difference. If there are other persons who might have been prosecuted, and would have been liable, and they are not prosecuted, that is no concern of yours. You are only to consider the question of whether these defendants conspired in the way alleged, and whether the overt act was committed."

And the court charged the jury that some of the defendants could be convicted on one count and some on another count; that there was "practically one charge, although in so many counts. It is one conspiracy with allegations of different acts done in pursuance of it. But you cannot split the matter up."

We think, therefore, that the instruction excepted to was in the interest of the defendants, not to their prejudice. It excluded from consideration as to each of them testimony which might possibly have no relation to him. It is true that the jury convicted Hyde and Schneider and acquitted Benson and Dimond. But, as said by the Government, "This does not signify that the evidence against Hyde and Schneider was of a different offense than that charged, but only that the proof against them was more conclusive than that against Benson and Dimond."

It is not necessary to review the cases cited by the defendants holding that conspiracy is the crime of at least two persons and that where all but one are acquitted there can be no legal conviction as to him, the acquittal of the others being tantamount to the finding of no conspiracy. All but one were not acquitted.

The next assignment of defendants is that the court erred in allowing the District Attorney, on the direct examination of witnesses for the Government, to examine them as to previous statements made by them to certain representatives of the Government and in permitting comment upon such statements as tended to show their truth.

Opinion of the Court.

225 U.S.

This assignment is directed particularly against the examination of three witnesses, William E. Valk, S. J. Holsinger and Tillie A. Fleischauer. These witnesses, not remembering certain matters, were asked about conversations with him or of written statements made by the witnesses examined, for the purpose of refreshing their memory. This was the purpose declared at the time and was the ground of the ruling of the court. Objection was made, however, and it was urged and is now urged here, that this could not be done unless upon the ground of surprise and for the purpose of discrediting the witnesses. In support of the objection § 1073a of the District Code is cited in regard to the manner and extent of contradicting witnesses by proof of former statements. The court, however, permitted the examination solely as a means of refreshing the memory of the witnesses, and they, besides, admitted the truth of what was stated. We see no error in the ruling. Indeed, it may be said that as to two of the witnesses, their statements related to Benson alone, and by his acquittal, if the ruling was error, it became unimportant.

The next contention, constituting the twelfth assignment of error, is as to the refusal of the court to permit the defendants to prove that certain letters addressed to John P. Jones never reached the Dead Letter Office. This testimony, it is insisted, became significant and important to the defendants from the fact that the District Attorney had asked Schneider if he (Schneider) had not gone under the name of John P. Jones at the post office while in Mexico at a place called Allamos. On redirect examination he explained the reason to have been that he had suspected the postmaster at Tucson, that letters which had been written to him had not reached him, and that at the time mentioned his wife, who was at Tucson, addressed him as John P. Jones, but that nobody else had. He further testified that the letters he referred to were

"right on the desk" (the desk in the court room) "in the possession of the Government." Upon the demand of counsel the District Attorney produced the letters. Thereupon counsel questioned Schneider as to the letters which were addressed to John P. Jones at Fuerte, Mexico, postmarked Tucson, Arizona. The District Attorney then asked counsel for defendants if he desired "to offer the envelopes in evidence," to which the answer was made: "No; I don't care to offer anything further in connection with that transaction, at present." The District Attorney then offered them. Objection was made but was subsequently withdrawn, the court saying, upon the witness stating that the address upon them was in his wife's handwriting, "They [the letters] are addressed to him in the name of John P. Jones. The envelopes may be received, if it is so agreed, for the purpose of showing the postmarks, etc. This I suppose to be in corroboration of the statements of the witness as to why he changed his name."

The District Attorney was then called as a witness by counsel for the defendants and testified that he had not seen the letters "until one day in court here," and that when reference was made to them "they were produced" to him "by Mr. Pugh." The latter being called said that they came into his "possession in an envelope taken from Secretary Hitchcock's safe some time after Mr. Burns withdrew from the case, or some time after he severed his government connection with it." Burns, he testified, was in San Francisco.

Dalzell was subsequently called as a witness to testify, as has been stated, and it was said by counsel for defendants, addressing the court, that the Government had brought out that Schneider had gone under an assumed name, and that the evidence tended to show that the "reason for that, or one reason for it, was that his mail was being tampered with," "but it leaves room for the

Government to contend that those letters have been to the Dead Letter Office, and have been opened there, and might have gotten in the possession of the Secretary of the Interior or Mr. Burns honestly. We offer to call this witness [Dalzell] for the purpose of closing that gap, and showing that necessarily somebody must have been committing a greater crime than is charged against any of these defendants, in robbing the mail." The District Attorney in effect disclaimed the purpose which was attributed to him and necessarily there was no gap to be closed, nor is it shown that any purpose was subsequently attempted, which the testimony would have precluded.

The possibility suggested by the testimony is not attempted to be justified by the Government, and gives a painful surprise, but we cannot see how proof of "a greater crime in robbing the mails" was relevant to a decision of the charge then under consideration.

The thirteenth assignment of error is directed against an instruction of the court which opposed the contention of defendants that "the titles obtained from the States were perfectly and absolutely valid as to all persons and at all times, except as to the particular State which had given the title and which alone could assail it." The question involved in the contention is settled by the decision of the case when it was here on the proceedings in habeas corpus, 199 U. S. 62, 82 and 83.

The fourteenth assignment of error is that the court erred in refusing to instruct the jury that want of personal knowledge of the character of the land applied for, or that it was not adversely occupied, did not make the application void. It is contended that if the applicant believed the statements were true, the application was neither false nor fraudulent.

We answer the contention as the Court of Appeals did, "the question is immaterial, because the applications were fraudulent by reason of the agreement for transfer"

that is, the applicants were not buying for themselves, but for Hyde. We need not inquire whether the statutes required the affidavits to be made on personal knowledge.

Objection is made in other assignments of error to the comments of the court "that written evidence, letters, for instance, written by parties at the time, are entitled to peculiar consideration as evidence." And to the further comment as to certain anonymous letters attributed to Dimond, the court saying to the jury that they would have to consider whether he wrote them, and added the following: "That has been treated in the argument as a very important question, and justly so. You cannot fail to see the importance of that question. There are some of the letters that were typewritten, and there is one printed with a pen."

Any evidence affecting a particular defendant is important to him when on trial. It ceases to be so in a tribunal of review if he was acquitted, as Dimond was, and may be dismissed from further consideration. And we see no error in the comments of the court on the consideration to be given to written evidence. It was but the declaration of an abstract proposition. It was not an attempt to enforce some particular part of the testimony and to take from the jury their province of considering it all or weighing the respective parts. This is shown by the charge of the court, considered in its entirety.

In the seventeenth assignment of error defendants complain that they were not allowed to show by an examination of the jurors that the "verdict was the result of a bargain and was brought about by what, under the circumstances, amounted to coercion by the court."

The record shows the following:

"Monday, June 22, 1908, at 11:30 A. M., the jury returned to the courtroom and the foreman announced that they were unable to agree. The court thereupon instructed the jury to retire for further deliberation, and