(dissenting).
I agree that on this writ of error all questions of credibility and weight of evidence are concluded by the finding of the trial court.' But it is a criminal case. Gompers v. U. S., 233 U. S. 604, 610, 611, 34 S. Ct. 693, 58 L. Ed. 1115, Ann. Cas. 1915D, 1044. To sustain a conviction, there must be evidence that Pesquera was guilty of some act constituting an attempt corruptly to influence Mayo, a grand juror, either in the court, or so near thereto as to obstruct the administration of justice. R. S. § 725.
The proceedings were éxtraordinarily loose. The information ran against Mayo and Pesquera jointly. At the trial, much of the evidence was nothing but rumor and hearsay. In the “opinion and order” of the court below — some 24 pages ' long — can be found no finding of any act of Pesquera’s constituting an alleged attempt to corrupt. There was no separate order or-finding of any described act of wrongdoing. Pesquera was simply adjudged “guilty of contempt” and sentenced to 40 days in jail and to one.-half the costs.
Resolving all doubts in favor of the decision below, and against Pesquera, the indisputable and salient facts are as follows:
, Mayo became a member of the grand jury, on June 12, 1922. Pesquera was then, and until July 6 or 7, absent on a trip to the United States. A day or two after his return, Mayo saw him regarding a position as prohibition agent. Pesquera told ■ him , to write him a letter, and on- Or about July 11 Mayo made a written application. There is no evidence to control Pesquera’s testimony that at that time he did not know -that Mayo was a member of the grand jury, and that he, (Pesquera) had been or was being investigated by the grand jury. He had a flood of such applications, apparently about 500. He told Mayo, as he apparently did other applicants, that his application would' be forwarded and passed upon in Washington, and that he would recommend him for a- temporary position. His statement in that regard was false. Whether this method of disposing of job hunters was or was not morally excusable, it was no attempt by Pesquera to influence an applicant who he did not then know was a member of the grand jury. So far there plainly was no misconduct.
Later, apparently in September or October, he did know that Mayo was a grand juror and that the grand jury was investigating him, and he allowed his untrue representation to Mayo — to the effect that his -application had been forwarded — to stand when Mayo from time to time came into his office and inquired if he had yet heard from Washington., Doubtless it would have been wiser for him to have told Mayo that he had-not forwarded the application, and that under the circumstances he could' not deal with him as a possible appointee. If he was guilty of any crime, it was in not then telling Mayo the truth, that his application, had not been forwarded, and in not warning hin^ to keep away from his office and from him, pending Mayo’s service on the grand jury.. But there is no finding that thus — negatively — Pesquera attempted to corrupt Mayo. This seems to me fatal to the judgment.
The status remained unchanged until October 19. Then the grand jury voted to indict Pesquera — of what offense does not appear. This vote was taken before lunch, and immediately became known “on the street,” and was telephoned to Pesquera. On the same day he sent to Washington a reeoipmendation of Mayo’s appointment, with three others. But he did not tell Mayo of this until October 21. Then he accidentally met him and told him his application had been approved. Whether this statement was intentionally mendacious, or not, is entirely immaterial. This was two days after the indictment had — as Pesquera knew — been voted. Obviously he was not then seeking to corrupt a member of the grand jury that had voted to indict him and whose term of office was expiring that same night. There is nothing *761in the occurrence of October 21 to sustain a finding of guilt.
Nor do I see any significance, so far as Pesquera is concerned, in the meager, indefinite evidence to the effect that, when the vote was taken as to indicting Pesquera, “there was objection raised by Mr. Mayo that one of those sides should contain one more vote on that side.” “Wo showed him that it would not make any difference to the final decision of that jury as regards Mr. Pesquera, if the one vote was taken from one side and put on the other.” Mayo’s case is not before us. Even if Mayo allowed his desire for an appointment as prohibition agent improperly to influence his conduct as a grand juror, this alone has no tendency to prove Pesquera guilty. Whether Mayo was, or was not, justified in making his application on July 11, there is, to repeat, no scintilla of evidence that Pesquera then knew that the applicant was a grand juror. And I can see nothing in his subsequent conduct indicating any purpose to influence Mayo in his -conduct as a grand juror.
But, apart from the lack of any evidence of criminal misconduct, I think the case is governed by section 2C8 of the Judicial Code, which limits the power to punish for contempt to acts in the presence of the court “or so near thereto as to obstruct the administration of justice.” Pesquera never approached Mayo or the grand jury room; he simply failed to keep him out of his own office, which was above the grand jury room. The fact that Pesquera’s office was in the same building as the grand jury room, so that Mayo, after the adjournment of the grand jtiry, could conveniently g'o up there to inquire as to the .fate of his application, does not bring the ease within the doctrine of the Savin Case, 131 U. S. 267, 9 S. Ct. 699, 33 L. Ed. 150. Pesquera stayed in his own office, where he officially belonged. He did not invade the precincts of the grand jury. For present legal purposes, Pesquera’s office was as remote from .the grand jury room as though it had been in another part of the city. If a member of the grand jury, which meets in this building, called on the postmaster in his office in this building, the postmaster would not thereby be invading the court precincts. This building is no more the courthouse than it is the post office. It is both. So in San Juan.
It follows that if, in fact, Pesquera did “corruptly * * !i endeavor to influence a grand juror * * * in the discharge of his duty,” he should have been indicted under section 135 of the Penal Code, which, was section 2 of the Act of March 2, 1831 (4 Stat. 487 [Comp. St. § 10305]). See Coll y Cuchi v. United States (C. C. A.) 8 F.(2d) 20, and cases cited. He was entitled to all the protection afforded by the regular criminal procedure. Such is the plain intent of the statute of 1831. We have no right to permit it to he nullified. Cf. Michaelson v. United States, 266 U. S. 42, 65, 66, 45 S. Ct. 18, 69 L. Ed. 162, 35 A. L. R. 451; Gompers v. Buck’s Stove & Range Co., 221 U. S. 418, 444, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874.