аfter making the foregoing statement, delivered the opinion of the court.
The defendant was convicted on the first count of the indictment found in April, 1905 (which contained six counts),- and was acquitted on the fifth and sixth counts. The court having, previous to the trial sustained a demurrer to the second, third and fourth counts, there is nothing left under this indictment except the conviction of defendant on the first count, and the question to be considered at the outset is as to the sufficiency of that count. The grounds of the demurrer were that the indictment did riot set forth any offense under § 5440 of the Revised Statutes of the United States, nor did it set forth any offense under any statute, or at common law; that as to the first, count, it did not appear how the Government could have been defrauded by the alleged scheme of conspiracy, and that it is not alleged in the indictment that any payment to Maсhen under the agreement set forth in the count was intended to influence Machen’s official action, and it is not alleged that the Government was to pay more than it would have had to pay if the alleged agreement between the defendants had not been entered into, and it is riot alleged that the contract was not honestly awarded. These questions may be considered, notwithstanding the defendant, when his demurrer was overruled, pleaded over and went to trial on the plea of not guilty. See Code of District of Columbia, § 1532, p. 300.
On the sixth of May, 1902, on the advice of the General Superintendent, the department advertised for the presentation to the department of bids up to June 6, 1902, for the supplying of satchels for letter carriers for four years from July 1,1902.
On June 3,1902, the defendant and Machen and one Lorenz, intending to defraud the United States, unlawfully and fraudulently conspired, “ knowingly, wrongfully and corruptly to defraud the United States in a dishonest manner, and through and by means of a dishonest scheme and arrangement,” which is then stated. The defendant was to procure the lock company, of which he was an officer, and which was a New Jersey
On June 3, 1902, the defendant' and the General Superintendent and Lorenz, as part of their dishonеst scheme, agreed that the money which was to be paid to Lorenz by the lock company should thereafter be divided between the defendant, the General Superintendent and Lorenz, in certain proportions unknown 'to the grand jury.
On the twenty-fifth of June, 1902, the United States, through the Postmaster General, made a contract with the lock company, by which the former agreed to purchase from the lock Company at certain fixed prices so many satchels as might be needed by the department for four years from July 1, 1902.
On October-3, 1902, the defendant, in order to effect and carry out the conspiracy, presented.a bill against the United States for $15,800, for five thousand satchels theretofore sold and delivered to the department, in accordance with the contract of June 25, 1902, with the lock company, and on October 13, 1902, in pursuance, of the conspiracy the General Superintendent approved the bill as such Superintendent, the defendant receiving and accepting a warrant payable to the order of the lock company from the department, in payment of such, bill for the amount thereof.
On the twenty-first of October, 1902, the defendant, in pursuance of the conspiracy, drew a cheek of the lock company
On October 28, 1902, Lorenz having received the check and obtained the money on it, sent to Machen, the General Superintendent, the sum of $900,.by means of a draft procured by Lorenz, and sent by him to the Superintendent.
From this statement it appears that the count discloses the duties of the General Superintendent and the duty that he owed to the Government ,in relation to a cоntract of the nature above mentioned. It was part of his duty to give an honest and unprejudiced judgment, whether the contract was from time to time being fairly and fully complied with, both as to the number of satchels furnished, their material and workmanship, as well as with regard to all other matters pertaining to the contract. It cannot be supposed that such duty could be fully, impartially and honestly discharged by an officer who, by reason of his private and alleged corrupt agreement with the agent of the contractor whose work he was supervising, ■would obtain more pay by exceeding in his requisitions the number of satchels really necessary for the department. It could scarcely be. believed that he would give an unbiased and honest judgment upon the question whether the contract had been fulfilled as to material or workmanship or other detail, when, if the satсhels were received, he would at once, though secretly, receive a certain portion of the sum paid by the department to the contractor for furnishing such satchels. This is not an indictment for the violation of a statute against bribery. It is for a conspiracy to defraud the United States, • and when it is seen that the conspiracy consists in such a corrupt agreement as is alleged in the indictment, by which an officer of the United States is, in substance, to have a secret interest in a contract as to the fulfilling of which by the contractor that officer is to be the judge, it becomes unnecessary to aver that the interest was given him, or the money paid to him to influence his official conduct upon the very contract in question. The agreement is alleged to have been an unlawful
Various questions arose upon the .trial of the case, to some of which we will now refer.
In the course of empannelling the jury one John C. Haley was called as a juror and sworn upon, his
voir dire,
and testified that he was a druggist; that he did not know the defendant; that he had formed no opinion about the case; that his drug store was a subpostal station, and that he was the clerk in charge; that he was technically a clerk of the city post -office, and that he was paid an annual compensation of $300, which included all clerk hire and rental of the premises; that he was paid for. the entire service of taking charge of the substation, and- whatever rent- may be necessary; that it is one of the things in connection with the drug business that can hardly be avoided; that a drug store, to keep -up its prestige, must sell
The question is, Was Haley disqualified to sit as a juror, and did the court err in holding that he was not? Section 215 of the Code of Laws for the District of Columbia, page 49, provides as follows:
“ Sec. 215. Qualifications, — No person shall be competent to act as a juror unless he be a citizen of the United Statеs, a resident of the District, over twenty-one and under sixty-five years of age, able to read and write and to understand the English language, and a good and lawful man, who has never been convicted of a felony or a misdemeanor involving moral turpitude.”
Section 217 provides that “ all executive and judicial officers, salaried officers of the Government of the United States and of the District of Columbia . . . shall be exempt from jury duty, and their names shall not be placed on the jury lists.” Counsel for the Government contend that the objection by defendant’s counsel to the juror Haley was founded, as shown by the record, on the ground that the juror was a “salaried officer of the Government;” that the juror was not such an officer, and that if he were, that fact is only ground for a claim oh his . part for exemption (which he did not make), and not a ground for disqualification. Even though the juror wаs not a salaried officer of the Government, under
United States
v.
Smith,
In criminal cases сourts are not inclined to be as exacting, with reference to the specific character of'the objection made, as in civil cases. They will, in the exercise of a sound discretion, sométimes notice error, in the trial of a criminal case, although the question was not properly raised at the trial by objection and exception.
Wiborg
v.
United States,
Under this rule the general character of the objection to the juror was fairly before the court, and therefore we think it proper to notice the alleged .error in the reception of this juror and'to decide it with respect to the general qualification of .the juror under the law, without being tied down to the question of whether he was a salaried officer and so exempt, but not, as is contended, thereby - disqualified to serve as a. juror..
. The question as -to the qualifications of a juror in this. District is not in аll cases a mere local one. If the objection is not based alone upon the wording of the section of the code above cited, but also upon the common law, it becomes an important question which might arise anywhere in the whole country. There may be statutes in the different States as to qualifications of jurors which in their construction would not prevent the application of the commbn law- in regard thereto, and so the question of qualification being the same in the Federal as in the state courts (Rev. Stat., § 800; 1 Comp. Stat., p. 623), may be a general one. It is of special importance in this District, where there aré so many thousands of clerks and employes of the Government, ‘to know whether they are qualified jurors
Taking the contention of the Government to be sound', the fact that a proposed juror is a salaried officer of the Government can only be ground for his own claim of exemption, which, if not made by him, leaves him a competent juror. A jury composed of Government employés where the Government was a party to the case on trial would not in’ the least conduce to respect for, or belief in, the. fairness of the system'of trial by jury. To maintain that system in the respect and affection of the citizens of this country it is requisite that the jurors chosen should not only in fact be fair and impartial, but that they should not occupy such relation to either side as to lead on that account to any doubt on that subject. We do not think that § 215 of the code of the’District includes the1 whole subject of the qualifications of jurors in that District. If that sectiqn,. together with § 217, were alone to be considered, it might be that the juror was qualified. But, by the common law, a further qualification exists. If that law remains in force in this regard in this District a different decision is called for from that made in this case. The common law in force in Maryland, February 27, 1801, remains in force here, except as the same may be inconsistent with or replaced by some provision of the code for the District. Code, § 1, chap. 1, p. 5. It has not been contended that the common law upon the subject of jurors was not in force in Maryland at the above-named date, or that-it did not remain in force here, at least up to the time of the passage of the code. Jurors must at least have the qualifications mentioned in § 215, but that section does not, in our opinion, so far alter the common law upon the subject as to exclude its rule that.one is not a competent juror in a case if he is master, servant, steward, counsellor or attorney of either party. In such case a juror may be challenged for principal cause as an absolute disqualification of the juror. 3 Blackstone (Cooley’s),
The position of the juror in this case is. a good instance of the wisdom of the' rule. His position was that of an employé who received a salary from the United States, and his employment was valuable to him, not so much for the salary as for the prospect such employment held oút for an increase in his business
Upon the trial of the case the Government called as a witness John Aspinwáll, who was the president of the Fabrikoid Company of Newburg, New York, and it appeared from his testimony that some time in 1902, and prior to the making of the contract between the lock company and the Post Office Department, the defendant had some correspondence with the Fabrikoid Company with reference to the availability аnd the cost of the material manufactured by that company for use in the manufacture of satchels to be used by the Post Office Department for letter carriers. .
After the-finding of the two indictments against the defendant, and some time in the latter part of 1903, the defendant visited the place of business in Newburg, New York, of the Fabrikoid Company, and requested the privilege of looking over the correspondence between himself and -that company. For the purpose of proving what the Government asserted was a suppression or spoliation of evidence, the witness testified that the defendant was permitted to look over the files in the company’s letterbooks and examine his letters to the company, and copies of its letters to him, the witness not being present when the defendant made such examination. Subsequently the witness discoverеd that a copy of a letter that the company had written to the defendant and dated April 21, 1902,' had been removed from the copybook, and the index covering that letter-had been erased. The letterbook was then produced by' the witness from which the copy letter had been removed, and
The witness Aspinwall further testified that when he discovered the loss of'the letters he wrote to the defendant the letter dated December 7, 1903. Counsel for the defendant then admitted that he had the original of that letter, but stated that the witness might read it from his copybook. The letter was then read, in which the witness charged the defendant, in substance, with having surreptitiously removed from the files of the company a copy of the letter from the company to the defendant, and with having erased the page from the index. The létter of December 7 was then offered in evidence without objection.
As soon as the letter was admitted in evidence the counsel for the Government -immediately offered the letter written by counsel for defendant in answer to it, but was stopped by the court with an inquiry as to its relevancy, which he answered by stating that he did not see its relevancy. The court observed he would hear from whoever offered the letter as to its
It is plain that the letter from the witness Aspinwall to the defendant, making the charge thаt defendant took the letters, as above stated, was put in evidence by the Government for the purpose of endeavoring to show that the defendant had surreptitiously taken evidence which might possibly be used against him upon his trial. The response of defendant to such letter should have been admitted as explanatory of the letter of accusation. Without the letter of explanation the other letter should not' have been received. The Court of Appeals held that it was difficult to understand the theory upon which the letter from Aspinwall to defendant was admissible, but as it was admitted, without objection, there was no error, and the subsequent motion to strike out the letter was addressed to the discretion of the trial court. It seems clear from the record that the letter of the witness to defendant was not objected to, .under a belief by defendаnt’s counsel, formed possibly upon some prior arrangement or understanding between counsel, that the answer to it would also, at once, be offered in evidence.
Again, at the close of all the evidence, when counsel for the defendant once more moved to strike out the letter of witness Aspinwall, the court denied the motion on the ground that the evidence was of a nature to throw light on the minds of the jury upon the moral makeup of the individual, and thus enable
When the letter was first offered and received in evidence on the part of the Government the defendant had not been placed on the witness stand and after he had been on the stand this evidence was retained, while the defendant Was not permitted to show what his written answer to the charge of spoliation was, because the answer was written by his counsel (although by his direction and under his authority) and not by himself, personally. An explanation of the reason for his taking the letters might be quite material to enable the'jury to come to a decision, as to the moral makeup of defendant, but he was. not allowed to fully give it. The Court of Appeals also held that the answer to that letter, concedédly written by defendant’s counsel, was plainly inadmissible, but that even if its exclusion had been error, it was cured by the fact that the defendant, when.on the stand, testified to the same explanation of his action, i. e., that he understood that Aspinwall had consented that he take such of the files as he desired.
We do not think that the letter written by counsel for the defendant was inadmissible. The defendant had in substance testified that it was written by his counsel, with ^ his consent and by his direction. In other words, that counsel was acting simply as the agent and under the direction of his principal, the defendant in the case. It was not necessary that such letter should be written by the defendant personally, in his own handwriting. The importance of the matter lies in the fact that defendant, as soon as the accusation was made, had,through his counsel, acting, under his direction explained the charge made of secretly taking evidence which was in the hands of a third party, and which he feared might be used against him. The defendant did on the trial testify to the same
We are of opinion, also, that the court erred in its refusal to allow defendant to testify in regard to his intention in taking the letters from the files. His counsel asked him the question when he was on the stand, after he had admitted their taking, whether he took them with the intent to suppress or destroy-them, or with intent that they might be preserved and presented to the jury when his trial should come on. Counsel offered to show the fact by the witness and let the witnеss say which it was. This was objected to by counsel for the Government and the objection sustained.
The witness was further asked whether when he took the evidence he had the intention to destroy it. This, upon objection, was ruled out, as was the question, What did you do with these letters after you had taken them? Defendant’s counsel then stated: “We offer to prove that the witness then brought them to his counsel in Washington, Mr. Worthington.” The offer was, on objection, overruled.
The whole bearing of the evidence on the part of the Government in regard to the letters could only have been for the purpose of contending that the defendant took the letters without leave and intended to suppress the evidence contained in them. It was proper to prove the intent of the witness when he took these letters, whether he took them with the intent of destroying or suppressing them as evidence against himself, or whether he took them for the purpose of preservation and of delivering them, to his counsel to be used on his trial. It was error to reject the evidence, for it was material and proper to go to the jüry. The Court of Appeals so held, and said: “The intent of the defendant in obtaining possession of
There is a presumption of harm arising from the existence of an error committed by a trial court against the party complaining, in excluding material evidence on a trial, especially before a jury. It is only in cases where the absence of harm is clearly shown from the record that the commission of such an error against a party seeking to review it is not cause for the reversal of the judgment. '
Deery
v.
Cray,
The defendant was peculiarly situated in this case, and great care was necessary to prevent injustice to him. The record shows that one of the alleged conspirators, Machen, had just prior to defendant’s trial herein pleaded guilty under this same indictment and had been sentenced to imprisonment, to commence upon the expiration of a term of imprisonment he was then serving. He was not called as a witness. While this action of Machen was not the slightest evidence of the guilt of defendant, and was not matter to be referred to or considered by the jury, it left defendant without the aid of Machen in the trial of the case. In addition to that, Lorenz was called as a witness for the Government upon.the trial of this defendant, and testified that he was a defendant in the two conspiracy-indictments in regard to which this defendant was then on trial, and that he was. then serving in the Moundsville Penitentiary a sentence from the Supreme. Court of the District. Both of these, men might have been guilty of a conspiracy to defraud the United States, and the" defendant be innocent thereof. But a felon, being also a confessed accomplice, was thus produced by thé Government as a witness for the purpose of proving its case against defendant, the witness having, as it would appear, in popular language, turned “ State’s evidence,”
There may have been testimony some time during the trial, from which inferences might possibly have been drawn as to the motive or intent with which those letters were taken, but, instead of testimony from which such inferences might have been drawn, the defendant was entitled to state directly on oath to the jury what that intention was, and what were -the motives which induced him to take the letters.
It is hardly possible to imagine a case where greater care was necessary in regard to the exclusion of proper and admissible evidence than in the case before us. As we have said, it was entirely possible that the jury might believe that both Lorenz and Machen were guilty, as alleged, in the indictment for conspiracy, and thаt the defendant was, nevertheless, perfectly innocent. No material and proper evidence upon that issue should have been excluded,-and the error committed was not, in our opinion, clearly shown to have been harmless.
During the trial, while the case was with the defense, counsel offered in evidence a certain book, which contained entries .relating to the' financial transactions between defendant and Lorenz, in connection with the contract, dated June 25, 1902, between the lock company and the Post Office Department.
Spencer Trask had been called, by the Government as a witness for the purpose of showing his ignorance of any such payments, and he was asked whether the defendant had ever told him that under this contrapt with the Government he was to receive a part of the money back from Lorenz, and the witness answered, “Certainly not; absolutely not.” It appeared that the witness Trask was a banker in the city of New York, and that he held a controlling interest in the lock company, of which Mr. Chance, his private secretary, was president. He also testified that he did not care to and did not, as a matter of fact, spend time in- the examination of the details of the business of the lock company; .that he confided it to Mr. Chance and the defendant, and that thе president, Mr. Chance, by direction of witness, had the general conduct of the company under his control.
The question whether the defendant had received money back from Lorenz, of which he gave no account to and concealed from the lock company, was strongly contested upon the trial, and evidence given on the pari of the Government, which it claimed tended to prove the concealment. The defendant, on the contrary, contended that these moneys, which he did not deny that he had received, were paid to him by Lorenz for services which defendant had performed for him and which moneys were known by Mr. Chance to have been paid and that he had, as president of the company, approved of such payments. It was further contended that Mr. Chance had seen the book in which the defendant had entered the fact and the dates of such receipts of money from Lorenz, and that the book had been given to Mr. Chance for the purpose of examination by him in his.capacity as president; that Mr. Chance
The receipt of the book in evidence was objected to by coun-. sel for the Government, and excluded by the court. “What is there,” inquired the court, “to show that this book has not-been altered since he made the entries” (meaning the defendant)? And again the court said: “lam very seriously in doubt as to whether you are entitled to have the book in evidence on the ground claimed for it, that is, that it was submitted to Chance; and on account of the condition of the book I will resolve that doubt against you.” We do not see there was anything in the condition of the book (which was produced on the argument before us) that would prevent its being received in evidence.
We think the court erred in the exclusion of the book. It was not offered as an ordinary account book, showing accounts between different parties, but it was offered as a written corroboration of the evidence of the defendant when he testified that the receipt of the moneys by him from Lorenz was known by the company, and was not concealed from it by him, but, on the cоntrary, was put into a book which the president of the company saw, and which he checked as approved. It is true that the integrity of the items in the book depends upon the evidence of the defendant. ' He might have made all of them after this question arose. He might have so made the entries as to the receipt of the moneys írom Lorenz. He might have forged the check marks alleged to have been made by Mr. Chance, but he testified that such was not the case; that the book was in the condition it was when he received it from Mr. Chance. We think it was competent to allow it to be shown
Various other questions were urged on the argument before us, but as those already discussed require a reversal of the judgment, we do not think it necessary to notice them.
The judgment is
Reversed.