St. Paul, 8 Cir., 1958, 251 F.2d 686; Ellison v. Frank, 9 Cir., 1957, 245 F.2d 837; Vidales v. Brownell, 9 Cir., 1954, 217 F.2d 136.
While there was evidence in the record to support a finding of non-residence in California on February 2, 1953,
there was equal, and in our opin
ion, a greater preponderance of substantial evidence in the record to support the finding of residence in California on that controlling date.
We will not
and cannot, under such circumstances and upon such a record, reverse the ruling of the trial court.
II.
The Concealment and Misrepresentation.
Appellant made no attempt to deny seven of the eight arrests found as here-inbefore set forth, or to deny his failure to disclose them in the course of his naturalization proceedings. His defense did not urge that inaccurate information had not been given the government, but that he was
not
responsible for the government having received such inaccurate information. Defendant maintained that no oral question was asked him
concerning
his arrest record; that the written answers were made on his behalf either by his sister or his friend, Mr. Kemeny, now deceased; and that these should not bind him in this type of proceeding. The issue of his good moral character or the lack of it was not passed upon by the court below, although it was stipulated, subject to appellant’s objection as to competency, that appellant appeared as a witness pursuant to a subpoena served upon him before the United States Special Committee to Investigate Organized Crime in Interstate Commerce, Senator Tobey presiding, and testified under oath on July 11,1951, at Newark, New Jersey,
and gave
certain
testimony
which apparently raised serious questions as to his moral character and triggered an investigation into his citizenship
and the
institution of these proceedings.
The right of citizenship created by the Constitution is today more than ever a “priceless right,”
protected by the courts. As created by the Constitution that citizenship, so protected, applies both to those born in, and to those naturalized by, the United States.
“[The naturalized citizen] becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.”
Thus, the status of the naturalized citizen is comparatively secure. But that citizenship may be voluntarily relinquished,
and the citizenship acquired
by naturalization that is so carefully protected by our courts is only that which has been
lawfully
acquired. Naturalization unlawfully procured can be set aside.
But in proceedings to set aside naturalization, although the proceedings are not criminal in their nature, the burden is on the government to prove the unlawfulness by clear, convincing, and unequivocal proof,
which does not “leave the issue in doubt.”
It is the duty of this Court, as an appellate tribunal, to examine the government’s evidence to ascertain whether it meets this high standard of proof.
Unlike the usual case, the Supreme Court does “not accept even the concurrent findings of two lower courts as conclusive.”
Nor can we here accept the finding of the one lower court as conclusive. We must come to our own conclusion as to the facts. But neither are we to assume, because the burden on the government is heavy in cases of this type (as the Supreme Court has pointed out), that we are required, or that the Supreme Court has intended, that we should, in the language of the trial court, “nullify Section 340 of the Nationality Act and permit an alien, by the concealment of material facts from the naturalization examiner, to obtain priceless citizenship.”
We turn to the evidence on concealment and misrepresentation. We have read with care the voluminous record (1,030 pages) and examined some two score exhibits in evidence and a like number identified but not introduced. We have considered the difficulties inherent in proving in 1956 what happened in 1930, including the absence of certain witnesses. We have considered Stacher’s version, and the testimony of the examiner, Braden, given on direct and under vigorous cross-examination, both at the trial (November 29, 1955) and by four depositions, two before trial (August 3, 1954, and October 19, 1955) and two after part of the case had been, tried (June 11, 1956, and July 23, 1956). We have considered the testimony and', other evidence offered by each side in corroboration or impeachment of the-other’s case. As instructed by the Supreme Court, “we have considered the-appraisal of the veracity of the witnesses, by the judge who saw and heard them; and have given it that ‘due regard’ required by the Federal Rules of Civil. Procedure, rule 52(a).”
We have examined and reexamined certain of the-documentary evidence in the case; and particularly, the Government’s Exhibit. 4 (the triplicate Form A-2214), denominated “Application for A Certificate of' Arrival and Preliminary Form for Petition for Citizenship, U. S. Dept. of Labor,. Naturalization Service,” dated September 16, 1929. There were various marks, on this document including check marks. These were markings in pencil and im ink on pages 1, 2 and 3. The witness Braden very carefully and precisely told'. the trial court which marks and what language he knew and recognized, and: the marks and the language he did not. recognize. Braden was not a partisan witness — he did not take sides. Hedidn’t remember Stacher as an individ
ual applicant, nor his answers. He did not know whether or not Stacher filled in the blanks, or even whether or not he signed his name. But he did positively and emphatically know that on page 3, the “Statement of Facts to be used in filing my Petition for Citizenship,” he (Braden) (1) had put sixteen various check marks on that page 3 in blue pencil; (2) had written the word “Hebrew” over the word “white” after the question: “My race”; (3) had written the word “not” before “married” at question 5; (4) had added the word “not” in line 10; (5) had written the full first name “Joseph” before the word “Stacher”; (6) had put his own shorthand symbols “Cit OK” and “14 y.” (meaning Handler was a citizen and had known the applicant fourteen years) opposite the name “Harry Handler,” one of appellant’s witnesses; (7) had crossed out “business salesman” and written in “garageman”; (8) had crossed out a witness’ name; (9) had written in the name of the substitute witness, “Emil Kemeny, Interpreter, 299 Clinton Ave., Newark;” and (10) had written over Kemeny’s name “Cit. OK” and “10 yr.”
On page two of this Exhibit 4, question 27 reads:
“Have you ever been arrested
or
charged with violation of
any
law of the United States
or
State
or
any city ordinance or traffic regulation? If so, give full particulars.......” [Emphasis added.]
To the first question, the answer “No” was written in.
In addition to the foregoing, a document was in evidence (Government Ex. 7) captioned on page 1 “Petition for Citizenship” of Gdale Oistaczer (Joe Stacher), and on page 2 “In the matter of the Petition of Gdale Oistaczer to be admitted as a citizen of the United States of America — Affidavit of Witnesses” (Harry Handler and Emil Kemeny). On the triplicate copy of the typewritten petition, everything shown in handwriting was in the handwriting of Braden, to-wit: (11) the date “1-22-30”; (12) the “G” indicating the recommendation to the court that citizenship should be granted; (13) “W.E.” indicating the witnesses were excused; (14) “B” being the Examiner, Braden’s initial; (15) “May 12, 1930,” the final hearing date (stamped in by rubber stamp); (16) “F.W.B.,” the examiner’s initials (stamped in by rubber stamp).
Thus the records established beyond doubt that Braden had acted as both the “designated examiner” on January 22, 1930, and “naturalization examiner” on May 12,1930.
Under “Result of Examination” Bra-den
wrote
and
initialed
on May 12, 1930: (17) “Abs: No” to an alleged inquiry whether the applicant had been absent from the United States; (18) “Arr: No” to the alleged inquiry whether applicant had ever been arrested or convicted of a crime; (19) “Read: O.K.” to the alleged test on whether applicant was able to read simple English; (20) “Eng: O.K.” to indicate the applicant’s understanding of the language and the examiner’s ability to understand applicant’s expression of it; (21) “Govt.: Fair” to indicate a fair knowledge of the form of government organization in this country. This witness then added: “Change name — Joseph Stacher.”
In contrast to the weight, as evidence, of this contemporaneously made memorandum of what happened in 1930, kept as part of the records of the Naturalization Service for a quarter of a century, and made by a person (now retired from Government service) in the regular performance of his designated duties (and interested only to the extent of insisting he had carefully and adequately performed those duties), stands the testimony of the applicant that he signed
the application for citizenship, but
did not read it;
that Mr. Braden
did not ask him
if he had ever been arrested or convicted of any crime, or ever absent from the United States, or if he understood the principles of the organization of the government of the United States. Both Kemeny and Handler, appellant’s two witnesses to his naturalization, had died before the trial. Kemeny died subsequent to September 1954 and in approximately October of 1955 after this case filed against appellant had been pending over two years.
Appellant produced in support of his unusual story (a) the testimony by deposition of his two sisters, one of whom states she answered the question respecting arrests; (b) the testimony of a retired County Detective, Louis Sklarey, to the effect that Stacher signed the application without reading it; (c) the testimony of Mrs. Kemeny, which added little; and, (d) the depositions of Julius Berger, George Golub, Morris Diamond and Joseph Friedlander, naturalized citizens examined by Braden, and tier-man Isenberg, Julius Cassell, Morrie Seigle, Leo Bateman, witnesses in naturalization proceedings wherein Braden had been examiner. None of these witnesses knew anything about Joseph Stacher’s naturalization. Their testimony was apparently offered in rebuttal to Braden’s testimony as to his “invariable practice” of asking each applicant about any arrests. If Braden’s testimony had rested entirely upon an “invariable practice,” and there had not been written evidence that practice had been followed in this case, some of the testimony of these eight witnesses would have been of value to appellant’s case. But Braden’s testimony as to what was his invariable practice was backed up in this instance by written proof of what he had noted, and done, on the specific occasions here involved.
Furthermore, the testimony of these eight witnesses only in part supported rebuttal. It varied from Herman Isen-berg’s and Leo Bateman’s and George Golub’s positive statements that no questions were asked concerning arrests, to Diamond’s and Berger’s and Seigle’s uncertainty, and Friedlander’s and Cas-sell’s positive recollection of such questioning by Braden relative to arrests.
We need not discuss here the impression on the trial judge, which may or may not have been made, of a lack of complete candor in appellant’s testimony. A witness usually has no difficulty, for example, in recognizing his own and/or his wife’s legible signature made in connection with a $10,000 transaction occurring within the previous five years.
This was a matter peculiarly and particularly for the trial judge to pass upon and to weigh it as he willed.
We conclude that the evidence is clear, unequivocal and convincing— evidence that does not leave the issue in doubt — that false answers were given by Stacher, and on his behalf and in his presence, to the naturalization examiner, and that Stacher received his naturalization certificate illegally.
III.
Other Errors Urged.
The foregoing consideration of jurisdiction and the evidence to support misrepresentation and concealment covers appellant’s points two, three and most of five.
Alleged error number one attacks the constitutionality of Section 340(a) of the Nationality Act of 1952. The premise of this allegation is that § 340(a), in permitting judicial revocation of naturalization for “concealment of a material fact or wilful misrepresentation,” changes the former basis for revocation contained in § 15 of the Nationality Act of 1906 (34 Stat. 601; 8 U.S.C. (1940 ed.) § 405**), under which appellant was naturalized, which provided for revocation “on the ground of fraud or on the ground that such certificate (of naturalization) was illegally procured.”
“Fraud connotes perjury, falsification, concealment, misrepresentation.” Knauer v. United States, 1946, 328 U.S. 654, 657, 66 S.Ct. 1304, 1306, 90 L.Ed. 1500. Under the prior provision, misrepresentation or concealment, with the requisite wilfulness or materiality, was sufficient to constitute fraud;
we are therefore satisfied as to the constitutionality of Section 340(a) as applied to appellant.
Alleged error four relates to objections to the introduction of evidence. We are satisfied no prejudicial error existed. Several exhibits attacked were not im
peaching or binding on defendant, but were admissible to show the
fact
of a lease, a telephone listing or a second lease, for whatever weight proof of such facts might have. Exhibit 27 (the original) cured any error relative to Exhibit 23 (copy of the lease) because Stacher
did
sign Exhibit 27. The weight and value of the other exhibits was subject to argument, but this did not make them inadmissible. The trial court repeatedly and carefully recognized this, and we find no error that was prejudicial, either in the introduction of evidence or in other rulings made by the lower court. An extended discussion of such alleged errors would not be helpful.
The judgment is affirmed.