GILBERT, Circuit Judge.
The two cases named above, although separately tried, arose out of a single transaction, in which each of the plaintiffs in error was involved. For the reason that the points presented to this court are similar in the two cases, they will be disposed of in a single opinion of this court.
The indictment against Diggs contained six counts. He was convicted on the first four counts, and there was no verdict on the last two. The first count charged him with transporting Marsha Warring-ton from Sacramento, Cal., to Reno, Nev., for the purpose of debauchery, and for an immoral purpose, to wit, that the aforesaid Marsha Warrington should be and become his concubine and mistress. The second count charged him with transporting Lola. Norris from Sacramento to Reno, that she might become the mistress and concubine of Caminetti. The third count charged him with procuring a ticket for Marsha Warrington from Sacramento to Reno, with the intent that she should become his concubine and mistress. The fourth count charged him with buying a ticket for Lola Norris, with the intent that she should give herself up to debauchery, and for an immoral purpose, to wit, that she could be and become the concubine and mistress of Caminetti. The fifth and sixth counts charged him with persuading, [548]*548inducing, and enticing Marsha Warrington and Lola Norris to go to Renp .for .the immoral purposes set forth in the other counts.
The indictment against Caminetti contained four counts. The indictment was similar to that against Diggs, excepting the two counts relating to the purchase of tickets were omitted from Caminetti’s indictment. He was convicted on the first two counts and acquitted on the last two.
[1] Error is assigned to the following instruction to the jury:
“After testifying to the relations between himself and Caminetti and these girls down to the Sunday night on which the evidence of the government tends to show the trip to Reno was taken, he stops short and has given none of the details or incidents of that trip, nor any direct statement of the intent or purpose with which that trip was taken, contenting himself by merely referring to it as having been taken, and by testifying to his state of mind for some days previous to the taking of that trip. Now this was the defendant’s privilege, and, being a defendant, be could not be required to say more if he did not desire to do so; nor could he be cross-examined as to matters not covered by his direct testimony. But in passing upon the evidence |in the case for the purpose of finding the facts you have a right to take this omission of the defendant into consideration. A defendant is not required under the law to take the witness stand. He cannot be compelled to testify at all, and if he fails to do so no inference unfavorable to him may be drawn from that fact, nor is the prosecution permitted in that case to comment unfavorably upon the defendant’s silence; but where a defendant elects to go upon the witness stand and testify, he then subjects himself to the same rule as that applying to any other witness, and if he has failed to deny or explain acts of an incriminating nature that the evidence of the prosecution tends to establish against him, such failure may not only be commented upon, but may be considered by the jury with all the other circumstances in reaching their conclusion as to his guilt or innocence, since it is a legitimate inference that, could he have truthfully denied or explained the incriminating evidence against him, he would have done so.”
This assignment presents the question whether the waiver of the privilege of silence by a defendant in a criminal case in becoming a witness in his own behalf is a complete waiver, so as to place him in the position of any other witness in the case, or is only a partial waiver; that is to say, a waiver so far as the defendant sees fit to testify, leaving him, as to other matters, still under the protection of the fifth amendment. The statute of March 16, 1878 (U. S. Comp. Stats, of 1913, § 1465), provides that a person charged with an offense “shall at his own request but not otherwise be a competent witness. And his failure to make such a request shall not create any presumption against him.” Upon a careful and cautious consideration of the question we reach the conclusion that the statute should be held to mean that the waiver is complete, and that when it has been made the defendant is no longer under the protection of the amendment.
The only cause we have found for hesitation in reaching that conclusion is the fact that the Circuit Court of Appeals for the Eighth Circuit, a court for which we entertain the highest respect, in a similar case (Balliet v. United States, 129 Fed. 689, 64 C. C. A. 201), held such an instruction, reversible error. It is to be said, however, that while the opinion in that case contains no discussion of or reference to any adjudicated case of the state courts we think it is not improbable [549]*549that the conclusion reached was influenced by the then settled rule of the Supreme Court of the state of Missouri. But in 1913 the Supreme Court of Missouri in State v. Larkin, 250 Mo. 218, 157 S. W. 600, 46 L. R. A. (N. S.) 13, overruled its prior decisions. In that case the court said:
“We have carefully examined the statutes and holdings upon, this question of more than 30 states, and we find that it has been held universally that, if the defendant is not sworn as a witness in his own behalf, any comment by the prosecuting attorney on his failure so to testify constitutes reversible error, in the absence of a peremptory and proper rebuke by the trial court. But, on the other hand, except in our own state and in California, where the question has been sometimes doubted, the right of the prosecuting attorney to comment upon the failure of the defendant, when he takes the stand as a witness in his own behalf, to deny or explain incriminating facts and statements, has been uniformly held allowable:”
After citing numerous cases the court proceeded:
“The rule that no reference shall be made to the neglect, failure, or even refusal of a defendant to avail himself of his right to testify shall not be commented on, in the event he does not become a witness in his own behalf, is therefore, we find, universal; but, on the contrary, the rule that if he does go upon the witness stand he then stands in the precise attitude of of any other witness is, except in this state, and, as stated, in California, where the rale is subject to some doubt, also universal; Mr. Wharton, in his learned and able work on Criminal Evidence, lays down in the tenth edition thereof the rule that such comment is allowable.”
And the court referred to the earlier rule in Missouri as expressed in State v. Musick, 101 Mo. 271, 14 S. W. 214, in which it was said:
“These statements made by the state’s witnesses were not denied by defendant, and therefore stand admitted, as much so as if the defendant had admitted them in terms.”
We think that the opinion in Reagan v. United States, 157 U. S. 301, 15 Sup. Ct. 610, 39 L. Ed. 709, should be taken as affirming, in substance, what was said of the rule so expressed in State v. Larkin. In that case Mr. Justice Brewer, for the court, referring to the act of March 16, 1878, said:
“On the other hand, if he avail himself of this privilege, his credibility may be impeached, his testimony may be assailed, and is to be weighed as that of any other witness. Assuming the position of a witness, he is entitled to all its rights and protections, and is subject to all its criticisms and burdens. It is unnecessary to consider whether, when offering himself as a witness as to one matter, he may either, at the will of the government or under the discretion of the court, be called upon to testify as to other matters. That question is not involved in this case, and we notice it simply to exclude it from the scope of our observation. The privileges and limitations to which we refer are those which inhere in the witness as a witness, and which affect the testimony voluntarily given. As to that, he may be fully cross-examined. It may be assailed by contradictory testimony. His credibility may be impeached, and by the same methods as are pursued in the case of any other witness. The jury properly consider his maimer of testifying, the inherent probabilities of his story, the amount and character of the contradictory testimony, the nature and extent of his interest in the result of the trial, and the impeaching evidence in determining how much of credence he is entitled to.”
In Brown v. Walker, 161 U. S. 591, 597, 16 Sup. Ct. 644, 647 (40 L. Ed. 819) the court said:
[550]*550“Tims, If the witness himself elects to waive his privilege, as he may doubtless do, since the privilege is for his protection and not for that of other parties, and discloses his criminal connections, he is not permitted to stop, but must go on and make a full disclosure.”
In Fitzpatrick v. United States, 178 U. S. 304, 316, 20 Sup. Ct. 944, 949 (44 L. Ed. 1078) the court said:
“While the court would probably have no power of compelling an answer to any question, a refusal to answer a proper question put upon cross-examination has been held to be a proper subject of comment to the jury” — citing State v. Ober, 52 N. H. 459, 13 Am. Rep. 88.
In State v. Ober, so cited, the court said:
“Upon the whole, we are unable to reach any other conclusion than that the respondent’s testimony, so far as it went (and not less the fact that it went no further), his refusal to submit to a full cross-examination, within proper limits, after waiving his constitutional privilege, and all his conduct and demeanor, were proper matters for comment by counsel and court, as well as for the consideration of the jury.”
How the Circuit Court of Appeals for the First Circuit understood the decision in the Fitzpatrick Case is shown in Jacobs v. United States, 161 Fed. 694, 699, 88 C. C. A. 554, 559, where Judge Putnam said:
“He offers himself as a witness, and therefore puts himself in the position of any other witness, so far that he may be examined with reference to anything pertinent to the case and admissible in evidence therein.”
Very numerous decisions of the state courts may be cited which support the ruling of the court below in giving the instruction which is assigned as error. Thus, in State v. Tatman, 59 Iowa, 471, 13 N. W. 632, the court said:
“The attention of the jury may properly be called to the fact that the defendant has not testified as to a certain part of the case.”
In Comstock v. State, 14 Neb. 205, 15 N. W. 355, it was held that a failure of the defendant to contradict a fact within his personal knowledge is in the nature of an admission of. such fact. In Heldt v. State, 20 Neb. 492, 30 N. W. 626, 57 Am. Rep. 835, the court held that the district attorney may comment on such omission. In State v. Ulsemer, 24 Wash. 657, 64 Pac. 800, it was held that comment might be made upon the defendant’s failure to deny incriminating facts in the evidence. The court said:
“He assumes the character of a witness * * * the same as any other witness.”
The same rule has been applied in Kansas (State v. Glave, 51 Kan. 330, 33 Pac. 8), and in Alabama (Cotton v. State, 87 Ala. 103, 6 South. 372). In Clarke v. State, 87 Ala. 71, 6 South. 368, the court said:
“Like any other witness he must submit to cross-examination, and his failure to explain any fact or circumstances in. his knowledge tending to exculpate him, is a proper subject of comment by the prosecution.”
In Lee v. State, 56 Ark. 4, 19 S. W. 16, it was held that the failure of one charged with crime to testify in his own behalf shall not create a presumption against him, and does not prevent the prosecuting attorney commenting on defendant’s failure to deny certain testimony in [551]*551relation to facts of which he must have had knowledge. In Brashears v. State, 58 Md. 568, the court in a similar case said:
‘•His conduct on the witness stand, and his silence, when testifying, as to matters within his knowledge, wore circumstances which the jury had a right to consider in deciding upon the credit due to the witness, in connection with the other facts proved in the case, and they were, therefore, necessarily circumstances upon which the state’s attorney had a right to comment in addressing the jury.”
In State of Nevada v. Harrington, 12 Nev. 125, 130, the court said:
“Our conclusions are that, if the defendant in a criminal action voluntarily testifies for himself, the same rights exist in favor of the state’s attorney to comment upon his testimony, or his refusal to answer any proper question, or to draw all proper inferences from his failure to testify upon any material matter within his knowledge, as with other witnesses.”
Many other cases may be cited to the same effect, and the text-books adopt the rule thus expressed as established by a uniform line of decisions. In Wharton’s Criminal Evidence, § 681, it is said:
“But if the defendant, having full opportunity to do so, failed on the stand to controvert that which was testified against him, this may be regarded, when the matter is one within his personal knowledge, as an admission of the truth of such testimony.”
And such, we think, is the meaning of the decisions of the Supreme Court of the United States, cited above, and epitomized in Sawyer v. United States, 202 U. S. 150, 165, 26 Sup. Ct. 575, 579 (50 L. Ed. 972, 6 Ann. Cas. 269), where it is said:
“It has been held in this court that a prisoner who takes the stand in his own behalf waives his constitutional privilege of silence, and that the prosecution has the right to cross-examine him upon his evidence in chief with the same latitude as would be exercised in the case of an ordinary witness, as to the circumstances connecting him with the crime.”
We take this to mean that the waiver of the constitutional privilege of a defendant in a criminal case is a complete waiver, and places the defendant in the same attitude as that of a defendant in a civil action who testifies in his own behalf.
The plaintiff in error waived his privilege of silence when he took the witness stand and testified as to the subject-matter of the offense with which he was charged. He testified at length and in detail as to his relations with the two girls and his> codefendant covering a considerable period of time, and ending abruptly at the railroad station at a late hour of the night on which the party took the train for Reno. There he stopped. He made no denial of the testimony that he purchased the train tickets and procured the drawing room on the Pullman car, or that the drawing room was actually occupied by the members of the party in the manner in .which the girls testified that it was. Nor did he deny his participation in the discussion of the plan of securing a cottage or bungalow at Reno in which the party were to live during their stay at Reno. The jury, even in the absence of instruction from the court, would inevitably have taken his omission to testify as to those incidents to be an admission of the facts testified to by the two girls.
[552]*552[2-4] Error is assigned to the denial of defendant’s request for.an instruction that the jury should determine from the evidence and circumstances whether Marsha Warrington and Lola Norris, or either of them, were accomplices of the defendants, and that, if it was found that they were, the testimony of an accomplice should be received with caution and weighed and scrutinized with great care by the jury, and that the jury should not regard the testimony of an accomplice, unless she is confirmed and corroborated in some material parts of her evidence. To this it is to be said:
First. A refusal to instruct as to the value of the testimony of an accomplice is not error for which a judgment should be reversed. In Holmgren v. United States, 217 U. S. 509, 523, 30 Sup. Ct. 588, 592 (54 L. Ed. 861, 19 Ann. Cas. 778), the court said:
“It is undoubtedly tbe better practice for courts to caution juries against too much reliance upon tbe testimony of accomplices, and to require corroborating testimony before giving credence to them.”
Other courts also have said that, such was the better practice, but, as the rule is stated in 2 Bishop, New Crim. Procedure, 1169, “they are not as of law required to give this advice.”
Notwithstanding the views expressed by the Supreme Court in the Holmgren Case as to the better practice, that court and the federal courts generally have held that corroborating testimony is not necessary to support a conviction. This court so held in Lung v. United States, 218 Fed. 817, 134 C. C. A. 505. And it is believed that no court, state or federal, has held that it is reversible error to refuse to caution the jury to scrutinize with care the testimony of an accomplice. In Cheatham v. State, 67 Miss. 335, 7 South. 204, 19 Am. St. Rep. 310, the court said:
“Tbe suspicion with wbicb tbe testimony of accomplices is received by tbe courts, and tbeir unwillingness to sustain convictions resting wholly upon tbe uncorroborated evidence of sucb persons, bas led to tbe very .general practice of advising juries to act with great prudence and suspicion upon sucb evidence, and to acquit unless there is corroboration in material particulars. But our researches have failed to discover a case in wbicb a conviction bas been set aside by reason of the court refusing so to instruct or advise.” .
The court, in that case, cited State v. Haney, 19 N. C. 390, in which, it was said, the Supreme Court of North Carolina had declared the true rule upon the subject, which was that :
“Tbe practice of giving sucb instructions or advice to the jury rests in the discretion of the presiding judge, and bis refusal so to do is not assignable as error.” “No one,” said tbe court, “can require of tbe judge to give an instruction to tbe jury, except on tbe law of tbe ease. Tbe judge may caution them against reposing hasty confidence in tbe testimony of an accomplice. It is usual, justifiable, and, we add, it is proper, to do so, where be bas cause to apprehend that the jury may feel .themselves bound to find a verdict conforming to tbe positive testimony of tbe witness, without weighing tbe circumstances of suspicion and distrust under wbicb his testimony is rendered.”
See note to Commonwealth v. Price, 71 Am. Dec. 678, in which a large number of cases are cited to the same effect.
In the present case the court instructed the jury that the evidence must be such as to satisfy their minds beyond a reasonable doubt and [553]*553to a moral certainty, and said that they should take into consideration the character and conduct of each witness, his relation to the controversy and to the parties, his expressed or apparent bias or partiality, the reasonableness or unreasonableness of the statements he makes, and all other elements which tend to throw light upon his credibility.
Second. We are of the opinion that as to the counts of the indictments on which the defendants were found guilty neither Marsha Warrington nor Lola Norris was an accomplice, for, while there was testimony on which, if credited, Marsha Warrington might have been deemed an accomplice of the defendants in persuading, inducing, and enticing Lola Norris to go to Reno, under the last two counts of the indictments that question is eliminated from the case by the verdict of the jury in acquitting each of the defendants on those counts.
“The test by which to determine whether one is an accomplice is to-ascertain whether- he could be indicted for the offense of which the accused is being tried.” 12 Cyc. 445.
“Where a penal statute is intended for the protection of a particular class of persons, one of that class does not become an accomplice by submitting to the injury.” 1 McClain, Criminal Law, § 199.
Thus it is universally held that a woman on whom an abortion is committed is not an accomplice, although she assents to the act. But one may sustain such relation to an offense that, while not an accomplice in the commission of that offense, he may be indicted for a conspiracy to commit the offense. This was what was decided in United States v. Holte, 236 U. S. 140, 35 Sup. Ct. 271, 59 L. Ed. -. There it was held that it was not impossible for a woman transported in violation of the act of June 25, 1910, to be guilty of crime in conspiring for the commission of that offense. The court said:
“A conspiracy to accomplish what an individual is free to do may be a crime.”
And the ruling of the court was illustrated by a reference to the crime of abortion, as to which, said the court:
“A woman may conspire to procure an abortion upon herself when under the law she could not commit the substantive crime, and therefore it has been held she cannot be an accomplice.”
The court recognized the parity between the offense committed in transporting, or causing to be transported, a woman under the act of June 25, 1910, and the crime of abortion, and the rule that, while the person as to whom either offense is committed cannot be an accomplice, she may be prosecuted as a co-conspirator to procure the commission of the offense. ' ,
[5] It is said that the trial court erred in compelling the defendant Diggs to testify to certain matters which, were not the proper subject of cross-examination. In his direct testimony he had referred to conversations between the parties which took place just prior to the Reno trip, and in his direct examination he had said:
“I got the full information of all the trains and also the cost of transportation between different places from Sacramento to various positions. The next train leaving town was 10:45, the eastward train, and we all agreed to catch that train.”
[554]*554On his cross-examination, without objection, he had testified:
“I met Miss Warrington and Miss Norris frequently the first week preceding our. trip to Reno.”
And again he had said, also without objection:
“We left for Reno two weeks after meeting tier on the levee.”
Again he had said:
“I believe that was one week before we left for Reno on a Sunday night/'
And again:
“That night we went to Reno.”
After this testimony, had been given, counsel for the government propounded this question:
“Q. In your testimony you have referred repeatedly to conversations and .conferences that took place before the Reno trip. Now, what did you understand or mean by the Reno trip?”
The question was objected to as not cross-examination. The court overruled the objection and remarked:
“He is not asking him what occurred on that trip. He is simply identifying the trip.”
The witness answered:
“It is perfectly evident what trip it was.”
And.in answer to the question:
“On that trip were you accompanied by Mr. Caminettl, Miss Norris, and Miss Warrington?”
—the question was objected to as not cross-examination, and the witness answered:.
“They were along; yes.”
We are unable to see upon what ground it can be held that the testimony so admitted constituted error for which the judgment should be reversed. After the witness had referred frequently to the “Reno trip,” it was not improper to ask him to identify the trip, and that was all that was done.
[6] It is contended that there was misconduct of counsel for the prosecution, permitted and condoned by the trial judge, prejudicial to the defendant Diggs, in that counsel for the government was permitted to ask of the said defendant on his cross-examination whether, during the course of the trial, and during the cross-examination of Marsha Warrington, he had not repeatedly suggested to his counsel questions to be propounded to her. Marsha Warrington on her cross-examination had testified as to her intimate relations with Diggs, in answer to questions propounded by the latter’s counsel. Following this, and while Diggs was on cross-examination, he was asked:
“Didn’t you suggest that question tof your counsel? A. Well, I suggested that to my counsel a long time before I came into the courtroom; * * * that suggestion may have been made by me during the cross-examination of Miss Warrington. I won’t say that I did not make the suggestion.”
[555]*555In view of that testimony, there was clearly no error in the ruling of the court upon the question which is presented in the assignment of error. It follows that it is not ground for reversing the judgment in the Diggs case that counsel for the government remarked:
“Counsel for the defense, prompted by the defendant, put these questions to Marsha Warrington.”
[7] Error is assigned to certain statements and animadversions made by the government counsel as to the facts before the jury, the guilt of the defendants, the sanctity of the home, and the importance of the cases under consideration. The remarks of counsel principally complained of in both cases are the following:
“The eyes of not only the people of the state of California are upon you, gentlemen of the jury, awaiting your verdict in this case, hut the people of all these United States; 60,000,000 or 90,000,000 people are awaiting your verdict in this case.”
Upon objection of counsel for the defendants, the court observed:
“That is merely a form of speech”
—and directed counsel to confine himself to the evidence.
Again counsel for the government, in addressing the jury, said:
“Gentlemen, if there is any depraved man in the world, if there is any man who has sunk to the uttermost depths of depravity, it is that man in form, because he is a man in form alone, who seduces an innocent girl and then exposes her shame to the world. If he had one redeeming trait of character in his composition, having blasted the life of that virgin, he ought to be willing to take 50 years in the penitentiary before he would come before a jury of his fellow citizens, and before the world, and say, Yes, .1 seduced that girl; before he would come before a jury of his fellow citizens and recount time after time when he had illicit intercourse with this girl. A decent man would die first.”
In the Diggs case objection was made by his counsel, Mr. Devlin, as follows:
“If your honor please, I except to that, because no such language came from the defendant; it all came from Marsha Warrington.
“Mr. Koehe: It came from Marsha Warrington upon your cross-examination for the first time.
“Mr. Devlin: We had a right to cross-examine her.
“The Court: Mr. Sullivan, confine yourself to the evidence; don’t transgress it.”
In the Caminetti case counsel for the government said:
“The government of these United States, gentlemen of the jury, whom we have the honor to represent here, your government, as well as my government, the government of all of us, demands that the laws enacted for the protection and preservation of its young and decent women be adequately and rigidly enforced. An acquittal in this case would be a miscarriage of justice, and it would be a blot upon the fair name and escutcheon of California.”
In this connection it is to be observed that in charging the jury the court said:
“I should suggest to you, gentlemen, that the statements or declarations of counsel made at the bar are in no sense evidence for your consideration. You are to confine your consideration alone to the evidence that has been admitted before you from the witness stand or in the way of exhibits or other physical objects which may have been laid before you.”
[556]*556And the court admonished the jury that they must not permit themselves to be influenced in their verdict by the fact that the case had attracted so much attention and given rise to so much controversy in the public press, in the halls of Congress, and among the people. The court said:
“Those facts are wholly extraneous to your Inquiry or to mine, and we have nothing whatsoever to do with them. They in no way affect the merits of the case, and you should be careful to avoid permitting any feeling of bias or prejudice flowing therefrom to find reflection in your verdict.”
Counsel for the defendants were apparently satisfied with these instructions, and they made no request in either case that the jury be instructed to disregard the remarks of counsel. It is the general rule that improper remarks in argument by the prosecuting attorney, although prejudicial, do' not justify reversal, unless the court has been requested to instruct the jury to disregard them, and has refused to do so. 12 Cyc. 585. In People v. Shears, 133 Cal. 154, 65 Pac. 295, it was held that, where the defendant did not invoke the action of the court to instruct the jury that it was improper, and to disregard it, hut merely excepted to the remarks of the district attorney, the impropriety is not ground for reversal of the judgment, upon conviction of manslaughter. A similar ruling was made in People v. Babcock, 160 Cal. 537, 117 Pac. 549.
In Dunlop v. United States, 165 U. S. 486, 498, 17 Sup. Ct. 375, 379 (41 L. Ed. 799) the court said:
“There is no doubt that, in the heat of argument, counsel do occasionally make remarks that are not justified by the testimony, and which are, or may be, prejudicial to the ac’cused. In such cases, however, if the court interfere, and counsel promptly withdraw the remark, the error will generally be deemed to be cured. If every remark made by counsel outside of the testimony were ground for a reversal, comparatively few verdicts would stand, since in the ardor of advocacy, and in the excitement of trial, even the most experienced counsel are occasionally carried away by this temptation.”
In Chadwick v. United States, 141 Fed.. 225, 245, 72 C. C. A. 343, 363, language was employed.by the district attorney more inflammatory and more subject to objection, we think, than the language used by the counsel for the government in the case at bar. In that case the defendant objected and excepted, and no ruling was made by the court. Judge Lurton, for the Circuit Court of Appeals, in reviewing the exception, held that there was no reversible error, and said:
“There is a degree of liberty allowable to counsel, whether for the government or' the accused, in respect to the line of argument they shall pursue and the inferences to be drawn from the evidence, which a trial judge should respect until the facts of the case are overstepped or arguments used which plainly abuse the privilege. * * -* But to entitle the accused to a reversal, when objection is made and the language not withdrawn, it must appear that the matter objected to was plainly unwarranted and so improper as to be clearly injurious to the accused.”
In Johnston v. United States, 154 Fed. 445, 83 C. C. A. 299, this court in a similar case said:
“The use of language by counsel, calculated to prejudice a defendant and not justified by the evidence, is improper and censurable, and should be discountenanced by the court. In such a case, it is the duty of the trial court [557]*557to set asido the verdict, unless satisfied that the improper language was not instrumental in securing it. But invective’ based on the evidence and inferences legitimately to be derived therefrom are not inhibited, and it is usually within the discretion of the trial court to determine whether or not the limits of professional propriety have been exceeded. Ordinarily the exercise of that discretion will not be reviewed in an appellate court, unless the invective is so palpably improper that it may be seen to have been clearly injurious.”
We discover nothing so offensive or inflammatory in the remarks of counsel for the government as to require us on that ground to reverse the judgments. The trial judge, in the exercise of the discretion •vested in him, did not regard the language of counsel as of sufficient importance to call for further interference or action on his part than as indicated in the above excerpts from the record, and therein, we think, there was no abuse of discretion.
[8] It is contended that the court in its instructions gave to the words “concubine'’ and “mistress” too wide and inclusive a meaning, and it is argued that the defendants, by transporting the women for the purpose of making them their concubines and mistresses, were not guilty of the offense defined in the act, and that the words “prostitution or debauchery, or any other immoral practice,” do not include concubinage, and that the immorality denounced by the White Slave Traffic Act is only commercialized vice. Tbe federal decisions are against these contentions. Hoke v. United States, 227 U. S. 308, 33 Sup. Ct. 281, 43 L. R. A. (N. S.) 906, 57 L. Ed. 523, Ann. Cas. 1913E, 905; Athanasaw v. United States, 227 U. S. 326, 33 Sup. Ct. 285, 57 L. Ed. 528, Arm. Cas. 1913E, 911; United States v. Bitty, 208 U. S. 393, 28 Sup. Ct. 396, 52 L. Ed. 543; United States v. Flaspoller (D. C.) 205 Fed. 1006; Johnson v. United States, 215 Fed. 679, 131 C. C. A. 613.
[9] It is assigned as error that the court refused to instruct, as requested by the defendants, that in considering the testimony of Marsha Warrington, and the weight to be given thereto, they might consider her motive in testifying, “whether or not she has been or appears to be, acting under the influence of any person or persons, whether or not any promise of immunity has been offered to her, and any hope she may have for leniency in any criminal action brought against herself.” It is sufficient in answer to this assignment to point to the fact that there is in the record no evidence tending in any way to show that there had been a promise of immunity to Marsha War-rington, or that she was acting under the influence of any person or persons.
[10] It is urged that there was no evidence on which to find that Caminetti took any part in transporting the girls from Sacramento to Reno, but that, on the other hand, the evidence was that the tickets were purchased by Diggs alone. The record does not sustain this contention. There are many items of the testimony which show that the journey to Reno was the result of the preconcerted action of both Diggs and Caminetti, and with a view to achieve a common purpose, which was, in fact, accomplished. Thus Lola Norris testified that, on the afternoon of the day on which they started for Reno, the four were together in a box at a restaurant, and that:- -
[558]*558“When we agreed on Reno, just before Mr. Caminetti left, he gave me 520. 1 don’t know whether he wanted me to buy my own, or buy my own and Miss Warrington’s together.”
Again she testified that on the same occasion Diggs said:
“Some one would have to manage the party, and the others would have to abide by his decisions. And so Mr. Caminetti said, ‘I will make you the boss,’ and so Mr. Diggs took charge of the party. Mr. Caminetti and Mr. Diggs were to share the expenses.”
She testified that thereafter Caminetti left in search for money with which to pay for the trip, and that on his return—
“he said he had been having quite a time trying to locate the party who was to give him the money, but he finally succeeded in finding him, and he secured the money, and we all went down to the depot again. We reached the depot about 15 minutes before the train left, I think. Mr. Diggs went to the ticket office and bought the tickets.”
She testified, also, that while Diggs was buying the tickets Cami-netti— 1
“just stood there with us. * * * I heard no objection made by Caminetti to the suggestion of Mr. Diggs that he purchase the tickets.”
There was testimony that Caminetti and Diggs together rented the bungalow in Reno which was occupied by the party, and that while there he ordered and paid for groceries to be sent to the bungalow. In view of these features of the evidence, and others not necessary to recount, the court below properly instructed the jury as follows:
“As to the question which has been argued by counsel whether the evidence is sufficient to show that the defendant transported, or aided or assisted in transporting, these girls to Reno, you will understand that it is not necessary, to sustain this charge, that the defendant be shown to have himself paid for the tickets or other expenses of that trip, if he contributed to the means of paying such expenses, or if it was understood between himself and Diggs that he was thereafter to contribute thereto by reimbursing Diggs, this would be sufficient on which to sustain the charge that the defendant aided and assisted in such transportation.”
[11] It is contended that the instructions to the jury were erroneous, in that thereby the jury were led to believe that the defendants were merely charged with seducing the women named in the indictment, and that, if the jury so found, they might find the defendants guilty. This contention is not sustained by the record. It appears therefrom that the court read to the jury the indictment, in which it was charged that each defendant transported and caused to be transported the two girls named “for an immoral purpose, to wit, that the aforesaid Marsha Warrington should be and become the concubine and the mistress of the said defendant,” and in which the same allegation was made as to Lola Norris The court also read the statute and explained the meaning of its terms, and, among other things, charged the jury that if they found that these girls were taken to Reno on the occasion in question, as testified to by them, and that while there the defendant Diggs and his companion, Caminetti, cohabited with them as the testimony tends to show, “then you may find that they were taken there with the immoral purpose and intent [559]*559charged.” In the instructions the court defined the terms “concubine” and “mistress” and the term “debauchery” as used in the statute; and it is clear from the whole of the instructions that the jury must have fully understood the nature of the charges against each defendant.
Since writing the above our attention has been directed to the recent decision of the Circuit Court of Appeals for the First Circuit, in Myrick v. United States, 219 Fed. 1, in which the majority of that court, Judge Putnam dissenting, reversed the judgment of the District Court and followed the rule announced in Balliet v United States, 129 Fed. 689, 64 C. C. A. 201, above cited. In the majority opinion in that case reference is made to the fact “that the question has not been definitely decided by the Supreme Court.” We still entertain the opinion, however, that the language of the statute and the utterances of the Supreme Court which we have cited are sufficiently broad and inclusive to justify the view which we have taken of the effect of the act of March 16, 1878. In this day of enlightened jurisprudence it is believed that the protection against self-incrimination conserved by the fifth amendment is to be classed with other bars which the rules of the common law placed against the admission of evidence of the truth, as to which, said Judge Dillon in State v Gigher, 23 Iowa, 318, “the tendency of modern legislation and modern decision is to remove these bars and to let in the light.” But protection against self-incrimination is still afforded in the provision that the defendant may or may not testify for himself as he may elect. We think that when he elects to become a witness he waives his constitutional privilege against self-incrimination, and that the true rule is stated in Wigmore on Evidence, .§ 2276 (2):
“The case of an accused in a criminal trial, who voluntarily takes the stand, is different. Here his privilege has protected him from being asked even a single question, for the reason that no relevant fact that could be inquired about would not tend to incriminate him. On this very hypothesis, then, his voluntary offer of testimony upon any fact is a waiver as to all other relevant facts because of the necessary connection between all.”.
And (2) (d):
“The subject of the direct examination, properly construed, is the whole fact of guilt or innocence, and hence the topic of cross-examination might always range over any relevant facts, except those merely affecting credibility.”
There are numerous other assignments of error, which we have carefully considered, but in none of them do we find ground for reversing either of the judgments.
Finding no error, the judgments are affirmed.