PHILIPS, District Judge.
The plaintiff in error (hereinafter designated the defendant) was indicted in connection with one Prank Hodge, in two counts, predicated of section 5478, Rev. St. U. S. (U. S. Comp. St. 1901, p. 3696), for forcibly breaking into a building used in part as a post office of the United States, in the town of Van Meter, Dallas county, Iowa. There was another count in the indictment, predicated of section 5475 of the statute (U. S. Comp. St. 1901, p. 3694), for stealing property in said post office belonging to the Post Office Department, to wit, postal funds of the value of $66.62 and money order funds of the value of $76.86. On trial to a jury a verdict of guilty was returned “as charged in the indictment.” Thereupon the court sentenced this defendant on the first count to imprisonment in the Iowa State Penitentiary, at Ft. Madison, for a period of four years; and on the second, for the larceny, the sentence was imprisonment for a period of two years and six months, the time of the sentence under the last-named count to commence at the termination of the sentence under the former; with the further order that the defendant be fined in the sum of $5 and pay one-half of the costs of the prosecution. There was no sentence on the other count, for breaking into the post office, presumably for the reason that the two counts predicated of the burglary were for one and the same offense. The defendant Hodge was sentenced to imprisonment in said penitentiary for four years under the count for burglary, and one year and six months in said penitentiary on the count for larceny, with the imposition of a fine of $5 and the payment of one-half the costs.
The penalty prescribed for a violation of said section 5478 is a fine of not more than $1,000 and imprisonment at hard labor for not more than five years. The penalty for the violation of section 5475, when the value of the property is $25 or more, is imprisonment at hard labor for not more than three years. It is observable that the imprisonment prescribed in both of said sections of the statute is at hard labor. There is no fine imposable under section 5475 where the value of the property exceeds $25. Under section 5478 both imprisonment and fine are mandatory. The judgment does not show that the $5 fine imposed was under the count for burglary. Both judgments are fatally defective for failing to impose the imprisonment at hard labor. The rule in the courts of the United States is that “a judgment in a criminal case must conform strictly to the statute, and any variation from its provisions, either in the character or extent of the judgment invoked, renders the judgment absolutely void.” Harman v. United States (C. C.) 50 Fed. 921; Ex parte Karstendick, 93 U. S. 396, 23 L. Ed. 889; In re Graham. 138 U. S. 461, 11 Sup. Ct. 363, 34 L. Ed. 1051; Ex parte Lange, 18 Wall. 163, 21 L. Ed. 872; In [788]*788re Mills, 135 U. S. 263, 10 Sup. Ct. 762, 34 L. Ed. 107. This defect would of itself compel a reversal of the judgment and remand for further proceedings in conformity to law. The course to be pursued on the remand of a case in such contingency is pointed out in United States v. Harman (D. C.) 68 Fed. 472, Woodruff v. United States (C. C.) 58 Fed. 766, and in Re Bonner, 151 U. S. 242, 14 Sup. Ct. 323, 38 L. Ed. 149.
The codefendant Hodge did not join in the, writ of error, which is prosecuted alone by the defendant Sorenson.
The first count of the indictment is predicated of section 5478, Rev. St. U. S., which declares that: •
“Any person who shall forcibly break into, or attempt to break into any post-office, or any building used in whole or in part as a post-office, with intent to commit therein larceny or other depredation, shall be punished,’’ etc.
It has been, without dissent, the view of the District Courts administering this statute, since the considerate and logical opinion of Judge Deady, in United States v. Campbell (C. C.) 16 Fed. 233, that it should be interpreted as if it read “with intent to commit larceny in the part of said building used as a post-office.” See United States v. Williams (D. C.) 57 Fed. 201; United States v. Yennie (D. C.) 74 Fed. 221; United States v. Saunders (D. C.) 77 Fed. 170; United States v. Shelton (C. C.) 100 Fed. 831. In the Shelton Case, Judge Simonton, in discussing the instance of a breaking into a building, a single room, used for the sale of merchandise and in part as a post office, where only goods of the merchantman were taken, said;
“If we construe this section to mean that any entry, with felonious intent, into any part of a building used in part as a post office, is punishable in the federal court, then it would give the court jurisdiction of a common-law offense. This jurisdiction federal courts cannot exercise. But if wo construe the section to punish an entry into that part of the building used as a post office, with intent to commit larceny therein, the jurisdiction can be sustained. The section is ambiguous. Under these circumstances, it must be construed ‘ut magis valeat quam pereat.’ ‘If,’ says Mr. Justice Story in U. S. v. Coombs, 12 Pet. 76, 9 L. Ed. 1006, ‘the section admits of two interpretations — one which brings it within, and the other passes it beyond, the constitutional authority of Congress — it will become our duty to adopt the former construction, because a presumption ought never to be indulged that Congress meant to exercise or usurp any unconstitutional authority, unless that conclusion is forced upon the court by language altogether unambiguous.’ In U. S. v. Campbell (C. C.) 16 Fed. 233, Judge Deady sustained the demurrer to an indictment charging a defendant under this section, because the indictment did nót state that the larceny was intended for that part of the building used as a post office. In U. S. v. Williams (D. C.) 57 Fed. 201, an indictment under this section was sustained. The word ‘therein’ in the indictment, used also in the section, was held to refer to the post office. It was thus distinguished from the case of U. S. v. Campbell. The indictment in this latter case used the words ‘in said building,’ and so would mean in any part of the building, whether used as a post office or not. So it was held bad on demurrer. This construction of the section seems, also, to have met the approval of Judge Brown, of New York, in U. S. v. Yennie (D. C.) 74 Fed. 221. It is distinctly decided in U. S. v. Saunders (D. C.) 77 Fed. 170. The evidence being uncontradicted that the breaking into, the entry, and the larceny were neither of them in that part of the building used as a post office, the defendant cannot be convicted under this section.”
[789]*789The United States district attorney in drawing the indictment here in question recognized such construction of the statute. The charge is that the defendants did—
“unlawfully, willfully, and forcibly break into a certain building Uion and there used in part as a post office of the United States, to wit, a building in Van Meter, in the county of Dallas, in the state of Iowa, so used as aforesaid, with the intent of them, said Andrew H. Sorenson and Frank Ilodge, then and there to commit larceny therein in that part of the said building then and there so used as a post office of the United States.”
The intent in breaking into the building is the essence of the offense denounced by this section, and it must be proved as alleged. We are not here concerned with the question as to the competency of Congress, within constitutional limitations, to declare it a felony for a person to break into a building used in whole or in part as a post office. It is sufficient for the purpose of this case to say that Congress has not assumed the exercise of such power. It limited the offense of breaking into a building to the intent to commit in and on the Post Office Department a larceny or other depredation. This intent is a jurisdictional fact, because it is constitutive of the offense, and conditions the exercise of jurisdiction over it by a federal court. The statute in question was enacted by Congress in recognition of the fact that in a vast number of instances, especially in small towns and rural districts, post offices arc kept in the same building and on the same floor where mercantile or other business is conducted by the occupants of part of the room. But it is the recognized practice in such instances that the post office apartment shall be fenced off or separated from tiie oilier part of the building or room. So under Postal Laws and Regulations, § 318, subsec. 3, it is observable that, in the matter of rent of a part of a building by a postmaster for post office purposes, a report is required to be made to the Postmaster General, giving a description of the room or store and the class of business carried on by the occupant, and what separation there will be between the post-office and the other parís of the room. This is required before the postmaster is permitted to so locate his post office. And he is presumed to keep within his own apartment the property pertaining to the post office. Por his own protection he may deposit the funds of the post office in some depository for safe-keeping. But if such deposit should be made elsewhere, the breaking into such place would not be indictable under section 5478.
Under the evidence in this case the only possible inference as to the manner of the entry into the building is that it must have been through either the front or the rear door thereof, both of which entered into the pari .of the building used for mercantile purposes. The post office apartment was fenced off in what was designated by the witnesses as a “cabinet.” The property taken was contained in a safe not shown to be within the post office inclosure. Part of the property was jewelry belonging to the merchantman, and part of it was funds belonging to the post office. As there was nothing to indicate to the thief that the money was the property of the United States unless the safe was in that part of the inclosure marking the post office apartment, there would be nothing except the merest con[790]*790jecture from which the jury could infer the required intent in the breaking to steal post office funds. If having entered he found in the safe, no matter where situated, post office funds, the property of the United States, and stole them, he was guilty of larceny, punishable under another statute, on which the second count of the indictment was based.
The charge given to the jury authorized a conviction of the defendants on the first count of the indictment if the money of the Post Office Department was taken from the safe anywhere in the building. The only' evidence respecting this material issue is' the testimony of the witness Trindle, who was the assistant postmaster, and who also conducted the business of a jeweler in the building in question. ■ He testified that there was a post office safe in the building,. in which the post office funds were kept, and in which he also kept watches arid other jewelry of his shop. The post office compartment seems to have been inclosed, as above stated, in what is termed a “cabinet.” A careful reading of his testimony, which presents all that was developed respecting this matter, makes it impossible to determine with any degree of accuracy or satisfaction that the safe was within the inclosure of the post office compartment. As this was a material jurisdictional fact, it should have been made affirmatively to appear. The omission of proof entitled the defendant to the- request for a directed verdict as to the counts predicated of the forcible breaking into the building.
There were other errors committed on the trial which necessitate the reversal of the judgments on both counts. The offense denounced by said section 5478 is the forcible breaking into a building used in part as a post office, as in this case. The testimony of said Trindle was that at the usual closing hour of the store, the evening before the alleged burglary and larceny, he put certain jewelry, including a certain watch, in the safe, and locked it, and that “all the doors and windows were locked.” There is a total absence of any direct evidence as to how the store was entered. There was no appearance of any physical force used in effecting an entry, if the building was entered from the outside. The testimony of said witness is that he went to the post office about 4 o’clock the next morning; that a young man came to his house and said there had been a robbery uptown, and that the post office safe had been blown open; that when he got there Mr. Phillips, the postmaster, was there; “they told me to come around to the back door, and I went in; the room was full of gas and smoke, and the safe door was out on the floor; the lining of the safe was all torn out and scattered around; there were stamps lying there unmolested; but the post office funds and watches were gone.” There was nothing said about the front door, or whether the back door was open when the first parties reached the building. So that the proof of the forcible breaking into the building rests solely upon the fact that the doors and windows were locked the evening before the larceny. It is suggested in argument that it is not essential to the proof of a forcible breaking that the evidence should show the application of physical, violent force, such as breaking through a window or breaking open a door, but that the offense would be committed by an [791]*791entry through the door, by unlocking it. with a skeleton or false key, and the like; and as that is the only reasonable explanation of how the entry could have been effected, after the doors and windows were locked, the proof was sufficient to warrant the jury in concluding that the entry was so effected. “Mere conjectures, or suspicions, are not reasonable inferences or presumptions upon which to found convictions of crime.” Green v. State, 68 Ala. 511. If conjectures are to be indulged, there is nothing in this record to disprove that the thief may not have been concealed in the storeroom when it was closed the preceding evening. It does not appear that any search of the building was made for such discovery when the dosing took place. Entering without breaking and then breaking out does not constitute burglary. 1 Hale, P. C. (Phila. 1847) 554; State v. McPherson, 70 N. C. 239, 16 Am. Rep. 769; Adkinson v. State, 64 Tenn, 569, 30 Am. Rep. 69; White v. State, 51 Ga. 285; State v. Wilson, 1 N. J. Law. 439, 1 Am. Dec. 216. “To prove the corpus delicti, the evidence must be sufficient to show affirmatively, and beyond a reasonable doubt, that there was such a breaking and entry as are necessary to constitute burglary.” 6 Cyc. (.1903) 241, and citations. 1
If it be conceded that this evidence was sufficient to warrant a finding that the entry was effected by unlocking the door of the building, the important question remains: Was there sufficient evidence to go to the jury that the defendant so entered the building? If he had been seen about the building recently- prior to the theft, and had been found inside thereof after it had been closed and locked, the jury could be indulged to infer that he had entered from without rather than that he was in when the building was so dosed. There was a total absence of evidence that he was either so about the building or in the vicinity thereof, either before or after the theft. In this extremity of the government’s case resort was had to the testimony of the witness .Ernest Willey, who had been a penitentiary convict. The evidence, without contradiction, was that his general reputation for truth and honesty was had. He attributed his conviction and sentence to the penitentiary for larceny to the defendant Sorenson, and admitted on the witness stand that he “had ill will against Andy Soren-son ever since I had to go to Ft. Madison”; and that he was “waiting for a chance to do Andy some damage ever since 1 went to the Ft. Madison penitentiary.” He admitted that after this alleged burglary and larceny he was in the service of the officers in pursuing the defendant, and had received money from them for his services. It is not impertinent to observe that the employment of such a derelict by law officers, as an agent of justice, is not commendable, because of the danger ever to be apprehended that from malice, revenge, and the hope of reward such a man is likely to give false testimony against an innocent man. While his testimony is not outlawed, its probative force being for the jury, the wisdom of the law manifests itself in prescribing limits to the admissibility of the purported facts collected by such a self-serving witness. Campbell, J., in People v. Montague, 71 Mich. 447, 451, 39 N. W. 585, 587, commenting upon the unreliability of the questionable testimony of certain witnesses, said:
[792]*792“Leaving out their testimony, the case would be without any plausible foundation. It all depended on whether that testimony was true. This being so, it is important both for the. people, interested in doing justice, and for the respondent, entitled to be protected against injustice, to have the trial kept clear from extraneous matter, and the rules of law governing procedure substantially guarded.”
This witness (Willey) was indulged to testify that about a week or ten days before the depredation upon the post office he was with the defendant and Hodge, and a man named Gleason, at Valley Junction, Iowa, and drove the team on a fishing excursion; that in a conversation there was talk to the effect that they wanted to know if “he did not want to drive a team, Andy’s team, and go to Van Meter and get a T. O.’ ”; that this was said by one of them, he did not remember exactly which one; he could not say whether it was in the presence of all of them or not, but he thought it was; that they were about 15 feet away from him; “which one made the proposition, I cannot say for sure.”
Was this evidence competent to bind the defendant? As it failed to show that the defendant did the talking, for the witness said he did not know which one it was, it devolved upon the government to show to the satisfaction of the jury two additional facts: (1) That the defendant heard it; and (2) that he assented to it.
“In tbe ease of sayings by other persons, it ought to be made affirmatively to appear that he heard the sayings, and that he assented to them either expressly, or by his way showing assent. His assent to them is the thing which makes them admissible against him, and that assent must be shown in some way, before the sayings can be admitted.” Drumright v. State, 29 Ga. 430, 431.
So Taylor, C. J., in Weightnovel v. State, 46 Fla. 1, 15, 35 South. 856, 861, said:
“If the conversation was not had in the presence or hearing of the de-' fendant, it was hearsay, and to render it admissible as having been made in defendant’s hearing the burden was upon the state to show clearly that it occurred in the hearing of defendant and this fact was a preliminary one for the court, and not for the jury to decide, before admitting the conversation in evidence, and we do not think it was clearly and satisfactorily shown to have occurred in his hearing.”
The mere fact that such a statement was made by some one in the party, if in the hearing of the defendant, not then assented to by him, was not admissible upon the ground that silence gave consent. “Mere silence is no ground of inference against him,” unless he was called upon by the circumstances to dissent. Vail v. Strong, 10 Vt. 457; Gale v. Lincoln, 11 Vt. 152; Fourth National Bank v. Nichols, 43 Mo. App. 391; Commonwealth v. Kenney, 12 Metc. (Mass.) 235, 46 Am. Dec. 672; Commonwealth v. Brown, 121 Mass. 69; Commonwealth v. Densmore, 12 Allen (Mass.) 535; Larry v. Sherburne, 2 Allen (Mass.) 34. The following authorities are also against the admissibility of this evidence: Sauls v. State, 30 Tex. App. 496-498, 17 S. W. 1066; Yale v. Dart (City Ct. N. Y.) 17 N. Y. Supp. 179; Drumright v. State, 29 Ga. 430.
In the absence of a charge and proof of conspiracy between the three parties at the time and place of the conversation, to admit [793]*793sucli statement without affirmatively showing it to have been made or acquiesced in by the defendant would be to announce a rule fraught with danger to innocent men. Commonwealth v. Kenney, 12 Metc. (Mass.) 235, 46 Am. Dec. 672; Moore v. Smith, 14 Serg. & R. (Pa.) 393.
It is true that Willey claims that he was friendly with Sorenson up to the time of the trial of this case; but that the relation mast have been strained is evident from the fact that he claims Sorenson was principally instrumental in sending him to the penitentiary, and his statement that he had it in mind ever since to “get even” with him for the injury. He testified that his principal occupation was that of fishing, which might account for his accompanying this party on a fishing excursion. Conceding, however, that the credibility of his story was for the jury, the wisdom of the law is again demonstrated in demanding that it should be made to affirmatively appear that the defendant heard and assented to the proposition, and that every reasonable intendment should be indulged in favor of the accused.
The government was also indulged, over the objection of the defendant, to show by detective officers that when they arrested the defendant and Hodge, about 18 days after the alleged' burglary and at a point about 19 miles distant from said post office, they found on him a revolver, pieces of fuse, and a bottle containing liquid matter which proved to be nitroglycerin, which he afterwards stated lie used for headache; and that there was found on the person of Hodge a revolver and pieces of fuse, and some skeleton keys, dynamite caps, and a flashlight, proferí of which was made before the jury. As there was nothing to connect the employment of the revolvers and other articles with the burglary, and the possession of them was 18 days after the commission of the offense, we know of no principle of law rendering such facts competent evidence against the defendant on this trial, especially when the evidence disclosed that the defendant worked in coal mines, and such fuse, dynamite caps, and such lights were usable in such work. Rooking to the charge of the court,, it would seem that it was regarded competent as tending to show the defendant might be contemplating the commission of a crime. The court said:
“The evidence which lias been allowed to come before yon should have such weight as in your opinion it is entitled to under the showing that they were going to commit some other crime.”
The particular language above adverted to was not excepted to, but the admission in evidence and the display of the articles and instruments to the jury were excepted to and assigned for error. We may properly look to the charge of the court for his reasons, if there given, for the admission of the questioned evidence. In the multiplication of reported cases touching the evidential effect of the possession by the accused of implements and materials adaptable to the commission of the crime in question, it will be found that some courts have admitted such facts for the consideration of the jury when such possession was more or less remote from the time and locus of the [794]*794crime; but their admissibility depended upon their being connected up with or traced to the res gestae. If the articles found on the defendant had been traced to his possession prior to the burglary or theft, and there had been any evidence tending to show the presence of the defendant about the premises near to the time of the trespass, and the like, the jury might have been advised that such possession of articles and implements, if the evidence tended to show that they were probably used in executing the crime, was a circumstance for their consideration. But the mere possession 18 days after the crime and 19 miles distant from the locus, without any proof of the presence of the defendant in the locality, or the employment of such'articles in the commission of the crime, was not evidence of the defendant’s complicity, nor was it evidence “that they were going to commit some other crime.” The ability to commit a crime does not evidence the act. The mental tendency of a party to commit a crime cannot be heard in court to convict him of another offense committed long anterior to the transaction under inquiry. If he declined to put in issue his character, the prosecution cannot attack it in such fashion. Even evidence of the commission of another offense, at such remote date, even if allied in character to the one under investigation, is inadmissible. Rex v. Birdseye, 4 Carr. Payne, 386; State v. Renton, 15 N. H. 169; Commonwealth v. Wilson, 56 Mass. 590; State v. Meyers, 82 Mo. 558, 52 Am. Rep. 389. This rule, it is true, admits of exceptional instances, as where the subsequent act is so related to its antecedent in character and localitjr as to aid in identifying the actor in both by the connection tending to show “that he who committed the one must have done the other.” Shaffner v. Commonwealth, 72 Pa. 60, 65, 13 Am. Rep. 649; State v. La Page, 57 N. H. 245, 289, 24 Am. Rep. 69; Farris v. People, 129 Ill. 521, 21 N. E. 821, 4 L. R. A. 582, 16 Am. St. Rep. 283; State v. Raymond, 53 N. J. Law, 260, 21 Atl. 328; State v. Vance, 119 Iowa, 685, 94 N. W. 204; People v. Sharp, 107 N. Y. 427, 14 N. E. 319, 1 Am. St. Rep. 851; People v. Molineaux, 168 N. Y. 293, 61 N. E. 286, 62 L. R. A. 193. Mr. Justice Harlan, in Boyd v. United States, 142 U. S. 450, 458, 12 Sup. Ct. 292, 295, 35 L. Ed. 1077, speaking to the admission in evidence of robberies committed by defendants, separate and apart from the homicide under investigation, said:
“They were collateral to the Issue to be tried. No notice was given by the indictment of the purpose of the government to introduce proof of them. They afforded no legal presumption or inference as to the particular crime charged. * * * Proof of them only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings charged with crime involving the punishment- of death.”
See, also, the following: State v. Berger, 121 Iowa, 581-586, 96 N. W. 1094; State v. Vance, 119 Iowa, 685, 94 N. W. 204.
The admission in evidence of certain letters is assigned for error. The witness Willey testified that while doing his detective work he got certain letters from the wife of the defendant Sorenson. They [795]*795were written while the defendant and Hodge were confined in jail at Des Moines, under arrest for this offense. They were written to one Fairgraves. The purport of the letters was to request Fairgraves to testify to an alibi for the writer. The proof was that they were written by Hodge, and not by the defendant Sorenson. There was no evidence that Hodge wrote the letters under the dictation or with the knowledge and concurrence of this defendant, or that the defendant ever saw them, or sent them out of the jail, or that he had opportunity even to have seen the letters. To implicate the defendant therewith, Willey testified that after he (Sorenson) was out on bad he asked him (Willey) if he had taken the letters to Fairgraves, and he said he had. Did the defendant at the time they were written know that Hodge was writing the letters? Or did he learn the fact after Hodge had written the letters, and did he acquiesce therein? Or did lie learn from his wife, after he was out on bail, that such letters had been given to Willey to be delivered? All these are mere matters of conjecture; one inference being just as tolerable and reasonable as the other. Is a man’s guilty knowledge and participation to be thus placed in the wide field of mere conjecture and speculation, when the law demands that he must he presumed to be innocent, and that this presumption cannot be displaced except by such affirmative facts as shall satisfy the minds of the jury beyond a reasonable doubt of his guilt; and when it further commands that if the act or conduct of the accused may be accounted for upon a hypothesis that consists with his innocence equally with his guilt, it shall be referred to his innocence?
The exactions of the law in this respect are illustrated by the following rulings on applied principles: In State v. Loftus, 128 Iowa, 529, 104 N. W. 906, the defendant, Mrs. Roftus, was prosecuted for adultery. To show illicit correspondence conducted with the defendant, the state introduced in evidence certain billets, which the evidence tended to show were in the handwriting of one Merrifield, the alleged adulterer. One of the missives was found under her bed where she and her husband usually slept, and another in an unsealed envelope under the bed in a spare room. The evidence did not show how they reached the house, or that they were otherwise in the possession of or ever had been seen by the defendant. This was supplemented by testimony tending to show that the defendant and Merri-field had been seen to exchange notes on the street. Her husband also testified that in discussing divorce, proceedings between them he said to her: “I have got some notes which will be pretty hard for you to account for;” to which she replied: “They don’t amount to much. There is no name signed.” The court said of this:
“To what notes cither referred is not disclosed. The record fails to connect those introduced in evidence wiih the accused, and it was error to admit them.”
In Fearing v. Kimball, 4 Allen (Mass.) 125, 126, 81 Am. Dec. 690, it was held that an unanswered letter is inadmissible, although the statements contained are well known to the addressee. “This is on the ground that a letter written to a party by a third person to which [796]*796no reply is made does not show acquiescence in the facts stated in> the letter.”
So in Commonwealth v. Edgerly, 10 Allen (Mass.) 184, it was held that, under a charge 'of counterfeiting, a letter ■ containing counterfeit money, found in the defendant’s possession when arrested, is inadmissible in evidence.
In People v. Green, 1 Parker, Cr. R. 11, it was held the possession by a person of an unanswered letter'found in his pocket at the-time of his arrest was not of itself evidence of the truth of the contents, and it cannot be read in evidence against him.
People v. Colburn, 105 Cal. 648, 38 Pac. 1105, was a prosecution-for robbery, alleged to have been committed by the defendant and. Knox, and one Masterson, who pleaded guilty. After the arrest of Masterson the defendant and Knox disappeared. Some months later the defendant was arrested in Arizona, and a letter was found upon his person written by one Moore, in which Moore stated that he had! been trying to ascertain the whereabouts of the defendant for some time and warn him of the fact that he was suspected of the robbery;, that effort was being made by the officers to locate and arrest him. It contained statements of the writer assuming that the defendant was guilty of the robbery. The court said that such statements in the -letter were well calculated to impress the jury with a belief of the defendant’s guilt, and it was clearly hearsay:
“It will not do to say that Moore was a friend of the defendant, andhence that the evidence was admissible. * * * The question of friendship or enmity does not properly' constitute a factor in the problem. The letter was a statement of a third party in nowise connected with the defendant, was not made under the sanction of an oath, and not admissible.”
After, stating that a letter found upon the prisoner when arrested has been held to be no evidence of the facts stated in it, the court further said:
“There are exceptions to the rule, as, for instance, where it is shown that the defendant has acted upon the information contained in the letter, or where he has answered it, in which case so much of the letter as is explanatory of his answer is admissible, or where the party receiving the letter has by his acts or conduct invited the sending of it to him. There was no sufficient showing to render the letter admissible under any of these exceptions.”
The case of State v. Shive, 58 Kan. 783, 51 Pac. 274, presents a-most considerate opinion by Chief Justice Doster in the application of the principle of law in question. The defendant was charged with, the crime of robbery. In order to connect him and another party with the scene of the robbery, pieces of an envelope, found near a haystack about three miles south of the house where the robbery occurred, were introduced in evidence. The envelope when pieced together indicated that it was addressed to the defendant Shive, on the street in which he lived, with a card directing its return to the street on which the other defendant lived. It also bore the stamp and postmark of a given town. There was also evidence tending to show that the defendant was seen on the afternoon of the robbery at the haystack. There was no direct evidence that the envelope had been in the possession of the defendant. Of the objection to the admis[797]*797sibility of these scraps of paper the trial court said, “They are only competent as a circumstance,” as tending to show that the defendant was in the vicinity of the place where the crime was committed, a short time before its commission. But Judge Dosier said:
“No connection between the defendant and the paper being shown, he was unable to explain it. The state never having shown that he had it or was responsible for it, he was not called upon to explain how he parted with it, or how it came to be in the place where found. The presumption that, according to the known course of the postal service, an addressed and stamped letter reaches its destination, will not, in our judgment, suffice to show that the envelope enclosing such letter, found thereafter many miles from the place of residence of the addressee, w'as left by him at the place where found. * 15 * We are not permitted, at least against a person accused of crime, to tack one presumption upon another and from the series infer guilt against him. The very contrary is the rule.”
In Long v. State, 81 Miss. 448, 33 South. 224, the defendant was indicted for robbery, committed by entering the house of one Lawson, at night, and taking some money therefrom. Lor the purpose of incriminating the defendant, the daughter of Lawson was permitted to testify that on the evening before the occurrence she told the defendant’s wife that her father had received his pay that day for some work. It was held that this evidence was inadmissible, without proof that the defendant had knowledge of the possession of the money by Lawson, the court saying, “The wife’s knowledge is not the husband’s knowledge.”
So here, the popular conception of the relation between husband and wife, as the depositaries of mutual confidences, possibly might lead the jury to conclude that the wife’s possession of the letters was that of the husband as his agent. But in criminal law it is axiomatic that the wife’s knowledge is not the husband’s knowledge, and her possession of the article not belonging to the husband is not imputable to him. Therefore, it did not devolve upon the defendant to show or explain how the letters got into his wife’s possession; but it devolved upon the government to show that he gave or sent them-to her for delivery, with knowledge of their contents. This principle is recognized in Nevada Company v. Farnsworth, 102 Fed. 573-576, 42 C. C. A. 504, where it was sought to employ against the defendant a letter written between third parties containing statements said by the» writer to have been made to him by the defendant. In that case Judge Thayer said, “It was not shown that the defendant either authorized the letter in question to be written, or that he saw the same, and was acquainted with its contents, before it was mailed and, therefore, it was held incompetent. Proof of such authorization “must be established by evidence that does more than raise a mere suspicion, a conjecture, or possibility, for evidence which merely shows it possible for the fact in issue to be as alleged, or which raises a mere conjecture that it is so, is an insufficient foundation for a verdict, and should not be left to the jury.” State v. Massey, 86 N. C. 658, 41 Am. Rep. 478; Coffin v. United States, 156 U. S. 432, 15 Sup. Ct. 394, 39 L. Ed. 481; Sprinkle v. United States, 150 Fed., loc. cit. 62, 82 C. C. A. 1.
[798]*798For the purpose, we presume, of connecting the defendant with both the alleged burglary and the larceny, the government introduced evidence tending to identify a watch, found in a dresser drawer of a folding bed in the house occupied by Mrs. Sorenson, as among those claimed to have been put in the safe by the jeweler, Trindle, the evening before the larceny. This was after the defendant’s arrest, and when he was in jail, nearly three weeks subsequent to the theft. The officers who made the search of the house and took the watch returned it to Mrs. Sorenson the next morning. While she testified to the ownership of the watch, and there was some corroborative testimony to support her claim, the evidence on the part of the government tended to the contrary. Was this evidence admissible and sufficient to authorize the jury to infer the defendant’s connection with either the burglary or the larceny?* Conceding that the time within which the watch was found brought the incident within the rule of “recent possession of stolen property,” it must be kept in mind that the defendant is not charged with the offense of" receiving stolen goods, etc., and under the indictment is only called upon to meet the charge of burglary and larceny committed by him.
“To raise the presumption of guilt from the possession of the fruits of the instruments of crime by the prisoner, it is necessary that they should be found in his exclusive possession. A constructive possession, like constructive notice or knowledge, though sufficient to create a civil liability, is not sufficient to hold the party responsible to a criminal charge. He can only be required to account for the possession of things which he actually and knowingly possessed; as, for example, where they are found upon his person, or in his private apartment, or in a place of which he kept the key. If they are found upon premises owned or occupied as well by others as himself, or in a place to which others have equal facility and right of access, there seems no good reason why he, rather than they, should be charged upon this evidence alone.” 3 Greenleaf’s Evidence (16th Ed.) § 33.
The rule is stated as follows by Underhill, Crim. E/v. § 300;
“Not only must the possession be recent, but it must be personal,' exclusive, and with a distinct, implied, or expressed assertion of ownership. If these essentials are not proved, a conviction based upon the fact of possession must be set aside. A mere constructive possession is not enough. The accused will not be presumed to have stolen articles which he does not know he possesses. If other persons have equal right and facility of access with him to a room, trunk, or closet where stolen goods are discovered, possession not being exclusive or personal, is of no value as evidence.”
“To warrant an inference of guilt of theft from the circumstance of possession of recently stolen property, such possession must be personal and exclusive, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant.” Field v. State, 24 Tex. App. 422, 6 S. W. 200; State v. Castor, 93 Mo. 251, 5 S. W. 906.
The watch was not found on the person or in the actual possession of the defendant. The testimony of the witness Sims, for the prosecution was that “Hedrix found a watch there — taken out of a drawer on top of folding bed”; and Hedrix’ statement was:
“It was found either on top of the folding bed or the dresser, in a little drawer on the top. It might have been both — folding beds are both.”
Mrs. Sorenson testified: ,
“I remember them getting the watch out of a drawer in the folding bed. Hedrix took the watch away. It was my watch.”
[799]*799lu rec.ognilion of the fact that it was taken from her possession, the officers returned It to her. There is no evidence that after the alleged larceny the defendant was in the house or room where this watch was found. The only evidence touching this is the statement of the eager witness Willey, who first testified that he saw the defendant’s team in front of Hanson’s saloon a little after 4 o’clock of the day the robbery occurred at Van Meter, that he next saw the team at the defendant’s house the next morning in the back yard, and that the defendant was wiping down one of the horses. Giving full credit to the testimony of this witness, it only shows that there was a possibility that the defendant might have entered the room of his wife after the robbery and given her the watch. His conviction ought not to rest upon such conjecture, when there is no evidence that he was even in Van Meter the night when the larceny was committed, or without any evidence that he was absent from his home that night.
The civil unityr of the marital relation has in no case been extended in a criminal proceeding to make stolen goods, found in the wife’s possession and claimed by her as her individual property, the possession of the husband, especially so in the absence of the husband,, In such case “he could not reasonably be required to account for or explain the possession of another.” State v. Warford, 106 Mo. 63, 16 S. W. 888, 27 Am. St. Rep. 322.
In State v. Owsley, 111 Mo. 450-451, 20 S. W. 194, it was held that the fact that part of the stolen property was found in the house of defendant’s wife, with whom he was not at the time living, is .not sufficient to raise the presumption that he stole it, for the reason that “the possession of the wife could not under those circumstances be regarded as the exclusive possession of the husband.” See, also, People v. Hurley, 60 Cal. 74, 44 Am. Rep. 55; Turbeville v. State, 42 Ind. 490; State v. Griffin, 71 Iowa, 372, 32 N. W. 447; Perkins v. State, 32 Tex. 109.
The possession of the watch by Mrs Sorenson and her assertion of ownership thereof, in the absence of the defendant while he was in jail, would tend to incriminate her rather than the husband.
Ño question is made of the recognized rule of evidence in the investigation of the existence of an alleged fraud or the commission of a criminal offense, dependent upon circumstantial evidence, that a wide range of inquiry may be indulged; and that remotely connected incidents, no one of which singly considered would be sufficient predicate for a conviction, may be admitted; and if the collective whole be sufficient to carry conviction to the minds of the triers of the facts beyond a reasonable doubt, they may be admitted to such end. A proper analysis of the pronouncements of courts favoring the admissibility of isolated instances of an inculpatory character, and the advisability of not excluding each disjected part merely because of its insufficiency to justify a conviction, will disclose that the parts held to be admissible come within the range of legal competency, according to established rules of evidence as applied to the special facts and circumstances of the particular case. But they do not imply that mere suspicion is the equivalent of proof, or that mere hearsay testimony may be resorted to, or that unrelated, incompetent [800]*800incidents and circumstances may become admissible because of the number of them. In law as in mathematics the multiplication of 0 by 2 does not make 1. In other words, a piece of evidence, which in and of itself is incompetent under settled rules of law, cannot be rendered admissible by attempting to link it up with some other fact or circumstance that might be competent. Otherwise, it is made possible to augment 1 by the mathematical absurdity of attempting to add to it- 0.
“Tlie facts alleged as the basis of any legal inference must be clearly proved, and indubitably connected with the factum probandum. * * * No weight, therefore, must be attached to circumstances which, however, they may excite conjecture, do not warrant belief. Occurrences may be mysterious and justify vehement suspicion, and yet the supposed connection between them may be but imaginary, and the coexistence indicative of accidental occurrence merely, and not of mutual correlation. * * * Every circumstance, therefore, which is not clearly shown to be really connected as its correlative with the hypothesis it is supposed to support, must be rejected from the judicial balance; in other words, it must be distinctly established that there exists between the factum probandum and the facts which are adduced in proof of it a real connection, either evident and necessary, or so highly probable as to admit of no other reasonable exxdanation.” Wills, Circumstantial Ev. 172, 174.
It appears from the report in 143 Fed. 820, 74 C. C. A. 468, that this case was heretofore before this court on writ of error. The judgment of conviction was reversed on the ground of the-improper admission in evidence of the testimony of a post office inspector respecting an alleged confession of guilt by the defendant. No other question was considered or determined by that decision. Whether or not the evidence here complained of was presented on the former trial, or any error assigned thereon, we are not advised by the record on which this writ of error was sued out — the only record here we can consider. The ruling of this court on the former writ of error only tends to show a former wrongful conviction, which certainly does not help the last one.
The desire for a conviction, and the zeal of the prosecutor to secure one, make it more the duty of the ministers of justice to see that the safeguards of the law are not broken down to compass the conviction.
There was not, in our judgment, sufficient competent evidence in this case to justify the conviction of this defendant, and the court erred in not granting the request for a directed verdict.
It results that the judgment of the District Court must be reversed, and the cause remanded with direction to grant a new trial, and for further proceeding not inconsistent with this opinion.