SIBLEY, Circuit Judge.
Convicted and sentenced to life imprisonment a second time for complicity in the killing of a federal officer while engaged in the performance of his duties, Ike Young brings this appeal. He secured a reversal of his first conviction mainly because the prosecution was permitted to impeach Hucel Hamilton, a witness introduced by it, by previous contradictory statements under oath without a showing of surprise or entrapment. Young v. United States, 5 Cir., 97 F.2d 200, 117 A.L.R. 316. The nature of the evidence and the contentions of the parties as there set forth need not be repeated. Several of the assignments of error now made we find so clearly without merit as to require no discussion. We will notice those that seem arguable.
1. It was not a wrongful proof of another offense against Young to permit evidence that he was arrested in the act of running an illicit distillery, because the fatal shooting was done immediately afterwards and nearby by one who, as contended by the prosecution, was posted by Young with instructions to prevent by shooting any approach to the distillery. The operation of the distillery was part of the res gestae; and Young's connection with the shooting could not be understood without reference to it.
2. A government witness Vann, without preliminary challenge as to his mental capacity, testified with apparent intelligence on direct and cross examination. On recall he stated that several years before he had been tried for lunacy and a guardian had been appointed, and that he had twice been in a certain asylum. Proceedings dated in 1928 were produced in which a jury had found that Vann was a "person of unsound mind" and "a proper subject for treatment in a hospital for the insane", and an order was made for his commitment. Another record dated in 1932 showed a second commitment by his own consent and his discharge a year later. Each record shows that alcoholism was his trouble. At the close of the trial a motion was made to exclude Vann's testimony and was denied. There was no error. The commitments did not at all adjudge that Vann did not have mind enough to testify as a witness. The fact that he is at large, and in the last instance was formally discharged, indicates that he recovered from his incapacity, such as it was. His present mental capacity to testify was a preliminary question for the Court upon due challenge. Nothing appears that would compel the Court to exclude his testimony.
3. Some of the evidence against Young consisted of his statements made in jail to fellow prisoners touching his connection with and instructions to the man who did the shooting. It is argued that by a Texas statute confessions of one in custody to be admissible must be in writing and signed after the maker was warned as the statute requires. Vernon's Ann.C.C.P. Tex. art. 727. The statute has no application to a criminal case in a federal court. The common law as modified by federal statute controls. The confession or incriminating statement must be freely and voluntarily made, but nothing else is indispensable. A witness to one of Young's statements was a federal officer disguised as a prisoner. That a deceit was thus practiced does not exclude what Young may have freely said to him. It all goes to the jury for them to consider its weight, under caution by the Court that all alleged confessions are to be scanned with care and accepted with caution.
4. Upon a showing of surprise at the testimony of Hazel Hamilton, the District Attorney was allowed to impeach her by showing her inconsistent testimony in the previous trial. There was nothing done contrary to the law as laid down in the previous decision of this Court. The District Attorney showed that he did not know the witness would change her testimony and that she told him she would not. The judge carefully instructed the jury that her previous testimony was not usable as proof, but only to destroy her present testimony if they thought it had that effect.
5. The point of hottest contest is the handling of the witness Hucel Hamilton, a boy of sixteen years. He is the only surviving witness who really saw the shooting. Before the first trial he made
6. It is assigned as error that the Court did not declare a mistrial when it appeared that the District Attorney "had threatened" the witness Hucel Hamilton. We find no motion for a mistrial in the record. The District Attorney contends that what occurred was not an improper threat but only a warning. Under all the facts and circumstances we think what was said would likely be understood and was in fact understood by the witness as a threat of prosecution for perjury if he did not stand on his first sworn statements. The prosecuting attorney ought to be very careful not to appear to threaten a witness. The judge correctly disapproved of what was done, and in the jury's absence said he would have granted a mistrial if it had appeared that Hamilton had been moved by what Hamilton thought was a threat. Since what got to the jury was that Hamilton in spite of threat was standing on what he now says as true, the whole thing worked out to the advantage of the accused, and there was no cause for mistrial with or without motion therefor.
7. The District Attorney did have Hamilton and his sister arrested for perjury after their testimony was concluded, but not in open Court. Young afterwards sought to recall them to the witness stand. As we read the record the only purpose was to prove these arrests. The judge held them irrelevant to the case on trial, we think correctly. Unless Hamilton or his sister were likely to flee, it would have been more decorous for the government to have withheld its hand in this matter until the trial was over, but the arrest out of Court of these witnesses after they had testified, unknown to the jury except as Young may have brought knowledge to them, is not an error in the trial.
8. The evidence, if believed, was sufficient to convict. The motion for a directed verdict was rightly overruled.