On Petition for Rehearing.
KENYON, Circuit Judge.This case is before us upon petition for rehearing. Judge SYMES and the writer concurred in the result announced in the opinion in this case, but did not agree, as we there stated, with all the conclusions of the opinion. This has led to some misunderstanding, and might result in confusion in the further progress of the case. Therefore it seems important on rehearing to clarify the situation.
It is apparent there was some diversity of opinion in the minds of the judges who sat on the appeal in this ease. We were all of the opinion, however, and are now, that the judgment must be reversed on account of certain statements in the argument of the attorneys for the government. In the opinion it is stated: “The writer is of the opinion that the bribe inhibited by the law (section 134, Criminal Code; 18 USCA § 240) under which this indictment is drawn requires for its commission corrupt conduct upon the part both of the giver of the bribe and of the one who receives it, and that, if either Marsh gave the bribe for the purpose of entrapping Robinson, or Robinson received it for the purpose of entrapping Marsh, Robinson would not be guilty of the crime of bribery.” We are not in agreement with this.
The statute under which this indictment was found is 18 USCA § 240, which is as follows: “Whoever being, or about to be, a witness upon a trial, hearing, or other proceeding, before any court or any officer authorized by the laws of the United States to hear evidence or take testimony, shall receive, or agree or offer to receive, a bribe, npon any agreement or understanding that his testimony shall be influenced thereby, or that he will absent himself from the trial, hearing, Dr other proceeding, or because of such testimony, or such absence, shall be fined not more than $2,000, or imprisoned not more than two years, or both.”
Under this statute, if the corrupt intent exists on the part of the person receiving the bribe to absent himself from the trial, regardless of the intention on the part of the giver, it is sufficient to constitute the crime charged. Guilt is measured by his own intention, and is not dependent upon the intent of some one else. Commonwealth v. Murray, 135 Mass. 530: Williams v. State, 178 Wis. 78, 189 N. W. 268; Minter v. State, 70 Tex. Cr. R. 634, 159 S. W. 286; People v. Bunkers, 2 Cal. App. 197, 84 P. 364, 370; People v. Fitzpatrick, 78 Cal. App. 37, 247 P. 601; Egan v. United States, 52 App. D. C. 384, 287 F. 958; 9 Corpus Juris, § 4, p. 404.
Judge MARTINEAU, in the former opinion, states that it seems to him that the admitted facts in the instant ease are such as to prevent the conviction of Robinson. With this conclusion the other members of the court •do not agree. The statement is based largely on what is conceived to be an attempt of the government to bring about the commission of the crime, and this leads to the question of illegal entrapment. Nowhere has the doctrine been mofe clearly expressed than by Judge Sanborn in Butts v. United States (C. C. A.) 273 F. 35, 37, 38, where he said: “It is not denied that, in cases where the criminal intent originates in the mind of the defendant, the fact that the officers of the government used decoys or truthful statements to furnish opportunity for or to aid the accused in the commission of a crime, in order successfully to prosecute him therefor, constitutes no defense to such a prosecution. * * * But when the accused has never-committed such an offense as that charged against him prior -to the time when he is charged with the offense prosecuted, and never conceived any intention of committing the offense prosecuted, or any such offense, and had not the means to do so, the fact that the officers of the government incited and by persuasion and representation lured him to-commit the offense charged, in order to entrap, arrest, and prosecute him therefor, is and ought to he fatal to the prosecution, and to entitle the accused to a verdict of not guilty.”
In the rather recent case of Cain v. United States (C. C. A.) 19 F.(2d) 472, Judge Faris has clearly stated the doctrine as follows: “True it is, that one who is not, and recently perhaps has not been engaged in violating the law, and who presently has no intention of violating it, may not through sympathetic appeals, or other impelling machinations of officers, or so-called stool-pigeons be induced to commit a crime and then be prosecuted and convicted for committing it. But one who, as was defendant, is engaged in the business of unlawfully selling narcotics, may, by any ordinary and usual means of approach, be led to make another sale seemingly in the usual course of his dealings and then be prosecuted therefor. The eases are so numerous and the question is so well-settled as really to call for no citation of authority or additional-exposition;” and has cited a large number of eases bearing *510thereon. Ofttimes the question of whether there has been illegal entrapment cannot be determined exeept by the jury passing on the testimony.
Who originated in this case the idea of bribing Robinson not to appear in the case of the government against Marsh? Was it the government agents, or did the idea of securing this money originate with the defendant? Certainly, where the government, understood that an attempt was being made to bribe one of its witnesses, so as to bring about his absence from the ease, it had the right to investigate to find out the real situation, and had the right to try to detect the crime, even if it employed means which might seem to dissemble in order to attain the result. Of course, the government should not lead its citizens into crime, and if this was a mere scheme concocted on the part of the attorneys for Marsh to secure the co-operation with them of the officers of the government in order to induce Robinson to commit a crime and thus relieve Marsh from prosecution, and if this were carried' out it would amount to legal entrapment. To so hold it would have to be assumed that the officers of the government, including the district attorney and his assistant, were engaged in a nefarious undertaking. There is nothing whatever to show that such is the fact. The most that could be claimed on the part of the defendants, we think, would be that the question of illegal entrapment might be for the jury.
Mr. Brewster, assistant United States attorney, became a witness on rebuttal to a most important and essential matter in the ease, viz. whether or not defendant was a witness in the ease of United States v. Marsh (a criminal proceeding), at the time he received the alleged bribe.. No hard and fast rule can be laid down as to when it is permissible for a prosecuting attorney to become a witness against a defendant and remain as prosecutor. Circumstances might arise in the trial of a case making it necessary that the prosecuting attorney or his assistant become a witness, but these cases are few and . exceptional. The function of a prosecuting attorney and a witness should be disassociated. A jury naturally gives to the evidence of the prosecuting attorney far greater weight than to that of the ordinary witness. Circumstances might exist where the prosecutor could not withdraw from the case. He might be the only attorney familiar with the case, and the only one engaged in the prosecution. The tendency of a situation where a prosecutor in a criminal case becomes a witness for the government is to prevent somewhat that fair trial to which a defendant is entitled. If this were the only question in the case, it might not be sufficient to warrant a reversal, but the practice of acting as prosecutor and witness is not to- be approved, and should not be indulged in, except under most extraordinary circumstances. Here there were other counsel engaged in the case, and Mr. Brewster could, we assume, have withdrawn, without imperiling the government’s case, when it was discovered that he was a necessary witness.
The statements set forth in the opinion in this case from the arguments to the jury show clearly, we think, that the prosecuting attorneys went beyond' the evidence. The court sustained some of the objections to the argument, but that was not sufficient. The jury should have been clearly instructed to pay no attention to the portions of the arguments to which objections were sustained. It cannot be doubted that those portions of the arguments to which Judge MARTINEAU has referred and some other portions were highly prejudicial to the defendant. In addition to the eases cited by Judge MARTINEAU, we may cite the ease of Johnston v. United States (C. C. A.) 154 F. 445, 449, and quote therefrom the clear language of that court on the subject as follows: “The use of language by counsel, calculated to prejudice a defendant and not justified by the evidence, is improper and censurable, and should be discountenanced by the court. In such a ease, it is the duty of the trial court to set aside the verdict unless satisfied that the improper language was not instrumental in securing it. But invective based on the evidence and inferences legitimately to be derived therefrom are not inhibited, and it is usually within the discretion of the trial court to determine whether or not the limits of professional propriety have been exceeded. Ordinarily the exercise of that discretion will not be reviewed in an appellate court unless the invective is so palpably improper that it may be seen to have been clearly injurious.”
In the further proceedings in this ease it should be understood that the reversal thereof is because of improper prejudicial argument to the jury. The original decision of this' court reversing the judgment in the case will stand. The purpose of this opinion on rehearing is merely to clarify the situation. The ease is remanded for further proceedings in harmony with this opinion.
MARTINEAU, District Judge, adheres to the views expressed in the former opinion.