order under the act of 1840. As the statute prescribed the number of challenges to the defendant, the court could not, therefore, proceed under the act of 1840, and by rule or order prescribe any other number, or none at all, in accordance with the practice of the state courts in that respect. The Federal statute was held to be exclusive of any other regulation on the subject, because to give any other number of challenges to the defendant would be inconsistent with the provisions of the Federal statute, even though the matter of peremptory challenge was provided for by the state practice. In such a case the power to provide by rule of court was to be regarded as excepted from the provisions of the act of 1840.

But, in giving by statute the right of peremptory challenge to the Government in certain cases, it does not necessarily affect the exercise of the power of the Government to challenge in this qualified manner. A conditional or qualified right of challenge is not inconsistent with the existence of the right of peremptory challenge given by statute. The two may co-exist, and the Government may exercise the right of peremptory challenge given by statute and in the same case exercise the qualified or conditional challenge, as in the case at bar.

It was stated in the opinion in the Shackleford case that unless the laws or usages of the State (adopted by rule by the Federal courts under the act of 1840) allowed it, the right should be rejected, and the practice conformed in that respect to the state law. But in North Carolina the state law permits such qualified right of challenge, and the court in this case made the order to follow the state practice, there being no United States statute on the subject.

In Pennsylvania, which is one of the States where the practice has always obtained, the Supreme Court held that a statute, giving peremptory challenges, does not take away this right of the Government. Haines v. Commonwealth, 100 Pa. St. 317, 322; Commonwealth v. O'Brien, 140 Pa. St. 555, 560.

To the same effect are the decisions in North Carolina. The

right remains notwithstanding the enactment of a law giving peremptory challenges to the State. State v. Benton, 19 N. Car. 196, 203; State v. Hensley, 94 N. Car. 1021, A. D. 1886.

The courts of Georgia and Florida are of a different opinion. Sealy v. State, 1 Georgia, 213; Mathis v. State, 31 Florida, 291, 315.

We are of opinion that the passage of the acts of Congress, granting peremptory challenges to the Government, has not taken away the qualified right of challenge under discussion in this case. As we have said, there is certainly nothing in the statute granting peremptory challenges to the Government to prevent its exercise of the other kind of challenge when permitted in the State, and where it has been adopted by the Federal court as a rule, or by special order as in this case. The exercise of this right is under the supervision of the court, and it ought not to be permitted to be exercised unreasonably, or so that the interests of the defendant might be unduly prejudiced. The court should take special care to that end.

In this case it appears that neither the Government nor the defendants had exhausted all their peremptory challenges when the jury was obtained. We think it plain that the Government's right of qualified challenge was not unreasonably exercised, and the rights of the plaintiffs in error suffered no injury by the course permitted by the court.

Another question argued arises upon the cross-examination by the district attorney, of the plaintiff in error Adams, who voluntarily became a witness on the trial on his own behalf and in behalf of his fellow-plaintiff in error. The crossexamination referred to the conduct of the witness on a previous voyage and on a different vessel, in regard to which nothing had been said on the examination of the witness in chief.

It has been held in this court that a prisoner who takes the stand in his own behalf waives his constitutional privilege of silence, and that the prosecution has the right to cross-examine him upon his evidence in chief with the same latitude as would

be exercised in the case of an ordinary witness, as to the circumstances connecting him with the crime. Fitzpatrick v. United States, 178 U. S. 304.

It is contended on the part of the plaintiffs in error that within this rule the cross-examination was improper, as the subject matter of the cross-examination had no tendency to connect the prisoner with the alleged crime for which he was on trial.

The district attorney on his cross-examination began with questions relating to the experience which the witness had had as a seaman, and asked him in regard to the vessels that he had sailed on. It appeared that he had been one of the crew, among others, of the schooner Benefit, for some fifteen months, whose captain was a man named Falkner. He was then asked if during the latter part of the fifteen months he was on the schooner he did not have trouble and try to create insubordination on board that vessel. This question was duly objected to by counsel for defendants, and the objection overruled by the court and an exception allowed. He answered that he was not logged, and then stated that the trouble arose from the cook giving them molasses to make tea, which he said was not right, and he and three other men went to the captain and asked him if he thought it was right, and the captain said they did not have sugar and would have to use molasses. The witness took the tea and threw it overboard; that he never went among the men and tried to create dissatisfaction among them; that the captain never threatened to put him in irons, and when he left the Benefit he shipped on another vessel named the Benj. Russell, where he stayed for over three months.

It is unnecessary in this case to inquire whether the crossexamination was within the prescribed limits, because the witness denied that he had had any trouble, or that he had ever tried to create any trouble, or that there was any insubordination on his part on board the vessel named. What he said in regard to the facts showed that there was neither trouble nor

insubordination. The Government made no attempt to contradict the evidence of the witness on this subject, and hence there could have been no harm arising from the cross-examination. There are some state authorities which hold that the error, if any, is not cured by answer of the witness denying the charge. But we think the better rule is where, as in this case, it is plain that there is no injury, the exception is not available.

The plaintiffs in error also ask for a new trial because of the remarks made by the district attorney in summing up to the jury, and the action of the court thereon.

In the course of his remarks, and in speaking of the fact that during the time these murders were being perpetrated, one of the plaintiffs in error had testified that he drank some coffee, the district attorney said, "A man under such circumstances who would drink coffee ought to be hung on general principles." This remark the counsel for the plaintiffs in error objected to, and, after hearing counsel on the objection, the court directed the district attorney to confine himself to a proper argument, and thereupon the district attorney expressed his regret if he had made an improper argument, and withdrew the remark.

When the objection was first made by counsel for the plaintiffs in error the court asked if he wanted to cut the district attorney off from making any argument, but thereupon the court immediately directed the district attorney to confine himself to a proper argument, as above stated.

Counsel for the plaintiffs in error objected to both the remarks of the district attorney and the comments of the court as made, and counsel asked to be allowed to file an exception. Upon this request the court replied, "I will give counsel the benefit of his statement that he has made an exception which the court considers frivolous."

The remark of the district attorney was not appropriate argument and should not have been made, but we see nothing more that could have been done than was done by the court as soon as the objection was made by the counsel for the plain

tiffs in error. Counsel in summing up to a jury are under some excitement, and may naturally make a remark or statement which is improper. But there is not on that account any ground laid for setting aside a verdict where, as in this case, the court held it was improper, and the counsel withdrew and apologized for it. Dunlop v. United States, 165 U. S. 486, 498. Under such circumstances it does seem as if the exception were frivolous, and the court in stating its opinion to that effect is not open to censure.

The error assigned that the court said the plaintiffs in error were not charged with the murder of Coakley, when in fact the bill contained his name, has not been pressed, and we think there is no merit in it. The court said that if charged in the bill there was no evidence to support such charge. Certainly no harm was thereby done the plaintiffs in error.

Upon full consideration of all the objections urged by counsel for the plaintiffs in error, we think no ground appears for granting a new trial. The judgment is

Affirmed.

MR. JUSTICE WHITE dissented.

UNITED STATES v. MILLIKEN IMPRINTING COM

PANY.

APPEAL FORM THE COURT OF CLAIMS.

No. 227. Argued April 16, 17, 1906. Decided April 30, 1906.

A corporation having a contract with the Government to imprint revenue stamps received notice as to renewal which, among other things, stated that no application for such contracts would be considered from persons not already having one; the corporation applied for and obtained a renewal and the contract when delivered contained no provision for not giving contracts to persons not then engaged in imprinting stamps;