The opinion
JONES, Circuit Judge
(dissenting).
As I view the record in this case, the government’s cross-examination of the defendant so far exceeded the bounds of proper interrogation as, veritably, to work a denial of the fair trial to which the accused was entitled. If such is the case, then nothing less than a new trial can suffice to eradicate the harm of the error for it goes to a matter of substantial rights.
The indictment upon which the defendant was tried specifically charged him with willful and fraudulent evasion of taxes on his income for the years 1935, 1936 and 1937, and for no other year. Despite the permissible limits to pertinent trial inquiry thus set by the indictment, government counsel essayed (and was permitted over objection) to cross-examine the defendant with respect to his receipts of certain income and his return thereof for the year 1938, a year wholly unrelated to the charges in issue. The impropriety of this action and the further trial error to which it directly led will become the more apparent upon further reference to the record.
The government in its case in chief proved by members or representatives of a syndicate of “numbers writers” (lottery operators) that they had given the defendant (a political figure of apparently considerable power with local civil officers) a specified sum of money each week of the three years covered by the indictment down to November 1, 1937, for the purpose of securing “protection” against police interference with their “numbers” operations. It was the government’s further contention that the tax returns filed by the defendant for the years in question failed to reflect or account for the moneys so received by him.
The defendant, as a witness in his own behalf, admitted his receipt of the moneys *964 from the “numbers writers” in the amounts and over the periods of time as proven by the government’s witnesses. He further testified that the money had been given to him as contributions to aid him in maintaining his political organization and that, after making certain disbursements therefrom for political purposes, he had accounted for the residue in his respective income tax returns for the relevant years in a net lump sum designated “Commissions”. Albeit the defendant thus ascribed to himself innocent motives in his receipt and disposition of “numbers” money, the effect of his testimony was none the less to admit, without any variation, the government’s proofs as to the defendant’s income receipts for the years covered by the indictment. And so, the facts with respect to the “numbers” source of the defendant’s income for ■ 1935, 1936 and 1937 were, for all practical purposes, removed from dispute by the defendant’s admissions. At the same time, the defendant had not been asked in direct examination, nor did he then testify, with respect to his income for any years other than those specified in the indictment.
Nevertheless government counsel, for the avowed purpose of impeaching the defendant’s credibility, asked him in cross-examination whether he had received moneys from the “numbers writers” in the year 1938. This was promptly objected to by defendant’s counsel as improper in that it served to inject collateral matter which could not be availed of by the cross-examiner as the basis for impeachment, and, further, in that it introduced facts tending to show an additional criminal charge (under the government’s own theory) not covered by the indictment upon which the defendant was then being tried. The defendant further pointed out that the testimony of a government witness in the case had already disclosed that the defendant’s income tax return for the year 1938 was at that very time the subject matter of a separate investigation by government agents. As a corollary, the defendant urged that, obviously, he had legally sufficient reason not to testify with respect to income matters for the year 1938, for which he might possibly be indicted later.
The learned trial judge permitted the cross-examination on the theory that the matter inquired about (the defendant’s receipt of “numbers” money in 1938) and a possible answer to an anticipated succeeding question as to whether the defendant had reported as “Commissions” in his income tax return for 1938 any receipts of “numbers” money in that year would go to affect his credibility either by contradicting him on the actual basis of his 1938 tax return depending upon what he testified with respect thereto, or by casting doubt on his testimony with respect to his tax returns for 1935, 1936 and 1937 if it should develop that he had not returned in similar manner for 1938 moneys received from like sources in that year.
It is less than clear to me how the matter thus inquired about can be deemed capable of serving as the basis for impeachment. Necessarily, even a possibility of refutation would depend upon how the defendant testified in such regard. If he told the truth, he could hardly be thought to have impeached himself even though a conflict should incidentally develop upon a comparison of his testimony with extraneous matter. Yet, the irrelevant matter, which on the government’s theory would constitute a separate offense for which the defendant was not on trial, would have been heard by the jury. On the other hand, if he testified falsely, the government would not be in position to refute him, for the cross-examiner is bound by the answers which he elicits to questions concerning collateral matter.
In Cohen v. United States, 1 Cir., 56 F.2d 28, 30 , where the circumstances, were sufficiently similar to the present as to render the language of the court in that case pertinent here, judge Bingham said ( 56 F.2d at page 30 ) :
“Then, again, the course pursued in the cross-examination of the defendant was wholly improper and prejudicial. The subject-matter then inquired into had not been alluded to in the direct examination. The inquiry related to an entirely immaterial matter arising two years or more after the occurrence of the crime charged, and had no possible relation to it. The government having, on cross-examination, elicited information as to the defendant’s occupation and the work he had done the day before— immaterial matters — was bound by his answers. It could not then undertake to contradict him as to these matters, as was done, for the purpose of disparaging his credibility.
“If testimony in relation to an immaterial matter is elicited upon cross-examination, it is not open to contradiction for the purpose of disparaging the credibility of the witness.”
*965 Again, in Bullard v. United States, 4 Cir., 245 F. 837, 840 , where a defendant was on trial for illicit distilling, government counsel was permitted upon cross-examination of the defendant to interrogate him concerning certain offenses not covered by the indictment. Speaking for the Court of Appeals, Judge Knapp said ( 245 F. at page 840 ) that “We are not aware of any theory upon which this ruling can be defended. The subject-matter of the question addressed to Bullard [the defendant] was obviously collateral to the issue on trial and the government was bound by his answer.” (Emphasis supplied.) That the extraneous cross-examination in that case constituted reversible error was said to be “an unavoidable conclusion”.
Here, the learned trial judge overruled the objection, and the defendant answered, admitting that he had received “numbers money” in 1938. Immediately thereupon, government counsel asked him “Who gave it to you?” Vigorous objection by defendant’s counsel to this question led to argument during which the jury and the defendant were absent from the court room under circumstances which the majority opinion fully relates incidental to another question. In the end the trial court overruled the defendant’s objection to this question but suggested that the defendant could justify a refusal to answer such questions by pleading, if he were so disposed, a witness’ privilege against self-incrimination. Of course, if the matter was relevant and proper, the defendant was not entitled to plead the constitutional privilege. When a defendant voluntarily offers himself as a witness, he waives his privilege against self-incrimination and may be cross-examined like any other witness within the limits of the appropriate rules of evidence. Raffel v. United States, 271 U.S. 494, 497 , 46 S.Ct. 566 , 70 L.Ed. 1054 . In fact, not even skillful guidance by his counsel in direct examination can save a defendant from relating fully under cross-examination all matter within his knowledge which is relevant and material to the case. Integrity for the oath, which he takes as a witness, to tell the whole truth, so contemplates. Indeed, the action of the learned trial court in according to the defendant, as a witness, a right to plead privilege against self-incrimination seems but a tacit recognition that the matter inquired about was collateral to the issues for, otherwise, the defendant was bound to answer.
Upon a resumption of the testimony the question — “Who gave it to you?” — was renewed and the defendant refused to answer, claiming privilege against self-incrimination. Then followed several other questions by government counsel concerning defendant’s income practices and tax return for the year 1938. In each of these instances relating to the year 1938 the defendant refused to answer on the ground that to do so would tend to incriminate him; and the court accepted the plea as justification for the defendant’s refusal to answer.
While, in general, one might reasonably conclude that it adversely affects a defendant’s substantial rights to force him to the point of pleading privilege against self-incrimination in order to avoid answering questions which have no proper place in the case, and should never have been asked, we are not left merely to inference for a perception of the prejudice engendered in this case on account of the defendant’s refusal to answer the questions respecting his 1938 income. The summation 1 of government counsel was a deliberate and unmistakable exhortation to the jury to find the defendant unworthy of credit because he had plead privilege against self-incrimination in order not to answer questions as to his 1938 income receipts. Counsel for the defendant made due complaint of this argument for the government, and the trial court undertook in his charge to the jury to offset its harmful effect. But, instead of neutralizing what government counsel had improperly thus argued to the jury, the learned trial judge actually gave the argument added weight by telling the jury that the defendant’s refusal to answer questions concerning his 1938 income could “be considered by you [the jury] in testing his [the defendant’s] credibility as to the *966 answers which he did give and his good faith in the matter.”
The majority of the court dispose of this by saying that they “can perceive no reason why the fact that a defendant refuses to answer pertinent and proper questions upon cross-examination should not be considered by the jury in testing his good faith and credibility.” The answer to that conclusion is that, if the cross-examination is “pertinent and proper”, a defendant witness gets no opportunity to refuse to answer either by pleading privilege against self-incrimination or otherwise. Cf. Raffel v. United States, supra. But having been allowed by the court so to plead in this case, surely the defendant did not thereby subject himself to impeachment merely because he exercised a privilege which the court, even though mistakenly, accorded to him. The majority concede that the trial court “probably erred” in permitting the defendant to refuse to answer on the ground of privilege against self-incrimination but say that “this worked in Johnson’s [the defendant’s] favor.” If so, it was indeed a “favor” of less than doubtful value when government counsel was able to argue to the jury that the refusal to answer for the reason assigned constituted impeaching conduct and was substantially confirmed in this argument by the charge of the court.
Nor do I think that Raffel v. United States, supra, contains any implication that a refusal to answer on a plea of self-incrimination may serve as a basis for impeachment. Under the decision in that case, the situation never arises where a defendant witness can plead privilege against self-incrimination. The Raffel case contemplates that the defendant witness will be interrogated “within the limits of the appropriate rules.” And, to that extent, he is bound to answer all pertinent and proper questions. How, then, could a defendant as a witness lay himself open to any imputation for refusing to answer when he is legally incapable of so refusing? In any event, I am unwilling to accede to the view that one’s permitted invocation of a constitutional privilege carries with it a legal stigma at any time.
In my opinion, it was substantial error for the trial court to permit government counsel, over objection, to cross-examine the defendant on the collateral matter relating' to a possible separate offense which could not in any case afford a legal basis for impeachment and likewise error for government counsel to argue to the jury, uncorrected, a want of credibility in the defendant because of his plea of self-incrimination in refusing to answer questions as to the collateral matter: Either the defendant should have been required to answer or have been relieved from answering, depending upon whether the court ruled the questions proper or improper. But he should not be held to have impeached himself by refusing to answer on a basis advanced and accepted by the trial court.
In the opinion overruling the defendant’s motion for a new trial the court below gave a further reason in support of the questions asked of the defendant in cross-examination as to his 1938 income receipts from “numbers money”. The argument is there made that as the defendant denied having received any payments from the “numbers” operators in November and December 1937, his admission of such receipts for the first ten months of 1937 and like admission as to 1938 warranted the jury in inferring that he had received similar payments in November and December 1937. In view of the fact that the government’s own proofs did not show that the defendant had received any such payments in November and December 1937, the suggested inference would be no more than a guess and, at that, a guess which would not even tend to corroborate any evidence in the case.
In concluding that the defendant is entitled to a new trial, I am not unmindful of the statute which requires that the trial error justifying reversal must be other than technical errors or defects which do not affect the substantial rights of the parties. Act of Mar. 3, 1911, c. 231, § 269, as amended by the Act of Feb. 26, 1919, c. 48, 40 Stat. 1181 , 28 U.S.C.A. § 391 . The errors to which reference has already been made did affect the substantial rights of the defendant. Cf. Williams v. Great Southern Lumber Co., 277 U.S. 19, 26 , 48 S.Ct. 417 , 72 L.Ed. 761 .
In no event was the amendment of February 26, 1919, intended to, nor does it, invest a court with power to affirm a judgment merely because the court happens to divine that the jury was unaffected by the particular error and that the verdict would have been the same had the error not been committed. Any assumption of such power can stem only from an unwarranted emphasis upon the “technical error” portion of the statute without regard for the effect of the error upon the substantial *967 rights of the complaining party. True enough, the crucial thing, which makes the amendment of Feb. 26, 1919, applicable in any case, is that the error assigned is technical or, as has been aptly said, is concerned with “the mere etiquette of trials and with the formalities and minutiae of procedure”. See Bruno v. United States, 308 U.S. 287, 294 , 60 S.Ct. 198, 200 . 84 L.Ed. 257 . Such, indeed, are the conditions which call into play the court’s exercise of its duty to say whether the error, being technical, affected substantial rights. But, where substantial rights are affected by trial error, the law forthwith imputes to the error the harm which renders the resultant judgment a nullity, regardless of the form of the error. McCandless v. United States, 298 U.S. 342, 347, 348 , 56 S.Ct. 764 , 80 L.Ed. 1205 ; Williams v. Great Southern Lumber Co., loc. cit. supra; United States v. River Rouge Improvement Co., 269 U.S. 411, 421 , 46 S.Ct. 144 , 70 L.Ed. 339 .
This rule is no less applicable to criminal trials where jeopardy of life or limb is involved. Criminality is to be tried and adjudged according to legal standards which should be as fixed and unvarying in their general application as is humanly possible. Such, however, would not be the case if a finding of guilt may be affirmed according to the predilection or whim of any one person. Even judges may not spy out guilt unerringly or appraise with certainty just what enters into a jury’s deliberations in arriving at a verdict. Except where a jury trial is expressly waived, the facts and inferences should be left with the jury.
It may very well be that the defendant in this case is guilty of the offenses precisely as charged by the government, but the appropriate function of a reviewing court is to determine whether applicable legal standards were fully and fairly complied with at trial in respect of the defendant’s substantial rights. Nor may the notoriety of a particular defendant ever dissuade from a dispassionate inquiry into the merit of his timely complaint. While, quite understandably, any question as to the fairness of a trial is of immediate and direct concern to the convicted defendant, its wider importance lies in its significance to the public at large. The rights of all are adversely affected when the rights of one are substantially impaired or disregarded. And this is especially true if the impairment or want of regard transpires under legal forms.
The conclusion herein reached renders unnecessary discussion or consideration of the exclusion of the defendant from the court room during the argument on the question of evidence in respect of the government’s cross-examination of the defendant. However, it may not be inappropriate to say that I, too, deem a defendant’s right to be present throughout his trial to be absolute. Any discriminations or refinements as to what does or does not constitute the trial, once the jury is impanelled, the verdict unreturned and the court in session and actually engaged in a disposition of the matter, are likely only to render that right something less than absolute. Furthermore, I think it is immaterial whether the defendant, when directed by the court to retire from the court room, departed without objecting. It is imputing responsibility rather summarily to say that a defendant’s unquestioning compliance with a court’s order at trial implies his acquiescence in the propriety of the order. Any waiver implied from the defendant’s submission under the circumstances should not be invoked to dissipate a constitutional right. Cf. Hopt v. Utah. 110 U.S. 574, 579 , 4 S.Ct. 202 , 28 L.Ed. 262 .
Government counsel thus argued to the jury, — “Now, ladies and gentlemen, can you believe that man told you the truth about anything on the witness stand when he admits that he got numbers money in 1938 ’but won’t tell you who he got it from on the ground it would incriminate him? If you can bolieve that that man is innocent of tbis charge when be stands right up in front of you and says be cannot answer a question about 1938, that he just got through answering for 1937 on the ground it would incriminate bim, well, then, I just don’t get it.”