PHILLIPS, Circuit Judge.
Berger was convicted and sentenced on three counts of an indictment which charged violations of section 3, title 2 of the National Prohibition Act, section 12, title 27 USCA, and has appealed.
After submission of the case to the jury and after the jury had deliberated thereon for twenty-three hours, the following proceedings occurred:
"By the Court: Gentlemen of the jury, the bailiff told me that the foreman had stated to him...
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