The opinion
MACK, Circuit Judge
(dissenting). Proof of earlier similar acts is admissible for the purpose of establishing the motive, design, or intent which accompanied the later and alleged criminal transactions. That such evidence may he prejudicial to a defendant by establishing that he committed other crimes does not make it inadmissible; it compels, however, the exercise of caution on the part of the court in receiving it, and in instructing the jury as to its proper scope, ^and on counsel in using it in argument.
In this case, such proof would be admissible to show that the later acts, susceptible of an innocent or criminal interpretation, were done with criminal intent; specifically, in furtherance of a conspiracy to defraud the government out of the ten cents per pound tax levied on the sale of colored oleomargarine.
Motive, however, is in no maimer involved; if defendants, with criminal intent, did what they are charged with having done, the motive, money making, was apparent from the transactions themselves. That they had a like motive in earlier criminal transactions is immaterial; proof, therefore, of such other dealings, merely to show a readiness to violate the law of the land in order to increase their business and the profits thereof, is inadmissible. Its only tendency is to prejudice the jury.
The Illinois statute forbidding the sale of colored oleomargarine had no bearing whatever on the innocence or guilt of defendants or on their motive, design, or intent in committing the acts charged against them. The evidence is clear that defendants, like all other oleomargarine manufacturers, sold very much more white than colored goods, both before and after the federal act of 1902 had imposed a heavy tax on the sale of colored oleomargarine. Every such *290 sale was in violation of the Illinois law; proof of the law and sales thereunder demonstrated only that defendants, for a commercial profit, were ready to risk an Illinois criminal prosecution both before and after 1902.
The only inference to be drawn therefrom bearing on the present charge is that, as defendants were ready to violate Illinois law in order to make money, they were also ready to conspire to commit a federal crime for the same purpose. As well might proof of the law for-' bidding larcenies and embezzlements and of the violation thereof be admitted; the inference would be equally cogent.
While the federal court takes judicial notice of state statutes, and while, of course, proof of the sale of colored goods after 1902, as part of the present case, is admissible, even though it necessarily shows a violation of Illinois law, the introduction of the statute itself and the proof of its violation prior to 1902 was, in my judgment, without justification. Whatever the purpose of the government’s counsel, the necessary effect of this serious error was to prejudice the jury; an effect greatly enhanced by the use of the evidence in the argument and in no wise mitigated by any instruction.
The evidence as to the use before 1902 of extra hoops on tubs to facilitate the destruction of the revenue stamp was, in my judgment, also inadmissible. It tended to show a conspiracy between some of the defendants to defraud the public by enabling tax-paid oleomargarine to be sold as butter and to defraud the government by evading payment of the wholesale oleomargarine dealers’ license.
The acts charged against defendants in the carrying out of the present alleged conspiracy are of a different character and have a different purpose. No swindling of the public is involved; the alleged criminal intent is not to defraud generally, or even to defraud the government generally, but specifically to defraud it by evading payment of the new and totally different tax on colored oleomargarine.
The effect of this evidence, too, was necessarily prejudicial to defendants. As counsel said in argument to the jury:
“The dealer could sell this oleomargarine as butter. That was the state of mind of John F. Jelke prior to 1902. He was willing to violate the law, without respect or regard to the laws of the United States. He made these tubs and put them up in such a way that his customers could defraud the people whom they were selling the goods to by selling this oleomargarine to them as butter, and made it possible for these dealers to defraud this government out of the whole license, by fixing the tubs up so that they could sell as butter, thereby deceiving the revenue officers.
“Ah, gentlemen, that situation shows the state of mind of John F. Jelke away back prior to 1902, and if at that time John F. Jelke would violate the law, John If. Jelke would assist these various dealers and customers of his in violating the law for the purpose of making a market for his oleomargarine, there is no reason to think that John F. Jelke would not violate the law in 1902, 1903, and 1906. * * *
“That transaction back in 1900, gentlemen of the jury, is for the purpose of showing the motive and state of mind towards the United States, and the enforcement of the law, of the defendant John F. Jelke.”
While in my judgment the court erred in unduly limiting the cross-examination, it is unnecessary to enlarge upon this point, especially as, in itself, it might not constitute reversible error.
*291 While agreeing, as I do, with much of the majority opinion, especially as to the validity of the indictment, I am impelled to the conclusion that, for the errors specified, the judgment should be reversed, and a new trial granted.