We had occasion to examine this question under somewhat different circumstances than those which arise in this case in the case of McKnight v. U. S., 38 C. C. A. 115, 97 Fed. 210, where the trial court permitted the prosecutor to comment upon the failure of the accused to produce evidence of his good character, and argued that the jury could thereby draw the conclusion that such failure of proof showed a want of such character. We held such comment, when approved by the court, to be reversible error. It is true that there are cases which hold that, where there is no testimony upon the subject, the court is not obliged to say anything to the jury, either one way or the other. But, if the presumption exists in favor of the accused, it cannot be available to him unless he can have an instruction advising the jury of this proposition of law. This presumption, to the extent to which it exists, though less important, is as much his right in a criminal trial as the presumption in favor of his innocence. It is in consonance with the general principle of law that a man is presumed to stand ordinarily well, and to have at least the average qualities of morality and good conduct. Taking the charge of the court, together with the comments as to good character, above set forth, the jury were practically instructed that no presumption existed in favor of the good character of the accused; for the learned judge said. that he did not think the jury were to be told that the defendants were presumed to be persons of good character, but, whether of good character or bad character, they were presumed to be innocent. This language affords the inference that this presumption exists only in favor of innocence, and not of character. The court, without testimony on that subject, conveyed to the jury its impression that the character of the accused was such that it raised an inference of the likelihood of their participation in just such violations of law as were charged in the indictment. It is true that the learned judge said, in response to an exception upon this subject, that it might stand because well qualified, and that the jury would understand that they were not bound by it. Nevertheless, it was the comment of the court, without supporting testimony upon which to base it, and inconsistent with the presumption which the law raised in favor of the accused. Doubtless, the judge, in a criminal trial, in the United States courts, may express his opinion upon the evidence in the case; and, where no rule of law is incorrectly stated, and the jury left to draw their own conclusions, his expression of opinion will constitute no ground for reversal. See cases collected note 12, Vany v. Peirce, 26 C. C. A. 521 (s. c. 82 Fed. 162). While this is the general rule, the supreme court of the United States, in a number of cases, has had occasion to call attention to the limitations of this doctrine. Hickory v. U. S., 160 U. S. 408, 16 Sup. Ct. 327, 40 L. Ed. 474. The subject was fully discussed in the opinion of the chief justice in Starr v. U. S., 153 U. S. 616, 14 Sup. Ct. 919, 38 L. Ed. 841. In that case the chief justice quotes with approval the language of the supreme court of Pennsylvania in Burke v. Maxwell's Adm'rs, 81 Pa. St. 153, as follows:

"When there is sufficient evidence upon a given point to go to the jury, it is the duty of the judge to submit it calmly and impartially. And, if the

expression of an opinion upon such evidence becomes a matter of duty under the circumstances of the particular case, great care should be exercised that such expression should be so given as not to mislead, and especially that it should not be one-sided. The evidence, if stated at all, should be stated accurately, as well that which makes in favor of a party as that which makes against him. Deductions and theories not warranted by the evidence should be studiously avoided. They can hardly fail to mislead the jury and work injustice."

The chief justice adds:

"It is obvious that under any system of jury trials the influence of the trial judge on the jury is necessarily and properly of great weight, and that his lightest word or intimation is received with deference, and may prove controlling. Hicks v. U. S., 150 U. S. 442, 452, 14 Sup. Ct. 144, 37 L. Ed. 1137. The circumstances of this case apparently aroused the indignation of the learned judge in an uncommon degree, and that indignation was expressed in terms which were not consistent with due regard to the right and duty of the jury to exercise an independent judgment in the premises, or with the circumspection and caution which should characterize judicial utterances."

Had there been testimony in this case warranting the comment, it would not have been error for the judge to have assisted the jury by such views as he entertained, leaving them free to decide disputed matters of fact for themselves. But the case was devoid, as we have seen, of testimony as to the character of the accused. Doubtless, the oppressive conduct of the accused, if the witnesses for the government are to be believed, in preventing the exercise of the right of suffrage on the part of those clearly entitled to that privilege, which was reprehensible in the extreme, had something to do with the comments of the learned judge, and prompted the suggestion that such men as the accused would be persons from whom such conduct might be expected. There was no testimony in the case to warrant these comments, and, in their nature, they must be regarded as prejudicial to the accused in a high degree. We do not understand the practice in the federal courts, liberal as it is, to permit such comments outside of the testimony to go to the jury with the great weight which attaches to intimations of opinion from the judge. We think this comment, when coupled with the refusal to charge, as requested, upon the subject of character, practically destroyed the benefit of the presumption to which the accused were entitled. In this view of the case, we are constrained to reverse the judgment, and grant a new trial, without passing upon the other questions made in the case.

(106 Fed. 896.)

REILLEY et al. v. UNITED STATES.

(Circuit Court of Appeals, Sixth Circuit. February 12, 1901.)

No. 849.

1. LOTTERIES-CONSTRUCTION OF FEDERAL STATUTE.

Act March 2, 1895, providing that "any person who shall cause to be brought within the United States from abroad, for the purpose of disposing of the same, or deposited in or carried by the mails of the United States, or carried from one state to another in the United States, any

paper, certificate, or instrument purporting to be or represent a ticket, chance, share, or interest in or dependent upon the event of a lottery,' etc., defines three separate and distinct offenses; and to constitute an offense under either the second or third clause it is not necessary that the paper, certificate, or instrument should have been brought into the United States from abroad for the purpose of disposing of the same, those being the elements of the first offense alone.

2. INTERSTATE COMMERCE-WHAT CONSTITUTES-LOTTERY TICKETS.

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The provision of Act March 2, 1895, that “any person who shall cause to be * carried from one state to another in the United States any paper, certificate, or instrument purporting to be or represent a ticket, chance, share, or interest in or dependent upon the event of a lottery or similar enterprise," shall be guilty of an offense, is within the constitutional power of congress to regulate commerce among the states, and covers a case where an individual carries from one state into another a ticket or a slip of paper which is understood by all the parties to the transaction to represent the interest of the purchaser of a chance in a lottery or "policy" game in which the drawing has not taken place. 3. CONSPIRACY-CRIMINAL PROSECUTION-SUFFICIENCY OF EVIDENCE.

To sustain an indictment charging a conspiracy to commit an offense against the United States, under Rev. St. § 5440, it is not necessary that there should be direct evidence of a formal agreement; but it is sufficient if the evidence of the separate details of the transaction as it was carried out indicates with the requisite certainty the existence of a preconcerted plan and purpose.

4. CRIMINAL LAW-REVIEW ON APPEAL-OBJECTIONS TO EVIDENCE.

It is the established rule in the courts of the United States that, to entitle a party to a review of rulings admitting evidence, counsel, in making their objections, must state the grounds thereof.

In Error to the District Court of the United States for the Southern District of Ohio.

Thomas Shay, for plaintiffs in error.

Sherman T. McPherson, for the United States.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

SEVERENS, Circuit Judge. The above-named plaintiffs in error were convicted in the court below of the offense of having conspired to commit an offense against the United States. The statute which creates the offense of conspiracy and makes it punishable is section 5440 of the Revised Statutes, as amended by the act of May 17, 1879, which is as follows:

"If two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment of not more than two years, or to both fine and imprisonment, in the discretion of the court."

The offense which the plaintiffs in error are charged with having conspired to commit is defined by the first section of the act passed March 2, 1895, entitled "An act for the suppression of lottery traffic through national and interstate commerce and postal service subject to the jurisdiction and laws of the United States." This section reads as follows:

"That any person who shall cause to be

brought within the United States from abroad, for the purpose of disposing of the same,

or deposited in or carried by the mails of the United States,

or carried from one state to another in the United States, any paper, certificate, or instrument purporting to be or represent a ticket, chance, share, or interest in or dependent upon the event of a lottery, so-called gift concert, or similar enterprise, offering prizes dependent upon lot or chance, or shall cause any advertisement of such lottery, so-called gift concert, or similar enterprise, offering prizes dependent upon lot or chance, to be brought into the United States, or deposited in or carried from one state to another in the same shall be punishable in the first offense by imprisonment for not more than two years or by a fine of not more than one thousand dollars, or both, and in the second and after offenses by such imprisonment only."

We have divided the clauses of this section in such manner as to indicate what we conceive to be the true construction thereof, as will be hereafter explained. The indictment charges the respondents with having conspired within the district—

"To cause to be carried from one state to another in the United States, to wit, from the city of Newport, in the state of Kentucky, to the city of Cincinnati, in the state of Ohio, papers, certificates, and instruments purporting to be and to represent, as they then and there well knew, tickets, chances, shares, and interests in and dependent upon the event of a lottery and similar enterprise offering prizes dependent upon lot and chance; that is to say, to cause to be carried as aforesaid papers, certificates, and instruments purporting to be and to represent the chances, shares, and interests in the prizes which, by lot and chance, might be awarded to persons (to these grand jurors unknown) who might select certain numbers which by lot and chance should be included in twelve numbers drawn and selected as hereinafter stated, at certain drawings in lottery, which was an enterprise offering prizes dependent upon lot and chance, and commonly known as 'policy,' and consisted, as they then and there well knew, in the drawing and selection by lot and chance, at stated intervals, of twelve of the numbers from one to seventy-eight, inclusive, and of awarding prizes in various amounts (to these grand jurors unknown) to those who prior to the time of any one of said drawings and selections, upon the payment of a small sum of money, may have selected various combinations of numbers included in the said twelve numbers thereafter drawn and selected by lot and chance as aforesaid."

And it is further charged that:

"In pursuance of the conspiracy, and to effect the object thereof, being for the purpose of causing to be carried from one state into another in the United States, to wit, from the state of Kentucky to the state of Ohio, as aforesaid, papers, certificates, and instruments purporting to be and to represent tickets, chances, shares, and interests in and dependent upon the event of a lottery and similar enterprise offering prizes dependent upon lot and chance, as aforesaid, as they then and there well knew, said Anthony Hoff, John Edgar (alias Peter Edgar), Charles W. Reilley, and John Francis did then and there, on said date aforesaid, in the county, state, circuit, division, and district aforesaid, unlawfully, knowingly, and feloniously cause to be carried from one state to another in the United States, to wit, from Newport, in the state of Kentucky, to Cincinnati, in the state of Ohio, five certain papers, certificates, and instruments purporting to be and to represent chances, shares, and interests in the prizes to be awarded by lot and chance in the drawings to be made thereafter in said certain lottery, commonly known as the game of 'policy,' which said papers, certificates, and instruments were in the words and figures, following, to wit: [Here follow certain blocks of figures and letters.]"

And thereupon the indictment proceeds:

"Said papers, certificates, and instruments, and the letters and figures thereon, purported and represented to be and were tickets, chances, shares,

and interests in and dependent upon the event of a lottery and similar enterprise offering prizes dependent upon lot and chance, and were and did represent various combinations of numbers selected by one H. T. Harrison, and other players and persons to the grand jurors unknown, as and being their interest and chance in a proposed drawing of said lottery, in accordance with the general scheme and plan hereinbefore described,-contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States of America."

Upon the trial the government offered evidence tending to prove that the respondents adopted a scheme of lottery business, called by them "policy," which they subsequently carried into operation, of the character following: The principal office for the transaction of the business was located in a building in Cincinnati, Ohio. The place where the drawings of numbers from a wheel were made was located in another building or room adjoining the principal office and connected with it by a private way. In various places in that city and elsewhere, in Ohio and other states, one, at least, being in Newport, Ky., they had offices or stations at which the patrons purchased tickets or chances in the drawings to be thereafter made in Cincinnati, at the place mentioned. Successive numbers from 1 to 78, inclusive, were each day put into the wheel, and at each drawing 12 numbers were taken out. A list of these 12 numbers was taken into the principal office and there recorded. Several hours in the day before these drawings respectively took place, the patrons purchased chances at the suboffices or stations from an agent of the respondents, or from one of the latter, in charge at that place. In this instance the purchase was made of the respondent Hoff at the Newport office. The purchaser (Harrison, in this instance) chose 3 of the numbers from 1 to 78, inclusive, and wrote them upon a slip of paper, of which, according to the method of doing business, he kept a duplicate. He handed his list of numbers, with figures to denote the sum paid, upon a slip of paper, and the money to pay for his chance, to the person in charge, to be transmitted to the principal office in Cincinnati, by the "carrier," who would call to take them up. When these slips and the moneys were all brought into the principal office, the drawing above mentioned took place. If the 3 numbers on the slip were of the 12 drawn from the wheel, the purchaser would win the prize, $200, when the game (of which there were several forms) was played on the basis above stated. If not, he lost. A report of the drawings was sent back to the station from which the slip came, and, if any purchaser had made a "hit," his slip would be returned with the prize to be there delivered to him. Of the respondents, Reilley was in charge of the principal office, Francis of the drawings, Hoff of the station in Newport, as already stated, and Edgar was the carrier. The slip of paper taken by the carrier represented the interest of the purchaser of the chance, and, although containing figures only, it had a definite meaning, and was understood by all the parties concerned. It was the transportation of some of such lists, one being that of Harrison, from Newport, Ky., to Cincinnati, Ohio, with knowledge of their character, that constituted the overt act done in pursuance of the conspiracy.