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Ad : O 6 Pendergast vs. Untied States. commenced before the three year pericd, continued thereafter. Accordingly, it is argued, by analogy to such cases as United States v. Kissel, 218 U. S. 601, 607-608; Hyde v. United States, 225 U. 8. 347, 367-370; Brown v. Elliott, 225 U. 8. 392, 400-401, that the statute of limitations began to run only after the latest act in the execution of the scheme. It is true that the information was drawn on the theory of such a continuing offense. But the difficulty with that theory lies in the nature of the offense described by § 268 of the Judicial Code. That section, se far as material here, limits the power ‘‘to punish contempts’’ to cases of ‘‘misbehavior’’ in the ‘‘presence’’ of the court. If this was an ordinary criminal prosecution brought under § 135 of the Criminal Code (18 U. S. C. § 241) for ‘‘corruptly”’ obstructing ‘‘the due administration of justice’, quite different considerations would govern. The fact that the acts were not in the ‘‘presence’’ of the court would be immaterial. And we may assume that a fraudulent scheme of the character of the present one would constitute a continuous offense under that section. We may also assume that certain ‘‘misbehavior’’ in the ‘‘presence’’ of the court might constitute an offense under § 135 of the Crim- inal Code as well as a contempt under § 268 of the Judicial Code, so as to give a choice between prosecution before a jury and prose- cution before a judge. But the offense of ‘‘misbehavior’’ in the ‘‘presence’’ of the court.does not have the sweep of ‘‘corruptly’’ obstructing or conspiring to obstruct ‘‘the due administration of justice’. Congress restricted the elass of offenses for which one may be tried without a jury. In the present case as in prose- cutions for contempt for wilful violations of injunctions (Gompers v. United States, supra, p. 610) each act ‘‘so far as it was a con- tempt, was punishable as such’’ and therefore ‘‘must be Judged by itself’. As we have said, once the ‘‘misbehavior’’ occurs in the ‘‘presence’’ of the court, the crime is complete. It is con- ceded that but for the misrepresentations made to the court there would have been no ‘‘misbehavior’’ in its ‘‘presence’’ within the meaning of § 268 of the Judicial Code. And it is not claimed that there were any misrepresentations made to the court within three years of the filing of the information; or if May 29, 1939, the date when the court directed the inquiry, be deemed the im- portant one (Gompers v. United States, supra, p. 608) there is no contention that any such misrepresentations were made within three years of that time. It is not fraud on the court which § 268