ROSS, Circuit Judge
(after stating the facts as above). The indictment in question is based on sections 37 and 10 of the Criminal Code of the United States (Act March 4, 1909, c. 321, 35 Stat. 1088 [Comp. St. 1913, §§ 10201, 10174]), the former of which reads:
“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 [230]*230purpose, and one or more of such parties do any act to effect the object of the- conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both.” .
And the section which the defendants are charged with having conspired to violate, so far as here applicable, is as follows:
“Whoever, within the territory or jurisdiction of the United States, * * * hires'or retains another person, * * * to go beyond the limits or jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony, district, or people, as a soldier, or as a marine or seaman, on board of any vessel of war, * * w shall be fined not more than one thousand drollars and imprisoned not more than three years.”
[ 1 ] It is well settled that, when a case is submitted upon an agreed statement of facts, the sufficiency of the facts so agreed on to sustain the judgment entered may be reviewed on writ of error. United States v. Eliason, 16 Pet. 291, 300, 10 L. Ed. 968; Henderson’s Distilled Spirits, 14 Wall. 44, 53, 20 L. Ed. 815; Hipple v. Bates County, 223 Fed. 22, 138 C. C. A. 436. See, also, Kennedy v. Brent, 6 Cranch, 187, 3 L. Ed. 194; Brent v. Chapman, 5 Cranch, 358, 3 L. Ed. 125.
[2] The Constitution of the United States provides:
“The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have- directed.” Article 3, § 2.
And by the Sixth Amendment of the Constitution it is declared:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
The constitutional right thus secured to one charged with crime means a trial by jury according to the course of the common law, which right cannot even be waived. Thompson v. Utah, 170 U. S. 343, 346, 349, 353, 18 Sup. Ct. 620, 42 L. Ed. 1061; Freeman v. United States, 227 Fed. 732, 142 C. C. A. 256. And in the case of Sparf and Hansen v. United States, 156 U. S. 51, 105, 15 Sup. Ct. 273, 294 (39 L. Ed. 343), the Supreme Court distinctly adjudged that:
' “It is not competent for the court, in a criminal case, to • instruct the jury peremptorily to find the accused guilty of the offense charged or of any criminal offense less than that charged.”
See, also, Atchison, T. & S. F. Ry. Co. v. United States, 172 Fed. 194, 96 C. C. A. 646, 27 L. R. A. (N. S.) 756; United States v. Taylor (C. C.) 11 Fed. 470.
Therefore the trial court in the present case had not the power to order the jury to. return a verdict of guilty, regardless of its own view respecting the proper conclusion to be drawn from the facts agreed upon. And a little consideration will show why this is necessarily so.
[231]*231As appears from the bill of exceptions, the entire case of the government was made to rest upon the statement of facts agreed upon in writing, signed by the attorneys of the respective parties and filed for record, respecting which the bill of exceptions expressly recites;
“The foregoing ‘Agreed Statement of Facts’ and the Exhibits A, B, O, D, E, F, and G thereto attached, constituted and was the whole and entire showing of fact made in the above-entitled cause; and no other showing of fact or facts, save and except said ‘Agreed Statement of Facts’ and said exhibits attached thereto, was presented in said cause to said court and jury, or either of them, and no testimony or evidence of any character or description, whether oral or written, was received by or placed before said court or jury in addition to the above-mentioned ‘Agreed Statement of Facts' and said exhibits thereto attached.”
It will he readily seen, not only from the stipulation itself, but from the foregoing declaration contained in the bill of exceptions, that there was no agreement between the parties in regard to any inference or deduction to be drawn from the actual facts agreed on. Obviously, all such inferences and deductions were left to be drawn, and only could be properly drawn, by the jury upon submission of the case to them, after opportunity of argument by the counsel of the respective parties. It might have been, and doubtless would have been, argued to the jury, as it is argued here to this court, that the agreed statement of facts wholly fails to show that the present plaintiffs in error, or, indeed, any of the defendants to the indictment, ever within the territory of the United States, conspired to “hire or retain,” or ever did “hire or retain,” any of the persons named in the indictment, or any other person or persons, to go beyond the limits and jurisdiction of the United States with the intent or purpose specified in the indictment. The defendants thereto might well have contended before the jury, as the plaintiffs in error do here, that what they did, as shown by the agreed statement of facts, was in effect to aid and assist the persons referred to in the indictment and in the agreed-statement of facts to go beyond the limits of the United States with the intent and for the purpose charged, and was in no respect the hiring and retaining them prohibited by the statute.
[3] Now it is thoroughly settled that agreed statements of fact rest upon the consent of the parties, and upon that only. Manifestly, therefore, it is not permissible to import into such a statement, by inference, deduction., or otherwise, anything not expressly stated as a fact. Pomeroy’s Lessee v. Bank of Indiana, 68 U. S. (1 Wall.) 592, 603, 17 L. Ed. 638; The Clara, 102 U. S. 200, 202, 26 L. Ed. 145; Old Colony R. R. Co. v. Wilder. 137 Mass. 536, 538; Friedman v. Jaffe, 206 Mass. 454, 92 N. E. 704; Vera v. Mercantile F. & M. Ins. Co., 216 Mass. 154, 103 N. E. 292; Texas Mexican Ry. Co. v. Scott, 60 Tex. Civ. App. 482, 129 S. W. 1170, 1178; Crandall v. Amador County, 20 Cal. 72, 74.
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ROSS, Circuit Judge
(after stating the facts as above). The indictment in question is based on sections 37 and 10 of the Criminal Code of the United States (Act March 4, 1909, c. 321, 35 Stat. 1088 [Comp. St. 1913, §§ 10201, 10174]), the former of which reads:
“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 [230]*230purpose, and one or more of such parties do any act to effect the object of the- conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both.” .
And the section which the defendants are charged with having conspired to violate, so far as here applicable, is as follows:
“Whoever, within the territory or jurisdiction of the United States, * * * hires'or retains another person, * * * to go beyond the limits or jurisdiction of the United States with intent to be enlisted or entered in the service of any foreign prince, state, colony, district, or people, as a soldier, or as a marine or seaman, on board of any vessel of war, * * w shall be fined not more than one thousand drollars and imprisoned not more than three years.”
[ 1 ] It is well settled that, when a case is submitted upon an agreed statement of facts, the sufficiency of the facts so agreed on to sustain the judgment entered may be reviewed on writ of error. United States v. Eliason, 16 Pet. 291, 300, 10 L. Ed. 968; Henderson’s Distilled Spirits, 14 Wall. 44, 53, 20 L. Ed. 815; Hipple v. Bates County, 223 Fed. 22, 138 C. C. A. 436. See, also, Kennedy v. Brent, 6 Cranch, 187, 3 L. Ed. 194; Brent v. Chapman, 5 Cranch, 358, 3 L. Ed. 125.
[2] The Constitution of the United States provides:
“The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have- directed.” Article 3, § 2.
And by the Sixth Amendment of the Constitution it is declared:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
The constitutional right thus secured to one charged with crime means a trial by jury according to the course of the common law, which right cannot even be waived. Thompson v. Utah, 170 U. S. 343, 346, 349, 353, 18 Sup. Ct. 620, 42 L. Ed. 1061; Freeman v. United States, 227 Fed. 732, 142 C. C. A. 256. And in the case of Sparf and Hansen v. United States, 156 U. S. 51, 105, 15 Sup. Ct. 273, 294 (39 L. Ed. 343), the Supreme Court distinctly adjudged that:
' “It is not competent for the court, in a criminal case, to • instruct the jury peremptorily to find the accused guilty of the offense charged or of any criminal offense less than that charged.”
See, also, Atchison, T. & S. F. Ry. Co. v. United States, 172 Fed. 194, 96 C. C. A. 646, 27 L. R. A. (N. S.) 756; United States v. Taylor (C. C.) 11 Fed. 470.
Therefore the trial court in the present case had not the power to order the jury to. return a verdict of guilty, regardless of its own view respecting the proper conclusion to be drawn from the facts agreed upon. And a little consideration will show why this is necessarily so.
[231]*231As appears from the bill of exceptions, the entire case of the government was made to rest upon the statement of facts agreed upon in writing, signed by the attorneys of the respective parties and filed for record, respecting which the bill of exceptions expressly recites;
“The foregoing ‘Agreed Statement of Facts’ and the Exhibits A, B, O, D, E, F, and G thereto attached, constituted and was the whole and entire showing of fact made in the above-entitled cause; and no other showing of fact or facts, save and except said ‘Agreed Statement of Facts’ and said exhibits attached thereto, was presented in said cause to said court and jury, or either of them, and no testimony or evidence of any character or description, whether oral or written, was received by or placed before said court or jury in addition to the above-mentioned ‘Agreed Statement of Facts' and said exhibits thereto attached.”
It will he readily seen, not only from the stipulation itself, but from the foregoing declaration contained in the bill of exceptions, that there was no agreement between the parties in regard to any inference or deduction to be drawn from the actual facts agreed on. Obviously, all such inferences and deductions were left to be drawn, and only could be properly drawn, by the jury upon submission of the case to them, after opportunity of argument by the counsel of the respective parties. It might have been, and doubtless would have been, argued to the jury, as it is argued here to this court, that the agreed statement of facts wholly fails to show that the present plaintiffs in error, or, indeed, any of the defendants to the indictment, ever within the territory of the United States, conspired to “hire or retain,” or ever did “hire or retain,” any of the persons named in the indictment, or any other person or persons, to go beyond the limits and jurisdiction of the United States with the intent or purpose specified in the indictment. The defendants thereto might well have contended before the jury, as the plaintiffs in error do here, that what they did, as shown by the agreed statement of facts, was in effect to aid and assist the persons referred to in the indictment and in the agreed-statement of facts to go beyond the limits of the United States with the intent and for the purpose charged, and was in no respect the hiring and retaining them prohibited by the statute.
[3] Now it is thoroughly settled that agreed statements of fact rest upon the consent of the parties, and upon that only. Manifestly, therefore, it is not permissible to import into such a statement, by inference, deduction., or otherwise, anything not expressly stated as a fact. Pomeroy’s Lessee v. Bank of Indiana, 68 U. S. (1 Wall.) 592, 603, 17 L. Ed. 638; The Clara, 102 U. S. 200, 202, 26 L. Ed. 145; Old Colony R. R. Co. v. Wilder. 137 Mass. 536, 538; Friedman v. Jaffe, 206 Mass. 454, 92 N. E. 704; Vera v. Mercantile F. & M. Ins. Co., 216 Mass. 154, 103 N. E. 292; Texas Mexican Ry. Co. v. Scott, 60 Tex. Civ. App. 482, 129 S. W. 1170, 1178; Crandall v. Amador County, 20 Cal. 72, 74.
In the course of his instructions the learned trial judge undertook to explain to the jury the meaning of the statute upon which the indictment is based, which was clearly liis province to do; but the difficulty is that he went far beyond that, and himself, by means of inferences, deductions, and argument from the facts agreed upon, drew the conclusion of guilt which it was the exclusive province of the jury to deter[232]*232mine, in the light of the law as given to them by the court. No amount of argument can make this plainer than the language of the court itself, shown in the following excerpts from the instructions, which directed a verdict of guilty against the plaintiffs in error upon the first count of the indictment:
. “These, then, briefly stated, gentlemen, are the facts that are before us. It remains now to consider them in the light of the law. ^ That some of the defendants, and particularly Blair and Addis, were acting in concert and with a well-defined purpose on their part to accomplish some certain things, does not admit of doubt. Together they formed the British Friendly Association, the purpose of which was to transport to New York British subjects sound in body and limb. It is not to be conceived, and indeed all of the circumstances negative any such conception, that they expected the journey of the men so transported to end at New York. The ultimate destination of these men was some point in the British empire, and the defendants knew it, and were jointly engaged in sending them there. This phase of the case, therefore, presents no difficulty. The grave question is whether the defendants, in doing what they did, were engaged in a criminal conspiracy. They had associated themselves together to transport to New York British subjects, sound in body and limb, whose ultimate destination was England, and at least a majority of whom intended to enlist there in the military or naval ■service, and all of whom .the defendants supposed, believed, and presumed would so enlist. * * * The sole question here is: Do the facts before us show a conspiracy on the part of defendants to violate the statute which we have been considering?
“What are the salient facts? The king of Great Britain and Ireland was desirous'of the return to his kingdom of British subjects for employment in the army and navy and in various branches of the national service of all kinds, and the British consul general at San Francisco caused to b© published a notice calling into actual service the Royal Naval Reserve. A large number of persons responded', a few of whom were in fact reserves. The consul general, however, kept a register of all persons calling on 'him to inquire ■concerning military service, and upon this register were the names and addresses of over 600 individuals under various headings, such as ‘Volunteer Army Volunteers,’ ‘Army Volunteers and Ex-Soldiers,’ ‘Army Reserve,’ ‘Royal Naval Volunteers,’ and ‘Volunteers for Nurses.’ The defendants Blair and Addis, with one Harris, with the consent of the consul general, organized the British Friendly Association, and these lists were turned over to Harris, who was in charge of the office of the Association, and who with the knowledge of Blair and Addis opened correspondence with the persons whose names were upon the lists. After Harris left the lists were in the custody of Blair, whose name appeared on one of them under the heading ‘Volunteers.’ The men who came to the Friendly Association’s office were examined as to their physical condition by defendant Addis, who is a physician, and whose name is on the list of ‘Volunteers for Nurses.’ All the expenses were paid with the money of the British government, furnished through the consul general, who, when he turned the lists over to Harris, accompanied them with the instructions ‘to send only British subjects with military training,’ ‘to make no engagements of any description whatever, to give no pay or advance,’ ‘to make no solicitation,’ ‘not to send more than 50 men at a time,’ ‘to require such proof of British nationality as such men are usually able to give,’ ‘to give no information as to pay, allotments, etc.,’ and ‘to examine the men to see if they were physically suitable.’ It would be taxing credulity to the utmost to urge that, with the lists and instructions, the defendants did not know that what was sought by the consul general was men who would go to England there to enlist in the military or naval service. They were ‘to give no pay or advance.’ It is not stated ‘pay or advance for what.’ They were ‘to make no engagements of any description whatever.’ It is not stated in the instructions what they were to do in this regard, but they were to examine the men to see if they were suitable, and to send them on, not more than 50 at a time. Evidently, while under the [233]*233instructions they could make no engagements, they certainly could come to some understanding with the men that they should be sent forward for some purpose for wbicli, after a physical examination, they were found to he ‘suitable.’ They were ‘to give no information as to pay, allotments,’ etc. ‘Pay or allotments for what?’ The instructions do not state, but the facts show that all British soldiers and seamen receive a daily pay, and may receive pensions and allotment's after their service is terminated, and that this was known both by defendants and by men transported. The men, pending and after examination, were kepit at boarding and lodging houses until a sufficient number was assembled for ‘orderly transportation.’ All this was designed, and defendants knew it, to secure men to return to Great Britain and enlist. They examined the men, boarded them, lodged them, transported them in squads to New York, where they expected them to report to the British consul for further examination and further transportation. Defendant's knew what they expected the men to do, and the men in turn knew what was expected of them. Defendants, in the language of the stipulation, supposed, presumed, and believed that the men would go to England and there enlist in the military or naval sendee, and a majority of the men intended to do so. They were furnished hoard, lodging, and transportation for that reason alone. The offer of defendant was, even though never put into words, ‘If you men, having been found, after examination, physically suitable, will go to England and enlist we will furnish you with board and lodging while you are here awaiting examination and transportation, and we will furnish you with transportation to New York and sustenance during the trip.’ And this offer the men accepted, by submitting 1o examination, by accepting board, lodging, sustenance, and transportation, with the intent in the majority of them, at least, to do the thing desired. It would bo to look on to the form in utter disregard of the substance to accept as a sufficient response to all these facts the statement that at no time did defendants, or any of them, expressly say in words to any of the men that they should enlist in the service of Great Britain as soldiers, sailors, or marines, just as it would he to regard the form alone, and disregard the substance, to believe, in view of all the facts, that when the consul general turned over to Harris, of the Friendly Association, the lists of so-called ‘Volunteers,’ with the manifest intention that they should be used, the instructions accompanying them were designed for any other purpose than to secure here men to go beyond the limits of the United States for enlistment, without appearing to have violated the law, to accomplish in fact the results against which our statute is directed, and to do the things therein forbidden without appearing to do so. While, therefore, it may be true that they believed they were acting within the law, I am of the opinion, for the reasons stated, that some of the defendants did enter into the conspiracy as charged in the indictment, and that defendant Blair, for the purpose of effecting the object thereof, committed some of the overt acts charged.”
The judgment is reversed, and the case remanded for a new trial.