c31:No. 5016

RUDKIN, Circuit Judge
(dissenting):
The writs of error in this and the following case (19 F.[2d] 850) were sued out in the same case and will be considered together. There is little doubt that at least a considerable number of the plaintiffs in error are guilty of the crimes charged, and whether the indictment should be quashed because there was no competent testimony before the grand jury, or because of unlawful threats made against the foreman of the grand jury by one of the prohibition agents, if such threats are established, are questions of minor importance, in which the general public are little concerned. The same is true in large measure as to the use made by government witnesses of the compilation of telephone mess^es under the pretense of refreshing their recollections, although I am clearly of opinion that in this latter respect the rulings of the court below were plainly erroneous.
As stated in the majority opinion, the compilation thus used was prepared in this way: Prohibition agents tapped telephone wires at different places in the city of Seattle, extending over a considerable period of time, and took notes of all conversations passing over the wires in any wise relating to the purchase, sale or transportation of intoxicating liquor. The notes thus taken were turned, over to the wife of one of the prohibition agents and typewritten copies were made thereof. The typewritten copies were then compared with the original notes, and the compilation used by the witnesses was prepared from these typewritten copies, with certain alterations and additions not deemed material here. The original notes and the first copies made therefrom were then destroyed. The witnesses who made use of the compilation in testifying had no part in its preparation and had no knowledge whatever as to the truth or accuracy of the matters therein contained, except such recollection as they might have from hearing the original conversations.
The ruling of the court in permitting such use as was made of the compilation, under the circumstances disclosed by the record, was declared erroneous by this court id the recent case of Jewett v. United States, 15 F.(2d) 955. In that case, government witnesses were permitted to refresh their recollections from notes copied from their previous reports, and in condemning the practice Judge Dietrich said: • ,
“Clearly, we think, these rulings were erroneous. It is one thing to' awaken a slumbering recollection of an event, but quite another to use a memorandum of a recollection, fresh when it was correctly recorded, but presently beyond the power of the witness so to restore that it will exist apart from the record. In the former ease it is quite immaterial by what means the memory is quickened; it may be a song, or a face, or a newspaper item, or a writing of some character. It is sufficient that by some mental operation, however mysterious, the memory is stimulated to recall the event, for when so set in motion it functions quite independently of the actuating cause.
“But that is not the case here presented. The witnesses were unable to testify without having in their hands the copied data to which they could refer for facts which they could not remember; they had no independent recollection thereof. True, they had a general recollection of events to ■which the data pertained, bnt they had to resort to those notes for dates and names and persons, and the quantities and kinds of liquor purchased. Under pressure, it is true, and in reply to leading questions, in some instances they answered that they had an independent recollection; but obviously they answered under a measure of misapprehension, for, if they needed to refer to their records only to arouse a present recollection, the reading of the original records and the making of notes therefrom would have fully served the purpose. It would not have been necessary for them to hold in their hands the copied notes and refer to them while they were giving testimony.”
In the present case, witness after witness, day after day, testified to names, dates, and events, so numerous and with such unerring accuracy, that-it becomes at once apparent that the book, and not the witnesses, was speaking. A better opportunity to color or fabricate testimony could not well be devised by the wit of man. It should be said, perhaps, in deference to the court below, that this case was tried before the decision in the Jewett Case was announced.
But my dissent is based upon much broader grounds. I do not thin]!; that testimony thus obtained by federal officers or federal agents is admissible in any event, however the conversations may he proved. Of course, I agree with the majority that courts will not ordinarily inquire into the manner in which a witness gains his information, but there are exceptions to the rule, as well established as the rule itself. For illustration I need only refer to the many decisions of the Supreme Court, of this court, and of the courts of other circuits, excluding evidence obtained by federal officers and federal agents in raiding private dwellings without search warrants, while the like evidence, obtained in the like manner by private individuals and by municipal and state officers, is universally admitted. Whether this distinction is founded in reason is not for me to say. See dissenting opinion in Burdeau v. McDowell, 256 U. S. 465, 476, 41 S. Ct. 574, 65 L. Ed. 1048,13 A. L. R. 1159.
Here we are concerned with neither eavesdroppers nor thieves. Nor are we concerned with the acts of private individuals, or the acts of municipal or state officers. We are concerned only with the acts of federal agents, whose powers are limited and controlled by the Constitution of the United States. It is a matter -of common knowledge that the protection of the Fourth and Fifth Amendments to the Constitution has been invoked more often and more successfully during the past 10 years then during the entire previous history of the republic. I think it is also matter of common knowledge that there is a growing tendency to encroach upon and ignore constitutional rights. For this there is no excuse. As said by a great constitutional lawyer:
“When the people of this country come to decide upon the acts of their rulers, they will take all these things into consideration. But that presents the political aspect of the case, with which we have nothing to do here. I would only say, in order to prevent misapprehension, that I think it is precisely in a time of war and civil commotion that we should double the guards upon the Constitution. In peaceable and quiet times, our legal rights are in little danger of being overborne; but when the wave of power lashes itself into violence and rage, and goes surging up against the barriers which were made to confine it, then we need the whole strength of an unbroken Constitution to save us from destruction.” Ex parte Milligan, 4 Wall. 2, 75 (18 L. Ed. 281).
But, whatever the tendency may be in the direction I have indicated, in other quarters, fortunately the Supreme Court has set its face against it. That court has consistently and persistently declared that the amendments in question must be liberally construed in favor of the citizen and his liberty, and that stealthy encroachments will not he tolerated. Nor are the guaranties contained in these amendments limited-to houses and papers. Their chief aim and purpose was not the protection of property, but the protection of the individual in his liberty and in the privacies of life. Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232 U. S. 383, 34 S. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Silverthorne Lumber Co. v. United States, 251 U. S. 385, 40 S. Ct. 182, 64 L. Ed. 319; Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647; Agnello v. United States, 269 U. S. 20, 46 S. Ct. 4, 70 L. Ed. 145.
In discussing the protection that surrounds a letter deposited in the mail, in Ex parte Jackson, 96 U. S. 727, 733 (24 L. Ed. 877), Mr. Justice Field said:
“Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to he secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they ean only he opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to he seized, as is required when papers are subjected to search in one’s own household. No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind miist be in subordination to the great principle embodied in the. Fourth Amendment of the Constitution.”
And it is the contents of the letter, not the mere paper, that is thus protected. What is the distinction between a message sent by letter and a message sent by telegraph or by telephone ? True, the one is visible, the other invisible; the one is tangible, the other intangible ; the one is sealed, and the other unsealed; but these are distinctions without a difference. A person using the telegraph or telephone is not broadcasting to the world. His conversation is sealed from the public as completely as the nature of the instrumentalities employed will permit, and no federal officer or federal agent has a right to take his message from the wires, in order that it may be used against him. Such a situation would be deplorable and intolerable, to say the least. Must the millions of people who use the telephone every day for lawful purposes have their messages interrupted and intercepted in this way? Must their personal, private, and confidential communications to family, friends, and business associates pass through any such scrutiny on the part of agents, in whose selection they have no choice, and for the faithful performance of whose duties they have no security? Agents, whose very names and official stations are in many instances concealed and kept from them. If ills such' as these must be borne, bur forefathers signally failed in their desire to ordain and establish a government to secure the blessings of liberty to themselves and their posterity.
The judgment should be reversed.

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