
    121 F. 318
    ALASKA COMMERCIAL CO. v. DINKELSPIEL.
    No. 858.
    Circuit Court of Appeals, Ninth Circuit.
    Feb. 2, 1903.
    
      Thomas & Gerstle, Charles S. Johnson, and A. J. Daly, for plaintiff in error.
    W. S. Goodfellow and Charles P. Eells, for defendant in error.
    Before GÍLBERT, ROSS, and MORROW, Circuit Judges.
   GILBERT, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

It is assigned as error that the court permitted counsel for defendant in error to comment upon Exhibit D as being a part of the evidence, and to read the same to the jury, and that the court permitted said paper to go to the jury, and permitted the jury to consider it as part of the evidence in the case. It is evident from the bill of exceptions that the exhibit was by inadvertence, not offered or received in evidence, nor read to the jury. Was the ruling of the court in permitting the jury to consider it as evidence, and in permitting them to take it to the jury room, error, for which the judgment must be reversed? That it was error is too clear to require discussion. But did it affect a substantial right of the plaintiff in error? To answer this question, it becomes necessary to consider the bearing of the exhibit upon the issues which the jury were called upon to decide. The defendant in error had made two classes of deposits with the plaintiff in error: First, a series of deposits to be drawn against on account; second, certain deposits in packages for safe-keeping. He testified that the three deposits for which the action was brought were all of the latter class. The receipts which were given by the agent of the plaintiff in error for those deposits were produced in evidence. They were found in the possession of the plaintiff in error, its agent having in some way recovered their possession. The defendant in error was the only witness who testified as to the circumstances of their surrender. The plaintiff in error did not profess to know anything of the transaction, except that the receipts had been issued by its agent, and were found in its possession some time after the agent’s death, and that there were no packages in its possession corresponding thereto. It was its contention that the packages must have been returned to the owner at the time when the receipts were surrendered. The receipt which was given for the deposit of November 23, 1899, differs materially in form from the other two. It does not, upon its face, purport to show that the deposit thereby represented was a deposit for safe-keeping. One of the questions involved in the case, therefore, was whether that deposit was a deposit for safe-keeping, or a deposit to account, to be drawn against. If it was the latter, it had been included in the settlement of the account, and the defendant in error could not recover for it in the present action. The defendant in error testified that he wrote out the receipt before he made the deposit, but that the agent, when he signed it, added thereto the words “not weighed or counted.” These words appear on the receipt, but the defendant in error testified that before the receipt was signed the agent counted the currency and gold coin, and at his request weighed the gold dust; and the witness added, “I wished it' weighed, as I was making the deposit.” The language of the receipt would seem to indicate that it might have been a receipt for money and gold dust deposited on account, but the defendant in error testified that it was for packages left for safe-keeping. Exhibit D tends to corroborate him in that respect. It contains the entry of the deposit referred to in the receipt, and adds the words “for safe-keeping,” words which are not found in the receipt. The clerk who prepared Exhibit D did not testify from what information or from what data he entered those words. As Exhibit D went to the jury, it contained information in writing tending to show that the deposit of November 23, 1899, was made “for safe-keeping,” and was therefore not one of the deposits included in the settlement of July 21, 1900, when, according to the testimony of the defendant in error, he drew down the balance due him on account of deposits made to account, or to be drawn against. The written entry, also, of the date “July 21, 1900,” as shown on Exhibit D, tended to corroborate the testimony of the defendant in error that on that date he still had in his possession, and had not yet surrendered, the three receipts. In fact, his counsel, in addressing the jury, as it appears from the record, referred to Exhibit D, and argued to the jury that the testimony of Platt and the defendant in error that they had these receipts in their possession on July 21, 1900, was confirmed and corroborated by the fact that Exhibit D was made, which paper, he said, was in evidence in the case. The paper never having been offered in evidence, nor submitted to opposing counsel for their examination, the latter had no opportunity to cross-examine the witness who made it concerning the data from which it was prepared, or other circumstances connected therewith. In view of all these considerations, it is impossible to escape the conclusion that to • permit the exhibit to go to the jury as evidence was error for which the judgment must be reversed. We are unable to say how much the jury may have been influenced by such evidence in finding their verdict. It is enough to say that they may have been influenced by it. Bates v. Preble, 151 U.S. 149, 14 S.Ct. 277, 38 L.Ed. 106; Vicksburg & M. R. Co. v. O’Brien, 119 U.S. 99, 7 S.Ct. 118, 30 L.Ed. 299. In the case last cited, Mr. Justice Harlan, speaking for the court, said: “While this court will not disturb a judgment for an error that did not operate to the substantial injury of the party against whom it was committed, it is well settled that a reversal will be directed unless it appears, beyond doubt, that the error complained of did not and could not have prejudiced the rights of the party;” citing Smiths v. Shoemaker, 17 Wall. 630, 639, 21 L.Ed. 717; Deery v. Cray, 5 Wall. 795; Moores v. Nat. Bank, 104 U.S. 625, 630, 26 L.Ed. 870; Gilmer v. Higley, 110 U.S. 47, 50, 3 S.Ct. 471, 28 L.Ed. 62.

The judgment is reversed, and the cause remanded for a new trial.  