(dissenting) .
Tampering with a jury is an abhorrent crime, poisonous to our system of justice. The evidence against Caldwell was ample. But I am forced to the conclusion that the erroneous instructions given to the'jury were highly prejudicial to the accused and deprived him of due process of law. He must, in my view, be granted a new trial. Such a trial would — regrettably— be his third, since the first trial had to be set aside because of the tactics of the prosecution. Caldwell v. United States, 1953, 92 U.S.App.D.C. 355, 205 F.2d 879. But the standards of justice cannot be relaxed in such a situation: the fact that an accused has undergone more than one trial does not dilute his right to just and lawful treatment. See Leyra v. Denno, 1954, 347 U.S. 556, 74 S.Ct. 716.
The statute here is aimed at any person who “corruptly” endeavors to influence a juror. 18 U.S.C. § 1503 (1951). The *373word “corruptly,” the Fourth Circuit has said, “means for an improper motive.” Martin v. United States, 1948, 166 F.2d 76, 79. The instructions to the jury trying Caldwell told them that “as a matter of law” anyone who seeks to ascertain the feelings or opinions of jurors while they are sitting in a case and prior to a verdict is engaged in “a corrupt endeavor to obstruct or impede the due administration of justice.” This took from the jury a crucial issue — that of criminal intent. Corrupt motive is one of the essential elements of the crime defined in the statute: the issue whether the accused had that motive is one for the Government to prove beyond a reasonable doubt, and for the jury to determine on that proof. Martin v. United States, supra. The Supreme Court has only recently warned us that the judge cannot usurp this function of the jury: he cannot “presume” criminal intent from the defendant’s actions. Morissette v. United States, 1952, 342 U.S. 246, 274, 72 S.Ct. 240, 96 L.Ed. 288. To allow him to do so would be to “strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries.” Id., 342 U.S. at page 263, 72 S.Ct. at page 249.1
True, Caldwell’s counsel did not make precisely this argument to the trial court. But he objected to the charge as given, because it told the jury that “if they find that Caldwell attempted to ascertain the feelings or opinion [of the Lewis jury] that would constitute a violation of the statute.” His point was well taken. And even assuming that we are to treat the case as if no objection were raised, we must still grant a new trial. In Screws v. United States, 1945, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, where the question of criminal intent was submitted to the jury without proper instructions, and no objection was raised, the court reversed the conviction, saying: “ * * * where the error is so fundamental as not to submit to the jury the essential ingredients of the only offense on which the conviction could rest, we think it is necessary to take note of it on our own motion. Even those guilty of the most heinous offenses are entitled to a fair trial.” Id., 325 U.S. at page 107, 65 S.Ct. at page 1038. I think we must make a like holding here.
. As lias been noted, the crime at hand is one for which the requirement of criminal intent is well established. The reasoning of Morissette is thus directly applicable to it. It is further to be noted that the crime of influencing a juror is part of the ancient common-law crimes of em-bracery and of obstructing justice. 18 Am.Jur. 616; 39 Am.Jur. 501-2. It was embodied in the statutory law of the United States by Act of March 2, 1831, “A11 Act declaratory of the law concerning contempts of court.” 4 Stat. 487, 488.