1. Concealment or misstatement by a juror upon a
voir
dire examination is punishable as a contempt if its tendency
and design are to obstruct the processes of justice. So
held where the juror, on being asked to state her past
employments, mentioned several, but deliberately concealed an
employment by the defendant, and, on being questioned as to bias,
replied falsely that she had none, all with intent to gain a place
in the box and thwart the prosecution. P.
289 U. S. 10.
2. The gist of the offense is neither the concealment nor the
false swearing, but their use to gain acceptance as a juror in the
case and, under cover of that relation, to obstruct the course of
justice. P.
289 U. S. 11.
3. As respects punishment for contempt, deceit practiced by a
talesman in order that he may become a juror -- part of the court
-- and influence or prevent a verdict, is to be distinguished from
deceit practiced by a witness in testifying. P.
289 U. S. 11.
4. A contemptuous obstruction to judicial power is nonetheless
contempt when aggravated by perjury. P.
289 U. S. 11.
5. The privilege from exposure of his votes and arguments in the
jury room does not belong to a juror who became such by a fraud on
the court. P.
289 U. S. 12.
6. A statement by a juror of how she voted, made in her answer
to an information for contempt,
held a waiver to that
extent of the privilege against disclosure. P.
289 U. S. 18.
Page 289 U. S. 2
7. Evidence of a juror's intentional concealment on
voir
dire of her disqualification by previous employment by
defendant, and evidence of her arguments with other jurors while
the trial was going on, and of her vote, revealed by her own answer
in the contempt proceedings,
held sufficient to overcome
the claim of privilege and let in evidence of her conduct in the
jury room after the case had been submitted. P.
289 U. S. 18.
8. The rule that the testimony of a juror is not admissible for
the impeachment of his verdict bears no relation to the privilege
of jurors against exposure of their arguments and votes in the jury
room. P.
289 U. S. 18.
9. The doctrine allowing purgation by the oath of the contemnor
as a bar to prosecution for contempt is obsolete. P.
289 U. S. 19.
10. There was no denial to the petitioner of a fair notice of
hearing, nor any variance of substance between the information and
the findings, in this case. P.
289 U. S. 19.
61 F.2d 695 affirmed.
Certiorari, 287 U.S. 595, to review the affirmance of a
conviction of criminal contempt.
See 1 F. Supp. 747.
Page 289 U. S. 6
MR. JUSTICE CARDOZO delivered the opinion of the Court.
The petitioner, Genevieve A. Clark, has been adjudged guilty of
a criminal contempt in that, with intent to obstruct justice, she
gave answers knowingly misleading and others knowingly false in
response to questions affecting her qualifications as a juror. 1 F.
Supp. 747.
The conviction by the District Court was affirmed by the Circuit
Court of Appeals for the Eighth Circuit, the proceeding being
remanded, however, to correct an error in the sentence. 61 F.2d
695. A writ of certiorari brings the case here.
In September, 1931, there came on for trial in the United States
District Court for the District of Minnesota an indictment which
had been returned against William B. Foshay and others charging
them with the use of the mails in furtherance of a scheme to
defraud. The petitioner was one of the panel of jurors summoned to
attend. She did not know, when the summons came to her, for what
case she had been called, and telephoned
Page 289 U. S. 7
a sister, Mrs. Brown, that she would like to be excused. She was
advised by her sister, who had made inquiry of the clerk of the
court, that excuses, if there were any, would have to be presented
to the judge. At the same time, she was informed that the trial for
which she had been summoned was the Foshay trial, and that she
would probably not be accepted as a juror, since she had been
employed by the Foshay Company, a corporation with which the
indicted men had been connected as officers.
On the day appointed for the trial, the petitioner, in company
with her husband, reported at the courtroom. The District Judge
examined the members of the panel as to their qualifications for
service. While the examination was going on, the petitioner stated
to several women on the panel that she wished to serve on the jury,
that for this she had a special reason, and that she was afraid her
former employment by the Foshay Company would disqualify her; that
she had worked for the company as a stenographer and typist for
about two weeks in the summer of 1929, but did not know or come in
contact with any of the defendants personally.
Her service as stenographer and typist was not the only tie of
friendliness that linked her to the Foshay firm. There were other
contacts or relations that are not without significance, though
less direct and personal. Until her marriage in 1922, she had been
employed with the title of assistant cashier in a bank at St. Paul,
of which Mr. Clark was then the president. Foshay in those years
was a customer of the bank as depositor and borrower. Mr. Clark
resigned as president in 1925, but his business relations with
Foshay continued in the years that followed. Letters that passed
between them are printed in the record. The tone is cordial, and
almost intimate. True, there is nothing to show that the friendly
relations had spread to the petitioner. She denies that she had
any
Page 289 U. S. 8
acquaintance with Foshay or his associates, and the District
Court, by its findings, has accepted her denial. It is next to
impossible, however, that her husband, who was with her in the
courtroom, had refrained from telling her of his own friendship for
one of the prisoners at the bar.
The petitioner, upon being called to the jury box, was
questioned under oath by the judge presiding at the trial. She was
asked whether she had ever been in any business of any kind. She
answered, "I have been a stenographer before my marriage, yes." She
was asked in what kind of business she had worked. She answered,
"Well, I did some banking and some real estate and insurance, and I
was with an automobile concern, with a Nash agency." Finally, she
was asked whether she felt that her mind was free from bias, and
whether, if accepted as a juror, she would be able and willing to
base her verdict on the evidence and the law as given to her by the
court. To those inquiries she answered that her mind was clear of
bias, and that the law and the evidence would govern her in
arriving at a verdict.
The petitioner, after thus testifying, became a member of the
jury, which was thereupon complete. The trial which followed lasted
eight weeks. Two officers, a man and a woman, were in charge of the
jury from the beginning to the end. During the first week of the
trial, the petitioner made the remark to several of her fellow
jurors that she regarded Mr. Foshay as a victim of circumstances,
that he had gone to New York in the fall of 1929 to borrow
$18,000,000, but that, because of the stock market crash, had come
back without a dollar. When asked by a juror where she had procured
that information, which was not supported by the evidence, she said
that it was from a newspaper which she had read before the trial.
Later on, she gave expression to dissatisfaction with the
government because of the way the soldiers were treated after the
war.
Page 289 U. S. 9
During the deliberations of the jury after the case was finally
submitted, she announced that, since the prosecuting attorney had
been unable to convince her of the guilt of the accused, the other
jurors could hardly be expected to do so. At times, she placed her
hands over her ears when other jurors tried to reason with her, and
argument became useless because she was unwilling to reply. She
said of a witness for the government that he had given perjured
evidence in the South in an attempt to convict an innocent man.
This information had come to her in the course of a conversation
with her husband, who had seen her at her hotel, in the presence of
a bailiff, while the trial was under way. After being kept together
for a week, the jury was discharged because unable to agree. The
votes of eleven were for conviction. The single vote for acquittal
was cast by the petitioner.
On November 4, 1931, the government filed an information in
support of a rule to show cause why the petitioner should not be
punished for a criminal contempt. The information charges that her
answers upon the
voir dire examination were willfully and
corruptly false, and that the effect of her misconduct had been to
hinder and obstruct the trial. In response to the rule to show
cause, the defendant filed an answer denying the misconduct, and
alleging that her vote for acquittal had been dictated by her
conscience. There was a full and patient hearing by a District
Court of two judges. The court found the facts as they have been
stated in this opinion. It drew from them the conclusion that the
juror had obstructed the administration of justice, when examined
on her
voir dire, by "deliberately and intentionally"
concealing the fact that she had been employed during the summer of
1929 by the Foshay Company. It drew the conclusion also that she
had obstructed the administration of justice by stating falsely
that she was free from bias and that her verdict would be based
only upon the evidence as
Page 289 U. S. 10
introduced, and the law as given by the court. For the contempt
thus adjudged, there was a sentence of imprisonment and fine.
1. Concealment or misstatement by a juror upon a
voir
dire examination is punishable as a contempt if its tendency
and design are to obstruct the processes of justice.
There was concealment by the petitioner, and that willful and
deliberate. She had been asked to state the kinds of work that she
had been doing in other years. She counted off a few, and checked
herself at the very point where the count, if completed, would be
likely to bar her from the box. There is no room for the excuse of
oversight or negligence. She had been warned that disclosure would
lead to challenge and rejection. With her mind full of the warning,
she told the part truth that was useless, and held back the other
part that had significance and value. Whether this was perjury or
false swearing,\ there is no occasion to inquire. It was a
deliberate endeavor to thwart the process of inquiry, and to turn a
trial into a futile form.
Added to concealment there was positive misstatement. The
petitioner stated to the court that her mind was free from bias.
The evidence is persuasive that it was hostile to the government.
Bias is to be gathered from the disingenuous concealment which kept
her in the box. She was intruding into a relation for which she
believed herself ineligible and intruding with a motive. The only
plausible explanation is a preconceived endeavor to uphold the
cause of the defendants and save them from their doom. Bias, thus
revealed at the beginning, is confirmed by everything that
followed. While the trial was still in progress, she argued with
her fellow jurors that Foshay was a hapless victim of circumstances
too strong for him, and went outside the evidence, quoting
statements in a newspaper to win them to her view. After the
Page 289 U. S. 11
trial was over and deliberations had begun, she waived aside all
argument and closed her ears to the debate. She had closed her mind
to it before.
"An obstruction to the performance of judicial duty resulting
from an act done in the presence of the court is . . . the
characteristic upon which the power to punish for contempt must
rest."
White, C.J., in
Ex parte Hudgings, 249 U.
S. 378,
249 U. S. 383.
The petitioner is not condemned for concealment, though concealment
has been proved. She is not condemned for false swearing, though
false swearing has been proved. She is condemned for that she made
use of false swearing and concealment as the means whereby to
accomplish her acceptance as a juror, and, under cover of that
relation, to obstruct the course of justice. There is a distinction
not to be ignored between deceit by a witness and deceit by a
talesman. A talesman, when accepted as a juror, becomes a part or
member of the court.
Ex parte Savin, 131 U.
S. 267;
United States v. Dachis, 36 F.2d
601. The judge who examines on the
voir dire is
engaged in the process of organizing the court. If the answers to
the questions are willfully evasive or knowingly untrue, the
talesman, when accepted, is a juror in name only. His relation to
the court and to the parties is tainted in its origin; it is a mere
pretense and sham. What was sought to be attained was the choice of
an impartial arbiter. What happened was the intrusion of a partisan
defender. If a kinsman of one of the litigants had gone into the
jury room disguised as the complaisant juror, the effect would have
been no different. The doom of mere sterility was on the trial from
the beginning.
The books propound the question whether perjury is contempt, and
answer it with nice distinctions. Perjury by a witness has been
thought to be not enough where the obstruction to judicial power is
only that inherent in the wrong of testifying falsely.
Ex parte
Hudgings, supra.
Page 289 U. S. 12
For offenses of that order, the remedy by indictment is
appropriate and adequate. On the other hand, obstruction to
judicial power will not lose the quality of contempt though one of
its aggravations be the commission of perjury.
Cf. In re
Ulmer, 208 F. 461;
United States v. Appel, 211 F.
495;
United States v. Karns, 27 F.2d 453;
United
States v. Dachis, 36 F.2d
601;
Lang v. United States, 55 F.2d 922; 286 U.S. 523;
United States v. McGovern, 60 F.2d 880. We must give heed
to all the circumstances, and of these not the least important is
the relation to the court of the one charged as a contemnor. Deceit
by an attorney may be punished as a contempt if the deceit is an
abuse of the functions of his office (
Bowles v. United
States, 50 F.2d 848, 851;
United States v. Ford, 9
F.2d 990), and that apart from its punishable quality if it had
been the act of someone else. A talesman, sworn as a juror,
becomes, like an attorney, an officer of the court, and must submit
to like restraints. The petitioner blurs the picture when she
splits her misconduct into parts, as if each were a separate wrong
to be separately punished. What is punished is misconceived unless
conceived of as a unit -- the abuse of an official relation by
concealment and deceit. Some of her acts or none of them may be
punishable as crimes. The result is all one as to her
responsibility here and now. She has trifled with the court of
which she was a part, and made its processes a mockery. This is
contempt, whatever it may be besides.
Sinclair v. United
States, 279 U. S. 749;
Ex parte Savin, 131 U. S. 267.
2. The admission of testimony as to the conduct of the
petitioner during the deliberations of the jury was not a denial or
impairment of any lawful privilege.
The books suggest a doctrine that the arguments and votes of
jurors, the
media concludendi, are secrets, protected from
disclosure unless the privilege is waived. What is said upon the
subject in the adjudicated cases is
Page 289 U. S. 13
dictum, rather than decision.
See Woodward v. Leavitt,
107 Mass. 453, 460;
cf. Matter of Cochran, 237 N.Y. 336,
340, 143 N.E. 212;
People ex rel. Nunns v. County Court,
188 App.Div. 424, 430, 176 N.Y.S. 858. Even so, the dicta are
significant because they bear with them the implications of an
immemorial tradition. The doctrine is developed, and the privilege
broadly stated, in the writings of a learned author. Wigmore,
Evidence (2d ed.) vol. 5, § 2346. It has recognition to some extent
by other authors of repute (Hughes, Evidence, p. 301; Jones,
Commentaries on Evidence (2d ed.) § 2212; Chamberlayne, Evidence,
vol. 5, § 3707), but in a way that has confused it with something
very different -- the competency of witnesses to testify in
impeachment of a verdict. What concerns us at the moment is the
privilege alone. There will be need to recur later to the rule as
to impeachment. For the origin of the privilege we are referred to
ancient usage, and for its defense to public policy. Freedom of
debate might be stifled and independence of thought checked if
jurors were made to feel that their arguments and ballots were to
be freely published to the world. The force of these considerations
is not to be gainsaid. But the recognition of a privilege does not
mean that it is without conditions or exceptions. The social policy
that will prevail in many situations may run foul in others of a
different social policy, competing for supremacy. It is then the
function of a court to mediate between them, assigning, so far as
possible, a proper value to each and summoning to its aid all the
distinctions and analogies that are the tools of the judicial
process. The function is the more essential where a privilege has
its origin in inveterate but vague tradition, and where no attempt
has been made, either in treatise or in decisions, to chart its
limits with precision.
Assuming that there is a privilege which protects from
impertinent exposure the arguments and ballots of a juror
Page 289 U. S. 14
while considering his verdict, we think the privilege does not
apply where the relation giving birth to it has been fraudulently
begun or fraudulently continued. Other exceptions may have to be
made in other situations not brought before us now. It is
sufficient to mark the one that is decisive of the case at hand.
The privilege takes as its postulate a genuine relation, honestly
created and honestly maintained. If that condition is not
satisfied, if the relation is merely a sham and a pretense, the
juror may not invoke a relation dishonestly assumed as a cover and
cloak for the concealment of the truth. In saying this, we do not
mean that a mere charge of wrongdoing will avail, without more, to
put the privilege to flight. There must be a showing of a
prima
facie case sufficient to satisfy the judge that the light
should be let in.
* Upon that
showing's being made, the debates and ballots in the jury room are
admissible as corroborative evidence, supplementing and confirming
the case that would exist without them. Let us assume for
illustration a prosecution for bribery. Let us assume that there is
evidence, direct or circumstantial, that money has been paid to a
juror in consideration of his vote. The argument for the
petitioner, if accepted, would bring us to a holding that the case
for the people must go to the triers of the facts without proof
that the vote has been responsive to the bribe. This is paying too
high a price for the assurance to a juror of serenity of mind.
People ex rel. Nunns v. County Court, supra.
Page 289 U. S. 15
We turn to the precedents in the search for an analogy, and the
search is not in vain. There is a privilege protecting
communications between attorney and client. The privilege takes
flight if the relation is abused. A client who consults an attorney
for advice that will serve him in the commission of a fraud will
have no help from the law. He must let the truth be told. There are
early cases apparently to the effect that a mere charge of
illegality, not supported by any evidence, will set the confidences
free.
See, e.g., Reynell v. Sprye, 10 Beav. 51, 54, 11
Beav. 618;
In re Postlewaite, 35 Ch.D. 722, 724;
cf.
Regina v. Bollivant, [1900] 2 Q.B.D. 163, (1901) A.C.196. But
this conception of the privilege is without support in later
rulings. "It is obvious that it would be absurd to say that the
privilege could be got rid of merely by making a charge of fraud."
O'Rourke v. Darbishire, [1920] A.C. 581, 604. To drive the
privilege away, there must be "something to give colour to the
charge;" there must be "
prima facie evidence that it has
some foundation in fact."
O'Rourke v. Darbishire, loc. cit.,
supra; also pp. 614, 622, 631, 633. When that evidence is
supplied, the seal of secrecy is broken.
See also Regina v.
Cox, [1884] 14 Q.B.D. 153, 157, 161, 175;
cf. Bujac v.
Wilson, 27 N.M. 112, 196 P. 513;
In re Niday, 15
Idaho, 559, 98 P. 845. The judgment of the House of Lords in
O'Rourke v. Darbishire has given to the whole subject a
definitive exposition. Nor does the loss of the privilege depend
upon the showing of a conspiracy upon proof that client and
attorney are involved in equal guilt. The attorney may be innocent,
and still the guilty client must let the truth come out.
Regina
v. Cox, supra; Matthews v. Hoagland, 48 N.J.Eq. 455, 469, 21
A. 1054;
State v. Faulkner, 175 Mo. 546, 593, 75 S.W. 116;
Standard Fire Ins. Co. v. Smithhart, 183 Ky. 679, 684, 211
S.W. 441;
State v. Kidd, 89 Iowa, 54, 56 N.W. 263;
Page 289 U. S. 16
cf. Bank of Utica v. Mersereau, 3 Barb.Ch. 528, 598;
Coveney v. Tannahill, 1 Hill 33, 41.
With the aid of this analogy, we recur to the social policies
competing for supremacy. A privilege surviving until the relation
is abused and vanishing when abuse is shown to the satisfaction of
the judge has been found to be a workable technique for the
protection of the confidences of client and attorney. Is there
sufficient reason to believe that it will be found to be inadequate
for the protection of a juror? No doubt the need is weighty that
conduct in the jury room shall be untrammeled by the fear of
embarrassing publicity. The need is no less weighty that it shall
be pure and undefiled. A juror of integrity and reasonable firmness
will not fear to speak his mind if the confidences of debate are
barred to the ears of mere impertinence or malice. He will not
expect to be shielded against the disclosure of his conduct in the
event that there is evidence reflecting upon his honor. The chance
that now and then there may be found some timid soul who will take
counsel of his fears and give way to their repressive power is too
remote and shadowy to shape the course of justice. It must yield to
the overmastering need, so vital in our polity, of preserving trial
by jury in its purity against the inroads of corruption.
Cf.
Attorney General v. Pelletier, 240 Mass. 264, 134 N.E. 407;
People ex rel. Hirschberg v. Board of Supervisors, 251
N.Y. 156, 170, 167 N.E. 204;
State v. Campbell, 73 Kan.
688, 85 P. 784.
Nothing in our decision impairs the authority of
Bushell's case, Vaughan 135, 1670, with its historic
vindication of the privilege of jurors to return a verdict freely
according to their conscience. There had been a trial of Penn and
Mead on a charge of taking part in an unlawful assembly. The jurors
found a verdict of acquittal, though, in so doing, they refused to
follow the instructions of the
Page 289 U. S. 17
court. For this, they were fined and imprisoned, but were
discharged on habeas corpus, Vaughan, C.J., pronouncing "that
memorable opinion which soon ended the fining of jurors for their
verdicts, and vindicated their character as judges of fact."
Thayer, Preliminary Treatise on Evidence at the Common Law, p. 167.
Bushell's case was born of the fear of the Star Chamber
and of the tyranny of the Stuarts. Plucknett, Concise History of
the Common Law, p. 114. It stands for a great principle, which is
not to be whittled down or sacrificed. On the other hand, it is not
to be strained and distorted into fanciful extensions. There is a
peril of corruption in these days which is surely no less than the
peril of coercion. The true significance of
Bushell's case
is brought out with clearness in declaratory statutes. By one of
these, a statute of New York,
"No juror shall be questioned (for any verdict rendered by him),
or be subject to any action, . . . civil or criminal, except to
indictment for corrupt conduct in rendering such verdict, in the
cases prescribed by law."
R.S. of N.Y., Part 3, c. 7, Title 4, § 69; Civil Rights Law §
14. The Revisers tell us in their notes that the statute, though
new in form, is declaratory of an ancient principle (R.S., 2d ed.,
vol. 3, p. 741), and so we may assume it is.
Matter of
Cochran, 237 N.Y. 336, 340, 143 N.E. 212;
cf. People ex
rel. Nunns v. County Court, supra, 188 App.Div. at 448, 176
N.Y.S. 858. It would give no help to the petitioner though it were
enacted for the federal courts. She has not been held to answer for
any verdict that she has rendered, nor for anything said or done in
considering her verdict.
Matter of Cochran, supra. She has
been held to answer for the deceit whereby she made herself a
juror, and was thereby placed in a position to vote upon the case
at all. What was said and done in the jury room is not the gist of
her wrongdoing. What was said and done in the jury room is no more
than confirmatory evidence of her state of mind
Page 289 U. S. 18
before. One could urge with as much reason that she would be
subjected to coercion if she had been indicted and tried for
bribery and the same evidence had been accepted in support of the
indictment.
Nor is there anything in our decision at variance with the rule,
which is not without exceptions (
Mattox v. United States,
146 U. S. 140,
146 U. S. 148;
cf. Wigmore, Evidence, vol. 5, §§ 2353, 2354;
Woodward
v. Leavitt, 107 Mass. 453;
Hyman v. Eames, 41 F. 676;
Fuller v. Fletcher, 44 F. 34, 39), that the testimony of a
juror is not admissible for the impeachment of his verdict.
McDonald v. Pless, 238 U. S. 264.
Here, there was no verdict, and hence none to be impeached. But, in
truth, the rule against impeachment is wholly unrelated to the
problem now before us -- the limits of the privilege to maintain a
confidence inviolate. Wigmore,
supra, § 2346. Impeachment
may be forbidden though the jurors waive their privilege and
combine with the defeated litigant to make the verdict null.
Privilege may be asserted though there is nothing to impeach.
In the record now before us, the evidence of guilt is ample,
without the happenings in the jury room, to break down the claim of
privilege, and thus let in the light. There is the evidence of the
concealment of the petitioner's employment, with all its sinister
implications. There is the evidence of her arguments with the
jurors while the trial was going on. There is even the evidence of
her vote, for the fact that she had voted for acquittal had been
stated in her answer, and, to the extent of the voluntary
disclosure, the privilege had been waived. Indeed, what happened in
the jury room added so little to the case that the error, if there
had been any, in permitting it to be proved would have to be
regarded as unsubstantial and without effect on the result. No one
can read the findings of the triers of the facts and hesitate in
concluding that, even with this evidence omitted,
Page 289 U. S. 19
there would have been an adjudication of contempt. In
considering with all this fullness the merits of the ruling, we
have been moved by the desire to build securely for the future.
3. The oath of a contemnor is no longer a bar to a prosecution
for contempt.
Little was left of that defense after the decision of this Court
in
United States v. Shipp, 203 U.
S. 563,
203 U. S. 574.
Since then, there has been no purgation by oath where an overt act
of defiance is the gist of the offense. The point was reserved
whether sworn disavowal would retain its ancient force "if the sole
question were the intent of an ambiguous act."
The time has come, we think, to renounce the doctrine altogether
and stamp out its dying embers. It has ceased to be a defense in
England since 1796.
Matter of Crossley, 6 Term Reports
701. It has been rejected generally in the states.
Dale v.
State, 198 Ind. 110, 150 N.E. 781;
State v. District
Court, 10 P.2d 586;
In re Singer, 105 N.J.Eq. 220,
147 A. 328;
State v. Keller, 36 N.M. 81, 8 P.2d 786;
Boorde v. Commonwealth, 134 Va. 625, 114 S.E. 731;
Huntington v. McMahon, 48 Conn. 174, 200, 201;
State
v. Matthews, 37 N.H. 450, 455;
In re Bates, 55 N.H.
325, 327;
State v. Harper's Ferry Bridge Co., 16 W.Va.
864, 873;
cf. Carson v. Ennis, 146 Ga. 726, 92 S.E. 221;
Matter of Snyder, 103 N.Y. 178, 181, 8 N.E. 479; Curtis,
41 Harvard Law Review 51, 65. It has even lost, since the decision
in the
Shipp case, the title to respect that comes of a
long historical succession. It has taken its place with ordeal and
wager of law and trial by battle among the dimly remembered curios
of outworn modes of trial. Thayer,
op. cit. supra, pp. 8
et seq.
4. There was no denial to the petitioner of a fair notice of
hearing, nor any variance of substance between the information and
the findings.
Page 289 U. S. 20
We have considered the arguments to the contrary, and find them
without merit.
The judgment of the Circuit Court of Appeals is accordingly
Affirmed.
* As to the function of the judge in the decision of such
preliminary questions,
see Maguire and Epstein,
Preliminary Questions of Fact in Determining the Admissibility of
Evidence, 40 Harvard Law Review 392, 397, 403; Morgan, Functions of
Judge and Jury, 43 Harvard Law Review 165; Maguire and Epstein,
Rules of Evidence in Preliminary Controversies as to Admissibility,
36 Yale Law Journal 1101, and the cases there collected.