223 U.S.

Argument for the United States.

People v. Gallagher, 100 California, 466; People v. Arnold, 116 California, 682, 687; Smith v. State, 137 Alabama, 22. He becomes "subject to cross-examination and impeachment as are other witnesses." In People v. Dole (Cal.), 51 Pac. Rep. 945; a question as to a former admission was allowed, and State v. Gaylord, 35 Connecticut, 203, 207, a murder case, cross-examination as to credit, was allowed.

The controversy whether the waiver of privilege by a defendant extends to all things relevant to the issue, as held in Guy v. State, 90 Maryland, 29; Lawrence v. State, 103 Maryland, 17; Commonwealth v. Nichols, 114 Massachusetts, 287; Spies v. People, 122 Illinois, 255; State v. Griswold, 67 Connecticut, 290; Clark v. Jones, 87 Alabama, 71; State v. McGee, 25 So. Car. 247; People v. Conroy, 153 N. Y. 174; People v. Tice, 131 N. Y. 651, 655; 8th Ency. Pl. & Pr. 147, 151; Wigmore, § 2276, or is limited to the scope of proper cross-examination, as was perhaps intimated (though not decided) in Spies v. Illinois, 123 U. S. 131, 180; Fitzpatrick v. United States, 178 U. S. 304, 314; Sawyer v. United States, 202 U. S. 150, 165, is deemed immaterial here because the field of the direct examination was the whole fact of guilt or innocence, and any cross-examination that was relevant was necessarily within that field. Indeed, this is generally the case where the witness claiming the privilege is the defendant. Wigmore, § 2276, p. 3155. The error, if any, was harmless.

There is nothing to indicate that the defendant was in the least degree prejudiced by the alleged error, and the discretion of the trial court should not be disturbed. Holt v. United States, 218 U. S. 245; Rea v. Missouri, 17 Wall. 532; Willis v. Russell, 100 U. S. 621, 625.

The further grounds of error advanced in the brief were not assigned, nor have they any merit. Plaintiff in error claims here for the first time that neither the grand jury nor the petit jury were summoned or sworn.

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The defect, if any, was waived. Rodriguez v. United States, 198 U. S. 156; United States v. Gale, 109 U. S. 65; Agnew v. United States, 165 U. S. 36; McInerney v. United States, 147 Fed. Rep. 183.

MR. JUSTICE DAY delivered the opinion of the court.

Plaintiff in error (hereinafter called defendant) was convicted in the District Court of the United States for the Western District of Virginia under an indictment charging him with the violation of §§ 3258, 3279, 3281 and 3242 of the Revised Statutes of the United States. He was sentenced to a fine of $100 and to be imprisoned for a period of thirty days.

The indictment contained seven counts, charging the defendant substantially as follows: That he had in his possession a still and distilling apparatus for the production of spirituous liquors without having had such still and apparatus registered (first count); that he carried on the business of a distiller of spirituous liquors without having given bond (second count), and with the intent to defraud the United States of the tax on such liquors (third count), and also carried on the business of a retail liquor dealer without having paid the special tax therefor (seventh count); that he worked in a distillery for the production of spirituous liquors upon which no "Registered Distillery" sign was displayed (fourth count), and that he delivered raw material, namely, meal, to (sixth count), and conveyed distilled spirits from (fifth count), such distillery.

The case comes to this court, because of the alleged violation of a constitutional right, in compelling the defendant to be a witness against himself. This contention is developed in the bill of exceptions, which shows that at a preliminary hearing before a United States commissioner, after a witness for the Government had testified that he had seen the defendant beating apples at a "still

place" near the home of one Preston Powers, and about four miles from defendant's home, the defendant, without counsel and not having been instructed by the commissioner, voluntarily, in his own behalf, testified that he had beaten apples about thirty steps from the still place; that Preston Powers had hired him for seventy-five cents a day, and had set him to work beating apples, but that he had no interest in the apples, the product from them or the still, and no control of the still, and had merely been hired by the day at a fixed price; that thereupon M. P. Colly, deputy marshal, asked him if he had not worked at a distillery within two years of the warrant in this case, at another time and place, which question the defendant refused to answer until informed by the commissioner, and by the deputy marshal, that unless he did so he would be committed to jail, and he then testified that "he had worked at a distillery and made some brandy last fall near his house, and he paid Preston Powers to assist him"; that upon the trial of the case in the District Court that court, over the objection of the defendant, admitted the testimony of Colly, who repeated the proceedings before the commissioner, including the testimony of defendant, and that the court refused to strike out Colly's testimony or to instruct the jury to disregard it, upon the motion of defendant's counsel, to all of which, at the time, counsel for defendant duly excepted.

The contentions of the defendant are that the judgment should be reversed for the following reasons:

1st. There was no venire facias summoning the grand jury which found this purported indictment.

2nd. The said grand jury was not sworn and consequently could not find an indictment.

3rd. The indictment was defective and the demurrer

should have been sustained to the fourth and sixth counts.

4th. The petit jury that tried this case was not sworn nor summoned.

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5th. The testimony of Colly was illegal and incompetent testimony, and should have been rejected when offered, and if received striken out on counsel's motion.

As to the first, that there was no venire facias summoning the grand jury, there is nothing in the record to show that this objection, if tenable at all, was taken before plea or, indeed, at any time during the trial. Objections of this character are waived unless seasonably taken. United States v. Gale, 109 U. S. 65; Agnew v. United States, 165 U. S. 36; Rodriguez v. United States, 198 U. S. 156; McInerney v. United States, 147 Fed. Rep. 183.

The same observation applies to the second assignment of error, that the grand jury is not shown by the record to have been sworn. The indictment recites that the grand jury was selected, impaneled, sworn and charged, and that they on their oaths present, etc. At this stage of the proceedings this is enough to show the proper swearing of the grand jury. In Crain v. United States, 162 U. S. 625, cited by counsel for defendant, the record was destitute of any showing that the accused was arraigned or pleaded to the indictment. See Pointer v. United States, 151 U. S. 396, 418.

As to the assignment of error that there were certain defective counts in the indictment, the conviction was a general one, and, even if the counts were defective, as alleged, one good count, sufficient to sustain the sentence, is all that is required to warrant the affirmation of a judgment in error proceedings. Dunbar v. United States, 156 U. S. 185.

As to the objection that the petit jury was not sworn: The record discloses that they were "called and empaneled," and, "being selected and tried in the manner prescribed by law, the truth of and upon the premises to speak, and having heard the evidence, the arguments of counsel, and charge of the judge, retired to consider their verdict, and upon their oaths do say," etc. We

think that this sufficiently discloses, upon proceedings in error after conviction, that the petit jury was duly

sworn.

The chief objection contended for in argument concerns the admission in the District Court of the testimony of the defendant before the commissioner. The admission of this testimony is claimed to have worked a violation of the defendant's constitutional rights under the Fifth Amendment to the Constitution, which protects him against self-incrimination. It appears from the bill of exceptions that the defendant voluntarily took the stand and testified in his own behalf. This he might do under the Federal statute (March 16, 1878, 20 Stat. 30, c. 37), making the defendant a competent witness, "at his own request, but not otherwise." We are of the opinion that it was not essential to the admissibility of his testimony that he should first have been warned that what he said might be used against him. In Wilson v. United States, 162 U. S. 613, Wilson was charged with murder. Before a United States commissioner, upon a preliminary hearing, he made a statement which was admitted at the trial. He had no counsel, was not warned or told of his right to refuse to testify, but there was testimony tending to show that the statement was voluntary. At pages 623, 624, this court said:

"And it is laid down that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him, but on the contrary, if the confession was voluntary, it is sufficient though it appear that he was not so warned. Joy on Confessions, * 45, * 48, and cases cited.

He [Wilson] did not testify that he did not know that he had a right to refuse to answer the questions, or that, if he had known it, he would not have answered. . He did not have the aid of counsel;