APPEAL from a judgment of the Second Judicial District Court, convicting the defendant of making false entries on the books of the Albuquerque National Bank, of which he was president. Affirmed.

The facts are stated in the opinion of the court.

NEILL B. FIELD and F. W. CLANCY for appellant.

Section 1024, Revised Statutes of the United States, under which the court consolidated these cases, has nothing to do with the practice in territorial courts; it refers exclusively to courts of the United States. Clinton v. Englebrecht, 13 Wall. 434; Hornbuckle v. Toombs, 18 Id. 648; United States v. Reynolds, 98 U. S. 145; Same v. Same, 1 Utah, 319. See, also, sec. 910, Revised Statutes, United States; sec. 1910, Id., Organic Act, sec. 10.

When congress conferred upon the territorial district courts the same jurisdiction in causes arising under the constitution and laws of the United States as is exercised by circuit and district courts of the United States, the powers of the latter courts were not conferred. United States v. Williams, 4 Cranch, C. C. Rep. 381; In re George E. Spencer, McArthur and Mackey, 445.

The court should have allowed defendant's peremptory challenge to the juror Chavez. Comp. Laws, N. M. 1884, sec. 2466; Cooley's Const. Lim., p. 319; In re Haynes, 30 Fed. Rep. 768.

The alleged offenses were barred by the territorial statute of limitations and ought not to have been permitted to go to the jury. Comp. Laws, 1884, sec. 2491; Clinton v. Englebrecht, 13 Wall. 434; Hornbuckle v. Toombs, 18 Id. 648; United States v. Reynolds, 98 U. S. 145.

Improper evidence was admitted in this case, which, though afterward withdrawn from the jury,

operated to the prejudice of defendant, and deprived him of a fair trial. Springer v. Young, 3 Pet. 337. See, also, Marshall v. State, 5 Tex. App. 273; State v. Mix, 15 Mo. 160; State v. Wolf, Id. 168; State v. Daubert, 42 Id. 246; Gulf, Colorado & S. F. R'y Co. v. Levy, 59 Tex. 542; Tucker v. Hamlin, 60 Id. 171; Lafayette, etc., R. R. Co. v. Winslow, 66 Ill. 219; Lycoming Fire Ins. Co. v. Reuben, 79 Id. 402; Howe Machine Co. v. Rosine, 87 Id. 105; Cobb v. Griffith, etc., Co., 12 Mo. App. 130; Hopt v. Utah, 120 U. S. 438.

The court erred in reopening the case at the request of the prosecution for the avowed purpose of determining the intent of defendant to deceive the comptroller. No such intent was alleged in the indictment, and such an intent is not within the purview of the statute. United States v. Bartow, 10 Fed. Rep. 874.

There is no evidence in this case to show that defendant is guilty of the offenses charged. If the evidence shows any offense, it tends to prove that defendant may have aided or abetted such making, but did not make any entries himself. Under the statute it is one offense to make the forbidden entry, and another and distinct offense to aid or abet the making. Rev. Stat. U. S., sec. 5209. See, also, Stamper v. Commonwealth, 7 Bush (Ky.), 612; Bland v. Commonwealth, 10 Id. 622; Able v. Commonwealth, 5 Bush. 698; State v. Littell, 12 So. Rep. (La.) 750; United States v. Potter, 56 Fed. Rep. 93, 101; United States v. Eque, 49 Id. 852; United States v. French, 57 Id. 382.

The court erred in reading from a book the statute under which the indictments were found, without setting out the same in writing in its instructions. Territory v. Perea, 1 N. M. 631; People v. Beler, 6 Cal. 247; People v. Payne, 8 Id. 343; People v. Demint, Id. 423; People v. Prospero, 44 Id. 186; People v.

Max, 45 Id. 254; People v. Ah Fong, 12 Id. 345; People v. Sanford, 43 Id. 35; People v. Chavez, 26 Id. 79; Stewart v. State, 50 Miss. 589; State v. Cooper, 45 Mo. 65; Gile v. People, 1 Colo. 61; Feriter v. State, 33 Ind. 284; Widner v. State, 28 Id. 394; People v. Woppner, 14 Cal. 437; State v. Gilmore, 26 La. Ann. 599; Ray v. Wooten, 19 Ill. 82.

The burden of proof never shifts in criminal cases, but the court in effect instructed the jury that it might have been shifted to defendant. This instruction was erroneous, and the only thing to be said on the other side is that other portions of the charge may have cured the error. This is an unsafe and delusive method of meeting error. The better rule is whenever error appears, the presumption is that it has been prejudicial. Thompson v. Wilson, 34 Ind. 97; Bellefontaine R'y Co. v. Hunter, 33 Id. 355; Wiseman v. Wiseman, 73 Id. 116; Wiley v. Givens, 6 Gratt. 284, 285; State v. Patton, 13 Ired. Law, 422; Jackson v. Feather River W. Co., 14 Cal. 25; Carpentier v. Williams, 25 Id. 197; Norwood v. Kenfield, 30 Id. 399; Kepler v. Conkling, 89 Ind. 395; Peterson v. Hutchinson, 30 Id. 38; Union Bank v. Mott, 39 Barb. 185; Thatcher v. Jones, 31 Me. 534; Lane v. Crombie, 12 Pick. 177; Green v. White, 37 N. Y. 406, 407. See, also, People v. Elliott, 80 Cal. 304; People v. Perini, 94 Id. 575; People v. Ribolsi, 89 Id. 498-500; People v. Cheong Foon Ark, 61 Id. 528; People v. Coughlin, 65 Mich. 705; People v. McWharter, 91 Mich. 643; Com. v. McKie, 1 Gray (Mass.), 61; Doan v. State, 26 Ind. 495; Clem v. State, 42 Id. 420; Parker v. State, 35 N. E. Rep. 1108; People v. Millard, 53 Mich. 70; State v. Huffman, 16 Pac. Rep. (Ore.) 644, 645.

The judge stated to the jury what he understood the defendant's evidence to be, and in this undertook to do what should have been left to the jury. Prairie Co. v. Doig, 70 Ill. 54, 55; Comp. Laws, N. M., sec. 2055.

The court failed to properly instruct the jury as to the evidence of an accomplice. United States v. Kessler, 1 Bald. 22; Territory v. Kinney, 3 N. M. (Gil.) 148; 1 Bish. Crim. Proc., sec. 1169; United States v. Troax, 3 McLean, 234.

The court erred in its definition of corroborating evidence. Gildersleeve v. Atkinson, 6 N. M. 257; Remuzon v. Territory, 3 N. M. 651; State v. Buckley, 22 Pac. Rep. 840; Com. v. Holmes, 127 Mass. 424; People v. Melvane, 39 Cal. 615; People v. Clough, 73 Id. 349; State v. Raymond, 20 Iowa, 587.

The court erred in its definition of a reasonable doubt. Dunn v. People, 109 Ill. 645; Miller v. People, 39 Id. 463, 464; May v. People, 60 Id. 120; Cunningham v. People, 88 Id. 462; State v. Pierce, 65 Iowa, 89, 90; Minich v. People, 8 Colo. 454.

The court told the jury, in substance and effect, that the books of the bank and the report must correspond. This was error. United States v. Graves, 53

Fed. Rep. 634.

The court erred in its charge in not submitting the intent of defendant as a question of fact to the jury. People v. Flack, 125 N. Y. 334; People v. Ribolsi, 89 Cal. 498; State v. Lynott, 5 R. I. 295; Bond v. Warren, 8 Jones' Law (N. C.) 191; Glover's Administrator v. Duhle, 19 Mo. 360; Choquette v. Barada, 28 Id. 491; Fine v. St. Louis Pub. School, 39 Mo. 67.

The presence on the jury of persons declared by the statute to be disqualified is fatal to the verdict. Laws, 1891, chap. 95, sec. 2; Hardy v. Sprowl, 32 Me. 312; Mabry v. State, 14 So. Rep. (Miss.) 267; Chase v. People, 40 Ill. 355-357; State v. Jackson, 27 Kan. 583, 586; Eastman v. Wight, 4 Ohio St. 160; Parks v. State, Id. 236; State v. Forshner, 43 N. H. 90, 91; Briggs v. Town of Georgia, 15 Vt. 71, 72; State v. Groome, 10 Iowa, 316; State v. Davis, 12 R. I. 493; Hill v. People, 16 Mich. 355; Burrows v. State, 33 Ga. 406; Cohron v.

State, 20 Id. 752; State v. Nash, 13 So. Rep. (La.) 734; Lamphier v. State, 70 Ind. 321. See, also, following cases of decisions on objections to qualifications of jurors made after verdict: Meyer v. State, 19 Ark. 163; Watts v. Rutte, 30 Ohio St. 35; Cain v. Cain, 1 B. Mon. (Ky.) 213; Stripling v. State, 3 S. E. Rep. 277; Brown v. State, 26 Ga. 441; Sellers v. People, 3 Scam. 414.

The counts of the indictments submitted to the jury do not allege with sufficient certainty wherein the entries are false. United States v. Simons, 96 U. S. 360; United States v. French, 57 Fed. Rep. 387; Remuson v. Territory, 3 N. M. (Gil.) 650; United States v. Chapman, 3 McLean, 390; United States v. Potter, 56 Fed. Rep. 89; United States v. Cruikshank, 92 U. S. 542.

J. B. H. HEMINGWAY, United States attorney, for United States.

The adjudicated cases on the subject do not go to the extent of displacing a United States statute upon a special subject in favor of a general territorial statute adopting the rules of the common law. Page v. Burnstine, 102 U. S. 668.

It is admitted in Hornbuckle v. Toombs, 18 Wall. 648, that the effect of section 1891, Revised Statutes of the United States, is to import into the territories "laws of a general character and universal application, but not those of specific application." And section 1024 is clearly of general, and not specific, application.

But even at common law, in force in this territory, there is no rule or reason to prevent the consolidation of indictments for similar offenses of the grade of misdemeanors. United States v. Vigil, 7 N. M. 298. See, also, Withers v. Commonwealth, 5 Serg. & R. 58; Tweed's Case, 60 N. Y. 559.