The appellant was convicted of violating the Anti-Narcotic Acts (title 21, U. S. C., c. 6 [21 USCA § 171 et seq.]; title 26, U. S. C., c. 11 [26 USCA § 691 et seq.]). The government’s evidence was that defendant and one Mathews were partners engaged in selling morphine; that defendant furnished the morphine and Mathews did the selling; that an addict arranged with defendant to make a purchase from Mathews; and that the morphine was delivered by Mathews in the presence of defendant. The defendant took the stand and denied the partnership, admitted he was present when Mathews made the delivery, but disclaimed any knowledge of what was going on.
*180 Several errors are assigned. It is claimed that a demurrer to the government’s evidence should have been sustained. Aside from the fact that the point was waived by the introduction of evidence and the failure to move for a directed verdict at the close of all the evidence, the claim is frivolous. It is claimed that error was committed because the trial court commented on the evidence, counsel asserting the law to be that “the trial court is not permitted to convey, in the slightest manner, to the jury any indication whatsoever as to the weight, force, effect or truthfulness of any evidence. And should he do so through inadvertence or otherwise, it is reversible error.” That is not, and never has been, the law in the national courts. On the contrary, the trial judge has the right to analyze and classify with fairness the evidence on both sides, and otherwise aid the jury in its consideration; and as long as he makes it clear that the jury has the exclusive right to decide the facts, he may comment on the weight of the evidence, although he should not argue the ease. Complaint is made because the stenographer did not report all of the proceedings of the trial, including arguments of counsel. Trials are not officially reported in the national courts; if either party desires a stenographic report as an aid in the preparation of the bill of exceptions, or of his assignments of error, or for any reason, he has the absolute right to have a stenographer present for that purpose; but the responsibility is upon the parties to provide themselves with such a record. A stenographic report, while helpful, is not indispensable in the settlement of a bill of exceptions.
The record discloses that, on cross-examination of the defendant, the court per-, mitted, over objection, an inquiry into a controversy between defendant and the narcotic agent, involving the return of $25 supposedly paid the defendant in connection with a transaction involving morphine and which occurred some thirteen months after the offense for whieh he was on trial. The record further discloses that on rebuttal the government was permitted to prove, over objection, its version of such subsequent transaction, and to prove a further conversation between the agent and defendant over $1,750 worth of morphine. Neither of the transactions proven on rebuttal had the slightest connection with the sale for whieh defendant was being tried.
In our judgment, this was prejudicial error. The issue presented was a simple one: Did defendant negotiate the sale on January 20, 1929, as testified to by two government witnesses, or was he an innocent bystander, as he testified. These remote and disconnected transactions had no evidentiary bearing on this issue; at best they could serve but to create an atmosphere of hostility and to distract the attention of the jury from the issue. The briefs indicate a confusion of thought upon two entirely different evidenti-ary principles — one the admissibility of proof of other offenses; the other, the impeachment of the defendant as a witness if he takes the stand.
In the civil law, and very early in the common law, evidence of other crimes was ad mitted on the theory that a person who has committed one crime is apt to commit another. The inference is so slight, the unfairness to the defendant so manifest, the difficulty and delay attendant upon trying several eases at one time so great, and the confusion of the jury so likely, that for more than two hundred years it has been the rule that evidence of other crimes is not admissible. Boyd v. United States,
The government was not obligated to show any specific intent in the case at bar. In Paris v. United States (C. C. A. 8)
If the defendant takes the witness stand, 'a different rule comes into play. He steps out of his character as a defendant, for the moment, and takes on the role of a witness, and as such becomes subject to cross-examination in the same manner and to the same extent as any other witness. The rules of evidence in criminal eases may not, in the same jurisdiction, be the same as the evidentiary rules in civil eases, sections 858 and 914 of the Revised Statutes (title 28, U. S. C. §§ 631, 724 [28 USCA §§ 631, 724]) having no application to criminal cases. In criminal eases, the competency of witnesses is determined by the common law of the jurisdiction as it existed when the state was admitted into the Union [Neal v. United States (C. C. A. 8)
Tested by these rules, the questions asked on cross-examination of the defendant were improper. That a controversy occurred, some thirteen months after the sale charged, between a narcotic agent and the defendant over the repayment of $25, or that at an unnamed date the two of them had a conversation concerning other morphine, did not impeach the credibility of the witness. But, even if the cross-examination were proper, the evidence received was not admissible on rebuttal to contradict defendant, for it concerns a collateral matter, as to which inquiry stopped with the answers of the witness. The government states in its brief that the defendant, on direct examination, testified that he knew nothing about the morphine business. The record does not substantiate this statement.
One other point is stressed. From the brief of appellant, purporting to quote the testimony verbatim, it appears that the narcotic agent was asked whether he “had information that morphine was being sold by this defendant at the Sun Drug Store,” and that his answer was received over objection. The record, by which we must go, does not disclose either objection or exception. Since the case must be retried, it may be said that such information is not competent evidence of guilt; the defense of entrapment not being interposed, it is not available to rebut such defense.
To all of this, the appellee answers that the jury convicted, upon abundant evidence, and that the errors complained of were not prejudicial. The same contention was made to the Eighth Circuit Court of Appeals many years ago, and in response thereto that court (Sanborn, Van Devanter, and Philips sitting) said: “The zeal, unrestrained by legal barriers, of some prosecuting attorneys, tempts them to an insistence upon the admission of incompetent evidence, or getting before the jury some extraneous fact supposed to be helpful in securing a verdict of guilty, where they have prestige enough to induce the trial court to give them latitude. When the error is exposed on appeal, it is met by the stereotyped argument that it is not apparent it in any wise influenced the minds of the jury. The reply the law makes to such suggestion is: that, after injecting it into the case to influence the jury, the prosecutor ought not to be heard to say, after he has secured a conviction, it was harmless. As the appellate court has not insight into the deliberations of the jury room, the presumption is to be indulged, in fávor of the liberty of the citizen, that whatever the prosecutor, against the protest of the defendant, has laid before the jury, helped to make up the weight
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of the prosecution which resulted in the verdict of guilty.” Miller v. Territory of Oklahoma,
The case will be reversed and remanded for a new trial.
Reversed and remanded.
Notes
TIie exceptions are classified in many ways trit in all of them, the evidence of the other offenses either has probative value, or, as in Astwood v. United States (C. C. A. 8)
The authorities are widely divergent as to the specific acts or conduct which is a proper subject of such inquiry. Wigmore devotes 28 pages to a citation of cases on this subject. Wigmore on Evidence (2d Ed.) vol. 2, pp. 385 to 412. The rule herein stated is the rule of the Eighth circuit, and concerning which Dean Wigmore says, at page 365: “The other attitude is entirely logical, and admits only such misconduct as indicates a lack of veracity — traud, forgery, perjury, and the like. A mi *182 nority of courts are inclined to observe this limitation, — at least now and then.”
There is a divergence of authority as to the nature of the crime which may be proven for the purpose of impeachment. Judge Morris, in the Scaffidi Case (C. C. A.)
There is a conflict of authority in the state courts upon the question of whether the credibility of a witness may be attacked by a showing that he has been accused, arrested, or indicted for an offense; or, if such an attack is permissible, whether it is confined to offenses growing out of the transaction then on trial. For a discussion of this conflict, see 28 R. C. L. p. 627. The rule stated in the opinion is the rule in the Eighth circuit, is supported by the weight of authority, and- seems to be sound as a matter of principle. See Wigmore on Evidence (2d Ed.) vol. 2, p. 366.