The defendant has the right to be represented by counsel.21 All exhibits should be read in the presence of the jury, or handed to the jury, and each juror required to read them in the court room.22 The defendant by failing to except waives objection to a failure to observe this practice when the exhibits are sent to the jury room.23 The court may limit the number of witnesses the defendant may call upon for a single point.24 The commitment of a witness for contempt,25 or for perjury,26 and a direction that an information for perjury be filed against him,27 when made in the presence of the jury, were held to be prejudicial errors. So was a reminder by the court to a witness in the presence of other witnesses and the jury that his testimony did not agree with the previous affidavit which he had signed.28 Expressions of sympathy by the court to a witness were held to be no ground for a new trial.29 When, after a trial has been begun, it is discovered that a juror is disqualified, the court may, under proper circumstances, discharge the jury and order a new trial, against the defendant's objections.30 The court may permit the jurors to separate during adjournments and recesses of the trial,31 and it is not error to refuse to exclude the jurors from the court-room during the argument and decision of motions and questions of law.32 The court may limit the time for argument by counsel.33 21 U. S. R. S., § 747. 22 Winters v. U. S., C. C. A., 201 Fed. 845, 850. 23 Ibid. 24 Samuels v. U. S., C. C. A., 232 Fed. 536. 25 Rutherford v. U. S., C. C. A., 258 Fed. 855. But see Wallace v. U. S., C. C. A., 243 Fed. 300. 26 McNutt v. U. S., C. C. A., 267 Fed. 670. 27 Ibid. 28 Ibid. 29 Wong Goon Let v. U. S., C. C. A., 245 Fed. 745. 30 Thompson v. U. S., 155 U. S. 271, 39 L. ed. 146. It was said not to be an abuse of discretion to refuse to discharge a jury which had read newspaper articles calculated to prejudice the defendant, where they stated, when being interrogated, that this would not influence them in arriving at a verdict. Marrin v. U. S., C. C. A., 167 Fed. 951, where the objection had been waived. See supra, § 478. 31 U. S. v. Holt, 168 Fed. 141. 32 Ibid. 33 U. S. v. Samuels, C. C. A., 232 Fed. 536, 542; Lucas v. Commonwealth of Kentucky, 149 Ky. 498, 149 S. W. 861, 42 L. R. A. (N. S.) 209 (30 minutes in a capital case). A Federal court need not follow the State practice of permitting argument of counsel to follow the charge.34 The denial of the defendant's application after the conclusion of the final argument to the jury by the District Attorney to explain and exhibit or to offer further evidence rest within the court's discretion.35 A motion at the close of the testimony for the prosecution for the direction of the verdict of acquittal is waived by the offer of evidence in defense.3 36 But it may be renewed at the conclusion of the defendant's evidence.37 It was held to be no error to refuse a request for a direction that the jury find the verdict of not guilty under one of several counts contained in the indictment although the evidence did not sustain a conviction thereunder.38 The objection that there is no evidence to prove that the defendant committed the crime charged may be considered upon writ of error; although no motion to direct a verdict in his favor upon that ground was made, and no exception in the case raises the point.39 The judge has no power to direct a verdict in favor of the prosecution, although the evidence is uncontradicted,40 or there is an agreed statement of facts.41 The judge cannot charge as matter of law that any allegation has been proved.42 It has been held that there can be no conviction of a crime which was provoked or induced by a Government agent or officer and which otherwise would not have been committed.43 34 Bryant v. U. S., C. C. A., 257 Fed. 378. 35 Safford v. U. S., C. C. A., 252 Fed. 471. 36 Andrews v. U. S., C. C. A., 224 Fed. 418; Kasle v. U. S., C. C. A., 233 Fed. 878; Hughes v. U. S., C. C. A., 231 Fed. 50. 37 Kasle v. U. S., C. C. A., 233 Fed. 878. 38 Baldwin v. U. S., C. C. A., 238 Fed. 793. 39 Clyatt v. U. S., 197 U. S. 207, 49 L. ed. 726. But see Simpson v. U. S., C. C. A., 184 Fed. 817, holding that such a motion is essential and that the introduction of evidence by the accused in his own behalf is a waiver of such a motion previously made. 40 Konda v. U. S., C. C. A., 22 L. R. A. (N. S.) 304, 166 Fed. 91. 41 Blair v. U. S., C. C. A., 241 U. S. 217. 42 Konda v. U. S., C. C. A., 22 L. R. A. (N. S.) 304, 166 Fed. 91. 43 Sam Yick v. U. S., C. C. A., 240 Fed. 60; Peterson v. U. S., C. C. A., 255 Fed. 433; U. S. v. Lynch, 256 Fed. 983; Fiunkin v. U. S., C. C. A., 265 Fed. 1. Evidence of facts as consistent with innocence as with guilt is insufficient to sustain a conviction.44 In such a case it is the duty of the court to instruct the jury to return a verdict of not guilty.45 It has been said that unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is its duty to instruct the jury to acquit.46 No verdict of guilty can be returned unless the evidence establishes the defendant's guilt beyond a reasonable doubt,47 but this rule does not apply to an action to recover a penalty under the Alien Immigration Act of February 20, 1907.48 S527a. Statements and arguments of counsel. The court may limit the time for argument by counsel to the jury in a criminal case.1 case of an improper statement by the prosecutor in the presence of the jury, at any time pending the trial,2 or in his closing argument 3 a new trial may be directed. Fed. 544; Johnson v. U. S., C. C. A., In Hall v. U. S., C. C. A., 256 Fed. 748, 750, a new trial was ordered because of the following language by the United States attorney: "Gentlemen of the jury, is it not a significant fact that defendant has failed to introduce a single witness in his behalf who has ever heard him make a patriotic utterance? Not a single friend or citizen has come here to testify in his behalf. No man has interceded with the office of the United States attorney in his behalf. Could a man be innocent and be put on his trial without numerous friends and citizens protesting against it?'' In August v. U. S., C. C. A., 257 Fed. 388, 392; a new trial was ordered because of the following language in a speech otherwise inflammatory by the assistant United As a general rule, a motion for a new trial cannot be granted because of improper remarks by the prosecuting attorney, un States attorney, although the defendant did not except thereto nor request an instruction upon the subject, "But to-day, gentlemen, the world is engaged in a war, the whole world is engaged in a war for humanity; a war which holds in its balance the very future of the race; a war for the rights, the sacred rights, of man, and the honor of womanhood, and the security and sanctity of little children; and we are here engaged in the prosecution of one who, as I am convinced, was willing to place his influence and his efforts and his filthy gold in the scales against those things which all men hold most dear." "This prosecution, gentlemen, will not only affect St. Joseph. It will not only affect Buchanan county. It will not only affect northwest Missouri, and reflect either dishonor or credit upon her; but the result of you gentlemen's deliberations will be heralded to every nook and every corner of this land; yea, and in some way I doubt not it shall waft its way to the agents of hell opposed to us across the mighty waters, and there, gentlemen, the verdict of this jury will be read and heard by the war lords of Germany as a beat from the pulse of the American people. So I say that the gravity of this occasion cannot be measured, and I trust gentlemen, that you will consider this case carefully-that you will consider very, very deliberately." In Elmer v. U. S., C. C. A., 260 Fed. 646, 649, the following language by the assistant Attorney General was held to be prejudicial (although the court said it was improper but did not instruct the jury to disregard it): "I want to say this to you: If I had a boy, and a man should come to him and say: 'My boy, you are shackled; you are manacled; you are being sent to certain slaughter. You are not a free American at all. You are the slave of a system that is vicious and wrong.' If a man said that to my boy in my presence, if I could kill that man with my naked hands, I would do it." But see Hunter v. U. S., C. C. A., 264 Fed. 831. In Skuy v. U. S., C. C. A., 261 Fed. 316, a new trial was granted because of a statement by the Assistant District Attorney that he did not care how many Jews the defendant brought there to testify, or what they swore to, that he believed that the soldier boy swore to the truth that the soldier had no interest in the case and that every word that the soldier testified to was the truth; emphasizing the word soldier. In Horowitz v. U. S., C. C. A., 262 Fed. 48, 51, held that it was no error in a prosecution for stealing army supplies for the District Attorney to say, "It is a crime which it seems to me demands your utmost consideration in this hour. It is a crime which-well, I cannot get a word bad enough to describe it, gentlemen, at this time when the boys need clothing, when they need this cloth for clothing, when men are giving their blood, and when all you men are giving your money-," and again, "You know that every great war is attended with its profiteers, and its thieves, and you know how less the defendant's counsel at once called the attention to the court to objectionable language and requested the court to interfere, and upon the court's refusal, noted an exception. If the court then interferes and directs the District Attorney to desist using such language, and he obeys, it is usually held that the mischief is cured.5 A recent case holds that it is the duty of the court of review to reverse a conviction because of prejudicial language by the District Attorney, although there was no objection or exception thereto upon the trial. A statement in the closing argument of a fact prejudicial to the defendant of which there is no evidence,7 a statement in the opening of a fact of which there is no evidence, or evidence of which would be clearly inadmissible, and suggestions by questions upon cross-examinations of injurious facts, clearly irrelevant and immaterial,10 are usually considered to be incurable. difficult it is-." When the court said "confine yourself to the issues, but you may state that they are important issues to both sides; I will allow that, as I allowed the defendants to state that it was important to them. I don't think you ought to refer to the instance of the war. 99 4 Crumpton v. U. S., 138 U. S. 361, 364, 34 L. ed. 958, 959; Dunlop v. U. S., 165 U. S. 486, 498, 41 L. ed. 799, 803; Sawyer v. U. S., 202 U. S. 150, 50 L. ed. 972. See Cudahy Packing Co. v. Skoumal, C. C. A., 125 Fed. 470; Thompson v. U. S.,. C. C. A., 144 Fed. 14; Johnston v. U. S., C. C. A., 154 Fed. 445; Chambers v. U. S., C. C. A., 237 Fed. 513. 5 Ibid. 6 Warren v. U. S., C. C. A., 250 Fed. 89. 7 Paquin v. U. S., C. C. A., 251 Fed. 519; McKibben v. Philadelphia & R. Ry. Co., C. C. A., 225 Fed. 577. Supra, 473i. In Hunter v. U. S., C. C. A., 264 Fed. 832, a new trial was denied although the District At torney in his argument had said that defendant was arrested for having liquor in his possession, when there was no evidence of such arrest; but there was evidence of possession. In Foley v. U. S., C. C. A., 241 Fed. 587, a new trail was denied; although upon the trial of an indictment for selling without payment of taxes the counsel for the Government in his opening had said that in the building owned by defendant there were small rooms upstairs occupied at times by immoral women. Upon objection, the court had directed him to omit this statement. Later testimony had been given that defendant had admitted the place was an immoral resort, but upon objection, the court had ruled that it was irrelevant. 8 Johnson v. U. S., C. C. A., 215 But Fed. 679. see Nichamin v. U. S., C. C. A., 263 Fed. 880. 9 Manuel v. U. S., C. C. A., 254 Fed. 272. 10 Skuy v. U. S., C. C. A., 261 Fed. |