(after stating the facts).

We are of the opinion that the scheme averred in the indictment is within the scheme and artifices contemplated by section 5480; that the scheme is sufficiently pleaded; and that it is sustained by the proof. An elaboration of that conclusion is unnecessary. The case in this respect is fully sustained by the following decisions. U. S. v. Bernard (C. C.) 84 Fed. 634; Stokes v. U. S., 157 U. S. 187, 15 Sup. Ct. 617, 39 L. Ed. 667; U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; Durland v. U. S., 161 U. S. 306, 16 Sup. Ct. 508, 40 L. Ed. 709; U. S. v. Roring (D. C.) 91 Fed. 881; and this disposes of all the errors principally relied upon, except the one relating to the admission of evidence of the revocation by the mayor of plaintiff in error’s license.

The testimony on which that assignment of error is predicated is as follows:

Edward L. Foreign, called as a witness on behalf of the prosecution, testified as follows: Am a police officer. I understand the saloon at 155 Washington Street is still running; I understand a man by the name of Davis is the proprietor. i do not know .of my own knowledge. I cannot state whether Mr. Van Dusen is in business there at present. I think not. 1 met Mr. Van Dusen at 155 AVashington Street on March 10th. I asked him if lie was Mr. Aran Dusen and he said yes sir. I told him I would like to see his license. He brought me over to the bar and showed me the license, and I took the number and the name “Frank Van Dusen.” Which appeared to be on the license and he asked me if I was taking the numbers of licenses all around, and I told him no, only that place. And he asked me the reason and I told him he had not conducted a proper place of business there.

Mr. Foos: I move that be stricken out.

The Court: IIow is that material?

Mr. Childs: I want to siiow by this witness that the license had been revoked.

The Court: That is stricken out. If you want to show that it was revoked, show it.

Mr. Childs: Show he is not in business now.

Aí’\ Foos: AVe do not contend lie is in business, your Honor.

The Court: Q AATiat do you know about that?

A AVhy I was sent there to investigate by the chief of police and Mr.- and myself got three affidavits, and he recommended revocation of the license to Mayor Dunne who revoked it.

Sir. Foos: 1 do not see any materiality in that, your Honor.

The Witness: Here is a revocation.

The Court: That is the best evidence.

Mr. Childs: 1 offer this revocation of license in evidence signed by E. H. Dunne, mayor.

The Witness: That is the original and one copy was 'given to Mr. Van Dusen.

Mr. Childs: Q Is this the original revocation?

A Yes, sir, and the endorsement is on the back by the police officer.

Mr. Childs: I offer this revocation in evidence.

Mr. Foos: I do not see where that is material your Honor, in any way, shape or form of examination, except to excite the prejudice of the jury.

The Court: How is it material ?

Sir. Childs: AArhy to show that he was carrying on this business and that his license was revoked.

The Court: What is the date of the revocation?

A March 14th, 1906.

Mr. Foos: AVhat does that amount to?

The Court: Was he advertising for partners after that?

Air. Childs: Not after that, but this was shortly after Mr. McDermott went into the business with him which was the 12th of February.

*992The Court: I do not believe it is material; objections sustained.

Mr. Foos: I move that the testimony o£ the witness be stricken out.

The Court: Motion overruled. Exception by the defendant.

It will be noted that early in the colloquy, when counsel for plaintiff in error asked the court to strike out the testimony of the witness relating to witness’ taking the number of plaintiff in error’s license, and the reason for taking such number, that plaintiff in error had not conducted a proper place of business, the same was stricken out; and, also, that on plaintiff in error’s objection to the fact of revocation going in as evidence, such fact was excluded. Now the court ought to have excluded as well, the further remark of the witness (a remark not called for however, by any question put) that he was sent there by the Chief of Police to investigate, that he recommended the revocation of the license, and that it was revoked—a failure on the part of the court that would have constituted error, had the attention of the court been specifically called to its presence in the record, and a motion to strike out been made.

But the attention of the court was' not specifically called to this portion of the witness’ testimony. The motion to strike out was_ to strike out the whole of the witness’ testimony. Presumably, bad this remark of the witness—a remark as already stated wholly irresponsive to any inquiry put—been called to the attention of the court, as something still standing in the record, a motion to strike it out would have prevailed; for the court’s mind on that subject had already been twice indicated. Nor can we infer that this testimony was referred to subsequently during the course of the trial; for in that case the court doubtless would have stricken it out, as the other statements were stricken out. So that, these being the circumstances, the matter now objected to appears to have been one of those occurrences, that in a trial of considerable length are lost sight of, and exert no final effect upon the verdict —matters raked out of the record only under the closer inspection that preparations for a court of review brings on.

Now when a writ of error is predicated upon matter appearing in the record like this, the party who brings the writ must show that he has been reasonably specific in calling it to the attention of the trial court. He cannot be permitted to bring such matters to the surface for the first time in the court of review. That would be unfair, both to the court that tried the case, and to the general administration of criminal justice.

Judgment is affirmed.