(dissenting). I am unable to concur with my Brethren in this case, as, from my view, the trial court was clearly right in excluding from the consideration of the jury the testimony respecting the proposed settlement of the case by the Commissioner of Internal Revenue. The privilege of compromising revenue cases after indictment, by the Commissioner of Internal Revenue, with the approval of the Attorney General, should be promptly exercised and carried to completion by a defendant who seeks thus to suspend the administration of the criminal laws. It was never intended that this law, thus generously passed in the interest of an accused, should be resorted to for the purpose of having the executive authorities of the government do other than settle or refuse to settle cases, and to allow a defendant *550to open correspondence looking to a settlement, and without concluding the same, to interpose his action as a further defense to the prosecution, is entirely subversive of the spirit of the act in question, and would quickly result in endless confusion and conflicts between the courts and the executive branches of the government. A defendant under indictment, seeking to avail himself of this method of meeting a prosecution, is not to so conduct himself as that a law passed in his interest, shall be used to enable him to evade trial of the offense with which he is charged. Every consideration requires of a defendant that any action looking to a compromise of his liabilities should be initiated and completed, so as not to unduly interfere with the prosecution of the case in court.
The anomaly of submitting to the consideration of the jury the question of whether there had, in fact, been a settlement of the liability must, upon reflection, be apparent, as it would be a trial, not of the offense charged in the indictment, but of whether the government had enabled the defendant to meet the prosecution in one of the ways prescribed by law, and would, most probably result in a hung jury, over the question of whether the government had or had not done something that it ought to have done, instead of the defendant doing something that he should have done, to enable him to have the prosecution discontinued. Moreover, the question of what constitutes a settlement is one of law, not of fact, and should be determined by the court, if it is open for consideration at all.