CLARK v. UNITED STATES, 61 F.2d 695

KENYON, Circuit Judge. This is an appeal from 'a judgment of the District Court entered on the 26th day of December, 1931 (1 F. Supp. 747), adjudging appellant, Genevieve A. Clark, guilty of contempt, and imposing as punishment confinement in the county jail of Ramsey county, Minn., for a period of six months and payment of a fine of $1,000. As we hereinafter fully discuss the facts, it will be necessary at this point merely to refer briefly to some of them. Appellant on August 24, 1931, was summoned to report on September 1, 1931, as a juror in the United States District Court at St. Paul, Minn.

The ease for which she was summoned was that of United States v. W. B. Foshay, Palmer V. Mabry, et al., a somewhat celebrated mail fraud case (which will be referred to hereinafter as the Foshay Case'). She did not know at the time of the summons for what particular ease she was called. Within a day or two after the receipt of the summons she telephoned her sister, who worked in the Federal Building at St. Paul, about being called on the jury, and dischssed with her the question of postponement of her service on account of expecting a friend to visit her during the week of September 1st.

In one of the telephone conversations with her sister she was advised that the case she was called upon was the Foshay Case. She was also advised by her sister that she would probably he disqualified because she had been employed by Foshay Company, a corporation in which a number of the defendants were interested. Appellant had been married to one D. D. Clark in January, 1921. He was president of the Citizens’ State Bank of St. Paul from January, 1921, until August 1925, when at the request of the State Banking Department he agreed to resign.

Prior to her marriage she had been employed in the bank as a stenographer, and so continued for a time after her marriage. Appellant had been employed by the Foshay Company for some two weeks in the summer of 1929. She was not acquainted with any of the defendants. In the years 1923 and 1933 her husband had some business transactions with defendant W. B. Foshay. The record contains a number of letters written back and forth between Foshay as president of the W. B. Foshay Company, and her husband as president of said Citizens’ State Bank, which show rather intimate business relations between them.

Her husband at the time of the trial was a member of the real estate firm of Willie & Clark, having left the service of the bank some time previous thereto. Ohe of the defendants, Mabry, transacted business with said Citizens’ State Bank from 1917 until 1925, and was acquainted with appellant’s husband. Prior to appellant’s examination on the voir dire she talked with some women who were also summoned for service on the panel.

These women testified on the. hearing for contempt that she made statements that she wished to serve on the jury and that she had a special reason for wanting so to do, and was afraid that her former employment by the Foshay Company would disqualify her. Judge Molyneaux conducted the examination of the jurors on the voir dire, and appellant during said examination was asked questions and gave answers as follows: “Q. Have you yourself ever been in any business of any kind? A. ' I have been a stenographer before my marriage, yes. “Q. In what kind of business did you work?

A, Well, I did some banking, and some real estate and insurance, and I was with an automobile concern, with a Nash agency.” She testified further that after Jhe summons she discussed with her husband the probability of being dn the jury; that she had formed no opinion' thereon and did not know the lawyers of defendants. The following also occurred on this examination: “Q. Well, do you feel that you are now— that your mind is now open and free, and that you are not biased either one way or the other? A. Yes, I do feel that way. “Q. Did you ever sit on a jury before? A. No, sir. “Q.

And you think; in the trial of this lawsuit, you could follow the evidence, or would try to follow the evidence, and base your judgment on that and the law as given to you by the Court? A. Yes, I do.” She was accepted and sworn as the final juror. Evidence was introduced in the contempt hearing by other jurors as to her conduct in the jury room, and certain statements she made before the jury when it was deliberating, on the theory that they tended to show bias and prejudice at the time of her examination. We refer to them hereinafter.

Appellant’s husband visited her about once a week during the course of the trial before the jury retired to consider its verdict. She claims to have talked to him only while Mrs. Henderson, a bailiff, was present. Mr. Clark did not testify in the present hearing. She expressed a desire before the jury to talk to her husband, that “she would like to have his opinion — how he would vote.” In the jury room she discussed the evidence but little. The trial of the ease lasted about seven weeks. The jury was out approximately one week, being discharged on October 23, 1931.

It stood from the commencement of its balloting eleven for conviction and one (appellant) for acquittal. The government instituted an investigation of the circumstances surrounding this trial under which appellant became a member of the jury. On November 3, 1931, Mr. Horowitz, counsel for the government, Post Office Inspectors Schriver, Simmons, and Hugdal, and the court reporter, Mr. Ackerman, called upon appellant and her husband at their home. Stenographic notes of what transpired were taken, and were used on the cross-examination of Mrs. Clark.

On November 4th a petition was filed in the District Court charging appellant with criminal contempt, and a rule to show cause was issued thereon returnable November 9, 1931. On that day appellant filed a sworn answer denying the charges of the petition for the rule. Additional time to prepare for trial was asked, but the court proceeded to hear witnesses on behalf of the government, and then granted a continuance for ten days to enable appellant to prepare her defense. The case was heard by two District Judges, Sanborn (now Circuit Judge) and Nordbye.

A written opinion was filed in which the court said: “The evidence does conclusively establish that Mrs. Clark, at the time of her examination, did have in mind that she had worked for the Poshay Company in the summer of the year 1929'. She had been informed by her sister that that fact would probably disqualify her as a juror in that case. Her discussion with other prospective jurors clearly indicates that she herself was apprehensive that such employment would prevent her from being accepted as a juror.

We are convinced that she deliberately and intentionally concealed her association with the Poshay Company when she was examined by the court.” Also as to her answers concerning freedom from bias and prejudice: “ * * * It is our opinion that Mrs. Clark purposely withheld information from the Court so as to be accepted as a juror. Her remarks to her fellow prospective jurors as to her desire to be accepted on the panel and that she had a special purpose in mind, may without any other circumstances, be quite consistent with an honest rather than a wicked intent.

Her studied attempt, however, to get on the jury, her evasive and incomplete answers, coupled with her conduct after she was accepted, convince us that her mind was prejudiced by some person, or for some reason, before she took her oath as a juror.” It is the contention of appellant that she has been convicted of something claimed to constitute contempt, of which she was not accused; that she was charged with perjury and the same was not proved; that the court misapprehended the nature of contempts; that the court erred in receiving evidence of deliberations in the jury room; erred in permitting cross-examination of appellant in respect to what she said and did in the jury room; that it was denial of due process of law to proceed to trial on the return day; that the sentence is excessive; that it was error to sentence appellant to both fine and imprisonment.

It thus appears that many important questions are raised by the assignments of error. Counsel for appellant in his brief states: “The startling fact is ■ that appellant has been convicted of something claimed to constitute a contempt of which she was not accused.” The seriousness of this charge challenges our first attention. We agree with the argument of counsel that the contempt, if any, was what the law regards as a “constructive” contempt, rather than a “direct” one.

The alleged contempt, while within the presence of the court, could not be known to the court in its judicial knowledge or observation, and hence there could not be

summary punishment. The proceeding here was the proper one, and due process of law entitled appellant to be informed of the alleged contempt and of what it consisted, and to a reasonable opportunity for preparation of her defense; also to be represented by counsel and to immunity from self-incrimination. Cooke v. United States, 267 U. S. 517, 45 S. Ct. 390, 69 L. Ed. 767. Contempt proceedings have many times been said by the courts to be sui generis. The accusation does not require the same particularity as an indictment.

It is sufficient if it fairly advise an alleged eontemnor of the offenses with which he is charged so as to enable him to prepare properly his defense thereto. In Aaron v. United States, 155 F. 833, 836, this court said: “It is now the recognized rule that the information in a contempt proceeding is sufficient if it clearly apprises the defendant of the nature of the charge against him, and no particular form is necessary.” In Myers v. United States, 264 U. S. 95, 44 S. Ct. 272, 273, 68 L.

Ed. 577, the court said: “contempt proceedings * * * are sui generis — neither civil actions nor prosecutions for offenses, within the ordinary meaning of those terms.” The eases cited by plaintiffs in error in support of this contention deal with indictments in. criminal eases and are not in point. There is no fixed formula for contempt proceedings, and technical accuracy is not required. In Ex parte Grossman, 267 U. S. 87, 117, 45 S. Ct. 332, 336, 69 L. Ed. 527, 38 A. L.

R. 131, the court said: “Contempt proceedings are sui generis because they are not hedged about with all the safeguards provided in the bill of rights for protecting one accused of ordinary crime from the danger of unjust conviction.” In Kubik v. United States, 57 F.(2d) 477, this court recognizes and approves the doctrine that in contempt proceedings the information is sufficient if it clearly informs defendant of the charge, and in a recent opinion, Conley et al. v.

United States, 59 F.(2d) 929 (filed May 25, 1932), this court sustains an information for contempt less informative than the one here under discussion. See, also, Armstrong v. United States (C. C. A.) 18 F.(2d) 371; In Savin, Petitioner, 131 U. S. 267, 9 S. Ct. 699, 33 L. Ed. 150; Ex parte Hudgings, 249 U. S. 378, 39 S. Ct. 337, 63 L. Ed. 656, 11 A. L. R. 333; Hagner v. United States, 285 U. S. 427, 52 S. Ct. 417, 76 L. Ed. 861. The entire record may be examined by a reviewing court to determine whether an alleged eontemnor has been sufficiently informed of the charges against him. Schwartz v. United States (C.

C. A.) 217 F. 866; Blackmer v. United States, 60 App. D. C. 141, 49 F.(2d) 523; Gompers v. Buck’s Stove & Range Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874. Was appellant here sufficiently advised of the charges against her? Of course from the questioning of her husband and self by government officers before the accusation was filed she knew that her conduct as a juror was being investigated, and that she was being accused of falsification in her answers to questions put to her by the District Court; but what did the petition for the rule which was served upon appellant tell her?

It charged that she willfully, corruptly, and contrary to her oath, did falsely swear and depose before said court in answer to questions put to her by the presiding judge in the criminal indictment trial against the defendants, Eoshay et al. It called especial attention to her answers as to her being in business before she was married, and that her mind was free and open, that she was not biased either one way or the other and would base her judgment on the law and evidence as given by the court.

It then stated: “ * * * Whereas, in truth and in fact it was not and is not true and at the time of so swearing and deposing the said Genevieve A. Clark did not believe it to be true that she, the said Genevieve A. Clark, had been in business hut that was before she was married and that she had been a stenographer working as such in the banking, insurance and real estate business and with a Nash automobile agency, and that it was true that since her said marriage she was employed by the said Citizens State Bank of St. Paul, and other concerns, and as late as July, 1929, was employed by the said W. B.

Eoshay Company, a corporation; * * * .“And whereas, in truth and in fact it is not true and at the time of said swearing and deposing the said Genevieve A. Clark did not believe it to he true that her mind was free and open; that she, the said Genevieve A.

Clark, was not biased either one way or the other and would try to follow the evidence and would base her judgment on the evidence and the law as given by the Court; and that it is true that her mind was not free and open and that she was biased and would not try to follow the evidence and base her judgment on the evidence and the law as given to her by the Court in that she was determined at the time she did so swear and depose that regardless of the evidence and the law that she would vote not guilty as to each and all of the defendants.” And the petition further asserts: /‘And the said Genevieve A.

Clark, in the manner and form aforesaid, having taken an oath before a competent tribunal in a case wherein the law of the United States authorized an oath to be administered that she would truly depose and testify, wilfully and contrary to her said oath, did depose and state material matters which she did not then believe to be true and did thepand there commit wilful and corrupt perjury; and the due administration of justice, in the selection of a jury, and in the trial of said Poshay ease in this Honorable Court was in fact thereby corruptly and unlawful impeded and obstructed.” It then prays that she be required to appear to show cause “why she should not be held in contempt of this Honorable Court in consequence of her said contemptuous and obstructive conduct, and punished by fine or imprisonment as for criminal contempt « * * »

The rule required her to appear and show “why she should not be adjudged in contempt of the authority of this Court as prayed in said petition.” There is no real difference between the statement she was accused of making, “That she, the said Genevieve A.

Clark, had been in business, but that was before she was married,” and the statement the evidence says she actually made, “I have been a stenographer before my marriage, yes,” which was in answer to the question, “Haye you yourself ever been in any business of any kind?” Appellant argues that she was charged with perjury, that perjury was not proved, and hence the government has failed in its proof.

It is triie the petition charges her with perjury, and we may assume that what she did may not amount to perjury; but she was accused of “contemptuous and obstructive conduct,” so that even if the conclusion of the accusation was that perjury was committed, it is obvious that all the facts were stated upon which was based a charge of contempt. The general rule as to proof of perjury as laid down by the Supreme Court in Hammer v. United States, 271 U. S. 620, 46 S. Ct. 603, 70 L. Ed. 1118, and other eases, makes most difficult its successful prosecution.

The government here elected to proceed for contempt and not for perjury — doubtless having in mind the difficulty of conviction of perjury. The essence of the offense charged was contempt rather than perjury, and as falsification or evasion which may fall short of perjury may constitute contemptuous conduct if its tendency is to obstruct the administration of justice, the allegation of the petition that appellant’s answers constituted perjury 'is an immaterial allegation, and she stands thereunder charged with the exact offense of which she was convicted.

The gist of criminal contempt is the obstruction of the administration of justice. The gist of perjury is falsification under oath. In Ex parte Hudgings, 249 U. S. 378, 39 S. Ct. 337, 63 L. Ed. 656, 11 A. L. R. 333, it was held that technical perjury does not constitute criminal contempt within the meaning of

section 268 of the Judicial Code (28 US CA § 385) unless it amounts also to an obstruction to the administration of justice, and impliedly it can be drawn from that case that less than technical perjury may constitute criminal contempt if it amounts to an obstruction in the administration of justice even though certain elements of perjury be lacking. In People ex rel. Nunns v. County Court of Nassau County, 188 App. Div. 424, 176 N. Y. S. 858, 870, the court said: “I perceive no logic in the proposition that the commission of perjury is essential to a contempt by false answers.” In Young v.

State, 198 Ind. 620, 154 N. E. 478, 479, the court said:- “Ordinarily, false swearing by a witness is held to be such an obstruction of justice as to constitute a direct contempt of court. 13 C. J. 25, § 31. ' It is not necessary that the false testimony upon whielí the charge of spntempt is based constitute perjury.” Of course, Young v. State, and People ex rel. Nunns v.

County Court of Nassau County, supra, were not decisions under the federal contempt statute, but on the question that there may be a contempt of court if the false swearing, though not amounting to perjury, in fact amounts to an obstruction of justice, they are in point. We are satisfied the accusation was sufficient to fully acquaint appellant with the charges against her. The presiftnption of innocence obtains in a proceeding of this nature and the triers must be satisfied beyond a reasonable doubt of the guilt of the aceused. United States v. Carroll (D. C.) 147 F. 947, 952; Oates v. United States (C. C.

A.) 233 F. 201; Kelly v. United States (C. C. A.) 250 F. 947; United States v. Dachis (D. C.) 36 F.(2d) 601; Gompers v. Buck’s Stove & Range Co., 221 U. S. 418, 31 S. Ct. 492, 55 L. Ed. 797, 34 L. R. A. (N. S.) 874; Michaelson v. United States, 266 U. S. 42, 45 S. Ct. 18, 69 L. Ed. 162, 35 A. L. R. 451. For acts to be punishable as contempt under

section 268, Judicial Code (28 USCA § 385), this court has held in Froelich v. United States, 33 F. (2d) 660 (no question of perjury involved) that it is not necessary they shall have actually obstructed or impeded the administration of justice. If they have a tendency so to do they are sufficient. See, also, Toledo Newspaper Company v. United States, 247 U. S. 421, 38 S. Ct. 560, 62 L. Ed. 1186. Is there substantial evidence to sustain the finding of the trial court as to criminal contempt? When Mrs.

Clark received her summons to serve as a juror, she said at her home that she had not wanted to get on the jury but had wanted to be free that week, “absolutely free”; that “I did not know that it was the Foshay jury that I was called for. I did not know that until I got down into the Court room.” Her sister, Mrs. Brown, testified at the trial that she had two telephone conversations with her sister after the summons had been served. In the first One Mrs.

Clark informed her that she was expecting- a visitor for the week of September 1st, and asked if she knew of any way she could get a postponement or get excused. A day or so later Mrs. Brown called her up on the phone telling her she had consulted the Clerk’s office as to what she (Mrs. Clark) should do if she wanted to bo excused, and that they suggested that she appear in court. Mrs. Brown said: “I told my sister that I had been to the clerk’s office, and that that was what I was told, that she should appear in Court that day if she wanted to be excused or to get a postponement.

I said also that she might —that they might not reach her name, because there was such a large panel. I told her then that I bad heard that it was to be the Foshay Case. And that that would probably disqualify her. I think that was all. I said I believed that she should seo tho Court on the day of the summons. * * * I told my sister because of the matter of her employment there, that that would naturally disqualify her. ,She said it probably would, I believe.

When I said it would probably disqualify her, I told her, why, I thought it would probably disqualify her. “I did not discuss the Foshay Company over the telephone. I knew my sister had been employed there.” Parts of the conversation testified to by Mrs. Brown were not remembered by appellant. The trial court evidently believed Mrs. Brown.

Appellant attempted to- explain her statement as to not knowing she was called for the Foshay jury until she got into the courtroom, which was directly contrary to the evidence of her sister, by saying her purpose was to shield the person who bad given out the information from the clerk’s office. At the courthouse on September 1st appellant talked with Mrs. Passer, who had also been called for jury service. The witness testified that Mrs. Clark told her “that she had worked in tho Foshay Building, but that she was sure that would not disqualify her for jury service. Mrs.

Clark said that she "was simply praying to serve as a juror in that particular case. I asked her why she would want to serve on a case that would last so long, and she said that she had a very special reason, but she did not state it. No, she did not state the reason. I told Mrs. Clark that I was very much surprised that we were summoned as jurors in the Foshay Case, because I bad not known of it until I arrived in court, and she told me that she knew two weeks before that she was called on the Fo-shay jury panel.” Some of the statements of Mrs. Passer appellant could not remember — some of them she denied.

It is argued here by appellant’s counsel that Mrs. Passer was a seriously discredited witness, because according to her testimony she and Mrs. Clark discussed the Foshay Case at some length, and when Mrs. Passer was examined she said that she had not mentioned, it to a soul. What she testified was that she talked relative to court procedure and did not talk about the Foshay Case. Be that as it may, the trial court evidently thought her credibility was not seriously affected by this. To Mrs. Johnson, another woman who was summoned for jury service in the Foshay Case, Mrs.

Clai’k, while they- were waiting to be called, stated that “she had been a stenographer,” and “had done stenographic \york for about two weeks for the Foshay Company, since she was married,” and “wondered if it >vould disqualify her.” Mrs. Anderson, who was also a prospee-tive juror, had some conversation in the courtroom with Mrs. Clark on September 1st. She testified: “Well, I had very little conversation with Mrs. Clark. I only just expressed my opinion, that I really did not know if I would like to serve on a jury of this kind or not, and Mrs.

Clark’s answer was that she would like to serve, but thought probably she would not be accepted on account of working there. Just working for the parties, working there. That is just what she said. That’s all the conversation we had. That was the extent of the whole conservation.” It is apparent that before the examination of Mrs. Clark on the voir dire by Judge Moly-neaux she had in her mind the fact that she had been employed by the Foshay Company since her marriage and that such employment might disqualify her. She entered upon the examination with such opinion from her sister.

The matter was so much on her mind that she talked to' three women who.were there awaiting their examination on the voir dire about it, prior to being questioned. She had come to the courtroom with her husband, who, while he was president of the Citizens’ State Bank of St. Paul, had done business with Foshay, and also with another of the defendants, Mabry. She had discussed with her husband the possibility of her being on the jury, but said she did not then know it was the Foshay jury.

She testified that she was nervous when examined, as might be natural, having been only twice in court before and that a traffic court. However, she was a woman who had had much experience in the business world, i. e., as a stenographer for years, as an assistant cashier for two years, signing drafts and cashier’s cheeks, and at times assisting in the teller’s cage, drawing minutes of bank meetings in the bank of which her husband was president, and having charge of the insurance department thereof. She had a high school and business college education.

The record shows she was a woman of ability and wide business experience. The court examined her for the purpose of finding out her connections in any way that might affect her fairness as a juror, so as to give opportunity either for peremptory challenges or challenges for cause. The question to be determined was as- to her qualifications to take

part in the trial, an exceedingly important question. The court and counsel were entitled to know what her relationship to the entire situation was. She was asked concerning her husband’s business and where he had his office. She does not seem to have been frank in telling of her husband’s business or place where it was carried on. The court asked her: “Have you yourself ever been in any business of any kind?” That was a clear question sufficient to arouse appellant’s attention and direct it to the information sought by the question to be elicited, and required a candid and fair answer.

Her answer, “I have been a stenographer before my marriage, yes,” was misleading and disarming.

The court then asked: “In what kind of business did you work?” And she answered: “Well, I did some banking, and some real estate and insurance, and I was with an automobile concern, with a Nash agency.” Her testimony was as misleading Us an absolute falsehood, for these two answers taken together conveyed to the court the idea that she had been a stenographer before her marriage and not thereafter; that the employment with the Nash agency had been before her marriage, which was not true; and that these employments represented all the business in which she had ever been engaged.

It is contended that she had in mind permanency of employment. If this be true, how did she happen to remember her employment with the Nash agency, which was of no longer duration than her employment with the Foshay Company, and was some time before.

With what possible theory of innocence can the fact be reconciled that she remembered the employment with the Nash agency, which had occurred more than six years before, but forgot the employment with the Foshay Company, which had occurred but a little over two years before, which she as a reasonable human being must have known was so much more material and relevant .to the inquiry then proceeding, and about which she had so recently talked in language that bespeaks a complete understanding of its materiality and relevance, with her sister and with three other persons?

It is apparent that she feared her employment with the Foshay Company if known might result in disqualifying her as a juror. If she had been desirous, as she had stated at her home, of not serving on the jury, here was her opportunity to be excused. It is certain from this situation that the thought uppermost in her mind was to conceal the fact that she had been employed with the Foshay Company and thus carry out the wish she had expressed to serve as a juror in this particular ease where Foshay and Mabry, business friends of her husband, were defendants.

Of course, counsel might have pursued the matter further and possibly have developed her previous relationship with the Foshay Company, but that is not a defense to her actions. As to the questions asked her as to whether her mind was open and free and whether she was biased one way or another, which wo have heretofore set out, her answers thereto were evidently false, and the record shows she was so deeply prejudiced that she could not fairly serve as a juror.

The motive for her prejudice does not appear, but that is immaterial if she had such prejudice and bias that she could not base a verdict upon the evidence and the law. Considering together her statements and conduct prior to her examination by the court and after being sworn as a juror, it is shown we think beyond any reasonable doubt that she had some reason for wanting to become a juror entirely inconsistent with an unprejudiced and unbiased mind and inconsistent with any intention to base her verdict solely upon the evidence and the law as given to her by the court.

There is no theory observable to us by which her statements as to freedom from prejudice or bias could be made to appear truthful. Some of the statements alleged to have been made in the examination that was conducted of herself and husband by representatives of the government appellant denies, others she admits, others she does not remember.

It is strange that during the time she was being examined for the jury the fact that she had worked for the Foshay Company never came into her mind, and she did not think of it until that evening at the hotel when she seriously wondered, as she testified, if she should not go into court the next day and tell Judge Molyneaux. She says that she went over it and over it. That fact so carefully concealed by her on her examination was disturbing her, but she did not ease her conscience by telling Judge Molyneaux the next day.

That her answers as to her employment were merely evasive and not absolute falsehoods is no defense. Evasive answers of a juror on the examination on the voir dire may be just as obstructive to justice as absolutely false answers. Truth is often hidden behind the subterfuge of evasion. The general rule, and the one followed in the federal courts, is best stated in O’Con-nell v. United States (C. C.

A.) 40 F.(2d) 201, 202, where the defendant was adjudged in contempt “by reason of his attitude as a. witness before the grand jury, in not answering or answering evasively questions propounded to Mm,” and where the court said at page 204: “Since Ex parte Hudgings, 24, U. S. 378, 30 S. Ct. 337, 63 L. Ed. 656, 11 A. L. R. 333, we have held that, though a witness make formal answer, it may be apparent that he is withholding the truth, and that such obstruction of justice may be punished as contempt even if it be also perjury.” In Loubriel v. United States (C. C.

A.) 9 F.(2d) 807, though a conviction for contempt was there reversed on the facts, it was said, at page 80S: “The question is no less than whether courts must put up with shifts and subterfuges in the place of truth and are powerless to put an end to trifling. They would prove themselves incapable of dealing with actualities if it were so, for there is no surer sign of a feeble and fumbling law than timidity in penetrating the form to the substance. We have not the least doubt of the power of the District Court to punish a witness for an evasion patently put forward to avoid Ms duty.

No doubt, since its exercise is drastic, it is to be used with caution, but at times no other means exist to prevent an entire miscarriage of justice. Of its limitations we shall have more to say.” The case of Pearcy v. Michigan Mut. Life Ins. Co., 111 Ind. 59, 12 N. E. 98, 99, 60 Am. Rep. 673, discusses propositions similar to those before us.

The jurors were asked on the voir dire the question: “Do any of you hold a policy of life insurance issued by the defendant, the Michigan Mutual Life Insurance Company?” This juror answered, “No.” Ilq had taken out a policy with that company upon his own life payable to his wife, the policy being an old line one in which legal title became vested in a beneficiary. The Supremo Court of Indiana reversed a judgment on the verdict and remanded the ease for a new trial, and it said many things.

It referred to the twofold purpose of an examination of a juror on his voir dire and the importance of a party knowing the relationship of the person called as a juror to his adversary for the purpose of enabling him to challenge either for cause or possibly peremptorily, and refers to the duty of a juror to fully answer the questions, not concealing any material matter in order that the knowledge may be present to intelligently exercise challenges.

The court said: “ * * * A juror who falsely misrepresents his interest or situation, or conceals a material fact relevant tp the controversy, is guilty of misconduct, and such misconduct is prejudicial to the party, for it impairs his right to challenge. In tMs instance the appellant had a right to a full and truthful answer from Bowman, and it was his duty to make that answer without evasion, equivocation, or concealment. “We think that the question asked the juror required him to answer as to the policy taken out on his own life for the benefit of his wife.

This is our conclusion upon the assumption that the question was that which the appellee maintains it was. It was not incumbent upon the appellee to minutely cover, by a long series of specific questions, all phases of the subject, but it was enough to ask such a question as would indicate to the mind of a fair and reasonable man what information the examining counsel sought to elicit.

It seems clear that such a question as that asked Bowman ought to have drdwn from him the fact that he had. taken out a policy on his own life for. the benefit of his wife; for the question certainly indicated that information as to his interest in the company, as well as his connection with it, was sought by the counsel conducting the examination. “The authorities support our conclusion that if the general question fairly ■ arouses the juror’s attention, and directs it to the information desired, it is enough, without specific questions covering minute phases of the subject. * * * But we need not and do not decide whether the interest of Bowman was such as would have warranted a challenge for cause, for it is enough' for the present to decide that the information sought by the question was relevant and material for the purpose of enabling the appellant to intelligently exercise her right to interpose a peremptory challenge.” Counsel for appellant in referring to this ease points out that the falsification of the juror was not made the basis of a criminal proceeding for contempt, but was merely •recognized as a ground for a new trial.

That is true. However, the court spoke of the juror as being “guilty of misconduct” and such misconduct as requires a new trial would apparently be an obstruction to the adL ministration pf justice. The misconduct in the case we are considering caused some eight weeks of the time of the court, prosecuting officials, and jurors- to count for naught. . ■■ ■ The questions asked appellant on the voir dire as to her employment and her bias or prejúdiée were highly material.

What could be more' material to the whole purpose of the voir dire than to seek to ascertain that the prospective juror is free from bias and prejudice and intends to rest his verdict solely on the evidence and the law as given to him by the court, and to seek out such facts of the juror’s business relationships as would bear upon his qualifications as a juror in the particular case about to be tried?

Specifically one’s employment by the company whose chief members are on trial for frauds com-: mitted in the conduct of its business is as material to qualifications as a juror as would be ownership of a policy of life insurance issued by a defendant company. Pearcy v. Michigan Mut. Life Ins. Co., supra. 'And the fact that the duration of the employment was short, and its character minor, would no more detract from its materiality than would the fact that the insurance policy in the above case may have ..been of smali amount.

It is urged with much force that there was no proof of corruption, or of a motive, ahd that if appellant intended to conceal her employment by the Foshay Company she would not have told that fact to three women in the courtroom just prior to her examination. The latter cuts both ways. ■ She did not attempt to conceal the fact from the three women but carefully concealed it from the court. It is true there is • no evidence of corruption, but that is not conclusive, although of course an important fact. It is also true that no real motive for such prejudice has been shown to exist.

Bht her motive for prejudice or bias is immaterial if in fact such prejudice or bias did exist.

There might have been m> real motive at all, or she might have been endeavoring to protect her husband’s business friends, or the only motive might have been a general conviction that all criminal defendants are prosecuted unjustly and should therefore be acquitted; and, if in fact her mind was prejudiced or 'biased at the time she made the above answers) those answers would have been just as false and obstructive of justice as if she had had the most immediate and real of motives. ' ‘ We can reach no other conclusion under this record than that there is substantial and sufficient evidence to sustain the finding of the trial court; It is contended that appellant’s sworn answer and testimony that she did not intend to mislead the court and that she answered truthfully with respect to her freedom from bias were conclusive.

In other words, that the contempt was purged. Such is the common-law rule of trial by compurgation, but this doctrine is' a curious legal antique of past ages. In the present day-people are not tried hy oath, and this procedure is not the rule of the federal courts. It has been continuously renounced by them, and the sworn answer is not held as conclusive. If a parly can purge himself by an answer under oath then as stated in United States v. Shipp, 203 U. S. 563, 27 S. Ct. 165, 167, 51 L. Ed. 319, 8 Ann. Cas. 265; “all contemners willing to run tho slight risk of a conviction for perjury can escape.” In Boyd v.

Glucklich, 116 F. 131, 142, this court adverted to the common-law rule of purgation in case of a constructive contempt, and seems to have approved it; but in a concurring opinion by Judge Sanborn ho took the position, as to proceedings for contempt for disobedience of orders in bankruptcy and in chancery, that: “The sworn answers of the party charged with the contempt are evidence to purge him thereof, hut they are not conclusive evidence.

They may he contradicted and supported hy other testimony, and the question whether or1 not the party charged has purged himself of the contempt is always to be decided upon a careful consideration of all the evidence produced for and against him.” We agree with Judge Sanborn, and if contrary doctrine could be gathered from this case we would not be willing to follow it. In United States v. Shipp, 203 U. S. 563, 27 S. Ct. 165, 167, 51 L. Ed. 319, 8 Ann.

Cas. 265, Justice Holmes refers to this doctrine as a notion “an intrusion or perversion of the canon law.” In the second appearance of that case in the Supreme Court, 214 U. S. 386, 29 S. Ct. 637, 638, 53 L. Ed. 1041, it was pointed out that in the foimer appeal it had been determined “that the answers of the defendants, under oath, disavowing intent, did not purge them.” That the federal courts do not recognize the common-law rule of purgation is well settled. They leave the question of the commission of a contempt to he determined hy all the proof upon a hearing. United States v. Carroll (D.

C.) 147 F. 947; Kirk v. United States (C. C. A.) 392 F. 273; United States v. Huff (D. C.) 206 F. 700; In re La Varre (D. C.) 48 F.(2d) 216; Swepston v. United States (C. C. A.) 251 F. 205; Bowles v. United States (C. C. A.) 50 F.(2d) 848. We have thus far discussed this appeal on the theory that the evidence of jurors as to what was said hy appellant in the jury room was competent evidence. We aro now brought to the question of whether appellant was adjudged guilty upon the basis of evidence improperly admitted.

This testimony was important as bearing on the motive of appellant in becoming a juror and her condition of mind when she stated that she could try the case without bias or prejudice. There is no doubt that much authority exists for tho proposition that a juror cannot be heard to testify to statements made in a jury room hy other jurors in the course of the jury’s deliberations upon their verdict. The real basis of the doctrine is tho principle of privileged communications.

Some courts have said it is against public policy to permit a juryman to make an affidavit of anything that occurs in agreeing to a verdict, Woodward v. Leavitt, 107 Mass. 453, 9 Am. Rep. 49; yet courts have not hesitated to set aside verdicts because of tho misconduct of jurors, such as a juror bringing law books into the jury room and reading them to the jury upon points involved in the ease, Harris v. State, 24 Neb. 803; 40 N. W. 317, and there are numerous instances of where verdicts have been set aside because the jurors agreed to be hound hy a quotient verdict.

Authority for appellant’s position on this question is undoubtedly found in Wigmore’s Treatise on Evidence, where he discusses tho matter at length,

section 2285, vol. 4, p. 3.185; and states after reviewing the reasons for surrounding a juror with secrecy: “It has therefore always been assumed and conceded that a juror is privileged not to have his communications with a fellow-juror disclosed upon the witness-stand against his consent.” Dean Wig-more draws a distinction between evidence of ordinary acts of misconduct of jurors and utterances, and places the basis of the exclusion of utterances not on the generally stated doctrine of self-stultification hut on that of privilege. The states following what Wig-more terms the “Iowa, rule” (Wright v.

Telegraph Co., 20 Iowa, 195; Cowles v. R. R. Co., 32 Iowa, 515) make no distinction between ordinary acts and utterances. We call attention to a few of these. In Harris v. State, 24 Neb. 803, 40 N. W. 317, 320, there is a most enlightening statement covering very clearly tho question we are discussing.

It is said: “It is the well-established rule of law, as held in all courts, so far as we know, (unless the rule he changed hy statute,) that affidavits of jurors will not he received for the purpose of impeaching or avoiding their verdict in respect to a matter which essentially inheres in tho verdict itself, as that the juror was mistaken in a computation, or misunderstood a witness, or did not comprehend the instructions of tho court.

The reason for the rule is that, the matters referred to being alone within the breast of each juror, it would be impossible to rebut any statements which might be made by the juror. * * ® I think it may further be said that the rule adopted by the greater number of courts, both in this country and in England, is that affidavits of jurors will not be received in any case for the purpose of impeaching or avoiding their verdict; but to this there are a number of exceptions, and, to our mind, the opposite rule is much more reasonable and pro-motive of justice.

This is confined to such overt acts as may be seen or heard, and about which all the jurors present may testify with equal knowledge.

Thus, where a verdict for damages is ascertained by aggregation and division, without subsequent ratification; or where it is made to depend upon chance; or where a part of the jury become so, intoxicated as to destroy their ability to deliberate and exercise reason and judgment; or where witnesses are surreptitiously called before them, and permitted to detail the principal facts; or where it appears that one of the jurors was familiar with the facts of the case, and by reason of his suppression of the fact of such acquaintance he procures himself to be accepted as a juror, and in the jury-room asserts such knowledge, and assumes the role of both witness and advocate, and procures a verdict; and the like, — all of which, being matters of sight and hearing, are susceptible of proof or contradiction by the testimony of others.

In such cases we can see no danger in permitting proof of the facts by the affidavits of the jurors themselves.” In Perry v. Bailey, 12 Kan. 539, it is said by Mr. Justice Brower:. “If the jury have been guilty of no misconduct, no harm has been done by permitting their testimony to be received. If the jury has been guilty of misconduct, but such misconduct was not of such a nature as to prejudice the rights of the parties, the modem rule is ta let the verdict stand, and simply punish the offending juror.

But if such misconduct has wrought prejudice, not only should the juror1 be punished, but the verdict also should be set aside.” In Harris v. State, supra, and also in Richards v. State, 36 Neb. 17, 53 N. W. 1027, the misconduct consisted in utterances, but in both case's the testimony was received for the purpose of impeaching the verdict. New York seems to hold similarly in People ex rel. Nunns v. County Court of Nassau County, 188 App. Div. 424, 176 N. Y. S. 858, 862, where the facts are quite similar to the case at bar.

There contemnor was a petit juror in a trial upon an indictment against parties for keeping a disorderly house. The jury acquitted the defendants- and contempt proceedings were commenced. In reply to questions put to him on the voir dire, the relator answered that he did not know the defendants or either of them and knew nothing of their place. Hq was accepted as a juror and sat through the trial. After the ease was submitted he stated facts to the jurors, said that he knew the defendants and their place and that it was a correct and proper place.

The court held that his answers on the voir dire were false; that his conduct was deliberate in the courtroom and in the jury room; that the proceedings of the jurors preliminary to the verdict, the talk, discussions, informal votes, etc., were inviolable for all time; that such actions inhered in the verdict and were merged in it, but that the conduct of the juror might be in violation of his oath; that tins conduct did not “essentially inhere in the ver-diet itself.” The court says: “I see no justifiable reason, then, for the inclusion of such misconduct — a violation of oath and of funetipn — as within the protection afforded to proper conduct, namely, due deliberations upon the evidence.

I cannot see that the jurors would be deterred from full and free performance of their duties, if such misconduct might be brought to light by their testimony. I cannot see that the jurors' discharge of their lawful duties is safeguarded by immunity to one of their number who willfully violates those duties. The honest juror need have no fear of exposure even of his own part, if the principle is eqnfined to its reason.

The corrupt juror need have no fear of exposure, if the principle is extended beyond its reason. ’* * * I perceive no reason why the misconduct should be limited to acts, in contradistinction to words. Words axe things, and, wrongs may be worked by them. Should drunkenness of a juror be liable to exposure, and words whereby, e. g., a juror should offer $1,000 apiece to, his follows for a verdict for his friend, or should threaten that violence would follow any juror who voted against such friend, be protected, because such words are uttered while the jury are deliberating?

There is no tangible proof of either misconduct other than the testimony of the jurors. '* * * “I think there should be no question as to the competency of these jurors as witnesses, when the feature of attack upon the verdict is not in the ease. * * * ” It is claimed by appellant that In re Cochran, 237 N. Y. 336, 143 N. E. 212, 213, 32 A. L. R. 433, repudiates People ex rel. Nunns v. County Court of Nassau County. The finding of the court was that the evidence was insufficient to sustain the charge as appears from its language at page 212 of 143 N.

E.: “As to the charges of the first character we do not decide that if he falsely answered the questions of the district attorney .whether under oath or not under oath he would ho guilty of criminal contempt of court. People ex rel. Nunns v. County Court of Nassau County, 188 App. Div. 424, 176 N. Y. S. 858.

We fail to find, however, any evidence whatever from which an inference can he drawn that his answers in this respect were untrue at the time they were made.” The conduct in the jury room was not being used for its probative force, but was itself sought to be punished as contempt, and this distinction is most important. The conclusion of the court was: “What we do hold is that no juror may be punished for contempt for his

part in any proceedings connected with the rendition of the verdict, because of discussions bad, arguments used, statements made, for the reasons given by him for his vote or for the vote itself.” The above case thus in no way repudiated People ex rel. Nunns v. County Court of Nassau County, supra, in which case the juror had not been punished for his conduct in the jury room, but only for his falsification on the voir dire, and in which case the evidence,' which included the conduct in the jury room, was thought sufficient proof of the falsification.

And the instant caso is thus much more closely analogous to People ox rel. Nunns v. County Court of Nassau County, supra, than it is to In re Cochran, supra. The special divinity which, surrounds the deliberations of a jury is only SO' far as the protection of the verdict is concerned. If one juror should bribe the balance of the jury to return a verdict, would any court assert that there was no power to show this by the statements of another juror as to what the briber had said?

If a juror should present to the jury affidavits of alleged facts which should properly have been a matter of testimony, is a court powerless to rectify the wrong which might thus bo perpetrated? Must a court sit supinely and spinelessly and permit such misconduct in a juror because of the fine distinction to bo drawn that while a court may receive such evidence to show misconduct of a juror in acts, it has no power to do so as to utterances when the acts can only he shown by the utterances? It would carry the doctrine of privilege to absurd results to so hold.

We think the whole matter as far as this ease is concerned is covered in McDonald and United States Fidelity & Guaranty Co. v. Pless, 238 U. S. 264, 35 S. Ct. 783, 59 L. Ed. 1300, where the court considered the question as to whether the testimony of a juror could be received to prove misconduct of himself or his colleagues in reaching a verdict. The opinion refers to the fact that the rule on the subject has varied and that a juror’s testimony in such eases while sometimes received has always been with great caution. The court says there are only three instances in which the subject has been before it.

In United States v. Reid, 12 How. 361, 13 L. Ed. 1023, the question was not decided. In Mattox v. United States, 146 U. S. 140, 13 S. Ct. 50, 30 L. Ed. 917, evidence was received to show that newspaper comments on a pending capital case had been read by the jurors. The court says in McDonald v. Pless, supra, at page 268 of 238 U. S., 35 S.

Ct. 783, 785: “Both of those dm eisions recognize that it would not bo safe to lay down any inflexible rule because there might be instances in which such testimony of the juror could not be excluded without ‘violating the plainest principles of justice.’ ” The court recognizes the general rule that the losing party cannot “in order to secure a new trial, use the testimony of jurors to' impeach their verdict,” but does recognize there are exceptions to the general rule, and further says: “The suggestion that, if this be the true rule, then jurors could not be witnesses in criminal cases, or in contempt proceedings brought to punish the wrongdoers, is without foundation.

For the principle is limited to those instances in which a private party seeks to use a juror as a witness to impeach the verdict.” This opinion recognizes that there are exceptions to the general rule stated, and that the same is limited “to those instances in which a private party seeks to use a juror as a witness to impeach the verdict.” It is true the question of privilege does not seem to have been raised. The court was dealing with misconduct in relation to impeaching the verdict of a jury, and the closing paragraph in the excerpt is significant and fits the situation in this ease. See, also, Hyde v.

United States, 225 U. S. 347, 32 S. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614. There is no question here of impeaching the verdict of a jury. The question is the misconduct of one chosen as a juror. It would seem that if misconduct of a juror in a jury room could be shown by the testimony of other jurors for tile purpose of punishing sueh misconduct, it "could be shown for the purpose of its probative force, and that is the situation here.

The testimony admitted of other jurors as to the statements and conduct of appellant in the jury room were admissible as bearing on the question of the falsity of answers given by her on the voir dire examination. No public policy requires the proceedings in the jury room to be kept secret under the circumstances here presented. Assuming, however, that such testimony should have been excluded, there is exclusive thereof sufficient evidence in this record in our judgment to sustain the finding of the trial court as to criminal contempt.

The facts testified to by members of the jury, in brief, were that after the ease was submitted appellant announced that as Mr.

Horowitz (government's counsel) could not convince her of the guilt of the defendants the other eleven .jurors could not do so; that the government’s witness Cobel had given perjured testimony in another case, and that she would like to choke him to death; that she had no use for the government because it did not use the soldiers right when they came back from the war; that she would not vote to send seven men to the penitentiary; that Foshay had gone East to secure $18,000,000, but that because of the crash he could not do so; that she desired to consult with her husband and secure his advice on the case.

The fact that immaterial evidence may have been admitted does not necessarily require the reversal of a ease where a court sits without a jury as a trier of fact, as there is a presumption that it acts only upon the basis of proper evidence. If there is not sufficient evidence to sustain the trial court if the improper evidence is disregarded, the presumption of course breaks down. In Swepston v. United States (C. C.

A.) 251 F. 205, 209, referring to this question, the court said: “It is to be presumed that the court at last considered only the facts and circumstances that were in reality admissible and also calculated to support the judgments claimed; and this was in accord with settled rules of practice in eases tried without a jury.” In Sinclair v. United States, 279 U. S. 749; 767, 49 S. Ct. 471, 477, 73 L. Ed. 938, 63 A. L. R. 1258, the court said: “Objections are offered to the admission of certain evidence. In answer, we need only refer to what was said in United States v. King, 7 How. 833, 854, 855 (12 L.

Ed. 934): ‘In some unimportant particulars, the evidence objected to was not admissible. But where the court decides the fact and the law without the intervention of a jury, the admission of illegal testimony, even if material, is not of itself a ground for reversing the judgment, nor is it properly the subject of a bill of exceptions. If evidence appears to have been improperly admitted, the appellate court will reject it, and proceed to decide the ease as if it was not in the record.'” In Oates v. United States (C. C.

A.) 233 F. 201, 205, it is said: “When a judge hears a ease without a jury, he is supposed-to act only on proper evidence, and if on review it is found that the evidence properly admitted justifies the decree it ought to be affirmed, and if not it ought to be reversed. * * In all these and many other eases the rule laid down by Chief Justice Marshall in Field v. United States, 9 Pet. 202, 9 L. Ed. 94, has been followed: ‘As the eause was * * * not tried by a jury, the exception to the admission of evidence was not properly the subject of a bill of exceptions.

But if the District Court improperly admitted the evidence, the only effect would be that this court would reject that evidence, and proceed to decide the eause as if it were not on the record. ’ It would not, however, of itself constitute any ground for a reversal of the judgment.’ ” Appellant's brief refers to a statement made on an earlier appeal of Oates v. United States, supra; Id. (C. C. A.) 223 F. 1013, referred to in Gridley v. United States (C. C.

A.) 44 F.(2d) 716, 743, as follows: “That a judgment of conviction for contempt should be reversed where incompetent evidence is introduced on the hearing, even where the ease is heard by the court, was held in Oates v. United States (C. C. A.) 223 F. 1013, 1014.” This was not the holding of the eourt in the second appeal of the Oates Case, supra. The court evidently on the first appeal thought that the hearsay evidence improperly admitted was essential to the conviction, and it reversed the case. On the second appeal it thought otherwise and affirmed the conviction.

We think appellant has little to complain of as to the admission of the evidence of other jurors, because the record, if such evidence were deleted, is sufficient to sustain the conviction. Error is claimed in permitting the cross-examination of appellant with respect to what she said and did in the jury room. There is no doubt of the federal rule that in a contempt proceeding a party cannot be compelled on cross-examination to testify against himself, and a defendant who takes the stand in his own behalf can be cross-examined only as to matters elicited in the direct examination. Balliet v. United States (C. C.

A.) 129 F. 689; Wilson v. United States (C. C. A.) 4 F.(2d) 888; Tucker v. United States (C. C. A.) 5 F.(2d) 818; Taylor v. United States (C. C. A.) 19 F.(2d) 813; Madden v. United States (C. C. A.) 20 F.(2d) 289; Fitzpatrick v. United States, 178 U. S. 304, 20 S. Ct. 944, 44 L. Ed. 1078. Here appellant was asked on lier direct examination as to her having' bias or prejudice, which she denied. This opened the door to cross-examination as to matters which might show the absence of an unprejudiced or unbiased state of mind, and her immunity from self-inerimination was not infringed thereby.

It is urged there was a- denial of due process of law in proceeding to trial on the return day. The rale to show cause was dated November 4, 1931, and served soon thereafter; the marshal’s return being filed November 6th. Hearing was set for November 9th. She was apprised by the rule that the trial would be had on November 9th. Counsel for appellant on November 0th requested further time and Judge Nordbye stated, that the court would hear the evidence the government desired to present and if any further time were needed for) the defense to prepare it would be granted.

The government introduced its ease and the matter was then continued from November 9th to November l!)th. No further requests were made for continuance, and appellant introduced her evidence. We see no reason for any claim that there was any denial of duo process of law in forcing her to trial without an opportunity to prepare. Appellant had complete opportunity to prepare her defense and did not ask for more time after the continuance. The court imposed on appellant both a fine and imprisonment. The statute provides a punishment by fine or imprisonment.

Government’s counsel claims that there were separate contempts. We think not. The series of alleged false answers were treated as one general contempt of the court. The court did not purport to sentence appellant to imprisonment for one separate act of contempt and a fine for another. So this court could not know which sentence to- relieve appellant of should it disagree with the District Court as to the criminal nature of either act.

It sentenced the appellant to a fine and imprisonment “as punishment for the contempt of this court of which she has been found guilty.” In our judgment there was but one offense and; that was evidently the judgment of the District Court. The case must therefore he remanded for resentencing. Wilson v. United States (C. C. A.) 26 F.(2d) 215.

Counsel for appellant in the conclusion of his brief states: “A careful analysis of the record leads unerringly io the conclusion that appellant has been punished, not on account of what she said or left unsaid upon her examination as to her qualifications as a juror, but because she voted to acquit in the criminal case.” It is unthinkable that a court would punish a juror because of a vote for acquittal of a defendant, and it is clear that such was not the case here.

It is probable of course that the government would not have investigated the situation if defendants; had been convicted, and tile facts produced at the hearing would never have been known. While appellant is entitled to a fair: trial, the government is also entitled to a fair trial, and there can be no fair trial without an impartial jui*y. While any attempts to coerce jurors should be condemned, courts are not compelled to sit as mere automatons, powerless to preserve the functions intrusted to them.

Appellant is not punished because of her vote for acquittal — she is punished because when called as a juror and examined on the voir dire she deliberately and intentionally misled the court and gave answers, some of which were false and others evasive, the result of which was the obstruction of the administration of justice. The judgment of the court as to the contempt is affirmed, hut the sentence is set aside and the case is remanded to the trial court only for the purpose of resentencing. Remanded. Jury trial with no opinion by court.