of defrauding the government" of a portion of the duties accruing upon importations of A. S. Rosenthal & Co.

In criticism of the indictment it is contended that the United States "could not have been defrauded through the conspiracy set forth in the indictment, and therefore no crime is charged." The theory is this: The invoices and entries were to contain false statements as to weights, and were to be passed as correct by Browne, who is averred in the indictment to be "an examiner of imported merchandise at said port." Various statutes and treasury regulations are referred to as showing that the weighing of imported goods is to be done by officers known as "weighers"; wherefore, it is argued, Browne could not have "passed" the documents. This point was considered by the trial judge upon hearing of the demurrer to the indictment. We fully concur with him in the reasoning and conclusions expressed in his opinion (126 Fed. 766) and deem it unnecessary further to discuss the point.

It is further contended that the indictment is bad because it charges offense only in the language of the statute ("did conspire to defraud the United States") without setting forth the means proposed to be used to accomplish the purpose, and because it does not allege that the conspiracy was willful or corrupt, or that it was entered into with any criminal, willful, fraudulent, or corrupt intent. Examination of the argument in support of this proposition, as set forth in the brief in connection with the excerpt from the indictment quoted supra, shows that the criticism deals with words rather than substance. The theory is that the charging part of the indictment ends with the words "to be made by the said Abraham S. Rosenthal and Martin L. Cohn at the Port of New York, in the said district"; that the words "which said unlawful conspiracy then and there was to be effected in the manner following, that is to say," are a videlicet; and that the rest of the sentence down to and including "thereon collected by the said collector," which sets forth with sufficient fullness just what false invoices, false statements, false returns, and false reports were to be made, cannot be regarded as any part of the charge. If the charge were only that defendants did unlawfully conspire to defraud the United States of large sums of money to become due as duties upon divers importations by the firm, it might be fairly open to criticism as too vague and bald; but, under the broader and less hypercritical rules of construction which more modern authorities apply in criminal causes, and which have been followed in this circuit (U. S. v. Terry [D. C.] 39 Fed. 355, note by the court; Bromberger v. U. S., 128 Fed. 346, 63 C. C. A. 76), we cannot assent to the defendant's analysis of the sentence. We do not find in the quotation, supra, a videlicet, which cuts off the specific statement of the details of the conspiracy from the general language which states the statutory offense. Logically, practically, and grammatically the sentence conveys the same meaning as if it were expressed as it is now down to and including the words "at the port of New York in the said district," and then proceeded "by said Abraham S. Rosenthal and Martin L. Cohn causing such goods, wares, and merchandise to be shipped,

consigned to them," etc., etc. The whole sentence quoted, supra, in the statement of facts is the charging part, and in the indictment is followed by a further presentment of overt acts done in furtherance of the conspiracy therein set forth.

Many authorities are cited to support the propositions that no indictment is sufficient if it does not allege all the ingredients of the offense; that to make an agreement between two or more parties criminal it is not enough that the act is prohibited by statute, but the agreement must be entered into with a willful, fraudulent, or corrupt intent; that the words "unlawfully conspired" are not sufficient to charge such intent. The applicability of all such authorities to the cause at bar, however, is based upon the same analysis of the sentence which seeks to limit the charging part, as above indicated. Construed as a whole the sentence is not obnoxious to any criticisms in the cases cited. It is not necessary to repeat with every verb the words "willfully, fraudulently, and corruptly." One assertion of intent may be so made as to cover a joint specification of unlawful acts. Nor is there any exclusive force in any particular word indicative of intent, such as "corrupt," "fraudulent," etc. As is said in one of the cases cited by plaintiff in error, "the agreement must have been entered into with an evil purpose." People v. Powell, 63 N. Y. 88. The indictment sets forth the elements of the conspiracy: That the firm was to import goods upon consular invoices containing, and known to them to contain, false statements and false descriptions; that upon such invoices the firm were to make their entries at the custom house; that the examiner with goods and invoices before him was to make false reports, to the end that duty should be liquidated upon such false reports and "less than the amounts of duty legally due thereon collected by the collector [of the port]." Whoever framed this indictment would have saved court and counsel a great deal of unnecessary trouble, if he had been careful to insert an allegation that the agreement between the alleged conspirators as to what one or other of them should do to defraud the government of its lawful revenues was entered into with a corrupt and fraudulent intent. It is indeed unfortunate that, in preparing an indictment in a cause of this importance, more care was not exercised to present the essential elements of the charge in the plain and explicit phraseology which has been approved in so many decisions. that all criticisms of the sort now under discussion would have been avoided. However, in the concluding clause last above quoted, there is, we think, sufficient to save the indictment. When it is said that some one does a certain act "to the end that" such and such a thing may happen, it is but another form of expressing the idea that he does it "with the intent" that such and such a thing shall happen. And when the intent is stated to be that the government should be hoodwinked into collecting less amounts of duty than are legally due to it from one or other of the alleged conspirators, it is not a violent construction which would hold such an intent to be fraudulent.

It is contended that the counts, other than the first, are bad because they do not allege that defendants unlawfully conspired and agreed

together for an unlawful purpose. The first count consists of the sentence quoted in the statement of facts, and of a further presentment by the grand jurors that in pursuance of the said unlawful conspiracy a certain overt act was committed. Each of the other counts presents a different overt act, but does not repeat in his verbis the presentment as to the conspiracy in pursuance and furtherance of which the overt act was committed. But each count does contain the statement: "The grand jurors do further present that in further pursuance of the said unlawful conspiracy in the first count of this indictment mentioned and described and to effect the object thereof," etc., etc. This is a sufficient reference to the first count "to incorporate the matter going before with that in the count in which [the reference] is made." See Blitz v. U. S., 153 U. S. 308, 14 Sup. Ct. 924, 38 L. Ed. 125, which holds that repetition may be avoided by referring from one count to another, a rule well-recognized by courts and text-writers. The reference expressly imports the description of the conspiracy set forth in the first count, and is quite as effective as if it added the words, which plaintiff in error contends it should contain, "which is hereby made a part of this count."

Other objections: That the overt acts charged in the first three counts are not averred to be fraudulent; that Browne is charged not only with making false returns, but also with neglect and refusal to ascertain the true weight and nature of the goods; that the particular merchandise to be imported is not stated, nor the identity of the country or countries from which it was to come-are too unimportant to warrant discussion here. They were not touched upon in the argument, and are without merit.

It is unnecessary to discuss the point raised as to the order in which peremptory challenges were exercised, and the jury was impaneled. The provisions of the state statute (section 385, Cr. Code N. Y.) are not controlling (Pointer v. U. S., 151 U. S. 396, 14 Sup. Ct. 410, 38 L. Ed. 208; Radford v. U. S., 129 Fed. 49, 63 C. C. A. 491), and we fail to see that the method pursued deprived the defendant of any substantial right-he was confronted with the jury while the challenging was going on; he was not deprived of any of his challenges by reason of duplication with the government's, as happened in the extraordinary case relied on (Lewis v. U. S., 146 U. S. 370, 13 Sup. Ct. 136, 36 L. Ed. 1011); there were 12 men in the box when he was called on to challenge. The practice suggested that, before peremptory challenging begins, the defendant shall have the opportunity to examine on voir dire not only those whose names have been drawn from the wheel and who have gone into the box, but also the entire panel from whom vacancies caused by challenges may be filled, is certainly novel in this circuit, and we know of no authority which constrains its adoption. The defendant's right of choice as to whom he shall challenge is sufficiently secured by his being provided in advance of the drawing with a list of the names and residences of the jurymen constituting the panel (and the subsequent panel of talesmen) from whom the 12 were to be drawn. The record shows that

defendants' counsel had been furnished with such a list. The objection that the jury was improperly selected is without merit.

Out of the enormous mass of objections to testimony gathered together in the printed brief of nearly 300 pages, it will be sufficient to deal with but three classes. A careful perusal of the record shows that there was hardly a document which did not come in under one or more exceptions reserved by the respective counsel for the two defendants, and it would be a waste of time to undertake to cover them all, or even those recited in the bill of exceptions. The indictment charged that the defendants conspired together "before and on July 30, 1901." This could not be sustained by evidence showing, as an act constituting with others the conspiracy, something done subsequent to that date. Upon that ground defendant objected to the introduction of certain false invoices of which one may be taken as a sample. It was dated Yokohama, August 9, 1901, and could not be received against Browne as direct proof of an act then done in furtherance of the conspiracy. But it had a further evidential value. which made it competent, while the defendant's rights could be fully protected by instructions in the charge to the jury. If defendant did not think such instructions sufficiently full he might have asked for some more specific statement.1 The charge in the indictment was that the firm were to procure shipments to be made from foreign countries upon false invoices. The jury were to ascertain whether the firm here had in fact done something which caused false invoices to be prepared in the foreign country, and there was evidence tending to show that they had. Yokohama is so far from New York that it is quite apparent that whatever was done here to procure the making of the false invoice there must have been done more than 10 days before the result was produced. The false invoice, therefore, of August 9th, while not admissible as itself an act done in furtherance of the conspiracy, was admissible as a fact from which the jury was entitled to infer, in connection with the other proof, that prior to July 30th the firm had given instructions that that particular invoice should be falsified in the way it was. And that act, the directing or setting in motion of the train of causes which produced the false invoice, was within the period covered by the indictment.

As to some other invoices also subsequent in date, the facts are as follows: On July 30th Browne was transferred from his position

'Defendant requested the court to charge: "No act or declaration by the defendants Rosenthal or Cohn after July 30, 1901, can be considered in determining whether the defendant Browne was on or before that day a party to the alleged conspiracy." To which the court replied: "I cannot charge that in that way. Yes. 'No acts or declarations actually made by Rosenthal or Cohn after July 30th can be considered against Browne; but the invoices that I have admitted in evidence the original invoices that I have admitted In evidence may be considered by you, although they are dated after July 30th, as enabling you to take a survey of the business of Rosenthal & Co.. and provided these invoices were of such a nature that they might fall under the conspiracy if there was such, but what either of these men did after July 30th cannot be used against Browne.'" To this qualification of the request no objection was taken.

as examiner of silk goods to some other department, where A. S. Rosenthal & Co.'s entries and invoices would not come before him, and apparently on the same day the firm learned of the transfer. At that time there were goods afloat coming here with false invoices. As an instance: There were goods coming from Yokohama with an invoice dated July 8, 1901, which falsely stated their weight. Subsequent to July 30th the firm presented another invoice dated Yokohama August 15, 1901, covering the same goods and correctly stating their weight, which later invoice they asked to substitute for the earlier one. The later one added about 40 per cent. to weight. There were five similar instances of so-called substituted invoices. Now the making of the later invoice, and its presentation at the custom house," were in no sense acts done in furtherance of the conspiracy; quite the contrary, for their only tendency was to give the government a truthful statement as to the weight of the goods and to secure a liquidation at the true amount of duty. But these acts cast a vivid light upon the situation as it existed on July 8th, when the goods were first invoiced and started on the way from Yokohama. The circumstance that the firm, upon learning that their alleged co-conspirator was no longer at his post to cover up their frauds by false reports, was able to procure from the port of shipment an invoice which truthfully stated the weights, would tend strongly to induce the convic tion that they knew before July 30th that their goods then afloat were coming here under false invoices. Their knowledge prior to July 30th was a material element in the case, and the subsequent making of a true invoice was competent evidence thereto.

Exceptions were taken to various items of evidence which related to certain experiments and calculations. Some time after Browne's removal, his successor found in a closet in his office a large number of samples of goods. To these there were pinned tickets in Browne's handwriting. The tickets were addressed to the Bureau of Analysis and were such as Browne would make in the regular discharge of his duties. About 100 of these tickets contained marks (A. diamond R. S. Co.) which indicated that they were Rosenthal's goods; they also contained the package number, entry number, and invoice number— all these marks and numbers being in Browne's handwriting. The samples were small, generally about the width of the goods, and some six inches in running length. Two expert examiners and analysts. of this kind of goods, one from the appraiser's department in the Chicago custom house, the other from the like department in New York, cut off portions of these samples and made most careful measurements of the pieces cut off so as to determine their proportion to the full length of the piece of goods from which the sample came, on the basis of 50 yards for the length of the bolt or full piece, which the testimony showed was the standard length of the bolt of such goods. They next weighed the sample portions they had thus secured upon scales of extreme delicacy-the scale recorded to a onequarter milligramme, about 1/150,000 part of an ounce. Having found the actual weight of the sample, they calculated what would be the weight of the whole piece. Having thus obtained a calculated