An agreement by an official of the United States under which he
secretly receives any portion of what is paid for supplies
furnished on his requisition is one to defraud the United States
within § 5440, Rev.Stat.
An indictment which sets forth the details of a corrupt contract
between defendant and a government official by which, from its
nature, the government would be defrauded is sufficient to sustain
a charge of conspiracy under § 5440, Rev.Stat., even if it does not
allege in what particular manner the conspirators intended to
defraud the United States.
In criminal cases, courts are not as exacting in regard to the
character of objections as in civil cases, and will notice error in
the trial of a criminal case although the question may not have
been raised in exactly the proper manner at the trial.
Wiborg
v. United States, 163 U. S. 632.
Where defendant was on trial for conspiracy under § 5440,
Rev.Stat., an objection to a juror on the ground that he was a
salaried official of the United States held in this case to reach
to the qualifications of the juror by reason of his relations with
the government, although he was not a salaried officer thereof.
The common law in force in Maryland on February 27, 1801,
remains in force in the District of Columbia except as inconsistent
with statutes subsequently enacted.
Under the common law, one is not a competent juror who is
master, servant, steward, counselor or attorney of either party,
and statutory provisions of qualifications not inconsistent with
this rule do not strike it down.
In the District of Columbia, jurors must at least have the
qualifications stated in § 215, and are exempt under § 217 of the
Code, but these sections are not inconsistent with, or exclusive
of, the common law rule that one in relation with either party is
incompetent.
Bias disqualifies a juror, and bias is implied in the relation
between employer and employee, and actual evidence thereof is
unnecessary.
Page 212 U. S. 184
An employee of the United States is not competent as a juror
where defendant is on trial for conspiracy against the United
States under 5440, Rev.Stat.
Where a letter written to defendant is admitted in evidence for
the purpose of showing the moral character of defendant and that he
had endeavored to destroy evidence in the writer's hands so as to
prevent its being used against him on the trial, the answer
immediately written should also be admitted, whether written by
defendant or his counsel under his direction, and defendant's own
evidence in regard to the matter alleged is admissible so as to
disclose the whole transaction.
There is a presumption of harm caused by errors in regard to the
admission or exclusion of evidence in a jury trial which requires
the reversal of the judgment unless the record clearly shows the
absence of harm.
The extent to which the law officers of the government will use
evidence of persons already convicted of the crime of conspiracy
for which defendant is also indicted is within their discretion,
and their action will not be reviewed by the courts; but the
evidence of such witnesses is to be received with caution and
suspicion, and is not entitled to the same credence as that given
to ordinary witnesses.
In considering whether error in excluding defendant's evidence
in a criminal trial is reversible, it is not enough that inferences
favorable to defendant might have been drawn from some of the
admitted testimony; he is entitled to state directly on oath facts
that are relevant.
While a book of accounts may be inadmissible as evidence so far
as it relates to accounts between the parties, it may be admissible
as written corroborative evidence, and as part of a transaction, to
be submitted to the jury for what it is worth.
30 App.D.C. 1 sustained as to sufficiency of indictment and
reversed on other points.
On the third of April, 1905, in the Supreme Court of the
District of Columbia, the defendant was indicted, together with
George E. Lorenz and August W. Machen, for a conspiracy to defraud
the United States, by means stated in the indictment, and in
relation to a contract between the Postal Device & Lock
Company, a corporation of the State of New Jersey, and the Post
Office Department of the United States, by which the company was to
furnish certain satchels to the Department for the use of the
letter carriers in the free delivery system of the government.
Page 212 U. S. 185
The indictment was founded upon § 5440 of the Revised Statutes
of the United States, which reads as follows:
"If two or more persons conspire either to commit any offense
against the United States, or to defraud the United States in any
manner or for any purpose, and one or more of such parties do any
act to effect the object of the conspiracy, all the parties to such
conspiracy shall be liable to a penalty of not more than ten
thousand dollars, or to imprisonment for not more than two years,
or to both fine and imprisonment, in the discretion of the
court."
Nearly two years before the finding of this indictment
(
viz., in July, 1903), the defendant had been indicted in
the same court by two different indictments, relating to the same
general subject matter as the one found in April, 1905 -- one
indictment charging him with conspiring (together with Lorenz and
Machen) against the United States by agreeing to present false
bills of account to the Post Office Department, in relation to the
contract mentioned, for supplying the Department with satchels for
letter carriers, in alleged violation of § 5438 of the Revised
Statutes. The other indictment was against the defendant
individually for presenting false claims to a clerk in the Post
Office Department under this same contract, and in violation of the
same section of the Revised Statutes. Upon motion, the three
indictments were consolidated for the purpose of trial of the
defendant and were tried together, a severance in the conspiracy
indictments having been granted upon the defendant's motion for his
separate trial. The two indictments found in 1903 have been so
disposed of in the court below that no question arises in regard to
either.
Upon the trial, the defendant was convicted, as hereinafter more
particularly stated, and he then appealed from the judgment entered
upon the verdict of conviction to the Court of Appeals of the
District, where it was affirmed by a divided court, Mr. Chief
Justice Shepard dissenting. 30 D.C. App. 1.
Page 212 U. S. 186
MR. JUSTICE PECKHAM, after 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 not 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 Machen 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 not 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.
Without going into any very great detail, it is necessary to
state what, in substance, is alleged in the first count. It is
therein averred that Machen (one of the alleged conspirators) was
the General Superintendent of the Division of Free Delivery of the
Post Office Department of the United States, and that the
Department used satchels for letter carriers which were supplied by
contract at a certain price named therein for each satchel, and in
such numbers as the Department might from time to time require. It
was the duty of the General Superintendent to keep the Department
advised from time to time of the approaching expiration of existing
contracts for furnishing supplies, and of the necessity for
advertising for bids for contracts for the furnishing of supplies,
including satchels for letter carriers, and also to advise as to
the matter and form of such proposed contracts, and it was his duty
to use his best and honest judgment as to the number of satchels
that, from time to time, might be required for the use of the
carriers under any contract that might be made. It was his duty to
examine the bills for such of the satchels as had been delivered,
and approve them if correct, upon which payment would be made, in
due course, by the Post Office Department. The defendant and Lorenz
knew fully the duties pertaining to the office of General
Superintendent prior to the making of the contract mentioned.
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
Page 212 U. S. 190
corporation desiring to engage in furnishing supplies to the
Post Office Department, to put in a bid for furnishing satchels for
the Department. He was also to procure the lock company, before the
offer of the bid of the company to the Department, to make a
contract with Lorenz that, if the bid of the lock company was
accepted by the Department, then, whenever the lock company
furnished any satchels to the Department under such contract, and
received from the Department payment therefor, the lock company
would pay to Lorenz all of such amount exceeding the cost of
manufacturing and delivering the same and twenty-five cents for
each satchel. Pursuant to such agreement, the lock company did
enter into such a contract with Lorenz.
On June 3, 1902, the defendant and the General Superintendent
and Lorenz, as part of their dishonest 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 5,000 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 check of the lock company
Page 212 U. S. 191
upon Spencer Trask & Company, of New York, for $5,441.36,
payable to the order of Lorenz, which he sent to Lorenz.
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 contract 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 satchels 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
Page 212 U. S. 192
and fraudulent one wrongfully and corruptly to defraud the
United States. Its almost necessary result, if carried out, would
be to defraud the United States. The fraud might be perpetrated by
getting the contract at a higher price than otherwise would have
been obtained, or, if already obtained, then the United States
might be defrauded by the General Superintendent accepting improper
satchels, not made of the materials or in the manner specified in
the contract, or by his requiring the delivery of more satchels
than were sufficient for the wants of the Department. It is not
necessary in such a case as this (of an alleged unlawful and
corrupt contract) to allege in the indictment which of the various
ways the government might be defrauded was in the minds of the
conspirators, or that they all were.
Dealy v. United
States, 152 U. S. 539,
152 U. S. 543.
Such a corrupt agreement, if carried out, would naturally, if not
necessarily, result in defrauding the United States by causing it
to pay more for satchels than was necessary, or for more satchels,
or possibly inferior ones, than it otherwise would but for the
corrupt agreement set forth. The indictment was sufficient.
United States v. Hirsch, 100 U. S. 33;
Hyde v. Shine, 199 U. S. 62,
199 U. S. 82;
United States v. Keitel, 211 U. S. 370.
Various questions arose upon the trial of the case, to some of
which we will now refer.
In the course of empaneling 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
drugstore, to keep up its prestige, must sell
Page 212 U. S. 193
postage stamps, and might as well get paid for it as to do it
for nothing. The counsel for the defendant then challenged Haley
for cause, the objection stated being that he was a "salaried
officer of the government;" but the court overruled the challenge,
to which ruling the defendant duly objected. During the
organization of the jury, the defendant exhausted the peremptory
challenges allowed him by law, and Haley sat as a member of the
jury that tried the case.
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 States, a resident
of the District of Columbia, 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 on his part for
exemption (which he did not make), and not a ground for
disqualification. Even though the juror was not a salaried officer
of the government, under
United States v. Smith,
124 U. S. 525,
which was founded upon a statute concerning a very different
subject, and as to which different reasons might apply, and even
though such an officer was only exempt under § 217, and not
disqualified under § 215, yet we are of opinion that the objection
actually made reaches beyond the mere question
Page 212 U. S. 194
whether technically the juror was or was not a salaried officer
of the government, and that it reaches the question of the
qualification of a juror by reason of his relations to the
government as a post office clerk or employee in a subpostal
station, and whether such relations did not by law disqualify him
from acting as a juror in an action to which the government was a
party. The objection to the juror was evidently by reason of his
relations to the government, however described.
In criminal cases, courts 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,
sometimes 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, 163 U.
S. 632,
163 U. S.
659.
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 all 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 common 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. 1901, p. 623) may be a general one.
It is of special importance in this District, where there are so
many thousands of clerks and employees of the government, to know
whether they are qualified jurors
Page 212 U. S. 195
to sit on the trial of cases to which the government is a party.
If they be so qualified, it might not be cause for much
astonishment to see in this District a majority of a jury composed
of such 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
employees 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 the whole subject of the qualifications of jurors in that
District. If that section, 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, chap. 1, § 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,
counselor, 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),
Page 212 U. S. 196
4th ed., page 363;
Block v. State, 100 Ind. 357, 362.
In the Indiana case, Judge Niblack, speaking for the supreme court
of that state, held in substance in accordance with the above rule
of the common law, and that the Indiana statute upon the
qualifications of jurors did not strike out the rule of the common
law on the subject when not inconsistent with the statute. This
rule applies as well to criminal as to civil cases. Mr. Chief
Justice Shepard, in his dissenting opinion in this case, cites many
cases to the effect that a clerk or employee of a private party or
of a corporation is not qualified to sit as a juror in such a case,
over the objection of the opposite side. Although the cases cited
were civil cases, and rest mainly on the common law, they are not
lessened in weight on that account. On the contrary, they apply
with added weight to criminal cases. Modern methods of doing
business and modern complications resulting therefrom have not
wrought any change in human nature itself, and therefore have not
lessened or altered the general tendency among men, recognized by
the common law, to look somewhat more favorably, though perhaps
frequently unconsciously, upon the side of the person or
corporation that employs them, rather than upon the other side.
Bias or prejudice is such an elusive condition of the mind that it
is most difficult, if not impossible, to always recognize its
existence, and it might exist in the mind of one (on account of his
relations with one of the parties) who was quite positive that he
had no bias, and said that he was perfectly able to decide the
question wholly uninfluenced by anything but the evidence. The law
therefore most wisely says that, with regard to some of the
relations which may exist between the juror and one of the parties,
bias is implied, and evidence of its actual existence need not be
given.
The position of the juror in this case is a good instance of the
wisdom of the rule. His position was that of an employee 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 out for an increase in his business
Page 212 U. S. 197
from the people who might at first come to his store for the
purchase of stamps, etc. It need not be assumed that any cessation
of that employment would actually follow a verdict against the
government. It is enough that it might possibly be the case, and
the juror ought not to be permitted to occupy a position of that
nature to the possible injury of a defendant on trial, even though
he should swear he would not be influenced by his relations to one
of the parties to the suit in giving a verdict. It was error to
overrule the defendant's challenge to the juror.
Upon the trial of the case, the government called as a witness
John Aspinwall, who was the president of the Fabrikoid Company, of
Newburg, New York, and it appeared from his testimony that,
sometime 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 and 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 sometime 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 letter books 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 discovered that a copy of a letter that
the company had written to the defendant, and dated April 21, 1902,
had been removed from the copy book, and the index covering that
letter had been erased. The letter book was then produced by the
witness from which the copy letter had been removed, and
Page 212 U. S. 198
it was exhibited to the jury by counsel for the government.
Counsel for the defendant thereupon admitted that the defendant
took the copy letter from the letter book and made the erasure of
the reference to the page, and the witness identified the letter
then produced as the original which had been taken from the letter
book of the witness. The witness also identified a letter dated
April 18, 1902, as a letter which he testified he had received from
the defendant, and which counsel for defendant admitted defendant
had taken at the same time he had taken the copy letter from the
copy book. Counsel for the government then read in evidence to the
jury the letter from defendant of April 18, and also the letter
from the witness, dated April 21, replying thereto, which had been
removed from the letter book of witness' company. The Court of
Appeals has held that both letters were in fact harmless, and that
their contents would tend to negative the existence of any sinister
intent of defendant in taking them. But evidence as to the intent
of defendant in taking them was certainly proper, as is hereafter
stated.
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 copy book. 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 letter 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
Page 212 U. S. 199
relevancy, when counsel for government said he did not desire to
offer the letter, and that he had only offered it at the suggestion
of counsel for defendant, who then moved to strike out the letter
just received in evidence (that of December 7) on the ground that
it was inadmissible unless coupled with the answer that might have
been made to it. The court held that the letter from defendant's
counsel could not be considered by the jury, but that the letter
written by the witness Aspinwall to defendant was relevant as
tending to prove that the defendant was charged by that witness
with abstracting the letter from the files. The motion to strike
out was denied, and the counsel for the government then said that
he did not offer the answer to the letter, which was accordingly
not received in evidence. To obviate an objection that the
defendant had no right to offer evidence while the case was with
the government, the defendant subsequently, when the case was with
him, offered in evidence the letter written by his counsel, which,
on objection, was ruled out.
It is plain that the letter from the witness Aspinwall to the
defendant, making the charge that 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 defendant'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.
Page 212 U. S. 200
Under these circumstances, and in the absence of the offered
explanation, the letter of witness making a charge of abstracting
letters should have been struck out on the motion made by defendant
immediately upon the withdrawal of the offer in evidence of the
answer to the letter. It was all one transaction, and the reception
of the first letter without objection was at once followed up by
the government's offer of the answer, and when the offer was
withdrawn, it is too strict an enforcement of a general rule to
hold that the motion to strike out was addressed to the discretion
of the court. But the motion was not denied on any such ground. The
record shows it was denied because the court held the letter proper
to be put in evidence. The theory stated by the court was a
mistaken one. It was wholly immaterial what charge was made by
witness in the letter, separate from the action of defendant in
regard to the charge. Defendant was not on trial for abstracting
the letter, and the statements therein were alone no evidence
against defendant. If the letter were admitted, then the answer to
it should also have been admitted. The court seemed to agree that,
if the answer had been made by the defendant personally, instead of
by his counsel, it might have been admissible, but that, as
defendant did not himself write the answer, it could not be
admitted. The court stated, when the offer was first made by
defendant's counsel to put the answer to the letter in evidence,
that it was not proper to offer any of his evidence at that time,
while the case was with the government, but the answer was
subsequently offered in evidence by defendant's counsel, when the
case was with him, and, under objection, was again rejected. So the
defendant had the accusing letter put in evidence against him and
was not permitted to have his answer, through his counsel, admitted
in reply.
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
Page 212 U. S. 201
the jury to come to a conclusion as to what his sworn word is
worth. This reason was repeated in his charge, when the court said
that, while such evidence did not tend to indicate that the
defendant was guilty, it was admitted to enable the jury to take
into consideration what was the degree of moral sense that the
defendant witness had.
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 that 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,
concededly 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
Page 212 U. S. 202
explanation as contained in the letter of his counsel --
i.e., that Aspinwall in substance consented to the taking
of the letters -- but it is doubtful if such evidence cured the
error of excluding the letter, written at once after the accusation
was made and long before the trial, in which letter he admitted and
explained the taking, showing it was from no desire to suppress
evidence, but, on the contrary, to preserve it.
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 suppressor 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 witness 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 jury. The Court of Appeals so
held, and said:
"The intent of the defendant in obtaining possession of
Page 212 U. S. 203
the letters was material, and, being material, the defendant
should have been permitted to testify as to his intent and
motive."
The court, however, Mr. Chief Justice Shepard dissenting, held
that the record showed that this error in excluding material
evidence did not harm the defendant, and should therefore be
disregarded by the appellate court.
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,
5 Wall. 795,
72 U. S. 807;
Smith v.
Shoemaker, 17 Wall. 630.
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 the 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,"
Page 212 U. S. 204
at least so far as to incriminate himself together with
defendant. Without his evidence, it would have been difficult, if
not impossible, to convict the defendant. No reflection is intended
or intimated with regard to this action on the part of the
government. It was wholly within the discretion of its law
officers, and their decision ought not to be reviewed by the court.
But the evidence of a witness, situated as was Lorenz, is not to be
taken as that of an ordinary witness of good character in a case,
whose testimony is generally and
prima facie supposed to
be correct. On the contrary, the evidence of such a witness ought
to be received with suspicion, and with the very greatest care and
caution, and ought not to be passed upon by the jury under the same
rules governing other and apparently credible witnesses. In many
jurisdictions, such a man is an incompetent witness unless he has
been pardoned. The facts surrounding this case make it particularly
important that the rule in regard to material errors should be most
rigidly adhered to. If it be not clear that no harm could have
resulted from the commission of this material error, the judgment
should be reversed. A careful perusal of the testimony regarded by
the court below as sufficient to show that no harm resulted to the
defendant on account of this error has failed to convince us that
such is the fact. In the opinion of the Court of Appeals, it is
said there was no testimony given as to the intent with which
defendant took the letters. This was, of course, because such
evidence was excluded. The letters were, in fact subsequently
produced by defendant's counsel in court. It is further said in the
opinion that the defendant was
"permitted to testify as to his reason for erasing the index
number in the letter book, and that he did so 'with the idea of
putting that,'
i.e., the letter from the company, 'back,
and making the file perfect.' It is therefore clear that the
defendant was permitted to offer testimony, fully meeting the
government's contention that he had taken the letters without the
consent of their custodian; further, that, on the subject of his
intent in taking them, he was permitted to offer testimony
Page 212 U. S. 205
from which the only possible inference was that he desired them
in order that he might show everything with reference to his
transactions with the Fabrikoid Company, and that, as to one
letter, at least, he was permitted to testify that he took it with
the intention of putting it back. To have permitted him to testify,
as he offered, in addition to the foregoing, that he took them with
the intention of showing them to his counsel, would have added
little, if anything, to his explanation -- indeed, as already
stated, such testimony was not directly responsive to that offered
by the government,
viz., that he had taken the letters
surreptitiously. This latter allegation he was permitted to
negative fully and explicitly. It is impossible to conclude that
the refusal of the learned trial justice to permit him to testify
more fully as to what he intended to do with the letters was
prejudicial to his defense."
There may have been testimony sometime during the trial,
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 that 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.
Page 212 U. S. 206
As part of its case, the government had been permitted to
introduce evidence tending to show that Lorenz had paid to
defendant some part of the money which Lorenz had received from the
lock company, and evidence was given which the government claimed
tended to show that the receipt of these moneys by defendant was
concealed from his company.
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
contract 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 the 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 part 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
Page 212 U. S. 207
had taken the book and had looked through it, and checked in
lead pencil marks, in evidence of his approval, the various items,
among which were the items showing the receipt of the moneys from
Lorenz by defendant. The witness testified that such book, then
offered in evidence by his counsel, was in the same condition when
offered in evidence as it was when it was received back by him from
Mr. Chance after his examination and approval of its entries.
The receipt of the book in evidence was objected to by counsel
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:
"I am 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 contrary, 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 from 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
Page 212 U. S. 208
to the jury, and for the jury to decide as to its worth and
weight. The book was a part of the transaction testified to by the
defendant.
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.
MR. JUSTICE MOODY did not take any part in the decision of this
case.