tion of defendant's remarks, the refusal of an trial the jury failed to agree upon a verinstruction that such testimony should be re-dict. The second trial resulted in a verdict ceived with caution held prejudicial error.

Appeal from District Court, Lewis and the mode of their exercise, and neither the Clark County; R. Lee Word, Judge.

(190 P.)

lished with a view to secure a just and impar- [ and its admission violated the most elemential administration of the jury system." tary rules of the law of evidence.

To the same effect are Sullivan v. State, 102 Ala. 135, 15 South. 264, 48 Am. St. Rep. 22; Van Blaricum v. People, 16 Ill. 364, 63 Am. Dec. 316; Welch v. Tribune Pub. Co., 83 | Mich. 661, 47 N. W. 562, 11 L. R. A. 233, 21 Am. St. Rep. 629.

[6, 7] That it was error to admit this evidence is not open to controversy, and the only question for determination is: Was the error a material one under the circumstances? The rule is now firmly established in this jurisdiction that no judgment shall be reversed for technical errors or defects appearing in the record, which do not affect the substantial rights of the complaining party. There is no hard and fast rule by which to determine whether a particular error shall be classed as harmful or harmless. Every case must be determined upon its on peculiar facts and circumstances. What are the circumstances of this case which reflect upon the question?

[4] But the error was made more manifest by the manner of the court than by the ruling itself. The remark, considered in connection with the testimony given by the juror, must have led the remaining jurors to believe that the court entertained prejudice against any venireman who manifested a friendly disposition towards the defendant, even though no such prejudice was entertained in fact. We approve the holding of this court in Territory v. Roberts, 9 Mont. 12, 22 Pac. 132; but the facts upon which that case was decided differ materially from the facts of the instant case. In that case the juror excused was not a citizen of the United States, and upon his voir dire examination testified that he had formed an opinion as to the guilt or innocence of the accused. He was challenged by the prosecution and the challenge allowed. The court did not go further than to hold that "the appellant was not injured by the ex-appreciated fully by the county attorney; clusion of the juror."

There was no one present, when the alleged seditious remarks were made, but Von Waldru and the defendant, and therefore the state was compelled to rely upon Von Waldru's testimony alone to establish the fact that the words were spoken. Von Waldru admitted that he was an alien enemy, a former officer in the German army, a former convict, who had completed his term in the penitentiary at Deer Lodge about the middle of November, 1917. The necessity of bolstering up Von Waldru's testimony was apparent, and

but neither Berkin nor Topping had known him for a period as long as six months, onehalf of which time Von Waldru had spent in Butte, a portion of the remainder in Helena, and the other portion not accounted for. Just how either Berkin or Topping could gain Waldru during so short a period, or how Von a knowledge of the general reputation of Von Waldru could establish a general reputation among the people of a community by such a peripatetic residence, are questions which we need not stop to consider at length. In Martin v. Corscadden, 34 Mont. 308, 86 Pac. 33, this court said:

[5] 2. The county attorney first called as witnesses John Berkin and Thomas Topping, and interrogated them concerning their acquaintanceship with one Eberhard Von Waldru, whose name was indorsed upon the information as a witness for the state. Each witness testified that he knew the reputation of Von Waldru for truth, honesty, and integrity in the neighborhood where he resided, and that it was good. Over the most vigorous objection of defendant's counsel, Topping was then permitted to testify that the Department of Justice at Washington and the Attorney General of the United States had investigated "Reputation can be proven only by the testiVon Waldru's record, and that they had pass-mony of witnesses who, by association and aced favorably upon it.

quaintance in the community where the person whose reputation is in question resides, know what is there said of him, and who can, from such knowledge, express an opinion thereon."

Section 8026, Revised Codes, prohibits the introduction of supporting evidence of the good character of a witness until his character has been first impeached, unless his character is in issue; but assuming that an objection to Assuming that Berkin and Topping each the order of proof was waived-and it was was competent to answer the question prowaived as to one of the witnesses at least-pounded to him, and that his brief acquainor that error may not be predicated upon the tanceship affected only the weight to be given court's rulings admitting this character evi- to his opinion (Territory v. Paul, 2 Mont. 314), dence before Von Waldru had testified, the it must be manifest that under these circumonly evidence admissible under any conceiv-stances the jury could not have given much able circumstances was evidence of Von Waldru's general reputation in the neighborhood where he lived. Silver Bow M. & M. Co. v. Lowry, 6 Mont. 288, 12 Pac. 652. The evidence that the Department of Justice had investigated Von Waldru's record and had passed favorably upon it was the veriest hearsay,

weight to the expressed opinion that Von Waldru's reputation for truth, honesty, and integrity was good. The defendant denied categorically that he ever made any of the statements attributed to him by Von Waldru and produced several witnesses, each of whom testified to his good reputation; but

of Von Waldru that he made notes at the time of Diedtman's statement, and soon thereafter extended these notes in a memorandum which he produced upon the trial.

ed repeatedly that, in order to give the language employed by Diedtman, it was necessary for him to use the memorandum. At the conclusion of the evidence counsel for the defendant requested the court to give the following instruction:

notwithstanding these facts, and the fact that Von Waldru was a self-confessed forger and an ex-convict, out of the penitentiary only eight months before he gave his testimony upon the trial of this case, the jury were led to | During the course of his examination he statsay by their verdict that beyond a reasonable doubt the defendant had used the words as Von Waldru had testified that he did. There must have been some consideration which led the jury to this conclusion, other that Von Waldru's testimony standing alone. It could not have been the sustaining testimony of Berkin and Topping, for the opinion of neither could have had much weight, under the meager showing of the facts upon which it was based. But it is easily conceivable that a jury of laymen would be impressed profoundly by the favorable findings of the Department of Justice at Washington and the Attorney General, after an investigation into Von Waldru's history, and we think that it is fairly inferable from this record that the verdict rests largely, if not altogether, upon the support which Von Waldru's reputation received from this hearsay testimony; at any rate, it cannot be said that the error in admitting it was without prejudice.

[8, 9] 3. A witness, Reiss, called by the defendant, testified upon his direct examination that defendant's reputation for honesty and Integrity was good. Upon cross-examination, the county attorney was permitted, over objection, to inquire of the witness whether he had not on a previous occasion, or on previous occasions, used language indicating his pro-German sympathies. The witness denied the implication, and upon rebuttal the state was permitted to introduce a witness to impeach Reiss by testimony that he had used the language attributed to him in the county attorney's questions. The error in the court's rulings is manifest. Reiss was not on trial, and, if he had used the language, it could not reflect in the least upon the guilt or innocence of Diedtinan. It is elementary that a witness cannot be impeached upon a collateral matter brought out on cross-examination. Bullard v. Smith, 28 Mont. 387, 72 Pac. 761. The rule is stated in Wharton's Criminal Evidence, § 484, as follows:

"When a witness is cross-examined on any irrelevant matter, or any matter collateral to the issue, his answers are conclusive, and he cannot be subsequently contradicted on those matters by the party seeking to impeach him."

"If you find that the witness Von Waldru cannot recollect the particular words used by the defendant on April 26, 1918, and requires his memorandum thereof in order to testify thereto, then I charge you that such evidence should be received with caution."

The request was refused, no instruction upon the subject was given, and error is predicated upon the ruling. The instruction is in harmony with the provisions of section 8020, Revised Codes. That statute but crystallizes rules of evidence recognized generally by the text-writers and applied by the courts of this country for a century before the statute was adopted. It recognizes two classes of subjects to which the rules are applicable. In the first class is the witness who, by referring to his memorandum, has his memory quickened so that he is able to testify from his actual recollection. The second class includes the witness who undertakes to testify to facts, not because of his independent recollection of them, but relying for his confidence in the assumed correctness of the memorandum itself.

Davis & Whitaker v. Field, 56 Vt. 426. Recognizing the possibility of error in the memorandum, and the fact that the opposite party is practically precluded from testing its accuracy, the statute has wisely declared that the testimony of a witness of this latter class shall be received by the jury with caution. Whether the witness Von Waldru belonged to the one class or the other was, under the circumstances, a question for the jury to determine, and if they had found that he belonged to the second class, the right of the defendant to have the jury instructed to receive his testimony with caution was absolute, and the refusal of the instruction was error. When it is recalled, as heretofore stated, that the state relied altogether upon Von Waldru's testimony to prove that the statements were made by the defendant, and that it was deemed necessary by the county attorney to bolster up that testimony, even before it was given, by evidence of Von Waldru's good reputation, notwithstanding his previous history, the error in refusing the cautionary instruction is but emphasized.

The test to be applied in this instance to determine whether the matter was collateral is this: Would the county attorney have been entitled to prove that Reiss made the statements as a part of the state's case in chief? That he would not is manifest. This [12] 5. Errors are predicated upon rulings subject has received the consideration of this of the court restricting defendant's cross-excourt in the recent case of State v. Smith, 188 amination of the witness Von Waldru. The Pac. 644, and a like ruling was condemned. assignments upon this subject are too numer

(190 P.)

court erred to defendant's prejudice. Waldru was a detective employed for hire to ferret out violations of the sedition statute. He had been in America but a comparatively brief period, and defendant's only means of ascertaining his credibility, or lack of it, was by cross-examination, and a broad liberality in this respect should have been indulged. In State v. Whitworth, 47 Mont. 424, 133 Pac. 364, this court said:

"The purpose of trials of issues of fact is to bring out the whole truth, and to that end the right of cross-examination must be liberally interpreted and freely exercised."

Von [of fact to be determined by the jury. State v. Kahn, 56 Mont. 108, 182 Pac. 107. The court did not give any instruction defining the particular issues involved in this case. Nowhere were the jury told that it was necessary to a conviction that the state prove beyond a reasonable doubt that the defendant had used the language set forth in the information, nor were the jury instructed that they must further find that the language so set forth, if used by the defendant, was calculated to bring the form of government of the United States, the Constitution, the soldiers or sailors, the flag or uniform into contempt, scorn, contumely, or disrepute; but, on the contrary, the court gave instruction No. 4 under which the jury were authorized to find the defendant guilty if the evidence established beyond a reasonable doubt that he had at any time between February 22, 1918, and May 31, 1918, the date of filing the information, done any of the acts or things condemned by the statute defining sedition, without reference to the particular charge contained in the information. This question also was considered in the case of State v. Smith, above, and need not be elaborated any further.

The language of the court in State v. Wake ly, 43 Mont. 427, 117 Pac. 95, is particularly pertinent here. It was there said:

"We recognize the duty of trial judges to allow the utmost latitude in cross-examination, especially in cases like this, where the question of the guilt or innocence of a citizen depends entirely upon the credit to be given to witnesses hired to detect violators of the statute."

For the reasons given, the judgment and order are reversed, and the cause is remanded to the district court of Lewis and Clark county for a new trial.

Reversed and remanded.

[13-16] 6. Finally, and aside from every other consideration, the record discloses that the case was tried throughout upon an entirely erroneous theory of the statute defining sedition. The court must have proceeded upon the theory that, if the defendant used the language set forth in the information, he was guilty. But this does not follow as of course. The language may have been used, even in time of war, under such circumstanc-part in the foregoing decision. es that no crime would have been committed. As observed by this court in the case of State v. Smith, 190 Pac. 107 (just recently decided and not yet [officially] reported), our Sedition Act in its general scope and purpose is not unlike the federal Espionage Law, and concerning a prosecution under that act the Supreme Court of the United States said:

BRANTLY, C. J., being absent, takes no

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Schenck v. United States, 249 U. S. 47, 39 Sup. Ct. 247, 63 L. Ed. 470.

The information in this instance charges that the language used by the defendant was calculated to bring the form of government, the Constitution, the soldiers and sailors, the flag and the uniform into contempt, scorn, contumely, and disrepute. This was a necessary allegation under the subdivision of the statute here involved. The defendant's plea of not guilty put that allegation in issue, and devolved upon the prosecution the burden of proving it by competent evidence, beyond a reasonable doubt. Whether the language, if used, was calculated to have the effect imputed to it in the information, was a question

(57 Mont. 591)

STATE V. DUNN. (No. 4411.)
(Supreme Court of Montana. May 3, 1920.)
County; R. Lee Word, Judge.
Appeal from District Court, Lewis and Clark

W. F. Dunn was convicted of sedition, and he appeals. Reversed and remanded.

Wheeler & Baldwin, of Butte, for appellant. S. C. Ford, Atty. Gen., and Frank Woody, Asst. Atty. Gen., and Lester H. Loble, of Helena, for the State.

PER CURIAM. W. F. Dunn was convicted of sedition, and appealed from the judgment.

In its essential features, this case is not distinguishable from State v. Smith, 190 Pac. 107, just decided. Smith and Dunn were charged jointly, though tried separately. The evidence in each case is substantially the same, and, though there are fewer assignments of error in appellant's brief in this case, the prininvolved in this one. They need not be concipal errors considered in the Smith Case are sidered separately.

Upon the authority of State v. Smith, the judgment herein is reversed, and the case is

remanded to the district court of Lewis and was made within four months prior to the Clark county for a new trial. Reversed and remanded.

filing of the petition in bankruptcy. The district court, aided by the finding of a jury declaring that the defendant, Joseph Morigeau, did not have "reasonable cause to believe that the enforcement of said transfer would effect a preference in his favor," found for the defendant, entered judgment in his favor validating the transfer, and denied plaintiff's motion for a new trial. From the judgment and order so made, this appeal is prosecuted.

[1] It is appellant's contention that the agreed statement of facts admits all of the

elements of a voidable transfer, save two, to wit: The insolvency of the bankrupt at the time of the transfer, and that the grantee had "reasonable cause to believe that the enforcement of such

transfer would effect a preference." The frailty of appellant's contention lies in the failure of the evidence to show that Joseph Morigeau knew his brother Eli was insolvent at the time of the transfer; knew that he was then indebted to other persons than himself, or, if

he owed debts other than those due defend-
ant, that he did not have sufficient other prop-
erty to satisfy all his creditors. These facts
the trustee is bound to establish by a fair
preponderance of the evidence before a trans-
fer of this character can be avoided.
is the spirit of the Bankruptcy Act (U. S.
Comp. St. §§ 9585-9656).

This

"By the statute's very words," says the Supreme Court of the United States in Pyle v. Texas Transport & Terminal Co., 238 U. S. 90, 35 Sup. Ct. 667, 59 L. Ed. 1215, "in order to set aside such a transfer and recover the ing it, or to be benefited thereby, or his agent property it must appear that 'the person receiv

Action by H. O. Worden, trustee of Eli Morigeau, bankrupt, against Joseph Morigeau. From a judgment for defendant and an order denying a new trial, plaintiff ap-acting therein, shall have had reasonable cause peals. Affirmed.

to believe that it was intended thereby to give a preference.' Whether such 'reasonable cause to believe' existed is a question of fact and the burden of proof is upon the trustee." Grant v. National Bank, 97 U. S. 80, 24 L. Ed. 971; Barbour v. Priest, 103 U. S. 293, 26 L. Ed. 478; Coder v. Arts, 213 U. S. 233, 29 Sup. Ct. 436, 53 L. Ed. 772, 16 Ann. Cas. 1008; Wright v. Sampter (D. C.) 152 Fed. 196; Calhoun County Bank v. Cain, 82 C. C. A. 114, 152 Fed. 983; 2 Remington on Bankruptcy, sec. 1404; Marshall v. Nevins, 242 Fed. 476, 155 C. C. A.

252.

COOPER, J. This action was instituted in the court below by appellant, as trustee in bankruptcy of Eli Morigeau, who received patent for his Indian allotment embracing the west half of the northwest quarter, and the southeast quarter of the northwest quarter, of section 25, township 17 north, range 21 west of the Montana meridian, situated in This court, in the recent case of De Forrest Sanders county, on August 26, 1912. By deed v. Crane & Ordway Co., 55 Mont. 494, 179 Pac. dated December 16, 1913, recorded on the 292, had occasion to consider a question sim31st day of that month, the consideration be-ilar to the one under discussion, and in its ing a pre-existing indebtedness amounting to disposition made use of this language: the sum of $12,000, Eli conveyed the land so patented to his brother Joseph Morigeau. On February 13 following, Eli Morigeau filed his petition to be declared a bankrupt; the approved claims against his estate amount ing to the sum of $8,833.85, $2,944.76 of which originated after the date of the issuance of patent As will be observed, the conveyance

"Though a transfer is made which amounts to a preference, yet it is not unlawful within the meaning of section 60b [of the Bankruptcy Act (32 U. S. Stat. at Large, 799)], unless the creditor receiving it had reasonable cause to believe that the debtor intended thereby to give him a preference; that is, to pay him a larger percentage of his claim than others would re