Wight vs. Rindskopf. ecutors for the United States within this state, have become matters of public history. It is a fact, also, shown, as we understand, by the record in the cause aforesaid, and one which must necessarily appear in the published report thereof, that your petitioners are the "public prosecutor" mentioned and referred to in the opinion. In vindication of their own honor and integrity, and of the honor and integrity of the exalted profession to which they belong, and which they reverence and would uphold in its purity to the utmost extent indicated by the opinion of your honors, your petitioners most respectfully ask that this petition and statement in their behalf may, by direction of this honorable court, be appended in the form of a note at the end of the report of the cause aforesaid, as the same shall appear in the regular series of the reports of the decisions of the court. Your petitioners have not now, and never had, the slightest interest or concern, in any way, in the merits of the controversy aforesaid between the plaintiff Wight and the defendant Rindskopf; and it seems needless to remark in addition, to your honors or to others familiar with the course of judicial proceedings, that your petitioners never have had, and have not now, any adequate apportunity of self-vindication or self-defense, except in the manner herein sought-a measure of relief which, as your petitioners believe, can only be properly obtained by the order or direction of this court. Indeed, one of your petitioners had no knowledge whatever of the points in issue, or of the facts in evidence in said cause, until he learned the same upon. perusal of the printed record and by the reading of the opinion of this court on the day of the date of this petition; whilst the other of your petitioners had little or no more actual knowledge upon the same subject, save that he was called and gave testimony as a witness upon the trial below, to a portion of which testimony reference will hereafter be made. - Your petitioners state the following as the facts occurring within their knowledge: Every proposition for immunity, total or partial, to any of the defendants in said prosecutions, whether made through the plaintiff Wight or other attorneys for some were made through others, came from your pe-titioners in the first instance as propositions of compromise offered by your petitioners as the agents and representatives, thereto explicitly previously authorized and directed in all cases, of both the treasury and law departments of the United States, which propositions of compromise were expressly authorized. and sanctioned by a statute law of the United States. This power of compromise has been considered to be, and is, an absolute one in the department or departments in which it is lodged by law; that is to say, one which may be exercised upon any condition, not in itself unlawful or otherwise prohibited, which the head or heads of the department or departments may see fit to impose. They may impose - at least it has always been so regarded and acted -as one of the conditions to which the party compromising shall sub-VOL. XLIII. - 24 upon Wight vs. Rindskopf. mit, that he shall appear and give true, full and unreserved testimony of all matters within his knowledge touching any frauds or offenses committed against the internal revenue laws of the United States. Such was one of the conditions upon which your petitioners, previously authorized and directed as aforesaid, insisted in every compromise or proposition for a compromise, and as to all of the defendants embraced in such compromise. It was one of the conditions upon which every compromise was effected. The proposition in connection with which the litigation here in question arose, was, under the circumstances above stated, fully matured and fixed in all its details by your petitioners before the same was communicated to the plaintiff Wight, to be by him presented for the consideration of the parties defendant to be affected by it. It was not contemplated at the outset, at least by your petitioners, that the plaintiff Wight should bargain with or receive compensation for his services from such defendants. The first knowledge of such employment and compensation came to your petitioners afterwards, pending said negotiations, and not a very long time before their services as public prosecutors closed. Such bargain or compensation, though your petitioners were in no way privy thereto or responsible therefor, was not, as will hereafter be seen, in the opinion of your petitioners, and as they now most respectfully submit, necessarily void or corrupt or contrary to the policy of the laws of the United States governing that particular class of cases. The alleged objectionable features of said bargain between the plaintiff Wight and the defendant Rindskopf, as the same are pointed out in the opinion of your honors, namely, that the defendants were to give testimony as the said Wight should advise and direct, and that said Rindskopf should pay said Wight for his personal or professional influence over your petitioners, never came to the knowledge of your petitioners until the reading of said opinion. Your petitioners utterly disavow all privity therewith or responsibility therefor, and say that said Wight neither possessed nor exercised any influence, personal or professional, over your petitioners, more than would have been possessed or exercised by any other respectable attorney; nor did your petitioners assent to the giving of such testimony. The proposition for compromise, as originally matured and communicated by your petitioners, through the plaintiff Wight, was, with the exception perhaps of some minor and unimportant modifications made at the instance of the defendants or some of them, subsequently effected and carried out in all its details. The same was afterwards fully and publicly submitted to the court in which the cases, both civil and criminal, were pending, and received the explicit sanction and approbation of the court. Judgments were rendered and sentences passed in accordance with the terms of the compromise. It may be proper here to add that the compromise in question embraced a number of important stipulations concerning several civil actions which were also pending against the same parties under the internal revenue laws of the Uni Wight vs. Rindskopf. ted States, as well as the disposition which should be made of the criminal cases. In view of the common-law principles so ably discussed in the opinion of the court, applicable to common-law crimes, or crimes punishable by courts having common-law jurisdiction over the same, and of the rules of professional deportment governing in all such cases, and to which, as laid down in the opinion, your petitioners most fully assent, the words compromising a criminal case may sound strange to the ears of your honors. Your petitioners infer from the language of the entire opinion, for they have not examined the briefs of counsel engaged in the cause, that the attention of your honors was not directed to the law of congress in question, nor, so far as your petitioners are concerned, to the real nature of the transaction in connection with which the suit of the plaintiff Wight arose. It may be that not sufficient facts were disclosed by the record to justify such reference, either by court or counsel; but your petitioners venture to suggest that it may have been otherwise on the face of the record. The law of congress under which the compromise in question was effected, is found at § 3229 of the Revised Statutes of the United States, and reads as follows: " The commissioner of internal revenue, with the advice and consent of the secretary of the treasury, may compromise any civil or criminal case arising under the internal revenue laws, instead of commencing suit thereon; and, with the advice and consent of the said secretary and the recommendation of the attorney general, he may compromise any such case after a suit has been commenced thereon." On the trial in the court below, your petitioner McKenney was called as a witness on the part of the defendant Rindskopf, and as such was permitted to make, not in response to any questions put by counsel, but voluntarily, a partial, and but a partial, statement of the facts concerning said compromise, and the part borne by your petitioners in the same. On page 35 of the printed case will be found his testimony, as follows: "I made that agreement under the authority of the representatives of the United States treasury. John Hedrick was immediately in charge of the matters. I had direct authority from Secretary Bristow, and direct authority from the solicitor of the treasury. Mr. Bristow was secretary of the treasury at the time, and Bluford Wilson was solicitor of the treasury." Looking to the provisions of the foregoing law and the policy which it enacts, it will at once be seen by your honors that the principles and policy of the common law relating to the prosecution of offenders, and forbidding the making of agreements or compromises by which they shall avoid punishment in whole or in part, have no application to an agreement or compromise such as this one was. It will be seen, instead of having been an agreement against public policy, it was sanctioned by positive law. It will be seen, instead of having been a treaty or agreement for the procurement of the testimony of an Wight vs. Rindskopf. accomplice, it was a treaty or agreement of a very different kind. It will be seen, instead of having been an agreement requiring the previous sanction or consent of the court, it was one which could be entered into without such sanction or consent, and, if we may be allowed the expression, in spite of the court. As has frequently occurred in practice, and doubtless will occur again, the compromise of a criminal case by the proper departments and in the manner prescribed by the act, takes the case out of court, and that whether the court will or no. The act has been so construed by the federal courts, and, as your petitioners respectfully submit, is incapable of any other fair interpretation. Looking also to the provisions of the same law and the transaction as it was, and as it is in part at least disclosed by the record, your honors cannot but observe how baseless and unjust are the inferences of shame and dishonor to your petitioners, both personally and professionally, which may, indeed must, be drawn from the facts assumed in the opinion and criticised and enlarged upon by the court. There was nothing in the transaction on the part of your petitioners which might not have been done in open day and in the face of any man or of any court on earth. If vice there was in the transaction, it was not the vice of your petitioners, endeavoring as they were, under proper instruction received, faithfully to perform most arduous and difficult public and professional duties. Nor was it the vice of the heads of departments at the seat of government, struggling as best they could against a gigantic evil, nor of the federal court. It was the vice, if vice it was, of the law of congress, the policy of which seems to have been not to treat offenses punishable by its provisions strictly as crimes for which offenders are to be always prosecuted and punished, but rather as a system of penalties and forfeitures to be resorted to in aid of the collection of the internal revenue, and which are satisfied or no longer to be rigidly enforced when that end is attained. Revenue statutes are not to be regarded as penal, but are remedial in their character, as has been frequently held by the supreme court of the United States. But be this as it may, let the criticisms fall upon the law makers, and not upon the officers or courts whose duty it is to act upon and carry out the law. As already observed, your petitioners have no concern with the merits of the action or with the contract entered into between the plaintiff Wight and the defendant Rindskopf, save only as the same may by possibility reflect upon or give character to the conduct of your petitioners after they learned that said Wight had received, or was to receive, compensation from the defendants in compromise. It is true, your petitioners made no objection. They did not feel called upon to do so. It did not occur to them, under the circumstances, that there was anything objectionable in the conduct of said Wight. Compromises of a similar nature, as your petitioners well knew, had, under the law aforesaid, before that time been effected, and generally through the agency of attorneys employed for that purpose, as the plaintiff Wight claimed he was. Such employment had been open, taken by most honorable and prominent Kalckhoff, Adm'x, vs. Zoehrlaut, imp. members of the bar, and never, to the knowledge of your petitioners, been considered unprofessional. Indeed, your petitioners did not conceive it improper for the plaintiff Wight to be so employed. It seemed to them that defendants under such circumstances were entitled to the assistance of an attorney of their choice. Your petitioners may have been grossly mistaken in this, but whether they were so or not, they cheerfully join with the court in acquitting the plaintiff of any bad faith, or improper motive, or intentional misconduct, so far as his professional intercourse and dealing with your petitioners were concerned. The name and reputation of a member of the bar, however humble his sphere, as he has earned them and as they belong to him, untarnished by baseless suspicions of professional misconduct, corruption or wrong, are as sacred to him and to his posterity, as is the unsullied honor of a judge upon the bench to him and to those who shall live after him. Your petitioners claim that it ought to be and is one of the privileges belonging to them as members of the bar of this honorable court, that the prayer of this petition should be granted. Most respectfully submitted, L. S. DIXON, J. C. McKENNEY. KALCKHOFF, Adm'x, vs. ZOEHRLAUT, imp. CONVERSION: DAMAGES: EVIDENCE. (1) Measure of damages for conversion of promissory note. (2) Rule as to evidence of accomplice in criminal action, not applicable to conversion. REVERSAL OF JUDGMENT. (3) When errors no ground of reversal. (4) Effect of failure to ask instructions or special verdict. NEW TRIAL: (5) On the ground of surprise. 1. For the conversion of a note by the accommodation maker, the measure of damages is the value of the note, which is, prima facie, the face of it with interest. 2. The complaint in a civil action alleged that defendants, conspiring together to defraud plaintiff, by false pretenses, obtained from her possession of a note made by them, of which she was the owner, and wrongfully converted it. One of the defendants asked an instruction to the effect that, one of his codefendants (whose testimony was adverse to him) "having admitted himself to be guilty of the alleged charge," this went to the credibility of the testimony, and, unless it was corroborated, the jury would be warranted in regarding it with suspicion. Held, that the rule |