Clark, D. J.
1. Leading questions may not be put upon main examination. 1 Greenl. 481; 1 Stark. 149. The rule is well settled, though there are some exceptions to it. The exceptions are not material to the first objection, because it is not contended that the question objected to in this instance is within the exceptions; but it is maintained that the question put to the witness was not a leading question. The question was this: “Did you drink any liquor at Mr. Angell’s that day?” Now, is this a leading question? Yery clearly it is. A leading question is one which suggests or leads to the answer, “which,” as Greenleaf expresses it, “embodying a material fact, admits of an answer by a simple negative or affirmative,” (1 Greenl. 481;) or, as Starkie says, “to which the answer, ‘yes’ or ‘no,’ would bo conclusive.” 1 Stark. 150.
[40]*40Now this question leads directly to the answer, and it embodies a material fact and can be directly answered, and conclusively so, by “yes” or “no,” — a simple affirmation or negative; as, “Did you drink liquor at Angell’s that day?” Answer. “No.” In exception 4, a different point is made, but it may be considered in this connection.
The objection of the district attorney was that the question was leading in form. The court sustained the objection. But it is said that the question was admissible, because it was put to the witness to contradict a statement of Morgan, the government’s witness. Morgan testified that Angelí said “he had to look out for Newport folks,” and that he said it to Muzzy. To contradict him, Muzzy was called by the respondent, and asked, “Did Mr. Angelí, at that time, say to you that he had to look out for Newport folks?”
Among other exceptions to the rule, that leading questions may not be put on main examination, it is said, both by Greenleaf and Starkie, that, where a witness is called to contradict the testimony of a former witness, who has stated that such and such expressions were used, or certain things said, it is the usual practice to ask whether those, particular expressions were used, or those things said, without putting the question in the general form of inquiring what was said. 1 Stark. 152; 1 Greenl. 482.
This is the nearest approach stated in the books to the case under consideration. But it is not the precise case. Had Muzzy been asked whether Angelí said to him that he was obliged to look out for the Newport folks, it would have been admissible, for it would have been put in the alternative — that is, did he say so, or did he not say so — and would not have so clearly and directly led the witness to the answer desired. But no. authority has been found, and it is believed no correct practice sanctions such a question, in so directly leading form, as that asked of the witness. It was properly ruled out.
We will now turn to the second exception.. The precise point is not so clearly stated in this exception, perhaps, as it might have been, but it is sufficiently so to arrive at a proper determination of the question raised. It was competent for the witness to have testified, if the fact were so, that he employed Angelí to get him, or him and others, some rum; and it was not to that part of the testimony that the objection applied, but to the declarations made by Angelí to the witness, “ that a club was being formed to send for a barrel of rum, and that he might join them.” But it is contended that these declarations were a part of the res gestee and were so admissible. But were they ?
[41]*41Declarations accompanying and explaining the res gestee may undoubtedly be proved. 1 Greenl. 119-120, and other elementary writers; Sessions v. Little, 9 N. H. 271. But such declarations are not admissible as part of the res gestee unless they in some way elucidate or tend to characterize the act which they accompany, or may derive a degree of credit from the fact itself. Woods v. Banks, 14 N. H. 101.
Now,for what were these declarations offered? Not to explain or elucidate the transaction between the witness and respondent, but to show that certain persons had clubbed together to employ the respondent to get them some ram, and for that purpose they were not competent. They wore the declarations of the respondent himself, deriving no degree of credit from the transaction itself. Such declarations were not the best evidence the case afforded. The persons clubbing to employ Mr. Angelí might themselves, for aught that appears, have been called, or one who did so club with the others.
There is often great difficulty in determining whether the declarations offered are part of the res gestee; and, say the court, in Lund v. Inhabitants of Tyngsborough, “it is for the judicial mind to determine, upon such principles and tests as are established by the law of evidence, what-facts and circumstances, in particular cases, come within the import of the term.” 9 Cush. 42. In that case the declarations of a physician, made at the time of the examination of an injury, offered to show the nature and extent of the injury, — the examination, detached from the declarations, being unimportant and imma-, terial, — are inadmissible in evidence, not being a part of the res gestee, although the physician be dead at the time of the trial. Lund v. Inhabitants of Tyngsborough, 9 Cush. 36.
The principle seems to be this, as stated by Wilde, J., in Haynes v. Butler, 24 Pick. 244: “If the declaration has no tendency to illustrate the question, except as a mere abstract statement, detached from any particular fact in dispute, and depending entirely for its effect on the credit of the person making the declaration, it is inadmissible.” 1 Stark. 47. Here the statement offered to be proved was an abstract statement, and depending entirely on the credit of the persons making the statement.
The third exception is the next in order. The law is well settled, in civil eases, that the testimony of a deceased witness, given in a former action, may be offered in a subsequent trial of the same matter between the same parties. The cases are numerous. It is also stated that the evidence is received if the witness, though not dead, [42]*42is out of the jurisdiction, or cannot be found after diligent search, or is insane, or is sick, or unable to testify, or has been summoned, but appears to have been kept away by the adverse party. 1 Greenl. 193. But on this point the law is not so well settled, nor the practice so uniform, as in the case of the death of the witness. See 1 Greenl. 194, note, and cases there cited. This is in civil cases. But the case now before us is a criminal case, or one on an indictment for a misdemeanor, and is to be decided upon the rules of evidence applicable in criminal cases. It presents this question: Whether the witness, being beyond the jurisdiction of the United States, his testimony given before the committing magistrate, in a preliminary examination, where he was cross-examined, can now be given in evidence in a trial upon an indictment found in the same case. The law is very uniform, in civil cases, that the testimony of a deceased witness in a former trial may be given in evidence in a subsequent trial of the same matter between the same parties. But it is not so uniform in criminal cases. In many cases and courts it has been held not to be admissible. So held in Finn v. Com. 5 Rand. 701; so in 1 Overton, (Tenn.) 229.
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Clark, D. J.
1. Leading questions may not be put upon main examination. 1 Greenl. 481; 1 Stark. 149. The rule is well settled, though there are some exceptions to it. The exceptions are not material to the first objection, because it is not contended that the question objected to in this instance is within the exceptions; but it is maintained that the question put to the witness was not a leading question. The question was this: “Did you drink any liquor at Mr. Angell’s that day?” Now, is this a leading question? Yery clearly it is. A leading question is one which suggests or leads to the answer, “which,” as Greenleaf expresses it, “embodying a material fact, admits of an answer by a simple negative or affirmative,” (1 Greenl. 481;) or, as Starkie says, “to which the answer, ‘yes’ or ‘no,’ would bo conclusive.” 1 Stark. 150.
[40]*40Now this question leads directly to the answer, and it embodies a material fact and can be directly answered, and conclusively so, by “yes” or “no,” — a simple affirmation or negative; as, “Did you drink liquor at Angell’s that day?” Answer. “No.” In exception 4, a different point is made, but it may be considered in this connection.
The objection of the district attorney was that the question was leading in form. The court sustained the objection. But it is said that the question was admissible, because it was put to the witness to contradict a statement of Morgan, the government’s witness. Morgan testified that Angelí said “he had to look out for Newport folks,” and that he said it to Muzzy. To contradict him, Muzzy was called by the respondent, and asked, “Did Mr. Angelí, at that time, say to you that he had to look out for Newport folks?”
Among other exceptions to the rule, that leading questions may not be put on main examination, it is said, both by Greenleaf and Starkie, that, where a witness is called to contradict the testimony of a former witness, who has stated that such and such expressions were used, or certain things said, it is the usual practice to ask whether those, particular expressions were used, or those things said, without putting the question in the general form of inquiring what was said. 1 Stark. 152; 1 Greenl. 482.
This is the nearest approach stated in the books to the case under consideration. But it is not the precise case. Had Muzzy been asked whether Angelí said to him that he was obliged to look out for the Newport folks, it would have been admissible, for it would have been put in the alternative — that is, did he say so, or did he not say so — and would not have so clearly and directly led the witness to the answer desired. But no. authority has been found, and it is believed no correct practice sanctions such a question, in so directly leading form, as that asked of the witness. It was properly ruled out.
We will now turn to the second exception.. The precise point is not so clearly stated in this exception, perhaps, as it might have been, but it is sufficiently so to arrive at a proper determination of the question raised. It was competent for the witness to have testified, if the fact were so, that he employed Angelí to get him, or him and others, some rum; and it was not to that part of the testimony that the objection applied, but to the declarations made by Angelí to the witness, “ that a club was being formed to send for a barrel of rum, and that he might join them.” But it is contended that these declarations were a part of the res gestee and were so admissible. But were they ?
[41]*41Declarations accompanying and explaining the res gestee may undoubtedly be proved. 1 Greenl. 119-120, and other elementary writers; Sessions v. Little, 9 N. H. 271. But such declarations are not admissible as part of the res gestee unless they in some way elucidate or tend to characterize the act which they accompany, or may derive a degree of credit from the fact itself. Woods v. Banks, 14 N. H. 101.
Now,for what were these declarations offered? Not to explain or elucidate the transaction between the witness and respondent, but to show that certain persons had clubbed together to employ the respondent to get them some ram, and for that purpose they were not competent. They wore the declarations of the respondent himself, deriving no degree of credit from the transaction itself. Such declarations were not the best evidence the case afforded. The persons clubbing to employ Mr. Angelí might themselves, for aught that appears, have been called, or one who did so club with the others.
There is often great difficulty in determining whether the declarations offered are part of the res gestee; and, say the court, in Lund v. Inhabitants of Tyngsborough, “it is for the judicial mind to determine, upon such principles and tests as are established by the law of evidence, what-facts and circumstances, in particular cases, come within the import of the term.” 9 Cush. 42. In that case the declarations of a physician, made at the time of the examination of an injury, offered to show the nature and extent of the injury, — the examination, detached from the declarations, being unimportant and imma-, terial, — are inadmissible in evidence, not being a part of the res gestee, although the physician be dead at the time of the trial. Lund v. Inhabitants of Tyngsborough, 9 Cush. 36.
The principle seems to be this, as stated by Wilde, J., in Haynes v. Butler, 24 Pick. 244: “If the declaration has no tendency to illustrate the question, except as a mere abstract statement, detached from any particular fact in dispute, and depending entirely for its effect on the credit of the person making the declaration, it is inadmissible.” 1 Stark. 47. Here the statement offered to be proved was an abstract statement, and depending entirely on the credit of the persons making the statement.
The third exception is the next in order. The law is well settled, in civil eases, that the testimony of a deceased witness, given in a former action, may be offered in a subsequent trial of the same matter between the same parties. The cases are numerous. It is also stated that the evidence is received if the witness, though not dead, [42]*42is out of the jurisdiction, or cannot be found after diligent search, or is insane, or is sick, or unable to testify, or has been summoned, but appears to have been kept away by the adverse party. 1 Greenl. 193. But on this point the law is not so well settled, nor the practice so uniform, as in the case of the death of the witness. See 1 Greenl. 194, note, and cases there cited. This is in civil cases. But the case now before us is a criminal case, or one on an indictment for a misdemeanor, and is to be decided upon the rules of evidence applicable in criminal cases. It presents this question: Whether the witness, being beyond the jurisdiction of the United States, his testimony given before the committing magistrate, in a preliminary examination, where he was cross-examined, can now be given in evidence in a trial upon an indictment found in the same case. The law is very uniform, in civil cases, that the testimony of a deceased witness in a former trial may be given in evidence in a subsequent trial of the same matter between the same parties. But it is not so uniform in criminal cases. In many cases and courts it has been held not to be admissible. So held in Finn v. Com. 5 Rand. 701; so in 1 Overton, (Tenn.) 229. In other cases it has been held to be admissible. ■
In the case of U. S. v. Wood, 3 Wash. C. C. 440, it was held that what a witness (since dead) swore at a previous trial of the same indictment might be proved, provided the persons undertaking to repeat the testimony, could do it as it was given, and not repeat the substance of it. So held in Summons v. State, 5 Ohio St. 325. And in the case of U. S. v. Macomb, 5 McLean, 286, where the defendant was arrested for robbing the mail, and a witness who testified in the preliminary examination died before the trial on the indictment, it was held that proof of his testimony on the preliminary trial was admissible. This is when the witness was dead. In eases where the witness was living, but had gone without the jurisdiction, the decisions have been very uniform that the testimony is not admissible.
In Finn v. Com. 5 Rand. 701, it is said that proof of what a witness said upon a former trial is inadmissible in a criminal prosecution, especially where he has only removed out of the state. The same was held in New York, in the case of People v. Newman, 5 Hill, 295. So also in Brogy v. Com. 10 Gratt. (Va.) 722; in Bergen v. People, 17 Ill. 426; in State v. Houser, 28 Mo. 233; and these are all the American criminal cases I have been able to find on this point.
[43]*43I have found no caso where the testimony of a witness, absent but living, given at a former trial, has been allowed to be proved at a subsequent trial. There are cases where the testimony of the witness in the preliminary examination has been allowed to be proved, when the witness had died, but none where he had gone from the jurisdiction. And I think the law must be held to be that when the witness is living he must be produced, or his testimony cannot be received in criminal cases, even if he he beyond the jurisdiction of the court or of all the United States. The constitution of the United States provides (amendments, art. 6,) that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him; and this without exception. Not if they can be produced, nor if they he within the jurisdiction, but absolutely and on all occasions. And, if the accused has this right, it must be mutual, and exist on the part of the government. The trial would not be a fair one otherwise. Nor can it fairly be maintained that, if the witness has once been confronted with the accused, before the committing magistrate, that the requirements or guaranties of the constitution arc answered.
It is little better than an evasion of the matter to say that if the witness has been present at the preliminary examination, when the real question is whether the accused shall he held for the action of the grand jury, that, therefore, when he is indicted, and life, liberty, or property are at stake, that right no longer exists. As well might it be said that if, in the complaint before the magistrate, the accused was informed of the nature and cause of the accusation, the subsequent indictment need not state the accusation again. The fair meaning of the constitution is that wherever and whonovor he is put on his final trial he shall be confronted with the witnesses against him, if they be alive. The ruling of the court in excluding the testimony of Belloir, upon a pretty thorough examination and mature consideration, is affirmed.
As to the fifth exception there was evidence to show that between May, 1867, and September, 1867, the respondent exercised the business of a retailer of liquors without a license, and without paying the required tax. September 1, 1867, he paid the tax and received a license, and no attempt was made or proof offered to show that he sold after that time. It was to meet the proof of the sales prior to September 1, 1867, before the respondent had paid his tax and received the license, that the receipt was offered, and it is contended that the receipt has a retroactive effect, and is a full answer to the [44]*44charge and proof. But it can have no such force. The revenue law (.Id St. at Large, 112,) provides “that any one who shall exercise or carry on any trade, business, or profession, or do any act hereinafter ntentioned, for the exercising, carrying on, or doing of which a special tax is imposed by law, without payment thereof as in that behalf required, shall, for every such offence, besides being liable to the payment of the tax, be subject to imprisonment for a term not exceeding two years, or a fine not exceeding $500, or both.” Now, if the fine and imprisonment are in addition to the tax, or, as the law expresses it, besides being liable to the payment of the tax, how can it'be contended that the payment of the tax releases from the fine and imprisonment ?
Again, the penalty had been incurred before the payment of the tax, and the receipt given could not operate as a pardon. The law makes no provision for such an effect, nor could the collector of taxes confer it. The collector could not pardon the offence. The president alone could do it. If there had been any proof, or any question made, about any sale after the first of September, 1867, then the payment of the tax and the license would have been competent, and a full answer to such subsequent saje; but there was none, and it was offered to meet the sales before the payment of the tax, and it was properly rejected.
The instructions here in the sixth exception asked were properly refused, and those given were correct.
When the respondent was employed to procure some rum for' various parties, he had two courses to pursue. Either he could have purchased for the parties employing him, and in their names, or he could purchase in his own name, and afterwards transfer it to them. He chose the latter course. He purchased for himself (though with their money) and transferred it to them; and he stood exactly in the place of a person selling beforehand and taking pay for what he furnished afterwards. It can make no difference that he did this without a profit. A man often sells without a profit, or at a loss; still it is a sale. Nor is it very material to consider what remedies the principals might" have had against their agent if he had not delivered them the rum. But it is very certain no one could have claimed the whole barrel of rum, nor could they all collectively have claimed it; the most that can be said is that each had a claim for a specific part. But the very material question is, to whom was the rum sold actually? How did the respondent purchase it ? In his own name or that of his principals ? If in his [45]*45own name, he could not convey it to other parties without a resale; and whenever he delivered a portion of that rum to any person, for money paid either before or afterwards, it was a sale of so much.
Where it does not appear that an agent, making a contract, acted expressly or ostensibly as a public agent, it will bo deemed a private contract. Swift v. Hopkins, 13 Johns. 313; Olney v. Wickes, 18 Johns. 122. A government agent, known to be such, is personally liable on his contracts, unless he discloses that they are made for the government. Sheffield v. Watson, 3 Caines, 69. A contract made by an agent for his principal should be in the name of the principal. Spencer v. Field, 10 Wend. 87. When he acts in his own name he binds himself. Bank of Rochester v. Monteath, 1 Denio, 402; Wiley v. Shank, 4 Blackf. 420.
There can be no doubt that if the respondent had purchased this rum on credit ho would have been liable to the vendor for its amount. Why ? Because, not disclosing that he was an agent for others, he had made the purchase to himself, and bound himself, so that when he transferred it from himself to others it must be regarded as a sale. The transaction clearly was that the vendor in Boston sold a barrel of rum to the respondent. He knew nobody else. He did not sell so many gallons to A. and so many to B. and so many to C. Nor did the respondent purchase so many for A. and so many for B. and so many for G., separately, but he made one purchase of a barrel to himself, and then parcelled it out as parties desired it, having taken pay beforehand.
Upon exception 7 there can be no reasonable doubt. The instructions prayed for would have been clearly wrong and without law. Congress has the power under the constitution to lay and collect taxes, duties, and imposts. Article 1, § 8. It has also power to raise armies, and provide and maintain a navy, and to do various things requiring money; and hence an implied power to raise the money in any proper manner not repugnant to the constitution. This, congress has undertaken to do by a tax or duty upon various articles and employments. Among other things, it has imposed a special tax of $25 upon retail dealers in liquors, and imposed a penalty for exercising the business without paying such tax, if any one attempts it. There was proof that the respondent undertook to retail liquor without paying the tax; and to excuse himself from the penalty the defendant says he was town agent for the town of Sunapee, and while so agent, he had a license from the United States to carry on the business of a retailer, and when [46]*46that license expired, May 1, 1867, he had some liquors on hand, and he sold afterwards only such liquors, and was not chargeable. The answer to this is that his former license was to exercise the business for a specific time, and when that time expired his license expired, no matter what he had on hand. Suppose that while his license lasted he had purchased stock enough to have lasted him five years, could he on that account have continued to sell those liquors for five years ? It would be an evasion of the law to have allowed it; and no matter from whom he purchased the liquor, whether from the town or from the state of New Hampshire, neither could confer on him any authority to sell.
The law of congress is paramount, and the court gave proper instruction upon the point.
Upon the eighth and ninth exceptions it is sufficient to say that congress has defined (14 St. at Large, 116, 474) what constitutes a retail dealer, to-wit: “Every person who shall sell or offer for sale foreign or domestic spirits, wines, ale, beer, or other malt liquors, and whose annual sales, including all sales of merchandise, do not exceed $25,000, shall be regarded as a retail dealer in liquor.” And the court instructed the jury what or who was a retail dealer, in the language of the law. The instructions prayed for were not in accordance with the statute, and could not properly be given.
We come now to the tenth and last exception. In all criminal prosecutions the accused has the right to a trial by jury, and to be informed of the nature and cause of his accusation. Article 6 of the amendments of the constitution.
That the trial may be fair the jury must also be informed of the nature of the accusation; and before the trial commences the indictment is read, and the charge generally explained. It was so done in this ease. There is no complaint that the jury did not understand the cause, or it had not been stated to them, nor that the indictment was not present at the trial, nor that the respondent had not sufficient opportunity to examine and take exceptions to it. But we are asked to arrest the judgment because, inadvertently, the indictment was not sent with the other papers to the room of the jury while they were deliberating. There is no doubt the practice is thus to send the indictment with the jury, and in a case where injury resulted to the respondent the court would interfere to shield him from that injury. But the court cannot presume such an injury, and there is no pretence of any here. If the jury had needed the indictment when in their room they could have called for it, but they did not; they did [47]*47not need it; they knew of what the respondent was accused; they knew they were trying him on the charge in the indictment, and they were not aware of its absence until they came into court. We think such an inadvertence is no cause for arresting the judgment. Judgments are generally arrested for mistakes or defects in the record; and in Burnett v. Ballun, 2 Nott & McC. 435, it was held they would only be arrested for error apparent in the record. But they are sometimes arrested for other reasons; as the previous opinion of a juror, misconduct of a juror, or the improper separation of the jury. But here is no error in the record, no suggestion of the want of an impartial jury, or of misconduct, or of unfairness, but a mere inadvertence, working no damage to the respondent.
- There must be judgment on the verdict.