And, therefore, as ruled in the Vernon Case, where a circumstantial incident was made the basis of a hypothesis of criminality, which was equally referable to an innocent act, it was held error for the trial court not to so declare as matter of law. This for the reason that: "No inference of fact or of law is reliably drawn from premises which are uncertain." U. S. v. Ross, 92 U. S. 281, 283, 23 L. Ed. 707.

As prior to the date of the organization of the alleged conspiracy, and afterwards, Huntington, so far as the evidence shows, was acting independently of the Spade Ranch in securing locators on homestead lands, and selling leases obtained and to be obtained, and the Hulls, according to their own testimony, were acting for him under contract, and Comstock, according to the government's contention, was engaged in promoting entries in the interest of the Spade Ranch, the incident of Huntington and Comstock being in the town where their respective groups of men, in connection with hundreds of others not in question, were assembled, and the preliminary papers being prepared by the same stenographer, were reasonably referable to the promotion of their separate enterprises and to the nonexistence of any common assumed conspiracy.

The evidence shows that at the time there were about 400 men in line and about the registry office seeking to make entries. If a dozen or more of them had been taken by their attorney to the same office and scrivener as that used by Huntington, there would be just as much basis for the assumption of a conspiracy between such attorney and Huntington as between Huntington and these defendants. Mr. Justice Strong in Manning v. Insurance Co., 100 U. S., loc. cit. 697, 698, 25 L. Ed. 761, very appositely said:

"We do not question that a jury may be allowed to presume the existence of a fact in some cases from the existence of other facts which have been proved. But the presumed fact must have an immediate connection with or relation to the established fact from which it is inferred. If it has not, it is regarded as too remote. The only presumptions of fact which the law recognizes are immediate inference from facts proved."

In the recent case of Crawford v. United States (U. S. Supreme Court, October Term, 1908) 212 U. S. 203, 29 Sup. Ct. 268, 53 L. Ed. 465, Mr. Justice Peckham adverted to the cautiousness that should be exercised by courts in ruling upon the admissibility of remote circumstances in criminal prosecutions, dependent upon the testimony of persons sustaining the relation of particeps criminis to the case, and said:

*

"But a felon, being also a confessed accomplice, was thus produced by the government as a witness for the purpose of proving its case against defendant. * Without his evidence it would have been difficult, if not impossible, to convict the defendant. * * The evidence of a witness, situated as was Lorenz, is not to be taken as that of an ordinary witness, of good character, in a case whose testimony is generally and prima facie supposed to be correct. * The facts surrounding this case make it particularly important that the rule in regard to material errors should be most rigidly adhered to. If it be not clear that no harm could have resulted from the commission of this material error, the judgment should be reversed."

If Huntington was a conspirator with the defendants in the transaction in question, so were the Hulls. In this, as throughout the trial, the government omitted the Hulls from the indictment and used them as witnesses, testifying under the strongest influences to be serviceable to the government in order to be more sure of their own immunity. Throughout this case there was a special reason why the court should apply the rule of strictissimi juris in respect to the admissibility of the facts detailed by such witnesses to raise a bare presumption. To indulge every presumption as in this case in favor of the government, under the cloak of circumstantial evidence, is, in my judgment, to break down one of the great safeguards the law throws around the individual citizen.

Entryman Ami B. Todd.

A number of entrymen connected with the homestead entries in question were obtained by said Todd. Todd is one of the defendants tried in the separate group with Huntington, but was not interested in or connected with the Spade Ranch. What he said to such entrymen and what they said to him was admitted in evidence against the defendants. He was furnished with more than 50 declaratory statements from old soldiers through one Mann. But only as to 8 of these entries is there any claim made of any connection with the defendants as charged in the indictment. These entrymen came from towns named Plattsmouth, Milford, and Quincy. As to the entrymen who came from Plattsmouth, there is not a particle of evidence to show any agreement to either lease or sell the lands to any one. While one of these entrymen, named Sage, testified that he did not intend to live on the land continuously, but was willing to do what was required, he said he was acting in good faith at the time of his entry. So of the entryman Duke. The entryman Thrasher testified that, while he intended to take his family out there and live on the land, he did not intend to break up his home at Plattsmouth. He is the only one who made any inquiry of any of the defendants about living on the land. Richards wrote to Todd that Thrasher should bring his wife up and stay some time on the land. Jameson wrote him that, if he proposed to prove up, he must move his family there. But there was no agreement that their entries were to be made, or were made, for the benefit of the defendants, or that they or the land company were to obtain the title to the land. In the absence of such testimony there was an utter failure of proof to sustain the essential allegation of the indictment in respect of these transactions. The only possible predicate for the verdict of guilty as to those transactions is that the jury should be indulged to draw any inference they pleased from any sort of a premise.

While some of these entrymen testified that after they saw the land they would not live on it and did not intend to prove up on it, there was no evidence that any such statement was made by the entrymen to any of the defendants at the time of their procurement; and I am unable to find anything in their testimony to warrant a conviction on the ground that there was any agreement or understanding between

them and the defendants that they were to make the entries in order to transfer the title when obtained to the defendants or the land company.

In the case against the defendant Triplett, I cannot escape the impression that this man was convicted on mere suspicion. It is a mere matter of conjecture that the entrymen obtained by Triplett had any connection whatever with the other defendants. There is no other evidence connecting him with the other entries obtained through Todd, McElroy, or other parties charged to have connection with the other defendants. No improvements were made on any of the land by Triplett. One entryman, named Green, testified that Triplett was to make the improvements for him.

"Q. Do you remember whether there was anything said as to improvements? A. Well, sir, Mr. Triplett was to put the improvements on it, and after it was proved up on he was to sell to Richards and Comstock- Well, if he could get more money from some one else, why he would have sold it to some one else."

As there was no evidence that Triplett ever consummated any arrangement with the land company, but only some statements as to what he hoped to do in respect to entries, there was no substantial evidence to warrant the court in submitting to the jury, as to Triplett, the question of fact as to whether he was in league with the defendants to obtain title to the lands for their use and benefit. The lesser punishment imposed by the court upon this man evidenced the court's grave doubt as to his guilt; and the court should have protected him against the consequences of subjecting his case to the whole mass of evidence respecting a multiform of transactions with which he had no manner of connection. Had he been tried alone upon an indictment against him charging him with procuring entries under the homestead law for the purpose of defeating the government out of its title to the lands, it is inconceivable that any reasonable jury could have returned a verdict of guilty against him; whereas, he was found guilty upon

about 35 counts.

Rejection of Affidavits of Certain Entrymen.

The instance of the witness Smith M. Child is illustrative of the question involved. On the examination of this witness by the government, he was inquired of as to whether or not he entered or filed on the land described in his homestead entry as a homestead for himself. To which he answered: "No, sir." This question and answer were objected to by the defendants, on the ground that the undisclosed mind of the witness ought not to affect the defendants. On his crossexamination an affidavit made by him on the 31st day of July, 1906, was shown him, and he stated the signature was his. Thereupon counsel for the defendants offered the affidavit in evidence as a part of the cross-examination. The objection interposed thereto was that it was incompetent and irrelevant; the witness' attention not having been called to any part of it except the signature. Counsel for the defendants said he would make that clear, and called the attention of the witness to the whole document so he could read it over, which the witness did. Thereupon, the offer to put it in evidence was renewed. Objection was then made:

RICHARDS V. UNITED STATES.

"That the witness' attention has not been directed to the particular parts of the same.

"The Court: I think the objection should be sustained. I think, before it can go in as a part of the cross-examination, he should be interrogated about it."

Then counsel for the defendant said:

"I suppose the test is, whether it tends to contradict anything that he has said.

"The Court: I think that is right, but I do not think it tends to contradict anything that he has testified to.

"Counsel for Defendant: Well, do I understand that it is on that ground that it is excluded?

"The Court: Yes, sir."

The ultimate statement of the court being that the affidavit was excluded for the reason that, if .admitted, it did not tend to contradict anything the witness had testified to, it obviated the necessity, if any, of interrogating the witness as to any particular part of the paper. As The rule of practice, both legally and ethically, after such pronouncement by the court, is for counsel to submit thereto, without more. said by the Supreme Court of Arkansas in St. Louis, etc., Ry. v. Faisst, 68 Ark. 587, 598, 61 S. W. 374, 377, 378:

"Without any suggestion to the contrary, appellant had the right to assume, under the circumstances, that such was the view of the court, and hence it was not incumbent upon it to again offer it when it had opened its case."

So this court has said:

"The court having thus barred it from the consideration of the jury for any purpose, after it was pressed for consideration, it was neither respectful nor necessary for defendant's counsel to urge it in any other manner to secure the benefit of the exception taken to the court's ruling." Nurnberger v. U. S., 156 Fed. 721, 730, 84 C. C. A. 377; Long-Bell Lumber Co. v. Stump, 86 Fed. 574, 583, 30 C. C. A. 260, 269; Glover v. U. S., 147 Fed. 426, 431, 77 C. C. A. 450, 543.

Aside from this, I understand the proper practice to be that, where it is proposed to contradict the testimony of the witness by showing that in a letter or affidavit he has made a contradictory statement, it is sufficient, after the signature to the written instrument is conceded, not to interrogate the witness further about it; and it may be offered on cross-examination without further delay. 2 Broderip & Bingham, 286, 6 Eng. Com. Law R. 148; Toplitz v. Hedden, 146 U. S. 255, loc. cit., 13 Sup. Ct. 70, 36 L. Ed. 961; O'Riley v. Clampet, 53 Minn. 539, 55 N. W. 740; Romerteze v. East River Nat. Bank, 49 N. Y. 577; Hennessey v. Metropolitan Life Ins. Co., 74 Conn. 699-707, 52 Atl. 490; Hanlon v. Ehrich, 178 N. Y. 485, 71 N. E. 12; 2 Wigmore on Evidence, § 1261; 1 Greenleaf on Evidence (16th Ed.) § 456.

No objection was made to the offer to put in the letter as a part of the cross-examination. The whole contention of the government was that these witnesses did not make an entry of this land in good faith for their own use and benefit, but for the benefit of other parties; and as the Child entry had reference to the Thomas Huntington entries, the witness stated in the affidavit that he had never made any statement that the entries were for the benefit of Huntington or the Maverick Loan & Trust Company, that he made the entry for his own exclusive use and benefit and in good faith, that he had no contract

or agreement with Thomas Huntington or any other person to sell or dispose of the title which he might acquire from the government in whole or in part, and that he did not make his entry on speculation for the use and benefit of any other person. If this was not in its substantive effect a direct contradiction of his evidence that he did not make the entry of this land for his own use and benefit as a homesteader, I am unable to comprehend the force of evidence.

Weiford and Noble Affidavits.

The government's counsel was indulged by the court to place before the jury the applications for homestead entries made by one Weiford and one Noble. No count of the indictment was predicated of these entries, and not a single entryman or other witness testified respecting them. Whether they were true or false did not appear. The admission of these entries under such circumstances before the jury was calculated to create in their minds the impression that there must be something wrong about those entries; otherwise, the representative of the government would not have insisted on getting them before the jury. The only answer possible to such conduct on the trial of a criminal case is the stereotyped suggestion that it was harmless error. In looking over this record, and the multiplied instances of improper matters gotten before the jury, I wonder how many repetitions of such so-called harmless errors are required to constitute one vital error. In Miller v. Territory of Oklahoma, 149 Fed. 339, 79 C. C. A. 277, speaking of a germane matter, this court said:

"The zeal, unrestrained by legal barriers, of some prosecuting attorneys, tempts them to an insistence upon the admission of incompetent evidence, or getting before the jury some extraneous fact supposed to be helpful in securing a verdict of guilty, where they have prestige enough to induce the trial court to give them latitude. When the error is exposed on appeal, it is met by the stereotyped argument that it is not apparent it in any wise influenced the minds of the jury. The reply the law makes to such suggestion is that, after injecting it into the case to influence the jury, the prosecutor ought not to be heard to say, after he has secured a conviction, it was harmless. As the appellate court has not insight into the deliberations of the jury room, the presumption is to be indulged, in favor of the liberty of the citizen, that whatever the prosecutor, against the protest of the defendant, has laid before the jury, helped to make up the weight of the prosecution which resulted in the verdict of guilty."

Because it would be very dangerous for the appellate court to undertake, in many cases, to determine what evidence did or did not influence the jury, especially in repeated instances of such improper matters getting before them, probably influencing their judgments by the very number of the instances admitted on the insistence of the prosecution, the rule should here be rigidly applied "that there is a presumption of harm arising from the existence of an error committed by the trial court against the party complaining"; and, unless it be decisively shown without doubt from the record that there was no harm in the commission of such error, the judgment should be reversed. Crawford v. United States, supra; Deery v. Cray, 5 Wall. 795, 18 L. Ed. 653; Smith v. Shoemaker, 17 Wall. 630, 639, 21 L. Ed. 717; Choctaw, O. & G. R. Co. v. Holloway, 114 Fed. 458, 52 C. C. A. 260; U. S. v. Gentry, 119 Fed. 70, 55 C. C. A. 658.