thereto as to obstruct the administration of justice, the misbehaviour of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts." Section 2 of Acts 1831 is, now slightly changed, section 135 of the Penal Code (Comp. St. § 10305), as follows: "Whoever corruptly, or by threats or force, or by any threatening letter or communication, shall endeavor to influence, intimidate, or impede any witness, in any court of the United States or before any United States commissioner or officer acting as such commissioner, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or of ficer acting as such commissioner, in the discharge of his duty, or who corruptly or by threats or force, or by any threatening letter or communication, shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein, shall be fined not more than $1,000, or imprisoned not more than one year, or both." It is elementary that the legislative purpose must be inferred from the entire act. The two sections are to be read together. Section 2 covers misbehaviour in obstructing the administration of justice not punishable as contempts under section 1. The United States attorney for Porto Rico concedes that the alleged offenses of Dr. Coll might have grounded indictments and prosecution under section 2; but his extraordinary contention is that it was necessary to proceed in such fashion as to deprive the alleged wrongdoer of a jury trial. In his brief it is stated: "We are impelled to close this paragraph by saying that the public character, notoriety, and influence of those charged with contempt in this case was of such a nature that a reasonable man, knowing the situation as it then existed, would have great and serious doubt whether a jury could be found within the jurisdiction of the court below that would convict the defendants below, even for the grossest contempt." This amounts to urging usurpation of jurisdiction, in order to achieve a conviction thought impossible under the forms of law provided by Congress. We do not accept any such proposition. Assuming, but not deciding, that the information sufficiently alleges-and that there was evidence supporting the allegation-of improper dealing by the defendant with Torres, the prospective government's witness, the question is whether such acts fall within the scope of section 268 as being "so near" to the court "as to obstruct the administration of justice." We think this question must be answered in the negative. The court was not in session. Torres had not been summoned. He was "a government witness" only in the sense that he had been given a written promise of immunity by the United States attorney, in consideration of his testifying before the grand jury, and of prospective testimony at the trial of the indictments procured, in part at least, by his testimony. Whether the interview which took place was initiated by Torres, as Dr. Coll claimed, or by the plaintiff in error, as the government claimed, is immaterial. Admittedly, Torres went of his own volition to Dr. Coll's house, something like four miles from the courthouse. It is unnecessary to enlarge on this aspect of the case, for the court below, after reviewing certain cases, which it regarded as conclusive on the point, said: "My construction of these decisions is that, even if Victor Coll y Cuchi had gone to the house of Felix Torres in Caguas, twenty miles away, and had there sought to intimidate, or frighten, or bribe, or tamper with the said Torres as a witness for the United States, he would equally have been guilty of violating the law governing this matter of contempt." In our view this construction falls little short of nullifying the act of 1831. The genesis of that act is elaborately stated in an article by Felix Frankfurter and James M. Landis entitled "Power to Regulate Contempts," 38 Harvard Law Review 1010, 1023, et seq. It was sustained by the United States Supreme Court in the case of Ex parte Robinson, 19 Wall. 505, 22 L. Ed. 205, Mr. Justice Field saying: "The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power. But the power has been limited and defined by the Act of Congress of March 2, 1831. The act, in terms, applies to all courts; 8 F.(2d) 20 whether it can be held to limit the authority of the Supreme Court, which derives its existence and powers from the Constitution, may perhaps be a matter of doubt. But that it applies to the Circuit and District Courts there can be no question. These courts were created by act of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is, therefore, to them the law specifying the cases in which summary punishment for contempts may be inflicted. It limits the power of these courts in this respect to three classes of cases: (1) Where there has been misbehaviour of a person in the presence of the courts, or so near thereto as to obstruct the administration of justice; (2) where there has been misbehaviour of any officer of the courts in his official transactions; and (3) where there has been disobedience or resistance by any officer, party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of the courts. As thus seen, the power of these courts in the punishment of contempts can only be exercised to insure order and decorum in their presence, to secure faithfulness on the part of their officers in their official transactions, and to enforce obedience to their lawful orders, judgments, and processes." The court below apparently relied chiefly on the Savin Case, 131 U. S. 267, 9 S. Ct. 699, 33 L. Ed. 150, and the Shipp Case, 203 U. S. 563, 27 S. Ct. 165, 51 L. Ed. 319, 8 Ann. Cas. 265. The Shipp Case is not in point, for that case involved contempt of the Supreme Court whose powers have not yet been held limited by the act of 1831. See the language of Justice Field, supra. Nor does the Savin Case support the construction given below. The court simply held that Savin's attempt to bribe a witness subpœnaed and in the courthouse was contempt within the terms of the statute. In the Cuddy Case, 131 U. S. 280, 9 S. Ct. 703, 33 L. Ed. 154, decided on the same day as the Savin Case, and in which Cuddy was held in contempt, the charge was that he approached a juror. The case came up on habeas corpus, and the court held that there was nothing in the record to show that the court below erred in refusing the writ. The court guarded itself against any implied inconsistency with the Savin decision by the following statements: "It is stated in the brief of appellants' counsel, and the statement was repeated at the bar, that the difference between the Sav in Case, just determined (131 U. S. 267 [9 S. Ct. 699, 33 L. Ed. 150]), and the present case, is, that the misbehaviour constituting the contempt with which Savin is charged occurred in the court building and while the court was in session; whereas, the misbehaviour with which Cuddy is charged did not occur in the court building, nor, so far as the record of the District Court shows, while the court was in session. It was assumed in argument that, under no view of the facts, could the misbehaviour of Cuddy be deemed to have occurred in the presence of the court or so near thereto as to obstruct the administration of justice, and therefore his offense, if punishable at all, was punishable only by indictment. But both the petition for habeas corpus and the record of the District Court are silent as to the particular locality where the appellant approached McGarvin, with a view of improperly influencing his actions in the event of his being sworn as a juror in the case of United States v. Young. That which, according to the finding and judgment, the appellant did, if done in the presence of the court-that is, in the place set apart for the use of the court, its officers, jurors, and witnesses-was clearly a contempt, punishable, as provided in section 725 of the Revised Statutes, by fine or imprisonment, at the discretion of the court, and without indictment." "Unless, therefore, the want of jurisdiction, as to subject-matter or parties, appears, in some proper form, every intendment must be made in support of the judgment of a court of that character. The District Courts of the United States, invested with power to punish, without indictment, and by fine or imprisonment, at their discretion, contempts of their authority, are none the less superior courts of general jurisdiction, because the statute declares that such power to punish contempts 'shall not be construed' to extend to any cases except misbehaviour in the presence of the court, misbehaviour so near thereto as to obstruct the administration of justice, and disobedience or resistance to its lawful writ, process, order, rule, decree, or command. Rev. Stat. § 725. The only effect of this limitation is to narrow the field for the exercise of their general power, as courts of superior jurisdiction, to punish contempts of their authority." The only decision of the Supreme Court, which even arguably lends any support to the government's contention, is Toledo Newspaper Co. v. United States, 247 U. S. 402, 38 S. Ct. 560, 62 L. Ed. 1186. In that case a bare majority of the Supreme Court held that the District Court might punish as contempt newspaper publications concerning injunction proceedings, tending under the circumstances to create the impression that a particular decision would evoke public suspicion of the judge's integrity and fairness, and bring him into public odium, and would be met by public resistance, and also tending, under the circumstances, to provoke such resistance in fact. But that case on the facts is plainly distinguishable from the one at bar. See the elaborate review of the facts by the District Court in 220 F. 458, and in the Court of Appeals in 237 F. 986. It is also difficult to reconcile some expressions in the opinion with the recent unanimous holding of the Supreme Court in Michaelson v. United States, 266 U. S. 42, 45 S. Ct. 18, 69 L. Ed. 162, 35 A. L. R. 451, decided October 20, 1924. In the Michaelson Case, the provisions in the Clayton Act (38 Stat. 730) for a jury trial in certain classes of contempt have been held constitutional, overruling the court below. 291 F. 940. We may observe, generally, that it is now settled by decisions of the highest court in the land that the broad, almost unlimited, power to punish summarily for contempt, asserted by many courts, may constitutionally be, and has been, limited by legislative enactment. It is now beyond question that the Act of 1831 (Judicial Code, § 268) and sections 21, 22, of the Clayton Act of Octo. ber 15, 1914 (38 Stat. 738 [Comp. St. §§ 1245a, 1245b]) are, in the federal courts, valid restrictions on powers which many courts have asserted as inherent in all real courts. Cf. Merchants' S. & G. Co. v. Board of Trade, 201 F. 20, 26, 29, 120 C. C. A. 582. Another recent and significant decision, showing the critical care with which the Supreme Court of the United States is now guarding this vitally necessary, but highly dangerous, power to punish for contempt, is Cooke v. United States, 267 U. S. 517, 45 S. Ct. 390, 69 L. Ed. 767, decided April 13, 1925. All the implications of this latest decision of the Supreme Court concerning criminal contempt make for the construction that we give to the statute of 1831. Cf. also Craig v. Hecht, 263 U. S. 255, 44 S. Ct. 103, 68 L. Ed. 293; Ex parte Hudgings, 249 U. S. 378, 39 S. Ct. 337, 63 L. Ed. 656, 11 A. L. R. 333. In the case at bar the demurrer to the information should have been sustained. But, if we consider the case made on the evidence adduced at the trial, the government's contention is even more untenable. The acts complained of, right, as Dr. Coll claimed and supported by testimony, or wrong, as the government claimed and supported by very doubtful evidence, were not so near as to obstruct the administration of justice. Our conclusion on this point makes it unnecessary to discuss other assignments of error. But it is proper to add that the decision of the Supreme Court in Cooke v. United States, supra, makes it at least doubtful whether the judge who heard this case was not disqualified. Cf. Cornish v. United States (C. C. A.) 299 F. 283. And we also should add that, as this was a case of criminal contempt (Gompers v. United States, 233 U. S. 604, 34 S. Ct. 693, 58 L. Ed. 1115, Ann. Cas. 1915D, 1044), it is far from clear that there was legally competent evidence warranting the findings of fact reached by the court below. The judgment of the District Court is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion. BINGHAM, Circuit Judge, dissents. REDMOND v. UNITED STATES. (Circuit Court of Appeals, First Circuit. September 22; 1925.) No. 1819. 1. Post office 35-That scheme to defraud was promoted in corporate name is not available to controlling member of corporation as defense. One who, in furtherance of scheme to defraud, organizes a corporation, of which he is the active and controlling member and in whose self from consequences by claiming that he is name scheme is promoted, cannot shield himnot individually liable for corporation's acts. 2. Post office 35-Whether defendants were in position to make pretended purchases of securities held immaterial, if they did not Intend to do so. Whether defendants, charged with use of mails in furtherance of scheme to defraud by pretended purchases of securities, to be paid for by customers in small installments, were in a position to make such purchases, held immaterial, if they did not intend to make them, but rather to appropriate payments made to their own use and benefit. 3. Post office 48 (4)-Scheme to defraud need not be described with more particularIty than is necessary to apprise defendant of its nature. Under Cr. Code, § 215 (Comp. St. § 10385), while scheme or artifice to defraud must be set 8 F.(2d) 24 out in all its substantial elements, it is not necessary that it be described with any further particularity than is necessary to apprise defendant of scheme with which he is charged. 4. Criminal law 447-Testimony by defendant's employee as to records kept in furtherance of scheme to defraud held properly admitted. In prosecution for use of mails in furtherance of scheme to defraud, by pretended purchases of securities for customers, who were to pay for them by small installments, it was not error to admit testimony of employee of defendant as to so-called "blotter sheets" kept by defendant, having blank spaces thereon to be filled in later by entry of purchases of stock from fictitious persons, so that it would appear securities had been ordered when purchase made by customer. 5. Criminal law 186(4)-Post office 49 -Evidence held erroneously admitted in prosecution for use of mails to defraud, but not ground for reversal. In prosecution for use of mails to defraud by pretended purchases of securities for customers, who were to pay for them in installments, it was error to permit witness to testify that confirmations of purchases of stock shown him, which he admittedly had not seen before, were from a particular broker, in absence of evidence of source or genuineness of such confirmations, though not grounds for reversal, in view of Judicial Code, § 269, as amended by Act Feb. 26, 1919 (Comp. St. Ann. Supp. 1919, § 1246). 6. Criminal law 434-Book containing résumé of company's business for year held properly admitted in prosecution for use of mails to defraud. In prosecution for use of mails to defraud, by pretended purchases of securities for customers, who were to pay for them in installments, book containing résumé of company's business for year, and signed by witness under whose supervision it had been made, held properly admitted in evidence. 7. Criminal law 434-Account book, showing transactions with broker, held properly admitted in prosecution for use of mails to defraud. In prosecution for use of mails to defraud, by pretended purchases of securities for cus tomers, who were to pay for them in installments, account book showing transactions with particular broker held properly admitted in evidence, though witness identifying it admitted he had never seen it before, though he evidently knew that such a book was kept. 8. Post office 49-Confirmation of purchases of securities received by United States Marshal in possession of defendant's office held properly admitted in prosecution for use of mails to defraud. In prosecution for use of mails to defraud, by pretended purchases of securities for customers, who were to pay for them in installments, confirmations of sales to corporation, controlled by defendant, received through mails by United States Marshal, who had taken possession of office under warrant issued by bank ruptcy court, held properly admitted in evidence. Bingham, Circuit Judge, dissenting. In Error to the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge. George F. Redmond was convicted of use of mails in furtherance of scheme to defraud · and of conspiracy to so use mails, and he brings error. Affirmed. Leo A. Rogers, of Boston, Mass. (Daniel A. Shea, of Boston, Mass., on the brief), for plaintiff in error. George R. Farnum, of Boston, Mass. (Harold P. Williams, of Boston, Mass., on the brief), for the United States. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. JOHNSON, Circuit Judge. The plaintiff in error, hereinafter called the defendant, was convicted in the court below upon two indictments, in one of which he was charged, with several others, under section 215 of the Criminal Code (Comp. St. § 10385), with the use of the United States mails in furtherance of a scheme to defraud, and in the other with conspiring, under section 37 of the Criminal Code (Comp. St. § 10201), to commit the offense of using the United States mails for the purpose of carrying out the same. In 1915 the defendant caused a corporation, known as G. F. Redmond & Co., to be organized under the laws of the commonwealth of Massachusetts, to do a stock brokerage business, whose capital stock was $100,000, divided into 1,000 shares, of which the defendant held 998, Diggins, his brother-in-law, 1, and Lamont 1, which he testified the defendant had transferred to him. The defendant was the treasurer of this corporation, Diggins clerk, and Lamont its president. Its head office was in Boston, and it had in 1923 13 branch offices, about 11,000 customers and 400 to 500 employees. It had as subsidiaries Withington & Co. and T. F. Manning & Co. It claimed to do business by buying stocks for its customers upon the partial payment plan which, in a booklet issued by it, was stated to be as follows: "When you make the initial payment of 20 per cent., we buy the stock or bond for your account at the market price. This leaves 80 per cent. of the purchase price due us from you, which we carry for you, charging you interest at the rate of 6 per cent. per annum on your debit balance. In effect, we extend you credit on the difference be tween the purchase price of the securities we buy for your account and the amount you pay us. The monthly statement also shows all credits from all sources, including dividends accruing to the securities carried in the customer's account, when there are such credits. Naturally the interest, as well as your monthly payment, becomes less each month. The securities you purchase are our collateral for the credit extended to you." An involuntary petition in bankruptcy was filed against the corporation on March 4, 1924, and receivers were appointed. Previous to this there had been an inspection of the affairs of the company by post office inspectors, who had interviews with Redmond and with Lamont. From the report of the inspectors its appeared that, at the time the company was closed down and its business stopped, it had in its possession securities of the value of about $120,000 and owned others of the value of about $60,000, which it had pledged as collateral, that to purchase all the stock which it had agreed to purchase for its customers would require about $8,000,000, and that it owed its customers about $2,800,000. The evidence disclosed that nobody connected with the company was a member of any stock exchange, that brokerage houses and persons with whom the company claimed to have had business, and from whom its books showed that it received confirmation sheets, were fictitious, and that the amount of stock which it had purchased under its proposed plan could not be ascertained, because certain books of the company had been destroyed by direction of the defendant. These books were the customers' stock ledger and in and out books, showing the purchase of stocks and their transfer. There was evidence from which the jury could find that the confirmations which the company had entered upon its books were fictitious and fraudulent. One Voliner, a receiving clerk in the employ of the company, testified that he received stock from only one New York broker, about one item a week, and that no stock was ever received from other New York brokers from whom confirmations were alleged to have been received. The president of the company, Lamont, testified that: "Our concern had dealings with a New York broker by the name of McCarty; but I do not know him or know whether or not he is a real person. We had dealings with a New York broker by the name of Murray; but I do not know or did not know whether or not he is a real person." As a result of complaints, Post Office Inspector Hall had an interview with Lamont on February 14th, who requested that he wait for the return of Redmond, which was done, and on February 19th he interviewed the latter. At this interview it was computed that, in order to carry out the partial payment plan with 11,000 customers, it would be necessary to expend about $8,000,000. The inspector asked to be allowed to take an inventory of stock on hand, which Redmond refused to have done, on the ground that the certificates were pledged with brokers in many places, and that it would involve a very severe interruption of business to produce them. The post office inspector summed up his efforts to learn about the financial condition of the company in these words: "So I was never able to ascertain from my visits or from my examination precisely what stock sales or purchases had been made by G. F. Redmond & Co." There was evidence from which the jury could find that stocks were not actually purchased and carried for a customer upon his credit, as promised in the booklet issued by the company; that entries were made of purchases in fictitious names of stock whenever a customer entitled to delivery called for delivery of his stock which he had previously purchased, according to a confirmation received by him; that the list of fictitious names was in the possession of one of the. employees of the company, which he was enjoined to keep secret and never show to anybody; and that for his services he was to receive the sum of $50,000 at the end of 2 years. He received his instructions directly from the defendant, who instructed him to go to Mr. Bowman, who would show him the work which he was to do. The scheme to defraud was set out in the indictment as follows: "That said defendants should, under the name and style of G. F. Redmond & Co., Inc., and Withington & Co., falsely pretend and represent that they (the said defendants) were in a position to purchase, and would purchase for and on the account of such persons, so intended to be defrauded, stocks and securities on a partial payment plan, so called, which said partial payment plan was, in substance and effect, as follows: That is to say, that said defendants would purchase stocks and securities for and on the account of such persons so intended to be defrauded, upon the payment of a small initial payment of the purchase price and the payment of the balance due on said purchase price in easy monthly payments; that |