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circuit court of the United States without au was convicted only on one count, which cbarthority of law. The question of removal is ged the making of the entry in February, 1892. governed by the decision of this court at the

2. Where, in such case, a bookkeeper testi

fied to making false entries by defendant's dilast term in Tennessee v. Bank of Commerce, rection, defendant was not prejudiced by the 152 U. S. 454, 14 Sup. Ct. 65+, by which, upon refusal of the court to permit such witness to full consideration, it was adjudged that un

testify on cross-examination whether he did not der the acts of March 3, 1887, c. 373 (24 Stat.

put into a report prepared by him in Septem

ber, in the absence of defendant from the state, 532), and August 13, 1858, C. 866 (25 Stat. the false entry made in December, and charged 433), a case (not depending on the citizen

in a count on which defendant was acquitted. ship of the parties, por otherwise specially

3. Under rule 4 of the supreme court, which

provides that “the party excepting shall be reprovided for) cannot be removed from a state

quired to state distinctly the several matters of court into the circuit court of the United law in the charge to which he excepts; and States, as one arising under the constitution,

those matters of law, and those only, shall be

inserted in the bill of exceptions and allowed laws, or treaties of the United States, unless

by the court,”—where the court, in a criminal that appears by the plaintiff's statement of case, recalls the jury, after it has been out seyhis own claim; and that, if it does not so ap

eral hours, and re-reads to them a portion of pear, the want cannot be supplied by any

the charge, and gives some additional instruc

tions, an exception to "the action of the court statement in the petition for removal or in in recalling the jury and in arguing the testithe subsequent pleadings.

mony on certain points without stating the enIn the present case the declaration is in the

tire testimony” is insufficient to present the ordinary form of an action of ejectment be

question as to whether the court sought to co

erce a verdict. tween individuals, merely describing the land 4. It is not error to recall the jury after and alleging the ouster of the plaintiff by the

they have deliberated some time, for the purdefendant. It does not show that either

pose of ascertaining their difficulties, and make

ing proper efforts to assist them in solving such party claims any right under the constitution

difliculties; and the time of recalling them is or laws of the United States, or that the gove in the sound discretion of the trial court. ernment of the United States or any third

5. Where the gravamen of the offense char.

ged is intent to injure or defraud, an illustraparty claims or asserts any title or right to

tion which is apt and fair, contained in the the land in controversy. So far as the dec charge, and put in the form of a question, withlaration shows, the only question in the case out any affirmation as to the intent that must might be merely whether the plaintiff has

be presumed therefrom, is not open to the ob

jection of “arguing the testimony,” though it any title, or whether the defendant has taken

bears bard on defeudaut because the transaction possession. There was therefore no ground with which he is charged was of like character for ousting the jurisdiction of the courts of

to the one mentioned in the illustration, and in.

dicative of the same intent. the state, and removing the case into the

6. In a criminal case in the federal courts, courts of the United States for trial.

an expression of opinion on the facts by the The case must be remanded to the court in court is permissible. which it was originally brought. If such a

7. The court need not in its charge reca

pitulate all the items of evidence, nor even all defense as was set up in the circuit court of the evidence bearing on a single question: esthe United States should be hereafter set up pecially where it tells the jury that there is othin the courts of the state, and overruled by

er eridence than that mentioned, and that they the highest court of the state to which the i tioned.

should give it as full consideration as that men. case can be taken, the judgment of that court may be reviewed by this court on writ In Error to the Circuit Court of the United of error.

States for the Eastern District of Arkansas. Judgment reversed, with costs, and case re * On May 13, 1893, the grand jury of the manded to the circuit court of the United United States for the Western division of the States, with directions to remand it to the cir Eastern district of Arkansas presented an cuit court of the Fifth judicial circuit of the indictment against Horace G. Allis under state of Maryland.

section 5209 of the Revised Statutes. This section, so far as is material to this case,

reads as follows: (155 U. S. 117)

“Every president

of any associaALLIS v. UNITED STATES.


who makes any false entry in

of the association (Xovember 12, 1891.)

with intent • to injure or defraud No. 661.


politic or corporate, or any individual person, ERROR-INSTRUCTIONS - ARGUING TESTIMONY

or to deceive any oilicer of the association, or EXPRESSION OF OPINION STATEMENT OF Evi any agent appointed to examine the affairs DEXCE--RECALLING JURY.

of any such association * shall be 1. On trial of a national bank president on deemed guilty," etc. an indictment containing 25 counts, charging false entries in the books of the bank, running

The indictment consisted of 25 counts. from February to December, 1892, with intent The defendant pleaded not guilty, and the to injure, defraud, or deceive, in violation of case came on for trial on November 27, 1893. Rev. St. 8 5209, it was not error to permit a witness, from an examination of the bank's

This trial resulted in a verdict of guilty op books, to testify to the condition of defendant's

the fourteenth count, upon which verdict the private account during such time, though he defendant was senteuced to imprisonment

any book

for the term of five years. The particular ant guilty on that count, and as the question charge in that count was the making of an related to matters occurring more than six entry in February, 1892, on the books of the months after the false entry of which he First National Rank of Little Rock, of which was found guilty, and to an entirely differdefendant was the president, of the sum of ent transaction, it is obvious that the de $30,000 to the credit of his individual ac fendant was not prejudiced by the ruling. count. To reverse the judgment and sen. * It is further insisted that the court erred* tence against him, the defendant sued out a in permitting the translation of a cipher tele writ of error from this court.

gram from the defendant to be received in

evidence and read to the jury. It is suffi. John R. Dos Passos, A. H. Garland, and

cient to say, in respect to this matter, that Thos. B. Martin, for plaintiff in error. Asst.

no exceptions were taken to the rulings of Atty. Gen. Conrad, for the United States.

the court, and, indeed, no objections were

made to the admission of the testimony after Mr. Justice BREWER delivered the opin all the preliminary proofs had been received. ion of the court.

The other errors complained of are in the The meager record gives us little informa charge to the jury. It appears from the bili tion as to the merits of this case, and pre of exceptions that, after the jury had been sents but few questions for our considera deliberating for several hours on the case, tion, As the verdict was sustained by the

the court called them into the court room trial judge, we must assume that the testi and inquired if they had reached a verdict. mony, only a small portion of which is be On being informed that they bad not, the fore us, was sufficient to establish the guilt court asked if there was any portion of the of the defendant, and unless error is dis charge the re-reading of which would be of closed in the special matters presented to any assistance to them. To which question our consideration the judgment must be af the foreman responded that a portion therefirmed.

of was not fully understood by all of the Upon the trial the court, over the objec jury, to wit, that in reference to the weight tions of the defendant, permitted a witness, of the testimony of the witnesses. Thereupfrom an examination of the books of the on the court re-read that portion. It furbank, to testify to the condition of the de ther stated that the jury were at liberty to fendant's private account from February to conduct their deliberations as they chose, December, 1892. It is insisted that this tes but that he would call their attention again timony was calculated to prejudice the jury to the part of the charge relating to the against the defendant; that the items of the fourteenth, fifteenth, eighth, and ninth entire account were not in issue; that they counts of the indictment, and proceeded to were not within the scope of the indictment; re-read that part. In the portion re-read, and that, therefore, the defendant's atten, after a reference to the alleged false credit tion had not been called to them, and he of $50,000, was this language: “And if he could not be prepared to defend against

caused these entries to be made, with what them. There are two sufficient answers to

intent did he do so? If a customer or friend these objections: (1) While the defendant of yours who owed you $10,000 on account was found guilty only on one, he was being should come to you and tell you that he had tried on 25 counts, which counts charged deposited $50,000 to your credit in the Gerfalse entries at different times running from man National Bank of Little Rock, and that February to December, and therefore testi he wanted a receipt for the $40,000 that he mony was competent as to the condition of owed you, and wanted a credit for the other his account stretching through the entire $10,000, and you should give him the receipt time. (2) The gravamen of this offense is and the credit, and should subsequently the false entry with intent to injure, de

learn that he had never deposited one dolfraud, or deceive, and it was competent to lar in that bank for you, with what intent show the state of the defendant's account,

would you conclude he had made these statenot merely at the very day the false entry ments ? Would you think it was with an was made, but also before and after that honest purpose, or with some intent to indate, for the purpose of throwing light on jure or defraud you?” the intent with which it was made.

The bill of exceptions also contains other Again, a bookkeeper, having testified to parts of the charge, as follows:

“You are the making of false entries under the direc not bound to be governed by any*statement * tion of the defendant, was asked on cross of the evidence made by the court, but if examination whether a report prepared by your recollection accords with that of the him in September, in the absence of the court you may accept it, and if it differs defendant from the state, did not contain from it you may be governed by your own the identical false entry subsequently found memory. It is your exclusive province and in the December report, the making of which duty to determine the issues of fact here prelast entry was the offense charged in one sented, and the weight and credibility of the of the counts of the indictment. The court testimony of the witnesses, and by your derefused to permit an answer to this ques termination of these questions the court will tion. As the jury did not find the defend be bound. If in the course of what the


court may say to you any expression of and allowed by the court." Repeated deci. opinion should drop as to the disputed issues sions have emphasized the necessity of a strict of fact or the credibility of the testimony of adherence to this rule. “However it might the witnesses, you are not bound by any pain us to see injustice perpetuated by a judg. such expression, but it is your privilege to ment which we are precluded from reviewing adopt or disregard it as you may see fit. by the absence of proper exceptions to the

“The court has reviewed the counts of this action of the court below, justice itself, and indictment, and called your attention to fairness to the court which makes the rulings some of the important evidence, in the hope complained of, require that the attention of that this might be of some assistance to that court shall be specifically called to the you in reaching a just verdict. There is precise point to which exception is taken, that much testimony bearing upon many of these it may have an opportunity to reconsider the counts that has not been called to your at matter and remove the ground of exception." tention. You will consider that as carefully Harvey v. Tyler, 2 Wall. 328, 339. If it was and as well as that which has been referred intended to save an exception as to distinct to, and will remember that, whatever may propositions embodied in the instructions, the have been said by the court, you are the ex attention of the court should have been di. clusive judges of the questions of fact and rected to the specitic points concerning which of the credibility of the witnesses." Closing it was supposed error had been committed." its remarks to the jury at the time of their Moulor v. Insurance Co., 111 U. S. 337, 4 Sup. recall, it said: "Of course, gentlemen of the Ct. 466. “An exception 'to all and each part' jury, you must consider all the other parts of the charge gave no information whatever of the charge heretofore read to you also. as to what was in the mind of the excepting I have simply called your attention to these party, and therefore gave no opportunity to four counts, thinking possibly I might assist the trial court to correct any error committed you in arriving at a just conclusion.

by it.”

Block v. Darling, 140 U. $. 234, 238, "The court and jury are here to come to 11 Sup. Ct. 832. See, also, Insurance Co. v. a just and righteous result. No doubt you Raddin, 120 U. S. 183, 7 Sup. Ct. 500, and are as anxious to reach it as am I.

cases cited in the opinion; Mining Syndicate “So anxious is the court that, having spent v. Fraser, 130 U. S. 611, 9 Sup. Ct. 665; Annow two weeks in the trial of this cause, I thony v. Railroad Co., 132 U. S. 172, 10 Sup. am willing to stay here another, if by that Ct. 53. We see nothing in this case to withmeans we may be able to reach a just and draw it from the scope and control of this proper result in this trial. You may retire.” rule.

To the charge, of which the only portions The specific matters excepted to are-First, preserved in the record are those just referred the action of the court in recalling the jury; to, a single exception was taken in the follow- second, its arguing the testimony; and, third,

ing words: “The defendant excepts to the ac its stating part of the testimony on certain g? tion of the court in recalling the jury, and points without stating the entire testimony.

in arguing the testimony, and in stating part It is a familiar practice to recall a jury, after of the* testimony on certain points without they have been in deliberation for any length stating the entire testimony.” It is now of time, for the purpose of ascertaining what insisted that the court expressed an opinion difficulties they have in the consideration of as to the inference to be drawn from the facts, the case, and of making proper efforts to asargued the question of intent to the jury, and sist them in the solution of those difficulties. sought to coerce a verdict. But the exception It would be startling to have such action held taken is not sufficient to bring all these mat to be error, and error sufficient to reverse a ters before us. There is no intimation in the judgment. The time at which such a recall exception that the defendant at the time shall be made, if at all, must be left to the thought that the court was trying to coerce sound discretion of the trial court, and there the jury, or suggested that its language might is nothing in the record to show that the have such an influence upon them. Evident court, in the case at the bar, abused this dis. ly the claim of coercion is an afterthought cretion, or failed to wait a reasonable time from subsequent study of the record. But it for the consideration of the case by the jury is settled that no such afterthought justifies under the charge as already given. a reviewing court in reversing the judgment. So far as “arguing the testimony" is conA party must make every reasonable effort cerned, the only part of the charge that can to secure from the trial court correct rulings, be considered as even tending in that direcor such at least as are satisfactory to him, tion was that part referring to the question before he will be permitted to ask any re of intent. We see nothing in this of which view by the appellate tribunal; and to that any just complaint can be made. The illus. end he must be distinct and specific in his tration given by the court was apt and fair, objections and exceptions. Rule 4 of this and if it bore hardly upon the defendant it court provides: “The party excepting shall was only because the transaction of which be required to state distinctly the several he was charged was one of like character, matters of law in such charge to which he ex and indicative of the same intent. The ilcepts; and those matters of law, and those lustration was put in the form of a question, only, shall be inserted in the bill of exceptions and no affirmation was made as to the intent


that must be presumed therefrom. Even if the question of jurisdiction certified directly to it contained an expression of opinion, such

the supreme court, or to carry the whole case expression is permissible in the federal courts.

to the circuit court of appeals, which may cer

tify such question. Simmons v. U. S., 142 U. S. 148, 12 Sup. Ct. 4. Where, in such case, plaintiff also has 171; Doyle v. Railway Co., 147 U. S. 413, 13 grounds of complaint in respect to the judgment Sup. Ct. 333.

in his favor, he may carry the case to the circuit

court of appeals on the merits by cross appeal So far as respects the complaint that the or writ of error, if defendant has taken the court stated part of the testimony on a cer case there, or independently, if defendant has tain point without stating all, we know of no

taken the case to the supreme court on the ques

tion of jurisdiction only, in which instance the rule that compels a court to recapitulate all

circuit court of appeals will suspend a decision the items of the evidence, even all bearing on the merits until the question of jurisdiction upon a single question. There was no intima

is determined. tion that all the testimony bearing upon any

5. The same rules apply where plaintiff ob

jects to the jurisdiction of the circuit court, and particular point was stated. On the con is, or both parties are, dissatisfied with the trary, the plain declaration was that there judgment on the werits. was other testimony than that mentioned, and

6. The board of general appraisers sustain.

ed the action of a collector in exacting, under the jury were admonished to give that not

Rev. St. $ 3023, a charge of 10 cents per cask mentioned as full and careful consideration for gauging molasses withdrawn by importers as that mentioned.

from warehouse, and exported for the benefit So far as the record discloses, the charge of

of the drawback, to the payment of which the

importers objected, on the ground that such the court and it rulings on the trial were charge was abolished by Act June 10, 1890 (26 eminently fair and considerate of the rights Stat. 131, 140, c. 407) $ 22. Hold, that the circuit of the defendant. In none of the matters re

court of the United States, on appeal from such ferred to do we find any error, and therefore

decision, had jurisdiction to hear and determine

the questions of law and fact involved therein. the judgment is affirmed.

U. S. y. Klingenberg, 14 Sup. Ct. 790, 153 U.
S. 93, followed.

On a Certificate from the United States

Circuit Court of Appeals for the Second Cir. (155 U. S. 109)


* August 15, 1890, G. A. Jahn & Co. imported

into New York some casks of molasses, (November 5, 1894.)

which on the 28th of that month they withNo. 541.

drew from warehouse, and exported to Mon

treal for the benefit of the drawback. Upon UNITED STATES SUPREME COURT-CIRCUIT COURT


lector of customs at New York exacted a

charge of 10 cents per cask for gauging the 1. Act March 3, 1891 (establishing the circuit court of appeals), § 4, provides that the re

molasses under the provisions of section 3023 view, by appeal, by writ of error, or otherwise,

of the Revised Statutes. The importers profrom existing circuit courts, shall be had only tested against the charge for gauging, in such courts and in the supreme court of the United States as provided in such act. Sec

claiming that it had been abolished by the tion 5 provides that appeals or writs of error

twenty-second section of the act entitled may be taken from circuit courts direct to the “An act to simplify the laws in relation to supreme court in any case in which the jurisdic the collection of the revenue," approved June tion of the court is in issue; and that in such cases the question of jurisdiction alone shall be

10, 1890 (26 Stat. 131, 140, c. 407). certified. Section 6 provides that the circuit

The matter was duly taken before the courts of appeal shall exercise appellate juris-board of general appraisers, which sustained diction in all cases except those provided for in

the action of the collector, and the importers the preceding section, unless otherwise provided by law; and their judgments shall be final in

appealed to the circuit court of the United all cases arising under the revenue laws, ex

States for the Southern district of New York. cepting that in every such subject within its The circuit court reversed the decision of jurisdiction it may, at any time, certify to the

the board of general appraisers, and held supreme court questions of law concerning which it desires the instruction of that court;

that the gauging charge exacted by the coland thereupon the supreme court may give such tector had been abolished. Thereupon the instruction, or require the whole record and

United States appealed to the circuit court cause to be sent up for final disposition. Held, that where the jurisdiction of the circuit court

of appeals, and assigned for error that the is in issue, and decided in favor of defendant,

circuit court erred in reversing the decision plaintiff should have the question certified, and of the board of general appraisers, for the take his appeal or writ of error directly to the

reason that the decision of the board was supreme court. 2. Where the jurisdiction of the circuit

final and conclusive, and that the circuit court is in issue, and the jurisdiction is sus court had no jurisdiction to make any de tained, but there is a judgment for defendant cree or order in said proceeding. The juris. on the merits, plaintiff must appeal to the circuit court of appeals, which may certify the

diction of the circuit court was first chalquestion of jurisdiction, if it arises in such lenged upon the appeal. The circuit court court.

of appeals certified to this court the ques3. Where the jurisdiction of the circuit

tion: “Whether the United States circuit court is in issue, and the jurisdiction is sustained, and there is a judgment for plaintiff on

court had jurisdiction to hear and determine the merits, defendant may elect either to have the questions of law and of fact involved

in said decision of the board of general appraisers."

Sol. Gen. Maxwell, for the United States. Edwin B. Smith, for defendants.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

This case was docketed here under the title, “In the* Matter of the Application of Gustave A. Jahn & Co. upon certain merchandise entered by the 'Alps,' August 15, 1890"; but the correct title is "United States v. Gustave A. Jahn et al.," for the reasons given by Mr. Justice Gray in U. S. v. Hopewell, 5 U. S. App. 137, 2 C. C. A. 510, and 51 Fec. 798.

Coupsel for the importers denies that the circuit court of appeals bad authority to certify the question of the jurisdiction of the circuit court to this court, because that question was not in issue in the circuit court, or raised in any way; and, if it had been in issue, it could only be certified by the circuit court to this court; that as it was not put in issue, and not certified, and an appeal was taken to the circuit court of ap. peals, the action of the circuit court in pro ceeding to judgment was a final determination in favor of its own jurisdiction, which could not be revised by the circuit court of appeals, though under instruction from this court.

The act of March 3, 1891, establishing the circuit courts of appeals, provides, in its fourth section, that "the review, by appeal, by writ of error, or otherwise, from the existing circuit courts shall be had only in the supreme court of the United States or in the circuit courts of appeals hereby established according to the provisions of this act regulating the same”; in section 5. that “appeals or writs of error may be taken from the existing circuit courts direct to the supreme court * in any case in which the jurisdiction of the court is in issue; in such cases the question of jurisdiction alone shall be certified to the supreme court from the court below for decision"; in section 6, that the circuit courts of appeals "shall exercise appellate jurisdiction to review by appeal or by writ of error final decision in

* existing circuit courts in all cases other than those provided for in the preceding section of this act, unless otherwise provided by law, and the judgments or decrees of the circuit courts of appeals shall be final • in all cases


under the revenue laws, excepting that in every such subject within its appellate jurisdiction the circuit court of appeals at any time may certify to the supreme court of the United States any questions or propositions of law concerning which it desires the instruction of that court for its proper decision, and thereupon the supreme court may either give its instruction

on the questions and propositions certifed to it which shall be binding upon the circuit courts of appeals in such case, or it may require that the whole record and cause may be sent up to it for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there for review by writ of error or appeal”; and excepting, also, that the supreme court, in the absence of request for instruction, might, by certiorari or otherwise, require any such case to be certified to it for review.

It thus appears that the revisory power of this court and of the circuit courts of appeals, under the act, is to be exercised only in accordance with its provisions, and that the circuit courts of appeals exercise appellate jurisdiction under the sixth section in all cases other than those in wbich the jurisdiction of this court is exercised under the fifth, among which cases are included all revenue cases, that is, cases under laws imposing duties on imports or tonnage, or providing in ternis for revenue (U. S. v. Hill, 123 U. S. 681, 8 Sup. Ct. 308), which can only come here on the merits on certificate or certiorari; yet, if in such a case a final judgment were rendered because of want of jurisdiction, that judgment could be reviewed by this court upon a certificate of the circuit court; while, ir jurisdiction were sustained and the merits adjudicated, although the question of jurisdiction might be brought up directly, the circuit court of appeals would undoubtedly have jurisdiction to review the case upon the merits. The provision that any case in which the question of jurisdiction is in issue may be taken directly to this court necessarily extends to other cases than those in which the final judgment rests on the ground of want of jurisdiction, for in them that would be the sole question, and the certificate, though requisite to our jurisdiction under the stat. ute, would not be in itself essential, however valuable in the interest of brevity of record. But in such other cases the requirement that the question of jurisdiction alone should be certified for decision was intended to operate as a limitation*upon the jurisdiction of this. court of the entire case and of all questions involved in it, a jurisdiction which can be exercised in any other class of cases taken directly to this court, under section 5. Horner v. U. S., 113 U. S. 570, 577, 12 Sup. Ct. 522. The act certainly did not contemplate two appeals or writs of error at the same time by the same party to two different courts, nor does it seem to us that it was intended to conipel a waiver of the objection to the jurisdiction altogether or of the consideration of the merits. By taking a case directly to this court on the question of jurisdiction, the contention on the merits would be waived; but it does not follow that the jurisdiction::l ques. tion could not be considered if the case were taken to the circuit court of appeals. The act was passed to facilitate the prompt disposi

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