HOUGH, Circuit Judge
(after stating the facts as above). A considerable number of exceptions , have been called to our attention regarding the admission or rejection of evidence, and particularly evidence of declarations or acts of persons said not to be proven conspirators. There is also complaint that caution in accepting the evidence of accomplices was not sufficiently insisted upon, and further complaint that the prosecution was not compelled to elect as to the count upon which it would go to the jury.
We have considered all these matters. As questions of law they are not novel, nor is there anything singular or instructive in the way the questions arose.
The proof of the existence of a very widespread conspiracy was, we think, unusually direct and persuasive, and to discuss the details of these exceptions would not serve any good purpose; suffice it to say that we think they are all without merit.
[697]*697The plaintiffs in error did not testify; such evidence as was given for the defense was in substance confined to attacking the motives or impugning the character of witnesses for the prosecution, and we may note our opinion that,' without throwing out wholly the evidence for the prosecution as unworthy of belief, conviction on the conspiracy count was inevitable, while, owing to the technicalities contained in such words as “entry” and “smuggle,” the counts under the Tariff Act presented more difficulty and more excuse for prolonged consideration by a jury.
Trial occurred in July in New York City, and the presiding judge was at the time living out of town. The case went to the jury at 11:45 a. m., after a colloquial charge to which no exception had been taken, and due consideration had been given to the defendants’ written requests for instruction.
The jury returned twice and asked to have certain testimony read to them. At 10 p. m. the court sent for the jury and thus addressed them:
“I have, had you come in now in order to ascertain your own wishes in regard to further procedure and to tell you mine. I am going to keep you together until you come to an agreement. That is the first thing. If you believe that you are likely to come to an agreement in the next half hour or so, I will remain here. If you do not think that you are likely to come to an agreement within that time, I shall leave here in five minutes, and you can deliberate as long as you please tonight, until 11 o’clock, and then I have made arrangements for you to travel together to a good hotel and to remain there together for the night. Then you can begin your deliberations again to-morrow morning, so that all I care to know at this moment is whether you believe it is worth my while, not leaving now, but remaining, in the thought that you may come to an agreement within the next hour, or whether you believe we might just as well go now, because I am living out in the country, and let you keep on with your deliberations until such hour as you desire and remain together for the night. The point is that, if you think there is a reasonable chance of your reaching an agreement, say within the next hour or so, I do not want to keep you locked up in a hotel, simply to give me. the opportunity of going out in the country. On the other hand, if you do not think so, then I do not care to stay in town, because my family is in the country.
“Juror No. 4: It does not point that we shall be able to get through to-night.
“The Court: You do not think it will be necessary for me to be on hand to-night?
“Juror No. 4: No.
“The Court: Then there is just one other word I will say to you now, gentlemen, and that is that when in the jury room you want to be open-minded about matters, and listen to what the other fellow has got to say, and never stick to a thing just because you have said it. A wise man is always open to reason, to argument, and he never closes his ears to that, just because he has at one time made up his mind. You have heard all this evidence; you have listened to it carefully. The real question is whether these things happened, or any of them, that are vital to the case, or whether they did not happen, and whether these men entered into a conspiracy or conspiracies as charged, or whether they did not, and whether any of the overt acts stated in the indictment as to each count — any one of them — was or was not done, and whether you believe that beyond a reasonable doubt on the evidence, and, as I have said so often, it comes down to a question of whether it is all a eoek and bull story, made up by somebody for some reason or other, or whether it is a fact that has been testified to, or facts.”
Of this counsel for Dwyer complained by saying:
“I take exception to your honor’s remarks, for the reason the jury did not ask for any further instructions.”
And thereafter they orally requested the court to “now charge as to the presumption of innocence, as to reasonable doubt, as to credibility of witnesses, and that they are not hound to take the evidence as they hear it, and that they are the sole judges of the facts, and that every juryman has a right to his own well-founded and conscientious opinion.”
This the court refused, saying in substance that the matter had been sufficiently covered already. Within a half hour the jury returned with the verdict now complained of.
What occurred, as thus indicated, is said to constitute reversible error for three reasons : (1) Because anything was said at the time; (2) because of the language used in the saying;' and (3) because the whole episode “deprived the accused of a fair trial,” or “amounted to coercion of the jury.”
The omnibus request last above quoted is bad in form, and it w’as also too late under the rules of the trial court, having been tendered after the close of the colloquial charge. Kreiner v. United States (C. C. A.) 11 F. (2d) 722. As to the complaint about the entire episode, there can be no doubt of the [698]*698right of the court to send for the jury and further instruct them at any time, in the exercise of a sound discretion. So much is held in Allis v. United States, 155 U. S. 117, 15 S. Ct. 36, 39 L. Ed. 91; and such is the general rule in the state courts (16 C. J. p. 1087).
In the language used we perceive no error. The right, and indeed the duty, of a trial judge in respect to comment on the facts, is most strikingly illustrated in Horning v. District of Columbia, 254 U. S. 135, 41 S. Ct. 53, 65 L. Ed. 185. The facts in this case, being in dispute, did not call for the application of that case; but the right of the trial court to express its opinion on the facts, and on the guilt or innocence of the accused, has so often been stated, that it is sufficient to refer to one of the more recent decisions in this circuit (Robinson v. United States [C. C. A.] 290 F. 755), wherein it is stated that the trial judge may so express his opinion, “provided the jury is given unequivocally to understand that it is not bound by his opinion as to the facts, but is the exclusive judge thereof” (Savage v. United States [C. C. A.] 270 F. 14; Wolff v. United States [C. C. A.] 299 F. 90).
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HOUGH, Circuit Judge
(after stating the facts as above). A considerable number of exceptions , have been called to our attention regarding the admission or rejection of evidence, and particularly evidence of declarations or acts of persons said not to be proven conspirators. There is also complaint that caution in accepting the evidence of accomplices was not sufficiently insisted upon, and further complaint that the prosecution was not compelled to elect as to the count upon which it would go to the jury.
We have considered all these matters. As questions of law they are not novel, nor is there anything singular or instructive in the way the questions arose.
The proof of the existence of a very widespread conspiracy was, we think, unusually direct and persuasive, and to discuss the details of these exceptions would not serve any good purpose; suffice it to say that we think they are all without merit.
[697]*697The plaintiffs in error did not testify; such evidence as was given for the defense was in substance confined to attacking the motives or impugning the character of witnesses for the prosecution, and we may note our opinion that,' without throwing out wholly the evidence for the prosecution as unworthy of belief, conviction on the conspiracy count was inevitable, while, owing to the technicalities contained in such words as “entry” and “smuggle,” the counts under the Tariff Act presented more difficulty and more excuse for prolonged consideration by a jury.
Trial occurred in July in New York City, and the presiding judge was at the time living out of town. The case went to the jury at 11:45 a. m., after a colloquial charge to which no exception had been taken, and due consideration had been given to the defendants’ written requests for instruction.
The jury returned twice and asked to have certain testimony read to them. At 10 p. m. the court sent for the jury and thus addressed them:
“I have, had you come in now in order to ascertain your own wishes in regard to further procedure and to tell you mine. I am going to keep you together until you come to an agreement. That is the first thing. If you believe that you are likely to come to an agreement in the next half hour or so, I will remain here. If you do not think that you are likely to come to an agreement within that time, I shall leave here in five minutes, and you can deliberate as long as you please tonight, until 11 o’clock, and then I have made arrangements for you to travel together to a good hotel and to remain there together for the night. Then you can begin your deliberations again to-morrow morning, so that all I care to know at this moment is whether you believe it is worth my while, not leaving now, but remaining, in the thought that you may come to an agreement within the next hour, or whether you believe we might just as well go now, because I am living out in the country, and let you keep on with your deliberations until such hour as you desire and remain together for the night. The point is that, if you think there is a reasonable chance of your reaching an agreement, say within the next hour or so, I do not want to keep you locked up in a hotel, simply to give me. the opportunity of going out in the country. On the other hand, if you do not think so, then I do not care to stay in town, because my family is in the country.
“Juror No. 4: It does not point that we shall be able to get through to-night.
“The Court: You do not think it will be necessary for me to be on hand to-night?
“Juror No. 4: No.
“The Court: Then there is just one other word I will say to you now, gentlemen, and that is that when in the jury room you want to be open-minded about matters, and listen to what the other fellow has got to say, and never stick to a thing just because you have said it. A wise man is always open to reason, to argument, and he never closes his ears to that, just because he has at one time made up his mind. You have heard all this evidence; you have listened to it carefully. The real question is whether these things happened, or any of them, that are vital to the case, or whether they did not happen, and whether these men entered into a conspiracy or conspiracies as charged, or whether they did not, and whether any of the overt acts stated in the indictment as to each count — any one of them — was or was not done, and whether you believe that beyond a reasonable doubt on the evidence, and, as I have said so often, it comes down to a question of whether it is all a eoek and bull story, made up by somebody for some reason or other, or whether it is a fact that has been testified to, or facts.”
Of this counsel for Dwyer complained by saying:
“I take exception to your honor’s remarks, for the reason the jury did not ask for any further instructions.”
And thereafter they orally requested the court to “now charge as to the presumption of innocence, as to reasonable doubt, as to credibility of witnesses, and that they are not hound to take the evidence as they hear it, and that they are the sole judges of the facts, and that every juryman has a right to his own well-founded and conscientious opinion.”
This the court refused, saying in substance that the matter had been sufficiently covered already. Within a half hour the jury returned with the verdict now complained of.
What occurred, as thus indicated, is said to constitute reversible error for three reasons : (1) Because anything was said at the time; (2) because of the language used in the saying;' and (3) because the whole episode “deprived the accused of a fair trial,” or “amounted to coercion of the jury.”
The omnibus request last above quoted is bad in form, and it w’as also too late under the rules of the trial court, having been tendered after the close of the colloquial charge. Kreiner v. United States (C. C. A.) 11 F. (2d) 722. As to the complaint about the entire episode, there can be no doubt of the [698]*698right of the court to send for the jury and further instruct them at any time, in the exercise of a sound discretion. So much is held in Allis v. United States, 155 U. S. 117, 15 S. Ct. 36, 39 L. Ed. 91; and such is the general rule in the state courts (16 C. J. p. 1087).
In the language used we perceive no error. The right, and indeed the duty, of a trial judge in respect to comment on the facts, is most strikingly illustrated in Horning v. District of Columbia, 254 U. S. 135, 41 S. Ct. 53, 65 L. Ed. 185. The facts in this case, being in dispute, did not call for the application of that case; but the right of the trial court to express its opinion on the facts, and on the guilt or innocence of the accused, has so often been stated, that it is sufficient to refer to one of the more recent decisions in this circuit (Robinson v. United States [C. C. A.] 290 F. 755), wherein it is stated that the trial judge may so express his opinion, “provided the jury is given unequivocally to understand that it is not bound by his opinion as to the facts, but is the exclusive judge thereof” (Savage v. United States [C. C. A.] 270 F. 14; Wolff v. United States [C. C. A.] 299 F. 90).
It is only when such expressions of opinion are argumentative in form and unduly dwell upon some particular evidence, either directly or by necessary inference, that sound discretion is exceeded and reversible error found, as in Carney v. United States (C. C. A.) 295 F. 606.
Nor is it error at any time to dwell upon the well-known and salutary rule in Allen v. United States, 164 U. S. 492, 17 S. Ct. 154, 41 L. Ed. 528, and upon the duty of jurymen to listen to each other’s arguments and be persuaded to a decision by reason, rather than to prevent any decision by obstinate adherence to earlier impressions. This has been recently considered in Shaffman v. United States (C. C. A.) 289 F. 370. The matter is one of degree, and we prefer the view taken in the Shaffman Case) supra, to that intimated in Nigro v. United States (C. C. A.) 4 F.(2d) 781, and in Stewart v. United States (C. C. A.) 300 F. 769.
If the whole episode be viewed as an entirety, we are unable to perceive that it had any tendency to coerce the jury or to treat any accused with unfairness. Coercion, as distinguished from duress, has often been called a moral wrong. There can be no wrong in reminding a body of jurors of their duty to exercise intelligence and listen to reason, and that was all that was done in the present instance. At no time in the course of his remarks to 'the jury did the judge even express an opinion as to the guilt or innocence of any one; he had called attention (and this was favorable to the defense) to the obvious falsity of some portions of the testimony of one of the principal witnesses for the prosecution, and that was as far as he had gone in the exercise of the court’s undoubted rights.
Indeed, this whole point comes down to an objection to the use of the words “cock and bull.” The phrase may be inelegant, it may sometimes be inappropriate, but for the purpose of bringing home to the jury the fact that there was no halfway between acceptance or rejection of the bald statements of facts that had been made by numerous witnesses who testified to their personal part in the illegal bringing in of liquor, we think the expression well chosen and quite timely. There was no dwelling upon selected portions of the evidence, nor upon the testimony of one or a few men; it was an insistence on the jury’s consideration of the unquestioned truth that a body of witnesses had sworn to certain facts which reasonable men must either accept or reject.
We find no error in this record, and direct that the judgments be affirmed.