prejudiced by the refusal of the court to require a more restricted or specific statement of the particular mode in which the offense charged was committed. Rev. St. § 1025. There is no ground whatever to suppose that the accused was taken by surprise in the progress of the trial, or that he was in doubt as to what was the precise offense with which he was charged.”

A defendant, of course, has the constitutional right to be informed of the nature and cause of accusation against him. No statute could make valid an indictment that deprived him of such right. But it seems to us that it cannot be doubted that this indictment fully informed the defendants of the nature and cause of accusation. When it was charged that they "conspired" to defraud the United States, the indictment setting out the nature and purpose of the conspiracy, they must have understood that the criminal agreement charged was among themselves. No other person was named. The language is that William H. Wright, A. S. Cornet, and Robert H. Cox "did conspire." No other word was needed to show the alleged members of the conspiracy. It meant that they had agreed together. To apply the language of Mr. Justice Peckham, no one reading the indictment could come to any other conclusion in regard to its meaning, "and when this is the case an indictment is good enough." Price v. U. S., 165 U. S. 311, 315, 17 Sup. Ct. 368, 41 L. Ed. 729. We think that the circuit court did not err in overruling the demurrer to the indictment. So far as it is necessary to protect the real rights of defendants, we cannot adhere too closely to the technicalities of the old common-law practice; but in matters of form, not involving substantial rights, the rigor and technicality of such practice "must yield to the more enlightened jurisprudence of the present." U. S. v. Clark (C. C.) 37 Fed. 106.

We next consider the assignment of error based on the argument of the United States attorney. We cannot more briefly state the point than to quote the entire incident complained of, as it appears in the bill of exceptions:

"The United States attorney, prosecuting in its behalf, in making his closing argument before the jury recalled and analyzed from his notes the testimony of a large number of witnesses for the prosecution, and also analyzed and criticised the testimony of one of the defendants, William H. Wright, who at his own request had taken the stand and testified on his own behalf, and then, proceeding with his address, said: 'Neither Cox nor Cornet has taken the stand in this case Whereupon counsel for defendants Cox and Cornet interrupted him before his sentence was concluded, and objected to his making any comment upon the fact that the defendants named had not testified in their own behalf. The United States attorney then continued: 'I have not made a single comment yet. I have not a right to make a comment, and I do not propose to make a comment, upon the fact that they did not testify. The counsel for the defendants cannot guess what I was going to say. I say that these defendants sat like graven images and made no explanation whatever,'-when counsel for defendants again interrupted him and made objection, when he added, 'by calling other witnesses on their side.' The court said: The line is very clearly drawn in such cases, and it is this: As has been stated by the district attorney, he has no right to comment-he did not comment-upon the fact that the two defendants did not take the stand; but he has a perfect right to discuss at any length the fact that they did not call witnesses or produce evidence to discredit the government's case. Any reference made to their not taking the stand themselves is not proper, but a reference to their not calling witnesses to testify in their behalf is proper.' The United States attorney continued: 'I have not com

mented, and do not comment, upon the fact that these defendants did not get upon the stand. I have no right to do so. The law is perfectly plain that the fact does not create any presumption against them. But I do comment upon the fact that they called no witnesses. I do comment upon the fact that here is a case which, upon the face of the testimony, has excited the whole parish of Ascension for the past three years, and witnesses up there are as plentiful as blackberries, and they have not called a single witness to weaken or demolish the fabric that the government has built against them.' Counsel for defendant Cox then said to the United States attorney: 'You stated that Cox called no witnesses. As a matter of fact, he called five in connection with Mr. Wright, and they were put upon the stand for the special purpose of discrediting the statement made by Stevens as to matters that transpired at Mr. Cox's house.' The United States attorney then continued: 'Well, I will state this: That neither Cox nor Cornet called any witnesses as to any substantial fact set forth in these indictments. Of course, they called some witnesses, but they did not call such witnesses as they might have done.' To all of which statements of the United States attorney and of the court the defendants Cox and Cornet then and there, when made in the presence of the jury, excepted, and still except."

The act of congress which permits a defendant at his own request to be a witness provides "that his failure to make such request shall not create any presumption against him." 20 Stat. 30, c. 37. To prevent such presumption being created, no hostile comment on the defendant's silence should be permitted in argument before the jury. Any allusion by counsel to the fact that the defendant on trial has failed to testify is improper. The trial court should promptly stop any comment or allusion to the failure of a defendant to testify as a witness. Where such comment is made, and, on objection by the defendant, the court fails or refuses to interfere, and evinces no disapprobation of the course of counsel, and gives no instruction to the jury to remove the probable impression of such comment, the defendant, on writ of error, would be entitled to a new trial. Wilson v. U. S., 149 U. S. 60, 13 Sup. Ct. 765, 37 L. Ed. 650. In this case the district attorney did allude to the failure of two of the defendants to take the stand. He was immediately interrupted by opposing counsel, when he admitted that he had no right to make such comment. The important part of the incident is that the court immediately held that the district attorney had no right to comment on the failure of the defendants to testify. Both the district attorney and the court expressed themselves to the effect that such comment was improper. But it is said that the colloquy necessarily reminded the jury that two of the defendants had not testified. That is probably true. The fact, however, that one of the three did testify necessarily called to their attention the fact that two of the defendants did not take the stand. If the incident had closed here, it would scarcely have appeared that the defendants were prejudiced substantially. But it did not close here. The court, after the case had been argued, instructed the jury as follows:

"The court is requested to instruct the jury that the fact that neither of the defendants Cox nor Cornet testified in his own behalf must not be considered by the jury. The law gives to a defendant in a criminal case the right to testify in his own behalf, but it does not compel him to do so, and, if he does not, that fact must not be construed in any way to his prejudice.' And the court added: "This has already been stated once by the court, and twice by the United States attorney."

In U. S. v. Snyder (C. C.) 14 Fed. 554, the United States attorney made remarks conceded to be improper, but McCrary, circuit judge, held that the error was cured by the correcting charge of the court. In Ruloff v. People, 45 N. Y. 213, it appears that the trial judge repeatedly referred to and commented on the failure of the defendant to be sworn as a witness. But later, his attention being called to his error, he corrected it by telling the jury that there was no law requiring the defendant to be sworn, and no inference to be drawn against him from the fact of his not being sworn. The court held that this corrected the error. It seems to us that both at the time of the colloquy, and subsequently in the charge given, the position assumed by the court conformed to the law. A motion was made for a new trial, based in part on this matter, and the motion was overruled by the court. If it had appeared that the defendants had in any way been prejudiced by this incident, it was the duty of the trial court to grant a new trial. It may be well to note that the exception reserved is to "all of the statements of the United States attorney and of the court." The rulings of the court, at least, seem to have conformed to the wishes of the defendants. We do not think that, on principle or authority, the remarks of the United States attorney and the rulings of the court would justify a reversal of the case. Willingham v. State, 21 Fla. 761; Cross v. State, 68 Ala. 476; Endleman v. U. S., 30 C. C. A. 186, 86 Fed. 456; Nite v. State (Tex. Cr. App.) 54 S. W. 763, 769; State v. Parker, 7 La. Ann. 83.

There are several exceptions raising questions as to the admissibility of evidence offered by the government on the trial. We have carefully considered the several assignments of error based on them. The evidence in each instance was, we think, properly admissible under some one of the counts of the indictment. We do not deem it necessary to discuss these assignments separately. We think that the record contains no reversible error, and that the judgment of the circuit court must be affirmed.

PARDEE, Circuit Judge (dissenting). In my judgment, the trial court erred in overruling the demurrers to the indictments, and to each count thereof, and for this error the judgment of the circuit court should be reversed, and a new trial ordered.

In U. S. v. Cruikshank, 92 U. S. 557, 558, 23 L. Ed. 593, the court said:

"In criminal cases prosecuted under the laws of the United States, the accused has the constitutional right 'to be informed of the nature and cause of the accusation.' Const. Amend. 6. In U. S. v. Mills, 7 Pet. 142, 8 L. Ed. 637, this was construed to mean that the indictment must set forth the offense 'with clearness and all necessary certainty to apprise the accused of the crime with which he stands charged'; and in U. S. v. Cook, 17 Wall. 174, 21 L. Ed. 539, that 'every ingredient of which the offense is composed must be accurately and clearly alleged.' It is an elementary principle of criminal pleading that where the definition of an offense, whether it be at common law or by statute, 'includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, but it must state the species. It must descend to particulars. 1 Archb. Cr. Prac. & Pl. 291. The object of the indictment is-First, to furnish the accused with such a description of the charge against him as will

enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent, and these must be set forth in the indictment with reasonable particularity of time, place, and circumstances."

Again, in U. S. v. Carll, 105 U. S. 612, 613, 26 L. Ed. 1135, the court said:

"In an indictment upon a statute, it is not sufficient to set forth the offense in the words of the statute, unless those words, of themselves, fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished; and the fact that the statute in question, read in the light of the common law and of other statutes on the like matter, enables the court to infer the intent of the legislation, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent." And in Pettibone v. U. S., 148 U. S. 197, 203, 13 Sup. Ct. 545, 37 L. Ed. 422:

"A conspiracy is sufficiently described as a combination of two or more persons, by concerted action, to accomplish a criminal or unlawful purpose, or some purpose not in itself criminal or unlawful, by criminal or unlawful means.'

In U. S. v. Britton, 108 U. S. 193, 204, 2 Sup. Ct. 534, 27 L. Ed. 700, the supreme court said:

"The offense charged in the counts of this indictment is a conspiracy. This offense does not consist of both the conspiracy and the acts done to effect the object of the conspiracy, but of the conspiracy alone. The provision of the statute that there must be an act done to effect the object of the conspiracy merely affords a locus penitentiæ, so that, before the act done, either one or all of the parties may abandon their design, and thus avoid the penalty prescribed by the statute. It follows as a rule of criminal pleading that, in an indictment for conspiracy under section 5440, the conspiracy must be sufficiently charged, and that it cannot be aided by the averments of acts done by one or more of the conspirators in furtherance of the object of the conspiracy. Reg. v. King, 7 Q. B. 782; Com. v. Shedd, 7 Cush. 514."

Taking the definition of "conspiracy" as given in Pettibone v. U. S., supra, and applying the rules declared in U. S. v. Cruikshank, U. S. v, Carll, and U. S. v. Britton, supra, the indictments in this case, and every count in the same, should be held bad, because the charge made in each is only general, to wit, that the defendants "did conspire," etc., without charging the defendants with any combination or agreement or confederation with each other or with any other person or persons, and there is no equivalent to show concerted action. To have committed the offense of conspiracy, they must have combined and agreed together or combined and agreed with some other person or persons; and such combination and agreement should be averred, so that the court and trial jury can determine whether the acts constituting the crime have been committed. To merely charge that the defendants "did conspire" is not to charge. specific facts, but to charge a legal conclusion. An indictment, to be sufficient, must inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction if one should be had. For this, facts are to be stated, not con

clusions of law alone. See U. S. v. Cruikshank, supra. In regard to defects or imperfections in matters of form under section 1025, Rev. St., so much relied on by my Brethren, I need only again quote from U. S. v. Carll, where an indictment was held bad because, while the defendant was charged that at a certain time and place, feloniously and with intent to defraud, he did pass, utter, and publish a falsely made, forged, counterfeited, and altered obligation and security of the United States, following the statute literally, the court held that the same was defective, because the indictment failed to expressly charge scienter with regard to the passing, uttering, etc.; and the court used this expressive language:

"This indictment, by omitting the allegation contained in the indictment in U. S. v. Howell, 11 Wall. 432, 20 L. Ed. 195, and in all approved precedents, that the defendant knew the instrument which he uttered to be false, forged, and counterfeit, fails to charge him with any crime. The omission is of matter of substance, and not a 'defect or imperfection in matter of form only,' within the meaning of section 1025 of the Revised Statutes."

And so I say that this indictment, by omitting the allegations contained in the indictment in Dealy v. U. S., 152 U. S. 539, 14 Sup. Ct. 680, 38 L. Ed. 545, and in all approved precedents, that the defendants did conspire, combine, confederate, and agree together among themselves, or equivalent thereto, fails to charge any crime, and that the omission is a matter of substance, and not a defect or imperfection in form, within the meaning of section 1025, Rev. St. If we had before us an indictment under section 5339, Rev. St. U. S., which provides that "every person who commits murder" upon the high seas, etc., within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state, etc., shall suffer death, and which indictment charged that one Richard Roe, in the peace, etc., and on the high seas, etc., within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular state, did unlawfully murder John Doe, it would seem that nearly all the reasons given by my Brethren in favor of sustaining the indictment in the instant case would be as applicable, and I think as plausible, to maintain the supposed indictment charg ing Richard Roe with murder. We could say that the statute on which the indictment is framed uses only the word murder,-"every person who commits murder"; and in numerous acts of congress providing for the punishment of homicides the same or substantially the same language is used by the congress as being sufficient to show the killing of a human being with malice prepense or aforethought, express or implied, and that in so using the word congress is sustained by the dictionaries and by the best usage; for, if we turn to Webster's Dictionary, we find "murder" defined as "the offense of killing a human being with malice prepense or aforethought, express or implied"; and the same, or its equivalent, can doubtless be found in all the dictionaries extant. If we turn to the Bible, we find that from Genesis to Revelations the malicious killing of a human being is recognized as murder; and the sixth commandment, as found in the standard Prayer Book, is, "Thou shalt do no murder." The ancient Chaucer, the father of English poetry, says "Mordre will