ditions. An analogy may be found in the decisions on the law of trade marks, where the principle is applied that a name legitimate in one territory may generate confusion when carried into another, and must then be given up. Hanover Milling Co. v. Metcalf, 240 U.S. 403, 416; United Drug Co. v. Rectanus Co., 248 U.S. 90, 100. More than half the members of the industry have disowned the misleading name by voluntary action and are trading under a new one. The respondents who hold out are not relieved by innocence of motive from a duty to conform. Competition may be unfair within the meaning of this statute and within the scope of the discretionary powers conferred on the Commission, though the practice condemned does not amount to fraud as understood in courts of law. Indeed there is a kind of fraud, as courts of equity have long perceived, in clinging to a benefit which is the product of misrepresentation, however innocently made. Redgrave v. Hurd, L.R. 20 Ch.D. 1, 12, 13; Rawlins v. Wickham, 3 De G. & J. 304, 317; Hammond v. Pennock, 61 N.Y. 145, 152. That is the respondents' plight today, no matter what their motives may have been when they began. They must extricate themselves from it by purging their business methods of a capacity to deceive.

Fourth. Finally, the argument is made that the restraining orders are not necessary to protect the public interest (see Federal Trade Comm'n v. Royal Milling Co., supra), but to the contrary that the public interest will be promoted by increasing the demand for Pinus ponderosa, though it be sold with a misleading label, and thus abating the destruction of the pine forests of the east.

The conservation of our forests is a good of large importance, but the end will have to be attained by methods other than a license to do business unfairly.

The finding of unfair competition being supported by the testimony, the Commission did not abuse its discretion in reaching the conclusion that no change of the

46305-34- -6

name short of the excision of the word "white" would

give adequate protection.

The judgment is

Reversed.

MORRISON ET AL. v. CALIFORNIA.

APPEAL FROM THE SUPREME COURT OF CALIFORNIA.

No. 487. Argued December 12, 13, 1933.-Decided January 8, 1934. 1. The Alien Land Law of California forbids that an alien who is neither a citizen nor eligible for naturalization shall occupy land for agricultural purposes, unless permitted by treaty; makes conspiracy of two or more persons to violate the prohibition a crime; and further provides that where the State proves occupation or use of such land by any defendant, and the indictment alleges his alienage and ineligibility, the onus of proving his citizenship or eligibility shall devolve upon the defense.

(1) Where two persons, charged with such a conspiracy, were convicted upon proof merely that one of them, alleged to be an alien Japanese, ineligible to citizenship, had gone upon agricultural land and used it under an agreement with the other, whose citizenship was not involved, held that the conviction, as to both, was without due process of law:

(a) In the case of the lessor, the statutory presumption of the lessee's disqualification and of the lessor's knowledge of it, based only on the lease and possession, is purely arbitrary. Pp. 90-92.

(b) In the case of the lessee, the shifting of the burden of proof is likewise unjustifiable, first, because a lease of agricultural land conveys no hint of criminality; and secondly, because there is in general no practical necessity for relieving the prosecution of the necessity of proving Japanese race, the appearance of the defendant, and expert testimony, will suffice; and because, in the exceptional case, where the appearance of Japanese blood is obscured by admixtures of white or African blood, the promotion of convenience from the point of view of the prosecution will be outweighed by the probability of injustice to the accused: one whose racial origins are so blended as not to be discoverable at sight will often be unaware of them. Pp. 93-96.

(2) Morrison v. California, 288 U.S. 591, distinguished,—a case involving a different section of the statute and in which the burden

of proving citizenship by birth lay upon the alien after the State had proved him to be of a race ineligible for naturalization. P. 87. 2. The burden of proof may be shifted in criminal cases where the State has proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation, or where, upon a balancing of convenience or of the opportunities for knowledge, the shifting of the burden will be found to be an aid to the accuser without subjecting the accused to hardship or oppression. P. 88.

3. Where a charge of conspiracy is limited to two persons the guilty knowledge must have been shared by both to warrant conviction of either. P. 93.

218 Cal. 287; 22 P. (2d) 718, reversed.

APPEAL from a judgment sustaining a conviction of conspiracy. The case went to the court below from the California District Court of Appeal. 13 P. (2d) 803.

Mr. J. Marion Wright for appellants.

Mr. James S. Howie, Deputy Attorney General of California, with whom Mr. U. S. Webb, Attorney General, was on the brief, for appellee.

MR. JUSTICE CARDOZO delivered the opinion of the Court.

The appellants have been convicted of a conspiracy to violate the Alien Land Law of the State of California.

The indictment charges that the two appellants, Morrison and Doi, feloniously conspired to place Doi in the possession and enjoyment of agricultural land within the state; that possession was obtained, and the land used and cultivated, in execution of the conspiracy; and that Doi was an alien Japanese, ineligible to citizenship, and not protected in his possession by any treaty between the Government of the United States and the Government of Japan. These acts, if committed with the guilty knowledge of each defendant, make out a criminal conspiracy under the statutes of the state.

On the trial the state proved that Doi had gone upon the land and used it under an agreement with Morrison, but did not attempt to prove that he was not a citizen. of the United States or that he was ineligible for citizenship. The statutes of California provide that as to these elements of the crime the burden of disproving guilt shall rest on a defendant. By § 9a of the Alien Land Law as amended in 1927 (California Statutes, 1927, p. 880, c. 528), it is enacted that "in any action or proceeding, civil or criminal, by the State of California, or the people thereof, under any provisions of this act, when the proof introduced by the state, or the people thereof, establishes the acquisition, possession, enjoyment, use, cultivation, occupation, or transferring of real property or any interest therein, or the having in whole or in part the beneficial use thereof by any defendant, or any of such fact(s), and the complaint, indictment or information alleges the alienage or ineligibility to United States citizenship of such defendant, the burden of proving citizenship or eligibility to citizenship shall thereupon devolve upon such defendant." At the same session of the legislature, the Code of Civil Procedure of the state was amended by the addition of a new section (1983) which in substance and effect restates the same rule. California Statutes, 1927, p. 434, c. 244. Applying these statutes to this case, the trial judge held (a jury having been waived) that both the defendants, Morrison as well as Doi, were guilty of conspiracy. They were sentenced to be imprisoned for two years, but the sentences were suspended, and the defendants placed upon probation. There was an appeal to the District Court of Appeal for the Fourth District, where the judgment was affirmed. The court overruled the defendants' contention that by the application of § 9a of the Alien Land Law and § 1983 of the Code of Civil Procedure, there had been a denial of due process

of law under the Fourteenth Amendment of the Constitution of the United States. 13 P. (2d) 803. The cause was then transferred to the Supreme Court of California. There defendants' contention under the Fourteenth Amendment was again overruled, and the conviction was affirmed, three judges dissenting. 218 Cal. 287; 22 P. (2d) 718. An appeal to this court followed.

A person of the Japanese race is a citizen of the United States if he was born within the United States. United States v. Wong Kim Ark, 169 U.S. 649. He is a citizen, even though born abroad, if his father was a citizen, provided, however, that this privilege shall not exist unless the father was at some time a resident of the United States as well as a citizen, and provided also that such a child, who continues to reside abroad, shall, in order to receive the protection of this Government, be required upon reaching the age of eighteen years to record at an American consulate his intention to become a resident and remain a citizen of the United States, and shall be further required to take the oath of allegiance to the United States upon attaining his majority. R.S. § 1993; 8 U.S.C. § 6; Weedin v. Chin Bow, 274 U.S. 657; see also R.S. § 2172; 8 U.S.C. § 7. But a person of the Japanese race, if not born a citizen, is ineligible to become a citizen, i.e., to be naturalized. The privilege of naturalization is confined to aliens who are " free white persons, and to aliens of African nativity and to persons of African descent." R.S. § 2169; 8 U.S.C. § 359. "White persons" within the meaning of the statute are members of the Caucasian race, as Caucasian is defined in the understanding of the mass of men. Ozawa v. United States, 260 U.S. 178; Yamashita v. United States, 260 U.S. 199; United States v. Thind, 261 U.S. 204, 214; Terrace v. Thompson, 263 U.S. 197; Porterfield v. Webb, 263 U.S. 225; Webb v. O'Brien, 263 U.S. 313; Cockrill v. California, 268 U.S. 258. The term