(dissenting).

I submit that the doctrine that every admission is to be taken as an entirety, and that, where a part of a document or statement is used as self-harming evidence against a party, he has the right to have the whole of it laid before the' jury, has no application whatever to the ruling of the trial court in excluding from the evidence the contract of February 4, 1904, and the affidavit of Williams made on September 15, 1905. The indictment charged that the plaintiff in error and another did on October 31,1903, enter into a conspiracy to defraud the United States of large tracts of land, under the agreement made on that day, which was set forth in hasc verba, and it alleged that on November 4, 1903, as overt acts done to carry out the conspiracy, the alleged conspirators filed two -false, fraudulent, and fictitious applications for the purchase of certain designated parcels of land. To prove one of the facts so alleged in the indictment, the government offered in evidence a copy of the agreement of October 31, 1903. The copy so offered had come lawfully into the possession of the District Attorney. It was the best evidence of the-allegation so made in the indictment. It was an instrument which was complete in itself, and it referred to no other instrument. But it is said that it had become so indissolubly connected with two other papers that it could not be severed from them for evidential purposes against the plaintiff in error. What is. the tie that it is said so to bind these three papers together ? It is that the plaintiff in error had voluntarily surrendered to an officer of the government his contract of October 31, 1903, together with his contract of February 4, 1904, and the affidavit *29 of his secretary of date September 15, 1905; and the theory seems to be that, because the papers were surrendered at the same time, the introduction of one of them by the prosecution entitled the plaintiff in error to the introduction of the other two, no matter at what time they were made or signed, for the reason that they were all parts of a single admission. What is the admission of the plaintiff in error that was proven in this case? It is not his letter of September 15, 1905, for that letter contains no admission. If any admission of his was received in evidence, it was that he entered into the contract of October 31, 1903. Had he declined to deliver up that contract, it may be doubted whether the prosecution could have proved the terms thereof, for he could have refused to furnish it as evidence against himself. But he voluntarily surrendered it, and the argument is that because he surrendered with it two other papers of a later date he was entitled to have the latter go in evidence with the first. But it is no part of the admission that he made the contract of October 31, 1903, that he afterwards made a different contract to supersede it, nor is the affidavit of his secretary any part of that admission—an affidavit made two years after the date of the first contract for the purpose of explaining it and the method in which operations had been conducted thereunder.

The substantive facts to be proved by the government were that the plaintiff in error and Benson entered into the agreement which is set forth in the indictment, and that thereunder they made fraudulent applications to obtain lands. How could it affect the proof of that agreement, and of the 20 applications shown to have been made under it, to prove the terms of a later agreement which was intended to. supersede the first? In Wigmore on Evidence, § 2113, it is said:

Here we may pause to inquire, would the affidavit of Williams and the contract of February 4, 1904, aid the court or the jury in arriving at a complete understanding of the total tenor and effect of the contract of October 31, 1903, and are those instruments useful in completing the sense of that contract? Says the same author, in section 2119:

How is it possible by any rule of construction or process of reasoning to reach the conclusion that these three papers, dissociated in time and subject, become utterances made at the same time and upon the same subject from the mere fact that they were surrendered by the plaintiff in error at the same time and in a single envelope, or were all referred to in a single letter? It is to be observed, also, that the defense introduced the original contract in evidence, and thereby cured the error, if error there was, in the introduction of the copy which was introduced by the prosecution.

*30 But it is suggested that, irrespective of the question of its admissibility on the grounds above discussed, the contract of February 4, 1904, was admissible in evidence to show under what agreement the parties charged in the indictment made their applications for lands after the date of that instrument. This suggestion at first glance seems plausible, but on consideration it will be seen that it is without merit, and that there was, upon that ground, no reversible error in the ruling of the trial court which excluded such evidence. Under the agreement set forth in the indictment, the government proved, and it was not disputed, that 20 applications were made on or before November 18, 1903, including the two applications referred to in the indictment. The proof of the applications made after February 4, 1904, may be regarded as superfluous. It was offered, doubtless, for the reason that the 9 applications so made subsequent to February 4, 1904, were second applications for some of the lands which had already been covered by the first 20 applications, and were made for the acquisition of lands which were all within the scheme of the original contract, as shown by the map which was made part thereof. It is important to bear in mind that the offense charged was an unlawful conspiracy, not the act of unlawfully acquiring government land. To sustain the indictment it would have been sufficient, after proving the unlawful agreement, to prove one overt act done to carry out the conspiracy. It was unnecessary to adduce evidence of applications made after February 1, 1904. It would not have tended in the slightest degree to show innocence of the charge made in the indictment, if the defense had been permitted to prove that the applications made after February 4, 1904, were made under a legal contract. The proof of the applications made after the second agreement was entered into could not prejudice the plaintiff in error, nor could any explanation which he might have offered of those applications, or any proof under which they were made, affect the charge made in the indictment, and the evidence which was legitimately admitted to sustain it, for the court expressly charged the jury in that connection as follows:

Can it be said that the second contract was admissible to prove the intent of the parties in making the first contract ? If such is the law, it follows that it is in the power of all who conspire to acquire lands of the United States unlawfully to purge their conspiracy of its illegality by making a new and innocent agreement at any time before indictment, or indeed after indictment, provided it is shown that some of their applications for lands were made under the new agreement.