The defendant's main contention is that neither count sufficiently identifies or "earmarks" the offense charged. It is settled law in this circuit that in charging an offense of general character, it is necessary to allege some fact or circumstance which will identify the particular offense charged sufficiently to distinguish it from other similar offenses. Coyle v. United States (C.C.A.) 34 F.2d 399; Skelley v. United States (C.C.A.) 37 F.2d 503; Turk v. United States (C.C.A.) 38 F.2d 630; Davis v. United States (C.C.A.) 38 F.2d 631; Smith v. United States (C.C.A.) 38 F.2d 632; Flowers v. United States (C.C.A.) 38 F.2d 633. The first count of this indictment avers that the defendant, on October 22, 1927, in the Western District of Oklahoma, purchased from a person or persons unknown to the grand jury, certain morphine and cocaine; "said morphine and cocaine not being in the original stamped package or from the original stamped package; said morphine and cocaine being then and there packed in a small trunk containing seventy-four (74) one ounce cans of morphine, and twenty-three (23) envelopes each containing approximately one ounce of cocaine."

Rule No. 30, Fed. Rules of Criminal Procedure, 18 U.S.C.A. following section 687; Berenbeim v. United States, 10 Cir., 164 F.2d 679. Loney v. United States, 10 Cir., 151 F.2d 1, 5; Turk v. United States, 10 Cir., 38 F.2d 630, 631; Smith v. United States, 10 Cir., 38 F.2d 632, 633; Fisher v. Schilder, 10 Cir., 131 F.2d 522, 524. The court instructed the jury, in effect, that it could not find one defendant guilty and the other defendant not guilty. This instruction, in our opinion, was more favorable to Bartlett than was required.

Since the judgment on count 19 must be affirmed, and the sentences run concurrently, errors assigned with respect to the remaining counts are nonprejudicial and need not be considered. Brooks v. United States, 267 U.S. 432, 441, 45 S.Ct. 345, 69 L.Ed. 699, 37 A.L.R. 1407; Fisher v. Schilder, 10 Cir., 131 F.2d 522, 524; Smith v. United States, 10 Cir., 38 F.2d 632, 633. The judgment is affirmed.

Moreover, an examination of the charge and the questioning, which we have made to safeguard the substantial rights of the appellant, convinces us that these contentions are without merit. See Rule IX, Supreme Court, Rules of Practice and Procedure in Criminal Cases, 18 U.S.C.A. following section 688, 292 U.S. 660, 664; cf. Moder v. United States, 61 App.D.C. 300, 62 F.2d 462, certiorari denied, 288 U.S. 599, 53 S.Ct. 317, 77 L. Ed. 975; Feinberg v. United States, 8 Cir., 2 F.2d 955, 956; Gantz v. United States, 8 Cir., 127 F.2d 498; Buessel v. United States, 2 Cir., 258 F. 811; Davis v. United States, 10 Cir., 38 F.2d 631; Smith v. United States, 10 Cir., 38 F.2d 632; Metzler v. United States, 9 Cir., 64 F.2d 203, 209; Hood v. United States, 10 Cir., 43 F.2d 353. Cf. Gantz v. United States, supra, 127 F.2d at page 504.

Violations of this nature are so frequent that we deem it necessary again to call the attention of the bar to the rule, and insist upon compliance therewith. In the following cases we have refused to consider such a bill of exceptions: Tingley v. United States, 34 F.2d 1; Caldwell v. United States, 36 F.2d 738; Davis v. United States, 38 F.2d 631; Imrie v. United States, 38 F.2d 634; Smith v. United States, 38 F.2d 632. In the prosecution growing out of the indictment charging possession of the one-half gallon of whisky in violation of the Act of Congress of June 30, 1919 (25 USCA § 244), known as the Hastings Amendment, it appears that four deputy sheriffs visited the defendant's home and seized some corn whisky found in a dishpan on the floor.

After four years of admonition to the bar the Circuit Court of Appeals of the Tenth Circuit found this to be the only effective remedy. Hard Rand, Inc., v. Biston Coffee Co. (C.C.A.) 41 F.2d 625, 626; Smith v. U.S. (C.C.A.) 38 F.2d 632; Flowers v. U.S. (C.C.A.) 38 F.2d 633. Where the point relied upon by the appellant is that the trial court erred in failing to instruct the jury to render a verdict for the appellant, it frequently has been said that the appellant must bring up all the evidence, but this does not prevent condensation. It does not mean that everything testified to by every witness should be separately stated verbatim or in narrative form in the bill, "but only that the purport and substance of all of it be included."

The court must require compliance with the rule." See, also, Tingley v. United States (C.C.A. 10) 34 F.2d 1, 3; Caldwell v. United States (C.C.A. 10) 36 F.2d 738, 739; Smith v. United States (C.C.A. 10) 38 F.2d 632, 633; Hard Rand, Inc., et al. v. Biston Coffee Co. (C.C.A. 8) 41 F.2d 625; Hurst v. Killits, 58 F.2d 903, decided by this court on May 2, 1932. This same rule applies to appeals from the United States Court for China.