EMMONS, Circuit Judge,
concluded his charge to the jury as follows; In ordinary cases I should have submitted this cause to you without other comments. But after some consultation, I conclude to say a word or two about some of the incidents of this trial. The character of the discussions degenerated in a few instances into gross accusations and the imputation of bad motives .on the part of the officers of the government, such as I suppose, as a general rule, ought not to be tolerated in any case. The uniform courtesy during the trial of the learned counsel for the defendant, made me reluctant to interrupt what, although in my own estimation distasteful and sometimes very extravagant, I thought without a violation of duty I might suffer to proceed. What was said, too, was so interwoven with an apparent good nature and pleasantry, that, as each excess occurred, they came and went before I felt it a duty to interfere. But I desire most emphatically to announce that it must not be cited as a precedent for what in future trials, as a judge, I shall deem it right to suffer. It degrades a public trial. Neither jury, counsel, nor court feel that self-respect, nor can they maintain that condition of mind, necessary for the performance of their duties, if, by the compulsions of the law or the tol-erations of the bench, they are forced to listen, in circumstances which assume it is a legitimate part of a public trial, to an angry contest where the decorum and the proprieties of' our homes, or an ordinary business intercourse, are utterly wanting. It is disrespectful alike to jury and court for counsel on either side to assume that utterly unproved imputations, that wholesale abuse of witnesses sworn, unconnected with any criticism of' their testimony, and attacks upon absent persons who are unknown to the trial, can by any possibility aid a defendant, be he guilty or innocent It supposes the court so constituted in both its branches as to be incapable of distinguishing between what alone it is sworn to consider on the one hand, and the passionate denunciations of counsel on the-other. Although sufficiently intimated already, I take pains to repeat that although I deem the argument of the learned counsel for the defendant a clear violation of the rule I intend to enforce, still it is not so far from precedent in this and other courts as to-authorize any severity of rebuke; on the contrary, the general courtesy of the counsel, during the trial so won upon the court, that it had much to do with what it suffered during the argument. There is, however, one por[821]*821tion of it I wish particularly to notice. Counsel in his zeal expressed the belief that in the universal activity- of the government assistants to oppress his client, they had actually poisoned the mind of the court, and quite clearly intimated that it was too prejudiced to sit in the trial of the cause. This, I suppose, I ought not to have permitted, and hope I may never again have cause to consider what, in such a contingency, a judge, mindful of the usefulness and power of the court, ought to do. I have concluded, however, instead of rebuking it directly here, to answer it in a mode I am certain will be more effective with the counsel and his client, and as influential as any other to teach new practitioners how in error they are when, in their zeal, they mistake an inflexible administration of the law for partiality and prejudice. To what I say, gentlemen. I ask your attention, as it has a practical application to your duties. You have before you as witnesses, men who are accomplices of the guilty participators in the offence for which the defendant is tried. This goes substantially to their credibility, and, so far as your verdict must rest upon their testimony, is worthy your consideration. Thinking it not impossible that, among the various prosecutions for offences under this law, I might be called upon to enforce its penalties; perceiving that each offence, no matter how many, even twenty in the same indictment, compelled me to inflict a prescribed punishment for each, I felt oppressed by the consequences which might, in certain instances, result. I. therefore, conferred with other able and experienced judges for some mode of mitigating the punishment. I called special attention to the peculiar condition of opinion in regard to offences against the government; that, for some unappreciable reason, although they were in fact among the most injurious and widely corrupting crimes, the fact was still beyond dispute that otherwise reputable men, those who would not steal their neighbor’s goods or forge their names, would defraud the government by false invoices, smuggling. and false stamps. I brought forward the extraordinary facts of this case as they are claimed to exist by the government, the procuration of the counterfeit stamps, the employment of so many young men who had been taught to violate the law, and so take the first steps in crime, and found that while I could not look upon the defendant as an abandoned criminal, the public would demand in such a case what I might, in view of these circumstances, think should not be inflicted. I wished it even possible to omit the imposition of a punishment like that due to the hardened criminal who, abandoning all ordinary business, lives a continuous life of lawlessness and crime. It was thought we discovered a mode which in some degree would authorize the court, without a violation of duty, to temper the administration of this same statute to the exigencies of particular cases. I assure this counsel that it was because I entertained feelings wholly at war with, nay, on the other extreme, of those he so erroneously imputed, that I so anxiously sought an interpretation of the law which would authorize a kindly and mild judgment, should an exigency occur in which I should be called on to pronounce it. And although I may have ever so full convictions in this case, either way, resulting from a careful following of the proof, from the fact that I cannot leave behind my intelligence when I ascend the bench, and the necessity of accepting here as elsewhere .conclusions which are necessary and inevitable, it is simply unenlightened to impute this necessary consequence to prejudice or hostility, any more than the same conditions should be imputed because, in view of the same facts, you, gentlemen, in the end pronounce the defendant guilty. So far forth as the judge can concede, without transparent affectation, he should do so, but while the jury are informed fully that the facts are for them, I have but little fear of doing injustice by a frank, unprejudiced rehearsal of them as they are proved, whether they defeat or sustain the prosecution or the defence. This I shall always deem it my duty to do. Whether a mild administration of this law can arrest the wrong is uncertain. I may, by and by, quite change my opinions in this regard. That it must in some way be arrested, is most certain. Its injurious consequences will not only damage every department of business in which they are perpetrated, and cruelly disappoint the just expectations of the upright and fair dealer, but by their effects in familiarizing with crime, work eonseqenees the most fatal in society. Every father who has a son must feel the danger of such influential and high-positioned tempters to crime. We may save, by good example and high teaching, our boys from the low haunts of vice and crime, but we are compelled to trust them to the leading and more important walks of business life. If they who control these stoop to the cowardly crimes of forgery and counterfeiting. and a degraded and discreditable public insists upon their decency and partial respectability, there is no safety anywhere for inexperience.
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EMMONS, Circuit Judge,
concluded his charge to the jury as follows; In ordinary cases I should have submitted this cause to you without other comments. But after some consultation, I conclude to say a word or two about some of the incidents of this trial. The character of the discussions degenerated in a few instances into gross accusations and the imputation of bad motives .on the part of the officers of the government, such as I suppose, as a general rule, ought not to be tolerated in any case. The uniform courtesy during the trial of the learned counsel for the defendant, made me reluctant to interrupt what, although in my own estimation distasteful and sometimes very extravagant, I thought without a violation of duty I might suffer to proceed. What was said, too, was so interwoven with an apparent good nature and pleasantry, that, as each excess occurred, they came and went before I felt it a duty to interfere. But I desire most emphatically to announce that it must not be cited as a precedent for what in future trials, as a judge, I shall deem it right to suffer. It degrades a public trial. Neither jury, counsel, nor court feel that self-respect, nor can they maintain that condition of mind, necessary for the performance of their duties, if, by the compulsions of the law or the tol-erations of the bench, they are forced to listen, in circumstances which assume it is a legitimate part of a public trial, to an angry contest where the decorum and the proprieties of' our homes, or an ordinary business intercourse, are utterly wanting. It is disrespectful alike to jury and court for counsel on either side to assume that utterly unproved imputations, that wholesale abuse of witnesses sworn, unconnected with any criticism of' their testimony, and attacks upon absent persons who are unknown to the trial, can by any possibility aid a defendant, be he guilty or innocent It supposes the court so constituted in both its branches as to be incapable of distinguishing between what alone it is sworn to consider on the one hand, and the passionate denunciations of counsel on the-other. Although sufficiently intimated already, I take pains to repeat that although I deem the argument of the learned counsel for the defendant a clear violation of the rule I intend to enforce, still it is not so far from precedent in this and other courts as to-authorize any severity of rebuke; on the contrary, the general courtesy of the counsel, during the trial so won upon the court, that it had much to do with what it suffered during the argument. There is, however, one por[821]*821tion of it I wish particularly to notice. Counsel in his zeal expressed the belief that in the universal activity- of the government assistants to oppress his client, they had actually poisoned the mind of the court, and quite clearly intimated that it was too prejudiced to sit in the trial of the cause. This, I suppose, I ought not to have permitted, and hope I may never again have cause to consider what, in such a contingency, a judge, mindful of the usefulness and power of the court, ought to do. I have concluded, however, instead of rebuking it directly here, to answer it in a mode I am certain will be more effective with the counsel and his client, and as influential as any other to teach new practitioners how in error they are when, in their zeal, they mistake an inflexible administration of the law for partiality and prejudice. To what I say, gentlemen. I ask your attention, as it has a practical application to your duties. You have before you as witnesses, men who are accomplices of the guilty participators in the offence for which the defendant is tried. This goes substantially to their credibility, and, so far as your verdict must rest upon their testimony, is worthy your consideration. Thinking it not impossible that, among the various prosecutions for offences under this law, I might be called upon to enforce its penalties; perceiving that each offence, no matter how many, even twenty in the same indictment, compelled me to inflict a prescribed punishment for each, I felt oppressed by the consequences which might, in certain instances, result. I. therefore, conferred with other able and experienced judges for some mode of mitigating the punishment. I called special attention to the peculiar condition of opinion in regard to offences against the government; that, for some unappreciable reason, although they were in fact among the most injurious and widely corrupting crimes, the fact was still beyond dispute that otherwise reputable men, those who would not steal their neighbor’s goods or forge their names, would defraud the government by false invoices, smuggling. and false stamps. I brought forward the extraordinary facts of this case as they are claimed to exist by the government, the procuration of the counterfeit stamps, the employment of so many young men who had been taught to violate the law, and so take the first steps in crime, and found that while I could not look upon the defendant as an abandoned criminal, the public would demand in such a case what I might, in view of these circumstances, think should not be inflicted. I wished it even possible to omit the imposition of a punishment like that due to the hardened criminal who, abandoning all ordinary business, lives a continuous life of lawlessness and crime. It was thought we discovered a mode which in some degree would authorize the court, without a violation of duty, to temper the administration of this same statute to the exigencies of particular cases. I assure this counsel that it was because I entertained feelings wholly at war with, nay, on the other extreme, of those he so erroneously imputed, that I so anxiously sought an interpretation of the law which would authorize a kindly and mild judgment, should an exigency occur in which I should be called on to pronounce it. And although I may have ever so full convictions in this case, either way, resulting from a careful following of the proof, from the fact that I cannot leave behind my intelligence when I ascend the bench, and the necessity of accepting here as elsewhere .conclusions which are necessary and inevitable, it is simply unenlightened to impute this necessary consequence to prejudice or hostility, any more than the same conditions should be imputed because, in view of the same facts, you, gentlemen, in the end pronounce the defendant guilty. So far forth as the judge can concede, without transparent affectation, he should do so, but while the jury are informed fully that the facts are for them, I have but little fear of doing injustice by a frank, unprejudiced rehearsal of them as they are proved, whether they defeat or sustain the prosecution or the defence. This I shall always deem it my duty to do. Whether a mild administration of this law can arrest the wrong is uncertain. I may, by and by, quite change my opinions in this regard. That it must in some way be arrested, is most certain. Its injurious consequences will not only damage every department of business in which they are perpetrated, and cruelly disappoint the just expectations of the upright and fair dealer, but by their effects in familiarizing with crime, work eonseqenees the most fatal in society. Every father who has a son must feel the danger of such influential and high-positioned tempters to crime. We may save, by good example and high teaching, our boys from the low haunts of vice and crime, but we are compelled to trust them to the leading and more important walks of business life. If they who control these stoop to the cowardly crimes of forgery and counterfeiting. and a degraded and discreditable public insists upon their decency and partial respectability, there is no safety anywhere for inexperience. The first lessons of dishonor and crime will be learned in the first teachings of the storehouse and the counting-room. Look over the vast ramifications of our revenue. See how it pervades all departments of trade, and reflect how innumerable are the occasions and how demoralizing must be the effects if leading, wealthy, influential citizens teach the whole body of their employees that perjury and fraud is justifiable, so long as its object is to avoid a public tax. And when 1 doubtfully suggest that this anomalous condition of public opinion may in the outset somewhat temper the severity of judgment, I must not be understood as insinuating that I do not most thoroughly believe that the commission of these crimes by prosperous men of wealth and position, with all the corrupting incidents which so generally attend them, are [822]*822infinitely more injurious and pervading in their consequences than the comparatively trivial evil of a secret midnight burglary, committed by a few degraded, obscure, and un-infiuential thieves. And as in this case I have, so in all others I probably shall, yield to an anxiety that there shall be no escape, if, in fact, a defendant has committed a crime which, in its example and influence for evil, is exceeded by no offence of which this or any other tribunal has cognizance.
[See Case No. 16,171.]
The jury found defendant guilty on the first, third, fourth, fifth, and sixth counts.