dissenting:
I find myself unable to assent to the judgment in this case for the following reasons. e
1. In my opinion there was error in overruling the defendant’s challenge of the juror Haley. I agree that in so far as section 217 of the Code is concerned, the juror, even if he may be regarded as “a salaried officer of the United States,” in a technical sense, had merely a right to claim exemption from jury duty thereunder. It was not a positive disqualification, which required him to be set aside without his claiming the exemption. I think, however, that the objection went further than this, and directly raised the question of his eligibility in the particular case as an employee of the government, receiving a stated salary, which he clearly was. The rule of the common law on this subject is thus stated by Blackstone: “Jurors may be challenged propter affectum, for suspicion of bias or partiality. This may be either a principal challenge, or to the favor. A principal challenge is such, where the cause assigned carries with it prima facie evident marks of suspicion either of malice or favor; as, that a juror is of kin to either party within the ninth degree; that he has been arbitrator on either side; that he has •an interest in the cause; that there is an action depending between him and the party; * * * that he has formerly been a juror in the same cause; that he is the party’s master, ■servant, counselor, steward, or attorney, * * * all these are principal causes of challenge; which, if true, cannot be overruled, for jurors must be omni excepiione majores [above all exception].” 3 Bl. Com. 363. See also Thompson & M. Juries, p. 176.
*33By an overwhelming weight of authority this rule is recognized in this country; and there is no provision of our Code changing it or impairing its vigor.
A few cases only need be cited in which it has been held that it is error to permit a clerk or employee of a private party or a corporation to sit as a juror over the objection of the opposite party: Central R. Co. v. Mitchell, 63 Ga. 173, 179; Hubbard v. Rutledge, 57 Miss. 7, 12; Louisville, N. O. & T. R. Co. v. Mask, 64 Miss. 738, 744, 2 So. 360; Burnett v. Burlington & M. R. Co. 16 Neb. 332, 334, 20 N. W. 280; Omaha & R. Valley R. Co. v. Cook, 37 Neb. 435, 445, 55 N. W. 943; Houston & T. C. R. Co. v. Smith (Tex. Civ. App.) 51 S. W. 506; Michigan Air Line R. Co. v. Barnes, 40 Mich. 383, 385. In Louisville, N. O. & T. R. Co. v. Mask, supra, the court said: “It does not matter that he had the self-confidence to swear that he could try the cause impartially. It was not for him to determine his competency on that point. When the fact was developed that he was in the employment of appellant the law adjudged him incompetent. The law does not lead jurors into the temptations of a position where they may secure advantage to themselves by doing wrong, nor permit the possibility of the wavering balance being shaken by self-interest.”
These were all civil cases. For a stronger reason the doctrine applies in criminal prosecutions. The juror in this case was not only in the employment of the United States, receiving a salary for his services, but also exercising a privilege valuable to him in his business. It caused his drugstore to be frequented by the public, some of whom he could reasonably expect to become his customers. He was not even an employee protected by the rules of the civil service. It is not to be presumed that the juror would have lost his employment or privilege in the event of agreeing to a verdict unsatisfactory to those in a position to take it from him at will, or that he would necessarily have been influenced by such an apprehension. The law is not made for particular individuals, but for all persons similarly situated; and, as said by the supreme court of Mississippi, it does not permit one to be subjected to the possible temptation to do *34wrong. All rules tending to preserve the integrity and impartiality of the jury should be strictly observed. The vitality and efficiency of trial by jury depend upon it.
2. I am also convinced that error for which the judgment ought to be reversed was committed in the exclusion of evidence offered to show the motive or intent of the defendant in removing certain letters from the files of the Fabrikoid Company, which act was proved by the government as a circumstance tending to show guilt. To present the question clearly, it is necessary to state all of the proceedings having relation to it.
It appears from the bill of exceptions that John Aspinwall, president of the Fabrikoid Company, of Newburgh, New York, was produced as a witness by the government. He identified two letters written by him to the defendant on February 18 and 28, 1902, respectively. He testified that defendant visited his place of business in the latter part of 1903, and requested the privilege of looking over the correspondence of the Fabrikoid Company, his letters to the company and copies of the company’s letters to him in its letter book; that defendant was permitted to examine the same in the absence of the witness. After his departure, witness discovered that a letter, from the defendant and a copy of a letter that had been written to him had been removed from the copy book. This copy was a carbon sheet pasted in the letter book under its proper date, and indexed therein. The letter that had been removed had been indexed, and the index entry had been erased. The letter book from which the copy had been removed was exhibited to the jury. Counsel for defendant admitted that the letter had been removed from the letter book and the erasure made, and produced the letter taken therefrom. Counsel for the government read in evidence the said letter of defendant of April 18, 1902, and the letter of April 21 by the company in reply thereto, both of which had been removed from the letter book of the company. The letter of defendant related to the prospects for obtaining the contract for bags manufactured of fabrikoid, and asked if there had been any other calls for the leather of the company for the same purpose, and, in particular, if a call had been made on the *3517th, 18th, or 19th inst. from a Mr. Lorenz, and added, “If so, please turn him down and notify me.” The reply thereto stated that no call had been made by Lorenz, and that the contract sent by defendant had been signed and forwarded, adding: “In this contract I made no statement relative to your commission, but simply gave the discounts which I had quoted you.” The letter written by the witness to defendant December 7, 1903, called his attention to a matter that had just come to the knowledge of the writer, which he did not like. He referred to the removal from the files of the copy of the letter and the erasure of the page from the index, stating that circumstantial evidence directly pointed to defendant, adding: We gave you without question the right to look through our 'correspondence, and this has deeply affected us as a want of good faith on your part.” The letter concluded thus: “We have not yet gone through other files to find how many other letters may have been removed, but in view of this we would not be surprised to find that some other correspondence may have disappeared.” Witness then stated that he had received a reply to this lettter from the counsel for defendant. Defendant’s counsel then offered in evidence this reply, which was objected to and excluded. Counsel then moved to strike out the letter of witness which had just been read. He said: “I concede that this transaction is evidence proper to go before a jury. A letter has been read from the witness to defendant, calling attention to the disappearance of these papers from his office, which letter could, as I respectfully submit, be of no possible relevancy or pertinency in this case, unless coupled with the answer that might be made to it. It contains statements made by the witness which would not be evidence for a moment. He has stated what took place; what he wrote to Mr. CraAvford or anybody else, I submit, should not be evidence for any purpose ; and I did not object to the letter being offered in evidence because I took it for granted that it was going to be connected with Mr. Crawford by shoAving what answer came to it. Now, I am very anxious, since this letter has been gone into, that the jury should have the whole thing. I was anxious that what followed in the way of correspondence betAveen this company and *36Mr. Crawford’s counsel should not appear here for very obvious reasons; but when it has been gone into, I want the whole of it to go in.”
The court said: “I cannot see that this letter from Mr. Crawford’s counsel should be considered by the jury. The letter written to Mr. Crawford is relevant as tending to prove that he was charged by Mr. Aspinwall with abstracting the letter from the files.”
Counsel: “My point is this: If the charge had been made in Mr. Crawford’s presence, of course it would have been competent to show his conduct and demeanor. But the charge, I submit, would not be competent for any purpose except as connected with what he did; and so when a letter is written to a man which contains statements about something which he is said to have done, I submit that it is not competent.” It was further said: “Can the charge made to him stand, and not the fact of his denial ?”
The district attorney stated that the letter was offered for the sole purpose of showing that,it was brought home to Crawford’s knowledge that Aspinwall knew that he had taken these letters away with him; that it was not claimed that Aspinwall could make a charge in that letter that would stand against the defendant at all; but “we do claim that we have a right to argue from that letter that Crawford knew, in 1903, that Aspinwall knew that he had discovered this.”
Counsel for defendant: “I can see how it might have effect to know that a charge was made against him, and that he did not deny it; and yet here a charge is to be made against a man, and his denial shut out. Now I respectfully submit that either the charge and the denial should both go in, or they should both go out.”
Counsel for defendant then offered the letter of witness of December 10, 1903, replying to the letter received from counsel, which the court also excluded. This letter tended to qualify the charge made in the letter to defendant that had been read in evidence.
At a subsequent stage of the trial, and in the course of de*37fendant’s testimony on his own behalf, counsel exhibited the letter to Aspinwall of December 8, 1903, written by counsel, which had been excluded, as heretofore noted. The witness said the letter was sent by his authority. This letter was again offered in evidence, and^ excluded. Counsel said that he was not disputing the fact that the defendant took the letter, but that he took it without leave. The court stated he could prove the fact that he took the letter with leave, but could not do so by reading the letter of his counsel. Witness was then permitted to state that he had several letters missing, and went to Aspinwall’s office, and told him about the prosecution, and that he had some of his correspondence missing, and asked him if he would give permission to go over his files and get what he wanted. Aspinwall gave him a room next to his office, that was a file room. He “went over the files alone, took some memoranda of dates and contents of letters, and when he came to this particular letter, which he had forgotten about, he deemed it of such great importance”- — here the witness was stopped by an objection. His counsel stated: “I want him to state not only what took place, but I want him to state his intention, and the reason for taking the letter. I want him to state whether he took this evidence with the intention to suppress it, or to destroy it, or with the intent that it might be preserved to be presented to a jury when his day of trial should come.” This was objected to by counsel for the government, who said: „ “The purpose to which he proposes to apply these papers, and how he proposed to use them, has nothing to do with the question of the taking. He may have done a wrong thing from a good motive. He may have wanted to put these letters to legitimate use. But he has no right — I do not mean to use a harsh term — to steal evidence which he intends to use legitimately.” Witness then proceeded to say that Aspinwall told him: “Here are the files, and here is a room for you to go in and work by yourself, and you can have what you want.” He then said: “I took the letter of April 18, and took the reply from the letter book.” He was then asked why he took them. This was objected to. Counsel then asked the following question, telling the witness not to *38answer until permitted by the court: “What did you do with these letters after you had taken them?” This was objected to, and objection sustained. Counsel said: “I offer to prove that he brought them to his counsel in Washington.”'
On re-cross-examination by the government, he was asked if he did not testify, as shown by the report of h'is evidence on a former trial, as follows: “I did not think that Mr. Aspinwall would want me to take a letter, mutilate his files; I did not think that he had any objection except on that ground; but I did not think he would want anyone to mutilate his file, and I took the letter out and rubbed that out, so that he would not know, and that I might have possession of the letter.” The defendant stated that he so. testified. An attempted explanation by the witness was excluded as argumentative. Counsel for defendant then stated that in view of the matter having been gone into, on re-cross-examination, he would ask witness the following question, stating to him not to answer until given leave: “What did you do with the letter which you took from the letter-press book of Mr. Aspinwall after you had taken it ?” Objection to answer to this question was sustained.
It will be observed that counsel for defendant had not objected to Aspinwall’s evidence of the spoliation of the letter book, for the reason stated, that it was conceded to be admissible as a circumstance tending to indicate a consciousness of guilt. He relied upon proving by the defendant that his motive was not'an evil one, and that the act was done for the purpose of actually preserving the letters. This is made clear by the concluding recitals as follows:
“Thereupon counsel for the defendant made the following statement: •
“ ‘Before I go on, your Honor, I want to move to strike out so much of the testimony, especially of Mr. Aspinwall, as relates to the taking from his office of the letter of April 18th, 1902, and the reply thereto dated April 21st. The ground of the motion is that the defendant’s counsel understood it was offered for the purpose of showing an attempt on the part of the defendant to suppress testimony. But since the court excluded the evidence *39of the defendant tending to show that he took the letters for the purpose of preserving them as testimony, and that he had no intent to destroy them, I can conceive of no part which that testimony can play in the case. I therefore move to strike it out.’
“The Court. The question, as I recall, was not objected to at the time. The witness was under cross-examination, and it was admitted for the purpose of testing the credibility of the witness.
“Mr. Worthington. Tour Honor is right; it was not objected to, and I did not object to it, because I conceived and conceive now that it was competent; that the purpose of it was to show an attempt on the part of the defendant to suppress evidence. Of course it would be competent then. I offered to show by him that that was not his intent, however, and that he took the letters for the purpose of preserving them as evidence, and how they came to be preserved. But your Honor excluded all that.
“The Court. And I was abont to say that had the objection been made I would have admitted it, upon the theory I had in mind at the time of making the other rulings which followed later. That was that specific acts of a defendant or anybody else who comes on the stand as a witness, if they are of a nature which in the judgment of the court tends to throw light in the minds of the jury upon the moral makeup of the individual, and thus enable them to come to a conclusion as to what his sworn word is worth, may always be had, subject only to the discretion of the court as to the point. That discretion ought to prevent any abuse of any witness, or any holding up of a witness to ridicule or disgrace, or anything of the sort; and I was then and am now of the opinion that the mere fact, if it can be proven by the cross-examination of a witness, whether he abstracted a letter from anybody else’s files, is a fact that may tend to throw light upon the question in the minds of the jury; and that is why it was admitted.”
In view of these recitals it is idle for the government now to urge that the sole purpose of offering Aspinwall’s testimony was to prove the contents of a letter then in the possession of the *40defendant, and which he was ready and willing to produce. The purpose plainly was not only to prove an attempted suppression of evidence, but to aggravate that act by showing that it was done surreptitiously; in other words, was,' as charged, an attempt to “steal evidence.” In reply to this evidence the defendant had not only the right to deny taking the letters without consent of Aspinwall, but the clear right to testify to his intent or motive, to remove, as far as might be possible, the effect of the incriminating act. In the language of the Supreme Court of the United States: “It has often been decided that where the intent is a material question the accused may testify in his own behalf as to what his intent was in doing the act.” Wallace v. United States, 162 U. S. 466, 477, 40 L. ed. 1039, 1043, 16 Sup. Ct. Rep. 859.
My brethren concur in the view that the refusal of this evidence was error, but decline to reverse the judgment therefor, because, in their opinion, the exclusion of the evidence was not harmful error. I cannot agree with that conclusion. It has been said by the Supreme Court of the United States that “it is elementary that the admission of illegal evidence over objection necessitates reversal.” Waldron v. Waldron, 156 U. S. 361, 380, 39 L. ed. 453, 458, 15 Sup. Ct. Rep. 383; Throckmorton v. Holt, 180 U. S. 552, 557, 45 L. ed. 663, 665, 21 Sup. Ct. Rep. 474. The doctrine applies equally to the rejection of legal evidence. The respective provinces of court and jury are clearly delimited. The credibility of witnesses and the weight of evidence are for the exclusive determination of the jury. It is said that if the defendant had been permitted to testify he would have added little, if anything, to the explanation he was permitted to make, that he did not take the letters surreptitiously. Grant that this might have been the case, or that his statement of intent might have done his case more harm than good with the jury, still it was-their exclusive province to determine the weight to be given it. It is not for.the court to speculate upon its probable effect upon their minds. It is to be remembered, in this connection, that the explanation referred to, which the defendant was permitted to make, related solely to the charge that *41he had taken the letters without the consent or knowledge of Aspinwall. This want of knowledge by Aspinwall was but an incident of the main, incriminating fact that he had attempted to suppress evidence, and would have been utterly inadmissible as an independent, unrelated circumstance. As an incidental and related circumstance it tended to strengthen the-inference that in taking the letters he intended to suppress evidence. Had it been indubitably shown that Aspinwall did consent to the removal of the letters, the effect of defendant’s attempt to suppress the evidence would remain unimpaired. The fact that Aspinwall had testified to his want of consent to,, and even knowledge of, the removal of the letters, rendered it. more important that the defendant should testify to his intent in taking them, and have the jury determine the weight to be given to his explanation.
For the reasons given, I am of the opinion that the judgment-should be reversed.
A motion by the appellant for a rehearing, made on May 15, 1907, was overruled by the court, May 16, 1907, Mr. Chief Justice Shepard dissenting.