Crawford v. United States

Mr. Justice Gould

of the Supreme Court of the District of Columbia, who sat with the Court in the hearing, in the place of Mr. Justice Robb, delivered the opinion of the Court:

The first, second, and third assignments of error assail the validity of the first count of indictment numbered 24,688, the first assignment raising the point by demurrer, and the second and third by exceptions to the granting of the government’s first prayer, and to the refusal of the trial court to grant the defendant’s motion to instruct the jury to acquit on this count.

The indictment was drawn under section 5440, U. S. Rev. Stat, U. S. Comp. Stat. 1901, p. 3676, 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 less than $1,000 and not more than $10,000, and to imprisonment not more than two years.”

The contention of defendant is two fold: First, that an agreement is not to be held a conspiracy under this section “simply because the agreement, if carried out, might be an injury to the government;” and, second, that if such be held to be the proper construction of this section, it is void for uncertainty, under the decision of this court in Czarra v. Medical Supervisors, 25 App. D. C. 443.

It may be taken as settled law that under this section the word “defraud” does not refer solely to property and pecuniary interests. This question has been so recently fully argued before, and so carefully considered by, the Supreme Court, this court, and other Federal courts that nothing more than a reference to the following cases is necessary: Hyde v. Shine, 199 U. S. 62, 50 L. ed. 90, 25 Sup. Ct. Rep. 760; Palmer v. Colladay, 18 App. D. C. 426; Tyner v. United States, 23 App. D. O. 362; United States v. Bunting, 82 Fed. 883; United States v. Curley, 122 Fed. 738, Affirmed by Circuit Court of Appeals in 64 C. C. A. 369, 130 Fed. 10.

These authorities fully sustain the construction of this section, which holds that any agreement the object of which is to deprive the government of the services of those who are intrusted with the discharge of duties which are essential to its proper administration is a conspiracy to defraud. “No man can serve two masters; for either he will hate the one, and love the other;, or else he will hold to one and despise the other.” And when an officer of a department of the government, charged with a public trust in connection with contracts made by third parties to-furnish supplies to that department, and with the duty of giving-the government the full measure of his unbiased judgment,, enters into an agreement with such contracting third party by which he is to receive a part of the proceeds of that contract, he puts himself in such a position that it is impossible for him to perform his trust or fulfil his duty to the government; and the government is defrauded of his services.

Nor does the case of Czarra v. Medical Supervisors, suprar give support to the argument that such a construction of section 5440 makes the latter void for uncertainty. In that case this court held that the words “unprofessional or dishonorable conduct,” for which the statute authorized the revocation of a physician’s license, made a part of the statute void because of their uncertainty, the reason being that such words were not defined by the law, and had no common or generally accepted definition. But in section -5440, the offense, so far as this caséis concerned, is a “conspiracy to defraud.” The word “conspiracy” has a universally accepted definition in the law, which is definite and certain; and while the courts give more flexibility to the definition of fraud, the elements which constitute it are clearly set forth in a multitude of decided cases. Both are terms of the law. As said by this court in the Czarra Case, the certainty required in the definition of an offense “may be accomplished by the use of words or terms of settled meaning, or which indicate offenses well known to and defined by the common law.” There can be no doubt but that this has been accomplished in the section of the statutes under consideration by the use of the terms “conspiracy” and “defraud.”

The fourth assignment of error relates to the qualifications of John 0. Haley, who was one of the jurors who sat in the case. The record shows that when questioned under oath as to his competency Haley said he was a druggist; that he did not know the defendant; that he had formed no opinion about the case. He further testified that his drugstore was a subpostal station, and that he was the clerk in charge; that he was technically a clerk of the city postoffice, and that he received an annual compensation, which includes all clerk hire and rental, of $300 per annum. Thereupon counsel for the defendant challenged said Haley for cause, the objection being that he was “a salaried officer of the government.” The challenge was overruled.

This assignment is sought to be sustained upon two grounds: First, that the juror was disqualified under the Code; and, second, that his relation to the government was such as to disqualify him from sitting in a case where the United States was prosecuting a defendant for a conspiracy to defraud.

First. The qualifications of jurors are fixed, as far as the statute law in this jurisdiction is concerned, by section 215 of the Code [31 Stat. at L. 1223, chap. 854], which reads as follows :

“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 of the Code [31 Stat. at L. 1224, chap. 854] reads as follows:

“All executive and judicial officers, salaried officers of the government of the United States and of the District of Columbia, and those -connected with the police or fire departments, counselors and attorneys at law in actual practice, ministers of the gospel and clergymen of every denomination, practising physicians and surgeons, keepers of hospitals, asylums, almshouses, or other charitable institutions created by or under the laws relating to the District, captains and masters and other persons employed on vessels navigating the waters of the District,— shall be exempt from jury duty, and their names shall not be placed on the jury lists.”

Reading these sections together, it seems clear that section 215-alone determines those who are qualified to act as jurors in this. District; that those who are qualified under that section are not disqualified by section 217, but, if they come within the terms of the latter section, have simply the right to assert their exemption from jury duty. Thé words at the end of section 217, “and their names shall not be placed on the jury list,” is merely a direction to the jury commissioners, in order that the lists-may not be filled with the names of those who, when produced in court, can escape service by asserting their exemptions. This view of the statute is supported by the decision in the case of United States v. Lee, 4 Mackey, 496, 54 Am. Rep. 293, where7, in construing a similar statute, the court said:

“The jury law exempts from service on juries parties who are engaged in public office, whether on the part of the government or on the part of the District of Columbia. It exempts other classes of persons also from jury duty, but the persons exempted are not disqualified as jurors. It is simply the privilege of the-party to become exempt from jury service on account of other1 engagements. But he has the capacity, — the faculty to be a juror. It is his own personal privilege, and he alone is the party who shall take advantage of it. If he pleases to waive that privilege he is still a competent juror, and he has all the functions and powers which the law imputes to a man as necessary to constitute one of the twelve triers of an accused.”

See also United States v. Barber, 21 D. C. 456.

The precise question here involved was decided in accordance with the foregoing view in the following cases: State v. Day, 79 Me. 126, 8 Atl. 544; Munroe v. Brigham, 19 Pick. 368; State v. Forshner, 43 N. H. 90, 80 Am. Dec. 132.

Second. It does not appear that the objection to Haley as a juror on account of any bias he might entertain by reason of his employment was specifically presented to the learned trial judge. On the contrary, the record states that the defendant challenged him because he was “a salaried officer of the United States,” using the language of section 217; while in the case of Robert L. Williams, who was called as a juror and who stated that he was a cabinet maker whose employer did work for the government, the objection was based “on the ground that his subsistence depended practically in part upon the government and in the case of the juror Edgar L. Barclay, who was. occasionally employed by the government to exterminate rats in its various buildings, the objection was based on the ground that “his relations with government made him an incompetent juror in the case.” It is thus apparent that in the case of the juror Haley the only question the court was asked to determine was whether he was disqualified as being “a salaried officer of the government.” It was not argued that he was “biased” by reason of his employment, and under the circumstances section 919 of the Code [31 Stat. at L. 1338, chap. 854] seems applicable:

“No verdict shall be set aside for any cause which might be. alleged as ground for challenge of a juror before the jury are sworn, except when the objection to the juror is that he had a bias against the defendant such as would have disqualified him, and such disqualification was not lenown to or suspected by the defendant or his counsel before the juror was sworn.”

But if it were inferable from the record that counsel for defendant intended to include in the language “salaried officer of the government” and objection to the juror arising from his employment, in addition to his alleged disqualification under section 217, supra, was the nature and character of such employment such as to have, ipso facto, disqualified him by reason of his bias necessarily resulting therefrom ? As heretofore stated, the juror swore that he was a druggist; that he had formed no-opinion about the case; that his drugstore was a postal substation of the Washington city postoffice; that his compensation as-clerk in charge of such substation was $300 per annum, out of which he paid clerk hire and rent; that such a substation was 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 postage stamps, and may as well get paid for it as to do it for nothing. It should also be noted that the case on trial was one in which the defendant was charged with a conspiracy to defraud, not the Postoffiee Department, or the Washington city postoffiee, but the United States. Its legal status was that of the ordinary criminal case in which the United States prosecutes for violation of one of its statutes. If Haley was disqualified by reason of bias inferable from his employment, he would be incompetent for the same reason in any criminal case in which the United States prosecuted; for the record fails to disclose that his special employment would be jeopardized in any degree by his action as a juror, that he knew anything of the facts of this particular ease, or that the result of the trial would have any effect upon him whatsoever.

Confining our decision to the circumstances disclosed by this record, and in view of the state of the record, it does not appear that.error was committed in overruling the objection to this juror.

The assignments of error numbered from five to thirteen, both inclusive, are based upon exceptions taken to the admission of testimony offered by the government relative to the taking by defendant, from the files of the Fabrikoid Company, of a letter written by him under date of April 18, 1902, to the New York Leather & Paint Company, a carbon copy of .that company’s reply, and the erasure, by defendant, in the index, of the reference to the page in which the copy was to be found. It appears from the testimony of John Aspinwall, president of both companies, that the defendant visited his place of business at New-burgh, New York, in the latter part of 1903, and requested the privilege of looking over his correspondence with the Fabrikoid Company; this was granted, the witness not being present when such examination was made, and that afterwards witness discovered that the copy above referred to had been taken from the book and the erasure made in the index. No question was made by defendant as to the accuracy of this testimony; indeed, his counsel not only admitted it, but produced the two letters in question, which were read to the jury. The witness thereupon stated that when he discovered the loss of the letter from his copy book he wrote defendant a letter, charging him with its abstraction. This letter was admitted in evidence without objection on the part of defendant. Thereupon defendant offered a letter written to the witness by his counsel in reply to the letter last mentioned, in which it is stated that defendant supposed that the witness was willing that such correspondence should be taken from the files. This last letter was ruled out, as was a subsequent reply written by witness to defendant’s counsel, the court standing as ground for the ruling that defendant could offer the last two letters as part of his defense. Thereupon defendant moved to strike out the letter from Aspinwall charging defendant with taking the letter and making the erasure, which was overruled.

Subsequently, when defendant was on the stand, his counsel offered his letter to Aspinwall and the latter’s reply. Objection to each was sustained. The defendant testified that Aspinwall did give him permission to take what he wanted. He was then asked why he took them and what he did with them, to which objection was made and sustained. He was allowed, however, to give his reason for making the erasure in the index.

It is difficult to understand the theory upon which the letter from Aspinwall to defendant, charging the latter with taking the letters and making the erasure in the index, was admissible. But it was admitted without objection, and the subsequent motion to strike it out was addressed to the discretion of the trial court. The reply written by defendant’s counsel was plainly inadmissible, but, had its exclusion been an error, it was cured by the fact that the defendant when on the stand offered the same explanation of his action; viz., that he understood that Aspinwall had consented that he might take such of the files as he desired.

A more serious question is raised by the refusal to permit defendant to testify as to his intention when he took the letters from the files. The record is silent as to the object of the government in offering the testimony of Aspinwall. In the brief of the district attorney it is stated that “the government was proving by secondary evidence tbe contents of a written instrument ;” but the entire discussion upon tbis portion of tbe testimony, and tbe rulings of tbe court, indicate that tbe real object of the introduction of tbe circumstances in question was to show conduct on tbe part of tbe defendant, in connection with bis possession of these letters and tbe erasure in tbe index, indicative of guilt. Tbis being tbe case, tbe intent of tbe defendant in obtaining possession of tbe letters was material, and, being material, tbe defendant should have been permitted to testify as to bis intent or motive. 1 Wigmore, Ev. sec. 581. In only one jurisdiction has any clear sanction been given to tbe proposition that persons are disqualified to testify as to their own intent and motive; and tbe only cases cited in tbe appellee’s brief upon tbis proposition, which are distinctly in point, are from that jurisdiction.

Was tbe refusal to permit defendant to testify as to bis intent harmful to bis case? To answer tbis question correctly, it is necessary to consider tbe proof offered by tbe government bearing upon defendant’s action in tbis particular; what defendant was permitted to show in explanation or contradiction thereof; and what, if anything, would have been added to such explanation or contradiction if be bad been permitted to answer the specific question as to tbe intent with which be took tbe letters.

Tbe testimony offered by tbe government on tbis point went no further than showng that defendant visited tbe office of tbe Eabrikoid Company, examined its letter files with tbe consent of Mr. Aspinwall, its president, and, without tbe latter’s consent, took tbe two letters in question and erased from tbe index of the letter book tbe page at which one of tbe letters was to be found. There was no testimony as to tbe intent with which be took tbe letters, or that be destroyed or suppressed them. They were, in fact, produced by bis counsel at tbe trial. Defendant, testifying in bis own behalf, admitted tbe taking, but denied that it was surreptitious, stating that Mr. Aspinwall put him in a room by himself with tbe files, and said to him: “Here are tbe files, and here is a room for you to go in and work by yourself, and you can have what you want.” Defendant bad already testified as to his purpose in examining the files, viz., that he had been looking over his correspondence in order' to be able to show everything, and that he found a great many things missing, and he wanted to look over the files of the company and take what he wanted. He was also 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 from which the only possible inference was that ho 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.

This conclusion is strengthened by an examination of the two letters in question. They contained no statements which incriminated the defendant or tended in any degree to establish the conspiracy charged in the indictment. This fact would tend to negative the existence of a sinister intent on his part in taking the letters.

The fourteenth and fifteenth assignments of error are directed to the refusal of the court to allow the defendant to offer evidence as to his conduct after he had reason to believe he was suspected of the offense charged, such evidence tending to show a consciousness of innocence on the part of the defendant. The argument is that, inasmuch as the government had offered evidence tending to show by his conduct a consciousness of guilt on his part, it was competent for him to put before the jury the evidence rejected. No adjudicated case is cited to support this proposition, and in the paragraph cited by appellant from Professor Wigmore’s chapter on the subject of conduct as evidence of guilt or innocence the statement is made that “a majority of the courts profess to refuse to allow conduct to be considered for the purpose of drawing an inference of consciousness of innocence.” [Sec. 293.] The rule is so well established that such testimony is not admissible that it is unnecessary to cite authorities on the proposition.

The sixteenth and seventeenth assignments refer to the refusal of the court to admit in evidence a private account book of the defendant. The latter testified that the entries showed the moneys he drew on account of the company, and was kept for the purpose of submitting to the president of the company, Mr. Chance; that he submitted the book, as it stands, to Mr. Chance. Counsel for defendant made the offer in the following terms: “I offer it for the sole purpose of showing that Mr. Chance was advised. The witness already testified he had told him verbally. I offer the record, now, in evidence, for the purpose of showing that he was advised of it in writing.” In other words, the book was offered as corroborative of the testimony of the defendant that he had informed Mr. Chance verbally of the payments. The question involved is covered by the ruling of this court in Gurley v. MacLennan, 17 App. D. C. 170, where it is said: “We know of no case, and we find no case cited, in which either books of account or other memoranda were admitted in evidence, when it appeared that there were living witnesses present cognizant of the transaction sought to be proved, and fully competent to testify in regard to it.”

The eighteenth and nineteenth assignments raise the question as to the defendant’s good faith in contracting to furnish shoulder-straps with the satchels. He offered in evidence a Humber of letters written by him, as representative of the Postal Device & Lock Company, prior to making the contract with the government, to various firms, seeking bids from them for the manufacture of shoulder-straps. These letters were offered for the purpose of showing that defendant was trying in good faith to get bids for the manufacture of bags and shoulder-straps. They were excluded, the court saying: "If the bona fides of the contract with the government were involved, or if the question of the good faith of the defendant with respect to the quality of the material used in fulfilling the contract were involved, I should see some relevancy in these letters, but the only fraud claimed, as I recall, is that the agreement was to vest a government officer with an interest in the proceeds of a valid contract.” The contention of counsel for defendant was, as stated in the record, that "defendant was trying, in good faith, to get bids for the manufacture of bags and shoulder-straps.” But how could that fact have any evidentiary bearing upon the question of whether an unlawful agreement existed between Machen, Lorenz, and the defendant for a division of the proceeds of a contract made to furnish such bags and straps ? There was no contention by the government that the contract between the government and the Postal Device & Lock Company was fraudulent in respect of the materials furnished, or in any other respect than the unlawful division of the profits accruing therefrom.

Defendant contends that if he was acting in good faith a.s to the shoulder-straps, the jury should have been instructed that the fact that they were not furnished was not evidence that he had agreed that Machen might have a part of the proceeds of the contract, as requested in defendant’s prayer No. 8, which was refused, and which reads as follows:

"The jury are instructed that if they find- from the evidence that when the contract of June 25th, 1902, between the United States and the Postal Device & Lock Company, in evidence, was entered into, the defendant Crawford, in good faith, expected and intended that the Postal Device & Lock Company should furnish shoulder-straps with the satchels of class A and class C, referred to in said contract; that afterwards August W. Ma<chen, superintendent of general delivery in the Postoffice Department, in his official capacity, and of his own motion, directed that the shoulder-strap known as the “Lamb strap” should be used with satchels delivered under said contract; that it was impossible for the Postal Device & Lock Company, or said Crawford, as its general manager, to obtain said straps; that the Lamb strap was accordingly furnished by the government, with the understanding on the part of said Crawford, as the representative of said company, that at the end of each fiscal year a reasonable and proper deduction should be made from the amounts payable to said company under said contract on account of its not furnishing shoulder-straps for satchels of class A and class C, as required by the terms of said contract; and that in this regard said Crawford acted in good faith, and without an intent to inflict any pecuniary loss upon the government’ or to defraud it in any way, — then the jury is instructed that as to indictment No. 24-,688 they are not to consider the fact the shoulder-straps were not furnished with the satchels as evidence of the guilt of the defendant Crawford.”

The vice of this prayer is that it ignores the well-settled rule of evidence in cases of conspiracy, that the overt act of each conspirator, when done in pursuance of the conspiracy, or in reference to the common object, becomes the act of all, and is original evidence against all. Thus, if defendant entered into conspiracy with Machen and Lorenz for a division of the proceeds of the contract, and in effecting or facilitating that object Machen, or Lorenz, or both, adopted the expedient of relieving the contractor of furnishing the shoulder-straps, and imposed that liability upon the government, the defendant would be bound by his or their act, although he might have intended to furnish the straps, or have their cost deducted from the contract price at the time of settlement.

Under the rule stated there was no error in admitting evidence of payments made by the government to George D. Lamb, for shoulder-straps furnished by him, which is the subject of the twentieth assignment of error.

The twenty-first assignment involves the following testimony of the defendant: The latter was asked by his counsel to state what was the substance of the conversations with Lorenz, and whether he arrived at any result with him. Witness replied:

What we arrived at was that I thought he was a good man and had valuable information and that he could — -—■

Mr. Baker. I object to the witness stating his thoughts.

Mr. Worthington. I respectfully submit that his thoughts are of the utmost importance. The whole question here is what he thought when he entered into this arrangement with Lorenz.

****** *

The Court. He is entitled to give his motives, of course, with respect to any agreement he entered into; but is not that different from the statement of his thoughts with respect to an individual ?

* * * * * * *

The AVitness. I am coming to the agreement. These are the motives which led me into the agreement.

Thereupon, on motion, the court struck out what the witness had stated. The record proceeds to state that the witness then testified that Lorenz at that time, among other things, said that he had been postmaster at Toledo, and had had experience in these things, and knew all about mail bags, and wanted to combine with the Postal Device & Lock Company, etc.

There is no merit in this assignment of error. The witness was permitted to give his conversations with Lorenz, the facts which induced him to enter into a combination with him, and even his motives for so doing. If what he thought of him was relevant, it was surely disclosed by his subsequent testimony.

It is urged that the court erred in refusing to allow the defendant’s witness, Polk, to testify whether in a conversation between the witness and Lorenz, in Judiciary square, in 1903, Lorenz said to the witness in substance that it would be well for Crawford to testify at the trial that $1,465 and some cents was sent back to him (Crawford) as repayment for the straps, — as a payment on account of the straps for those 5,000 bags. The court sustained the objection on the ground that the words “in substance” should not be used; that counsel should put the exact words in the witness’s mouth.

When Lorenz was on the stand for the government he was asked on cross-examination:

Did you not, in this park, in the fall of the year 1903,— when I say “this park” I mean Judiciary square, — say to Mr. Polk, in substance, that you had found, that you had discovered that the straps for the 5,000 bags at 29% cents would amount almost to exactly what you had sent back to Crawford of the $5,441.35, and say further to Mr. Polk, in substance, that it would be well for Crawford to testify at the trial that that $1,465 and some cents was sent back to him as repayment for the straps, as a payment on account of the straps for those 5,000 bags ?

A. Now, you- ask me whether I said that ?

Q. Yes.

A. No, sir!

Thereupon, the witness’s memory having been refreshed as to his testimony on this point at a former trial, this question was asked him:

Well, did this actually happen, then, that you testified to? Did you make this suggestion to Mr. Polk about this coincidence, and suggest that it might be used by way of defense ?

A. I don’t remember whether it was to Mr. Polk or Mr. Crawford, but a suggestion as to the coincidence in the figures was mentioned by me to one or the other of them.

It appears from the foregoing that the witness sought to be impeached admitted having made a part of the statement accredited to him; and it was upon this record that the court ruled that the contradicting witness should give the exact language used by Lorenz. While the action of the trial court in this respect might be sustained under the authority of Sloan v. New York C. R. Co. 45 N. Y. 127, where it is stated that “the principle of this subject must be, to some extent, under the control and discretion of the court,” yet it was certainly justified upon the broader ground that the question asked Lorenz was collateral, and that therefore the defendant was bound by his answer.

In the case of Sloan v. Edwards, 61 Md. 89, Chief Justice Alvey states the rule upon the subject as follows: “It is true the credit of a witness may be impeached by proof that he has made statements out of court inconsistent with his testimony given in court. But it is a general rule that a witness cannot be cross-examined as to any fact which, if admitted, would be wholly collateral and irrelevant to the matters in issue, for the purpose of contradicting him by other evidence, and in this manner to discredit his testimony. And if the witness answer such an irrelevant question without objection, evidence cannot afterwards be admitted to contradict his testimony on the collateral matter.”

The rule for determining whether a fact inquired of in cross-examination is collateral is thus stated by Mr. Justice Sharswood, in the case of Hildeburn v. Curran, 65 Pa. 59; “The rule is well settled that if a witness is cross-examined to a fact purely collateral and irrelevant to the issue, and answers it without objection, he cannot be contradicted. The reason is obvious. The investigation might thus branch out into any number of immaterial issues upon the mere question of the credibility of a witness. * * * The test of whether a fact inquired of in cross-examination is collateral is this: Would the cross-examining party be entitled to prove it as part of his case, tending to establish his plea ?”

To the same effect is the case of Welch v. State, 104 Ind. 347, 3 N. E. 850, in which it is said: “Whether the matter inquired of on cross-examination, and proved by the State in impeachment of Cooper, was collateral to the main inquiry or not, is determined by this inquiry: Would the prosecuting attorney have been permitted to introduce it in evidence as part of the State’s case ? If he would not, it was collateral. If it was collateral, it was not competent to contradict it.”

So, in the case of State v. Goodwin, 32 W. Va. 177, 9 S. E. 85, the court said: “To impeach a witness by showing that on another occasion he made a statement contradicting one made on the trial, that statement must relate to a matter material to the case, — must concern a fact involved in the evidence. There was not, and properly could not have been, involved in the case or in the evidence given any question as to what Freed said as to the transaction after its consummation. The witness had stated nothing in chief to make it fall under the rule of Forde v. Com. 16 Gratt. 547, that a witness may be impeached as to a matter, though collateral, if the statement be made in chief; nor could the State have introduced, to support the issue on its side, as evidence independent of impeachment purposes, proof of the declaration so made by Freed; and for that reason it could not be let in to contradict a witness as to this collateral and irrelevant matter; for when a witness is cross-examined on a matter collateral to the issue his answer cannot be subsequently contradicted by the party putting the question. The test of whether a fact inquired of on cross-examination is collateral, is this: Would the cross-examining party be entitled to prove it as a part of his case, tending to establish his plea ?”

There can be no doubt but that the fact sought to be brought out by the question asked Lorenz would have been inadmissible as part of the testimony on behalf of defendant.

Nor did the fact sought to be proved show bias or prejudice on the part of Lorenz towards the defendant. If it had any tendency whatever in that respect, it would tend to show a friendly disposition towards him, as it suggested an apparently plausible explanation of defendant’s receipt of part of the proceeds of the contract.

The twenty-third, twenty-fourth, and twenty-fifth assignments of error involve the refusal of the trial court to allow the defendant to testify to statements made by him at a conference when Lorenz and his counsel were present.

The questions asked defendant by his counsel were as follows:

“Q. I will ask you whether, at that time, you said that Lorenz understood that the remittance which Lorenz was making back to you, — that Lorenz understood that you were to keep tliem and it was a secret, but that, as a matter of fact, you intended to account to your company for tliem.”

“Q. I will ask you whether, at that time, you said that Lorenz had come to your office in the spring of 1903, and had had a conversation with you about relinquishing the contract between him and the Postal Device & Lock Company.”

“Q. I will ask you whether you said, at that time, in the hearing and presence of Lorenz and his attorney, that you did not- know or have any knowledge of any payments that Lorenz was making to Machen out of the money sent to him.”

That these three questions call for self-serving declarations made by the defendant is so evident as to require no discussion. The testimony sought was inadmissible under any rule of evidence, no matter how broadly construed.

It is contended that error was committed in refusing to permit the defendant to answer the following question:

“Q. Now I will ask you whether in the fall or whether at any time prior to the first trial of this case, and after the investigation began, Mr. Lorenz came to your office one night and requested you to mark this contract between him and the Postal Device & Lock Company canceled, and deliver it to him at his box at the Riggs House.”

In his cross-examination Lorenz had denied that ho had any such conversation. No question was asked him on his direct examination touching this matter. Being collateral, it was not error to refuse to admit testimony for the purpose of impeaching him, within the authorities heretofore cited.

The twenty-seventh assignment of error relates to the admission of testimony in rebuttal which defendant claimed was only admissible as part of the government’s case in chief. The language of the Supreme Court, in the case of Goldsby v. United States, 160 U. S. 70, 40 L. ed. 343, 16 Sup. Ct. Rep. 216, fully meets this contention: “It was obviously rebuttal testimony ; however, if it should have been more properly introduced in the opening, it was purely within the sound judicial discretion of the trial court to allow it; which discretion, in the absence of gross abuse, is not roviewable here.”

It is urged that the court erred in refusing to permit defendant’s counsel to argue to the jury concerning the failure of the government to ask its witness, Trask, if Chance had told him of the remittances made by Lorenz to the defendant. Inasmuch as the government would not have been permitted, over objection, to prove what Chance said to Trask by the latter’s statement, its failure to ask the question was not a proper subject of comment to the jury.

The twenty-ninth assignment of error refers to a remark made by special counsel for the government in reply to a question asked him by defendant’s counsel in the course of the latter’s argument to the jury. The observation was not directed to the jury, but was provoked by the question, and was addressed to the questioner. In view of the testimony adduced by defendant in his cross-examination of Lorenz, its impropriety is not manifest. But even if it were, inasmuch as the remark was not addressed to the jury, it was not error on the part of the trial court to overrule the motion that the jury disregard it. In the course of a protracted and hotly contested trial many incidents occur between counsel which must be left to the discretion of the-trial court. The jury is sworn to try the case upon the evidence, and it cannot be assumed that their verdict will be affected by remarks which opposing counsel so frequently address to one another in the heat of advocacy.

The thirtieth and thirty-first assignments allege error in the. action of the trial court in refusing to grant defendant’s motion to discharge the jury because of a remark made by special counsel for the government during his closing argument to the jury. It will be remembered that the indictment, under the first count of which defendant was convicted, charges Machen, Lorenz, and the defendant with conspiring to defraud the United States. On May 23d, 1905, Machen was granted a severance, and thereupon pleaded guilty. The objectionable statement by the special counsel of the government was as follows:

“This indictment, or the one we are more concerned with, here, charges-that Machen and Lorenz and Orawford entered into an unlawful agreement to defraud the United States, — a conspiracy, they call it. Machen has pleaded guilty, Lorenz has pleaded guilty—

“Mr. Worthington. One moment. Your Honor, I ask that the jury be instructed that they are not to consider that statement (that Machen had pleaded guilty).

“Mr. Conrad. It has been stated a dozen times here. The gentleman has himself stated it.

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“Mr. Conrad. The jury will not consider it as operating on Crawford—

“The Court. I have to instruct the jury that they are not to consider that statement.

“Mr. Conrad. Do not consider it, gentlemen, in any way.”

Counsel for defendant moved the court to discharge the jury from the further consideration of the case because of the statement made by counsel for the government. This motion was overruled. Thereupon the court inquired of counsel for the defendant if his instructions were full enough with reference to the objectionable statement, to which counsel responded: “I think your Honor has done all you could do in that regard.”

Thereupon special counsel for the government resumed as follows: “I hope I shall not transgress when I say to you that Lorenz has appeared before you on the witness stand and confessed this business, and told you how it occurred. The third man, Mr. Crawford, has pleaded not guilty, and you are trying him. That is the situation. My reference to Machen was not that you might consider it against this man at all. You could not. But it is a fact that you all know and it has been repeated a dozen times in this case.” Counsel for the defendant objected to this repetition of the statement; and the court repeated the instruction to the jury theretofore given.

Inasmuch as the fact that Machen had pleaded guilty was neither in evidence nor admissible in evidence, the statement of special counsel was improper. But the situation is clearly within the ruling of the Supreme Court in Dunlop v. United States, 165 U. S. 486, 41 L. ed. 799, 17 Sup. Ct. Rep. 375, when that court said: “The court held that it” — language used by the district attorney in his argument to the jury — “was improper, and the district attorney immediately withdrew it. The action of the court was commendable in this particular, and we think this ruling, and the immediate withdrawal of the remark by the district attorney, condoned his error in making it, if his remark could be deemed a prejudicial error. There is no doubt that, in the heat of argument, counsel do occasionally make remarks that are not justified by the testimony, and which are, or may be, prejudicial to the accused. In such cases, however, if the court interfere, and counsel promptly withdraw the remark, the error will generally be deemed to be cured. If every remark made by counsel outside of the testimony were ground for a reversal, comparatively few verdicts would stand, since in the ardor of advocacy, and in the excitement of trial, even the most experienced counsel are occasionally carried away by this temptation.”

This case has been followed in the recent case of Sawyer v. United States, 202 U. S. 150, 50 L. ed. 972, 26 Sup. Ct. Rep. 575, in which the court held that an improper remark made by the district attorney was no ground for setting aside a verdict where the trial court held it was improper and counsel withdrew it.

In the case of State v. Phillips, 117 Mo. 389, 22 S. W. 1079, the identical question involved in these assignments was passed upon, the court saying: “On argument before the jury, one of the counsel for the prosecution made the statement That Brown had been convicted and sent to the penitentiary for ten years.’ Upon objection made to this statement the court reproved the attorney, and told the jury that they had nothing to do with the fact that Brown was in the penitentiary. In such circumstances it should not be held that reversible error has occurred, — especially so as the fact of Brown’s conviction must have been well known in the community. Indeed, Brown’s name was frequently, and of necessity, mentioned during the trial as one of the coindictees in the case, and mentioned also in the indictment and in the instructions.”

From the decisions of the Supreme Court and of this court, and from the weight of authority in other jurisdictions, it may be laid down as a general rule that a withdrawal of objectionable remarks made by a prosecuting officer, either by himself or by the court, or a timely direction by the court to disregard them, will be deemed to have removed any prejudice produced in the minds of the jury thereby, and to have so far cured the error that a reversal will not be had therefor. Jurors are supposed to be competent to understand, and willing to obey, the instruction of the court as to what they shall and shall not consider in reaching a verdict. Brady v. United States, 1 App. D. C. 246; Price v. United States, 14 App. D. C. 399; Yeager v. United States, 16 App. D. C. 362; Lorenz v. United States, 24 App. D. C. 337; Fields v. United States, 27 App. D. C. 433.

The case of Capital Constr. Co. v. Hollzman, 27 App. D. C. 125, cited in appellant’s brief, is clearly distinguishable from the cases cited. There the judgment was reversed because of incompetent testimony admitted over objection, which testimony was used in argument to the jury by counsel who adduced it, and no instruction was given to disregard it.

The thirty-second and thirty-third assignments of error are based upon the refusal of the court to grant defendant’s thirteenth and fifteenth prayers. The first instructs the jury that payments made by Lorenz to Machen were not to be considered by the jury for any purpose whatever, unless they were satisfied by the evidence, beyond a reasonable doubt, that before said payments wore made the defendant had agreed with Machen and Lorenz, or with one of them, that said payments should be made by Lorenz out of moneys received by him. Had this prayer been granted, the jury would have been forbidden to consider the fact that defendant’s associate, Lorenz, was using part of the proceeds of their contract with the government to corrupt a government official, as a circumstance from which, in connection with others, they might deduce an agreement to divide said proceeds. It was properly refused.

So with the fifteenth prayer, which seeks to limit the evidential force of the payment of 25 per cent by Lorenz to defendant to the question of defendant’s connection with the conspiracy. As an overt act, the fact of such payments was admissible against all the parties to the conspiracy.

Finding no substantial error in the record, and being satisfied therefrom that defendant had a fair and impartial trial in accordance with the settled rules of criminal law and procedure, the judgment will be affirmed.