dissenting:
I find myself unable to concur in reversing the judgment in this case.
*30In my opinion, sec. 860, Rev. Stat. U. S. Comp. Stat. 1901, p. 661, regulates procedure, and its repeal is not, as to this appellant, an ex post facto law.
Changing a rule of evidence merely, the repealing section did not alter, add to, or diminish the ultimate facts necessary to establish the guilt of the appellant. Having no relation to the amount or degree of proof essential to conviction, it did nothing more than remove a restriction upon the competency of certain evidence. The conditions shown bring the case entirely within the principle declared by the Supreme Court in cases the authority of which has not been limited or impaired in any later decision. Hopt v. Utah, 110 U. S. 574-589, 28 L. ed. 262-268, 4 Sup. Ct. Rep. 202, 4 Am. Crim. Rep. 417; Thompson v. Missouri, 171 U. S. 380-387, 43 L. ed. 204-207, 18 Sup. Ct. Rep. 922. As shown in Thompson's Case, the statute declared ex post facto in Kring v. Missouri, 107 U. S. 221, 27 L. ed. 506, 2 Sup. Ct. Rep. 443, took from the defendant a complete defense against the charge of murder in the first degree. It was more than a change of procedure affecting the competency of evidence; it operated to increase the degree of crime. The following language of Mr. Justice Harlan, who delivered the opinion of a unanimous Court in Thompson's Case, is, in my judgment directly applicable to the conditions here presented: “If persons excluded, upon grounds of public policy, at the time of the commission of an offense, from testifying as witnesses for or against the accused, may, in virtue of a statute, become competent to testify, we cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed. * * * The statute did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate essential fact to be established; namely, the guilt of the accused.”
*31Section 860, rendering incompetent as evidence in any criminal case against him, the pleadings of a party or any evidence or discovery obtained from him in a judicial proceeding, was the result of the sense of Congress, at the time of its enactment, that it established a rule of evidence in accord with sound public policy. A change of opinion in that regard caused its repeal. The section made no change in, and had no relation to, the substantive criminal law. It merely created a new rule of evidence applicable in criminal cases, and operating generally, which for satisfactory reasons, had been repealed prior to the trial of appellant, thereby restoring the rule of the common law.
I cannot concur in the contention that the section was practically an offer of immunity, of the benefit of which the appellant cannot be deprived by its repeal. Immunity statutes are intended to compel the production of evidence that would, without their protection, tend to show that the witness had committed a crime. See 27 Stat. at L. 443, chap. 83, U. S. Comp. Stat. 1901, p. 3173. Brown v. Walker, 161 U. S. 591, 40 L. ed. 819, 5 Inters. Com. Rep. 369, 16 Sup. Ct. Rep. 644. In this case the appellant pleaded the forged instrument in his own interest and under no compulsion. In so doing he was protected by the section while it was in force, but he took the risk, as did Hopt and Thompson in the cases cited, that the rule of evidence might subsequently be changed. It is true that the forged instrument was uttered when set up in his answer in the civil suit, and it may be conceded, for the sake of the argument, that it could not be offered in evidence against him in a prosecution for uttering the instrument. But that question is not involved and need not be discussed. Forgery, and uttering a forged writing, are separate and distinct offenses by the terms of section 843 of the Code [31 Stat. at L. 1326, chap. 854], which, in that respect, follows the common law. It is forgery to falsely make or alter any writing of a public or private nature with intent to defraud or injure another. The offense is complete when the writing shall have been falsely made or altered with that intent. Uttering the forged writing is not an ingredient of the offense. It is not perceived that proof of utterance is *32essential to conviction of the offense charged, though it would ordinarily be quite sufficient to establish the intent to defraud. That intent may be shown by other facts and circumstances surrounding the transactions, against the proof of which no objection could be made on any valid ground. The government may, indeed, have difficulty in proving the fraudulent intent, if deprived of the right to prove the particular utterance of the forged writing, but it is the same difficulty that would occur in all prosecutions for forgery, where the false writing may never have been uttered at all. If deprived of the right to prove this particular utterance, it ought not to be prevented from using the writing in connection with evidence of other facts and circumstances that might tend to show that it had been falsely made with intent to defraud or injure.
Convinced that the trial court did not err in admitting the writing in evidence, I must dissent from the conclusion of my brethem.