EX PARTE HIBBS.
marshal's hands until judgment was recovered in said suit, and an execution levied upon it; that said property has been sold under said execution; and that before said sale took place the intervenor noti· fied both the Cambria Iron Company and said marshal of his claims. Wherefore the petitioner prays that said marshal be ordered to pay and satisfy the petitioner's demands before satisfying said execution. Paul Coste, for intervenor. Taylor d; Pollard, for plaintiff. TREAT, J. Under the agreed statement of facts there is only one question to be determined, viz., whether the lien of an attachment, after wages earned, cuts off the demand for said wages under sec· tion 761, Rev. St. Mo. The obvious purpose of such statute is to make the property of a corporation specially subject to the wages therein named, unless there was, prior to the earning of said wages, a specific lien. A subsequent lien by attachmeut does not deprive the laborer for wages earned, from priority of right therefor. Demurre.r to intervening petition overruled. Payment ordered to the intervenor of the balance in the hands of the marshal, less the costs of said intervention.
February 4, 1886.)
CRIMINAL LAW-INDICTMENT-JOINDER OF OFFENSES-TRIAl< AND PUNISH10lENT THEREFOR.
When two or more distinct offenses are joined in one indictment, under section 1024 of the Revised Statutes, or two or more indictments therefor are consolidated, the jury may find the defendant guilty of one charge and not of another, and may find a verdict as to one or more of the charges, and be discharged from the consideration of the remainder, on which the defendant may be thereafter tried as if a jury had not been impaneled in the case; and the defendant may be sentenced to receive the maximum punishment for each offense or charge of which the jury may find him guilty. A warrant of extradition allowed by the Dominion government, under thetenth article of the treaty of 1842 with Great Britain, recited that the party was accused of the crime of forgery, 9nd had been committed for extradition thereon, without saying what forgery Held, that resort might be had to the proceedings before the committing magistrate, and his report, on which the warrant issued, to ascertain what and how many forgeries the extradition was intended to apply to or include.
EXTRADITION-WARRANT OF EXTRADITION-INTERPRETATION OF.
SAME-FOR WHAT CRIME AN EXTRADITED PERSON MAY BE TRIED.
The treaty aforesaid is not only a contract between the government of Great Britain and the United States, but it is also the law of this land; and a person extradited under it cannot be detained or tried here for a crime, unless enumerated therein and included in the warrant of extradition; and he may; if occasion require, invoke the treaty in any judicial proceeding as a protection against such detention or trial.
The postml}ster at Lewiston, Idaho, issued a postal money order on the application of II. fictitious person, without consideration therefor, payable to a certain [Jank, to which he at the same time wrote in the name of such person, directilig that the amount of the order be .collected and remitted to him at Pierce City, in a registered package, which he intercepted as it passed through his office, and converted the contents to his own use. Held, that the act of the postmaster constituted forgery, both at common law and under the statute of the United States. Section 5463, Rev, St.
On Habeas Corpus. Frank Ganahl, Richard Williams, and George Burnett, for prisoner. James F. Watson and James H. Ha,wley, for defendant. DEADY, J. On December 19, 1885, a writ of habeas corpus was allowed by me, directed to Fred. Dubois, and returnable before this court on December 24th, commanding him then and there to produce the body of Isaac N. Hibbs, together with the cause of his capture and detention. The writ was allowed on the petition of Ella Hibbs, the wife of the prisoner, alleging substantially that in July last said Hibbs was unlawfully delivered to Jo'hn J. Murphy, a post-office inspector of the United States, by "the authorities of British Columbia," on a pretended warrant of extradition, wherein he was charged with the crime of forging a certain postal money order, 22,768, and by said Murphy conveyed to Lewiston, Idaho, where he was indicted for said crime, and "duly acquitted thereof," but that said Dubois has nevertheless taken said Hibbs into his custody, and is transporting him to Decatur, Illinois, there "to be tried upon an alleged and pretended charge of uttering forged money orders," which crime is not mentioned in said pretended warrant of extradition; that the petitioner is unable to ascertain the tenor of the pretended process on which said Hibbs is detained, but she believes and is advised by counsel that the same is illegal, because there is no legal process whatever to authorize the restraint of said Hibbs; and that said Dubois is about to transport said Hibbs through the county of Umatilla, in this district, en 1'oute to Iowa. The writ was served on Dubois on December 21st, as he was passing through Umatilla county with Hibbs in his custody, and, by an arrangement between counsel, he had until .Tanuary 4th to produce the body and make his return to the writ, at which time an order was . made committing Hibbs to the jail of this county pending the proceeding. Owing to the great delay in getting copies of papers from Victoria and Lewiston, the proceeding, by consent of counsel, was delayed from time to time, so that the return was filed on the seventh inst., and the reply thereto on the 15th. The case was heard on the fifteenth, sixteenth, and eighteenth inst., and during the argument, by consent of counsel, copies of the complaint before the committing magistrate at Victoria, in British Columbia, under the Canadian "extradition act of 1877," together with his "judgment" and certificate of committal to the minister of justice of the Dominion government,
and the record of the proceeding in U. S. v. Hibbs, in the district court, at Lewiston, were put in evidence, with the understanding that the facts stated therein should have weight in the consideration and determination of the case according to their legal effect. From the pleadings and papers, it appears that on July 27, 1885, Mr. John J. Murphy, a postal inspector of the United States, made a. complaint at Victoria, in British Columbia, before Hon. Mr. Justice. CREASE, of the supreme court of said province, under the Canadian extradition act of 1877, in which he accused the prisoner, Isaac N. Hibbs, of the crime of forging and uttering, at Lewiston, Idaho, while acting as postmaster thereat, postal money order 22,768, with intent to defraud the United States; and on July 29th made another complaint under said act before said justice, in which he accused said Hibbs of forging and utterinci at the same place, and while so acting as postmaster, 85 other postal money orders, numbered between 22,647 and 22,810, both inclusive, with intent to defraud the United States; that said orders were drawn on the ninth, tenth, and eleventh of April, 1885, for the sum of $100 each; six of them being drawn on each of the following offices: Leadville, Colorado; Decatur, Illinois; Kearney, Nebraska; Lake City, Minnesota; Plankington, Dakota; and Nebraska City, Nebraska; and that said Hibbs, on May 2, 1885, did forge the name of J. G. Wilson on the backs of three drafts, dated April 24, 1885, and drawn by the National Bank of Nebraska City on the National Bank of Omaha in favor of said Wilson for $200 each, which draHs were so issued in payment of the six orders drawn by Hibbs on the office at Nebraska City, and were thereafter negotiated by him through the National Bank at Lewiston. After an examination of the case Mr. Justice CREASE held the prisoner for extradition under the tenth article of the treaty of August 9, 1842, with Great Britain, on all the charges made against him, as appears by "the judgment" which he then delivered and refers to in his report to the minister of justice; and on July 31st he issued a warrant committing Hibbs to the common jail of Victoria, "on the ground of his being accused of the crime of forgery within the jurisdiction of the United States of America," until duly discharged. From this "judgment" it also appears that Hibbs, as postmaster, wrote letters of advice to the postmasters at the several offices on which these orders were drawn, informing them that the same were purchased by J. G. Wilson or W. H. Dent, fictitious persons, so far as appears, and were payable to certain banks, naming them, to which latter he, at the same time, wrote letters, in the name of such purchaser, inclosing the orders, and asking that they be collected, anJ. the funds remitted to the writer in a registered letter, directed to Pierce City, Idaho, which being done, the packages passed through his office, at Lewiston, and were taken ont by him, and the contents converted to his own use; that no application was made for any of these orders,
and no money paid for any of them; and that the prisoner confessed, when arrested, to having obtained by this means over $20,000. On September 10, 1885, a warrant for the extradition of Hibbs was issued by the' minister of justice, addressed to the keeper of the common jail at Victoria and to J. J. Murphy. It recites that Isaac Newton Hibbs, accused of the crime of forgery within the jl1risdiction of the United States of America, "was delivered into the custody of said keeper by the warrant of Mr. Justice CREASE, aforesaid, to await his surrender to the United States of America," and that an application for a writ of habeas corpus, made to the supreme court of British Columbia by said Hibbs, was refused, and commands said keeper to deliver Hibbs to the custody of said Murphy, and the latter to receive him, and convey him within the jurisdiction of the United States, and there place him in the custody of any person appointed thereby to receive him. That thereafter the said keeper, pursuant to said warrant, delivered said Hibbs to said Murphy, who thereupon conveyed him to Lewiston, and there delivered him into the custody of the proper authority for trial on said charge in the district court for Nez Perces county, Idaho; but it does not appear that said Murphy ever had said warrant of extradition in his possession, or that the same is on file in the clerk's office of said court. That on November 20, 1885, the grand jury of said district court found four indictments against Hibbs, thereby accusing him of the crime of forging, at Lewiston, on April 10, 1885, four certain postal money orders for the sum of $100 each, and of uttering one such or· der, with intent to defraud the United States, as follows: No.1, for forging Mder 22,773; No.2, for forging order 22,768; No.3, forging order 22,770, and for uttering the same, well knowing that it was forged; No.4, forging order 22,771, and a letter of advice thereabout of the same number, to the postmaster at the office on which said order was drawn, stating that the same had been purchased by J. G. Wilson, and was payable to the national bank at that place,-Decatur, Illinois,-it being also alleged in indictments 1 and 2 that the defendant therein falsely signed and issued a letter of advice in each of said cases, of the same number as the order mentioned therein, stating that the purchaser of the same was J. G. Wilson, and that it was issued in favor of the national bank at Decatur, Illinois. On the same day a bench-warrant was issued on each of these indictments, indorsed, "Admit to bail in the sum of $3,000," on which Hibbs was brought into court and arraigned, when a plea to the jurisdiction in indictment 1 was interposed, which was argued and considered as a plea to the other three indictments also, to the effect that the indictments in each case charged a crime for which the defendant was not extradited; which plea set forth the circumstances of the arrest and extradition of Hibbs from British Columbia substantially as above stated, but averred that the charge on which he was arrested and extradited was the forging and uttering of order 22,768, and no
other. The court overruled the plea; whereupon a demurrer was filed to one of the indictments on the grounds (1) that it charged more than one offense; and (2) that the facts stated did not constitute any offense,-which was argued and considered as a demurrer to all four of the indictments, and overruled by the court. On December 8th the plea of "not guilty" was entered in each case, and, by consent of counsel, indictments 2, 3, and 4 were ordered "consolidated for the purposes of a trial thereon," which commenced on the following day, and ended on the 16th, with a verdict of not guilty, as charged in the indictment, "of uttering order 22,770," or "of forging order 22,771;" and a statement that the jury were unable to agree on the charge in indictment 2, for forging order 22,768,-which verdict was received, and the jury discharged from the further ation of the case, and "the prisoner was remanded to custody.", Ort the following day the court denied a motion to reduce thebail,and made an order allowing the district attorney to submit to the next grand jury "twenty-seven other charges standing against the defend" ant, as appears by the original complamt on file herein, and the plea to the jurisdiction of the court." Fred. ;T. Dubois, the defendant in this proceeding, is the States marshal for Idaho, to whom the bench-warrants aforesaid were directed and delivered, being issued, as he avers, "by and under the hand of the Hon. NORMAN BUCK, associate justice of the supreme and by virtue court of Idaho," and which are still in his of which he claims to detain the prisoner. He also avers that on December 21st, pursuant to an order of the attorney general of the United States, he took Hibbs from the jail at Lewiston for the purpose of conveying him to the penitentiary at Boise, Idaho, for safekeeping therein, pending his trial on the indictments aforesaid, and, while diligently and in good faith conveying said Hibbs to said prison, he was required to pass through a portion of Umatilla county, Oregon, where he was served with the writ of habeas corpus as aforesaid. But the order of the att.orney general appears to have been made be· fore the extradition took place. It is dated July 13th, and was made in response to a letter from the marshal, of June in which he states the insecurity of the jail at Lewiston. and suggests, in the event of Hibbs' extradition, that he be taken to the prison at Boise. The order provides: "You will cause said Hibbs, if he is extradited, and delivered to you, to
be taken to the penitentiary at Boise City, Idaho, for confinement therein while awaiting his trial, which I understand cannot take place until the November term."
This court has no supervisory power over the district court of Idaho, and will not, therefore, undertake to inquire into the legality or correctness of its proceedings in a matter within its jurisdiction. This writ was allowed on the allegation in the petition that the defendant was removing the prisoner to another jurisdiction, for the
purpose of sub.iecting him to a trial on a charge not embraced in the warrant of extradition.. But it now appears that the prisoner was not being conveyed beyond the limits of Idaho for any purpose, but only to a secure place of confinement therein. Therefore the question of whether thsse bench-warrants arefuncti officiis, because only issued to bring the prisoner into court to answer to· the indictment; or whether the order of the court remanding the prisoner to custody, after the trial on the three indictments, is not itself sufficient authority for the detention of the prisoner; or whether the marshal, under section 1876 of the Revised Statutes, making him the executive officer of the territorial court in a case where the United States is a party, is not the person to execute that order; or whether he might not do 80 by confining the prisoner in the penitentiary at Boise, under section 1892 of the Revised Statutes, as amended by the act of June 20, 1874, (18 St. 112,) putting that prison under the care and control of the marshal of the territory, independent of any direction from the attorney general, for which it does not appear that the statute makes any provision in case of a prisoner merely detained for trial, unless implied in the provisions of section 362 of the Revised Statutes,-will not be considered or decided in this proceeding. It being now conceded that the prisoner is not being conveyed beyond the jurisdiction of the territorial court, so far as these points are concerned, the case will be considered as one where the prisoner may and should seek relief in tbat court for any detention or restraint caused by or result. ing from the use or application of its process or orders after the same have fulfilled their function or served their purpose, or the prisoner for any reason is entitled to be discharged from custody thereunder. Hurd, Hab. Corp. c. 6, §§ 1-3. On the argument a point was made by counsel for the prisoner that the effect of the trial and verdict on the consolidated indictments 2, 3, and 4 was equivalent to a verdict of not guilty generally; that the prisoner, being "extradited for the crime of forgery only, and but Jne forgery, he cannot be held, under the treaty, for trial on any other or further cbarge of forgery. At common law two or more distinct offenses may be joined in one indictment, in separate. counts, when they are of the same general character, and admit of the same mode of trial; and are subject to the same species of pnnishment. Whart. Urim. PI. & Pl'. §§ 285, 2!l4. TlJese indictments were consolidated under the last clause of section 1024 of the Revised Statutes, which authorizes the joinder in one indictment of "several charges against any person for the same act or transaction, or for two or more acts or transaetions connected together," or of two or more distinct crimes of the same class "which may propedy be joined;" and provides that if separate indictments are found in such cases the court may order them consolidated. In cases arising out of the same act or transaction, or two or more acts or transactions connected together, where there are several
counts in the indictment, it will depend on the circumstances of the case whether, on a general verdict of guilty as charged in the indictment, the defendant may be sentenced to more than the maximum punishment for one of the offenses charged. But in the case of two distinct offenses arising out of two distinct acts or tran,sactions, however closely related in point of time or place, the trial is for distinct offenses, of which the defendant may be found guilty and reo ceive the maximum punishment for each; and in either case the jury may find a verdict of guilty as to one count, and not guilty as to another, or they may find a verdict as to one count, and, being unable to agree as to the other, they may be discharged, and the party held for trial on the latter count. U. S. v. Davenport, Deady, 264; Ex parte Peters, 4 Dill. 169; U. S. v. Scott, 4 Biss. 29; U. S. v. O'Callahan, 6 McLean, 596; Whart. Crim. PI. & Pro § 910; 1 Bish. Crim. Law, §§ 1060,1062; U. S. v. Wentworth,l1 Fed. Rep. 52. The act authorizing the joinder of offenses in one indictment and the consolidation of separate indictments for distinct offenses was intended to promote the speedy and economical administration of justice in such cases, in the interest both of the government and the defendant, and not practically to merge two or more distinct offenses latter. Nor is there any reason why into one, for the benefit of a party who has committed two distinct offenses, which, for the convenience of the prosecution as well as the defense, are joined in one indictment, can only be punished as for one, though found guilty of both. Whart. Crim. PI. & Pro § 910. But it is still in the discretion of the court, notwithstanding the statute, to say what offenses may be properly joined or indictments consolidated, without injustice or prejudice to the defendant. In this case the charges are so similar, and the facts so few, that probably the whole 39 charges against the prisoner might properly and conveniently be joined in one indictment. That such joinder might curtail the privilege of taking peremptory challenges to the jury is not material to consider; for it would operate, in this respect, on the prosecution and defense alike. No one has any vested right to peremptory challenges, and congress may diminish or forbid them altogether. On the argument the senior counsel for the prisoner pressed this point, and cited and relied on People v. Liscomb, 60 N. Y. 559, as establishing the general doctrine that a joinder of offenses bas the practical effect of fusing the whole into one crime, for which the defendant cannot be sentenced beyond the maximum punishment there. for, even when the jury find a separate verdict of guilty on each count. There were some peculiar circumstances in this case; but I am inclined to agree with Dr. Wharton (Crim. PI. & Pro § 910) that it is not likely to become a precedent elsewhere. According to my impression of the law, the verdict in U. S. V. Hibbs disposed of indictment 4 and left 2 for trial as if a jury had not been
impaneled t11erein. But indictment 8 is in a peculiar condition. It contains two counts: one for forging, and the other for uttering, order 22,770. The jury found the prisoner not guilty of the "utter. ing," and said nothing as to the forgery. A verdict of guilty on one count, and silence as to another, is generally considered equivalent to a verdict of not guilty as to the latter. Whart. Crim. PI. & .Pr. § 740. But whether the converse of this proposition will hold good is doubtful, but not necessary to decide. No judgment was en· tered on the verdict, nor does any appear to have been asked for. In any view of the matter, then, there are two indictments-l and 2 -pending against the prisoner in the district court of Nez Perces county, charging him with the commission of distinct forgel'ies prior to his extmdition. In addition to these, there are 27 other charges of forgery against him, which the district attorney has leave to sub· mit to the next grand jury. But counsel for the prisoner insist that on the face of the warrant the prisoner appears to have been extradited for one forgery only, without specifying what one, which must therefore be taken to be the One for which he was tried and found not guilty; and, assuming that the prisoner cannot legally be held or tried for any offense other than the One for which he was counsel claim that the prisoner is now illegally l'estrained of his liberty under of the territorial court, which, under. no circumstances compatible with the facts and infer. ences of can any longer be legal or valid, for want of jurisdiction. in said court over the offense or the offender. It must be admitted that on the face of the warrant it does not appear that the extradited for more than one. forgery; and yet he may have been, for anything that appears to the contrary. The warrant simply recites that Hibbs was "accused of the crime of forgery within the jurisdiction of the United States," and that he has been committed by Mr. Justice CREASE for extradition thereon, and authorizes and commands his surrender and extradition accordingly. The writ is ambiguous or indefinite in this particular. The word "forgery" must be interpreted to ascertain whether the warrant was intended to comprehend more than one crime. To do this, the court may consider the circumstances under which it was issued; and these are best shown by a reference to the preliminary stages of the proceeding of which the warrant is but the consummation and end. From these it appears that the prisoner was held by the committing magistrate on 09 distinct charges of forgery, which were certified to minister of justice for a warrant of extradition thereon. If, under these circumstances, the warrant had been issued for any par768, the ticular one of these charges only, as the forging of order first one complained of, the only conclusion possible from the premises would be that extradition on the other charges was refused. But as the W8.nant authorizes the prisoner's extradition on "the crime of forgery," for which he was committed by Mr. Justice CREASE, at
Victoria, "to await his surrender" to the United States, the only reasonable interpretation of the language is that the Dominion government thereby intended and did surrender the prisoner for trial on all the charges of forgery on which he was so committed; and the warrant must be so construed. But the counsel for the prisoner goes further, and contends that the prisoner cannot be legally held anywhere, or for any purpose, on any process issued on the indictment. aforesaid; tile same being absolutely void for the reasons: (1) A person extradited under the treaty of 1842 for one offense cannot be charged with or tried for another; (2) the crime charged in the indictments herein is not forgery u!1der the law of the United States,-therefore the prisoner is being held and proceeded against thereon without law, and contrary to the treaty, and warrant of extradition. The major premise of this argument involves an important and vexed question which must finally be settled by the supreme court. By the tenth article of the treaty with Great Britain of 1842 (Pub. Treat. 320) it is agreed that the parties th"('eto shall, on mutual requisitions by them, "deliver up to justiC'e> o£il persons who, being (lharged with the crime of murder, or assault to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum or shall be found within the territories of the other: provided, that this shall only be done upcn such evidence of criminality as, according to the laws of the place where the fugitive or person so (lharged shall be found, would justify his apprehension and commitment for trial if the crime or offense had there been committed." The remainder of the article simply provides in detail for the arrest and surrender of the fugitive, in case "the evidence be deemed sufficient to sustain the charge." In U. S. v. Caldwell, 8 Blatchf. 131, (1871,) it was held by Judge BENEDICT that the defendant, although extradited on a charge of forgery, might be indicted and tried on a charge of bribery, and, while in effect admitting that this was an abuse of the extradition proceeding that would constitute a good cause of complaint between the two governments, he decided that such complaints were not a proper subject of investigation in the courts, however much they might regret that they were permitted to arise. In short, he held that the question was not a judicial one, but political, and mus.t be referred to the executive departments of the two governments. This case was followed by U. S. v. Lawrence, 13 Blatchf. 295, (1876,) in which Judge BENEDICT adhered to the conclusion reached in U. S. v. Caldwell. In Adriance v. Lagrave, 59 N. Y. 110, (1874,) the court of appeals held that a person brought within the United States on an extradition proceeding, on the charge of burglary, might be arrested <therein in a civil action,-two judges, GROVER and FOLGER, dissent-
ing,-and reversed the judgment of the supreme court to the contrary, given by Judges DANIELS, DAVIS, and BRADY, thus leaving the judicial utterance of the state on the subject as six to five. In Com. v. Hawe8, 13 Bush, 697, (1878,) the defendant was surrendered, under the treaty of 1842, on the charge of forgery committed in Kentucky, for which he was tried and acquitted. He was also indicted for embezzlement in the same court,-an offense for which he could not have been extradited. A motion to put him on trial for this offense was denied by the trial court. On an appeal to the court of appeals, this ruling was affirmed, for the reason, in brief, that by a necessary implication the treaty forbids extradition except on a charge of some one of the offenses enumerated therein, and, being "the supreme law of the land," a party brought into this country for trial under it, had a right to set it up as a defense to a prosecution for any other crime while in custody thereunder. In U. S. v. Watt8, 8 Sawy. 870, S. C. 14 Fed. Rep. 130, (1882,) the defendant, being arraigned in the United States district court for California on three indictments found therein, pleaded to the jurisdiction that he had been extradited, under the treaty of 1842, for offenses other than those alleged in the indictments; which last are not enumerated in the treaty. Judge HOFFMAN, in a very able opinion, containing an exhaustive review of the authorities, including the opinions of jurisconsults and writers on international law, as well as the legislation and diplomatic correspondence on the subject, came to the same conclusions as the Kentucky court of appeals. In State v. Vanderpool, 39 Ohio St. 273, (1883,) the supreme court held that a person extradited under the treaty of 1842 cannot be detained or prosecuted for a different crime, whether included in the treaty or not, ·than the one for which he was surrendered; and that the treaty, being a part of the law of the land, may be invoked in the courts by any person so detained or prosecuted. In Ex parte Ker, 18 Fed. Rep. 167, (1883,) Judge DRUMMOND, of the United States circuit court for Illinois, refused to issue a writ of habeas corpU8 for the deliverance of the petitioner from custody under process of a court of the state. It appears that Ker, after having been indicted in said state court for larceny, went to Peru, where he was kidnaped and brought back to Illinois, and arrested for trial on said indictments. The grounds on which the writ was refused are not definitely indicated, but it was suggested that the petitioner could set the matter up as a defense to the indictments in the state courts, and, if need be, take the case from there to the supreme court on the question. But it is apparent that the petitioner, not having been brought into Illinois under the treaty with Peru, was not in custody under color of the authority of the United States, or in violation of a treaty thereof, and therefore the United States circuit court did not have any jurisdiction to inquire into the legality thereof. Section 753, Rev. St.; Spear, Extr. 185.
EX PARTE HIBDS.
The weight of this array of the authorities is in favor of the propo· sition that an extradited person cannot lawfully be detained or tried on any charge other than the one on which he was surrendered by the extraditing government. The treaty of 1842 is not only a contract between the governments of Great Britain and the United States, but by virtue of the consti· tution of the latter, (article 6,) it is also the supreme law of this land. It contains an explicit enumeration of the offenses for which persons may be extradited under it, and, by a necessary implication, the person surrendered under it is only allowed and held within the juris. diction of the receiving government for the purpose of trial on the charge specified in the warrant of extradition. For the lattergovernment to detain such person for trial on any other charge would be not only an infraction of the contract between the parties tothe treaty, but also a violation of the supl'eme law of this land in a matter di· rectly involving his personal rights. Field, Extr. 107. A right of person or property, secured or recognized by treaty, may be set up as a defense to a prosecution in disregard of either, with the same force and effect as if such right was secured by an act of congress. And so the prisoner cannot lawfully be detained 01' prosecuted, under this extradition, for the crime of uttering any of these money orders; for, although he was charged with the crime of uttering them before the <lommltting magistrate in Victoria, he was neither committed nor surrendered on that account, but solely for the crime of forgery. The only other question in the case is, what is the nature of the crime <lharged in the pending indictments 1 and 2? It has been deter. mined by the proper authority of Canada to be forgery according to the common law,-the law of that country. To what standard we must look for a definition or interpretation of the word "forgery," as used in the treaty of 1842, may be a question. But in a convention made between two countries like Great Britain and the United States, whose lllnguage and laws have a common origin. it is more than probable that the term is used therein in at least as broad a sense as at the common law. There are no common-law crimes against the United States, but terms used in its statutes defining crimes, or making certain acts puuishable as such. are, unless the contrary plainly appears, to be taken and interpreted in the common·law sense. A statute of the United States (section 5463, Rev. St.) provides: ,
"Any person who shall. with intent to defrand. falsely make, forge, connterfeit. engrave. or print * * * any order, in imitation of, or purport. in.q to be. a money order issued by the post-office department. or of any of its postmasters or agents, or any material signatnre or indorsement thereon, * * * shall be pnnished by a fine of not more than $5,000, or by imprisonment at hard labor for not less than two years and not more than five years."
The crime defined in this statute is the common.law crime of forgery, with reference to a postal money order. To "falsely make,
forge, counterfeit, engrave, or print" are all cognate terms, used to define or designate the crime of forgery in some of its many phases. Forgery, at common law, belonged to that class of misdemeanors called "cheats;" but, owing to the serious wrongs and fratids thereby perpetrated, it was distinguished in time by a particular name and a spocial puniShment. Dr. Wharton, (1 Crim. Law, § 653,) citing Blackstone and East, says forgery at common law is "the false making or altering, malo animo, of any written instrument." According to Sir James Stephens, (3 Rist. Crim. Law, 186,) the accepted common-law definition of forgery is "making a false document with intent to defraud." Mr. Bishop (2 Crim. Law, § 523) says: "Forgery, at the common law, is the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability." And, reduced to a briefer form, he puts it thus: "Forgery is the fraudulent making of a false writing which, if genuine, would be apparently of some legal efficacy." The false making of a writing is forging at common law. U. S. v. Wentworth, 11 Fed. Rep. 55. The prisoner, as postmaster at Lewiston, was intrusted with public documents designed to facilitate the transfer of small sums of money from place to place, and known as "postal money orders." They were delivered to him in blank, as the agent of the postal department of the government of the United States, for safe-keeping, and with authority to fill up, sign, stamp, and issue anyone of them, when applied to in writing for that purpose, and the amount for which it is 80 filled was paid into his office, and not otherwise. Indeed, it is made a misdemeanor, (section 4030, Rev. St.,) punishable by fine not less than $50 nor more than $500, for a postmaster to issue such an order, under any cIrcumstances, without the previous receipt of the money therefor. The instruments set out in these indictments, and of which the prisoner is tbereby charged with forging, purport to be postal money orders of the United States. They were issued without authority, and contrary to the prohibition of law. They were falsely made, filled up, signed, stamped, and issued by the prisoner, as upon a state of facts which did not exist, with intent to defraud his employer, the United States. This, in my judgment, was a false making within the statute, and such a false making as constitutes the crime of forgery at common law. TIle writing is false, hecause it purports to be what it is not. It purports to be a money order of the United States, issued by its authority, after the receipt oy its agent of the sum named therein, on the application of a real person, while, in truth and in fact, it was issued without such authorityand contrary to law; it was issued without the prepayment of the sum named, on the pretended application of a fictitious person. Admitting the genuineness of these instruments, and nothing appears to the contrary, they had the legal efficacy sufficient to make them a possible or even an efficient means of fraud. 2 Bish. Crim.
Law, 533. Indeed, they were calculated, and exactly calculated, to defraud the United States, by enabling the holder wrongfully to ob· tain from its agents, at the several offices on which they were drawn, the several sums named therein. However, it is contended that a person cannot commit forgery by making a false writing in his own name. But it must be borne in mind that forgery is not necessarily confined to the false writing of another's name. It may be, from the nature of things, that it is more often than otherwise committed in that way; but both reason and authority say that it may be committed in other ways. In 3 Bac. Abr. 745, tit. "Forgery," A, it is said:
"The notion of forgery doth not so much consist in the counterfeiting of a man's hand and seal, * * * but in endeavoring to give an appearance of trnth to a mere deceit and falsity; and either to impose that upon the world as the solemn act of another which he is in no way privy to, or at least to make a man's own act appear to have been done at a time when it was not done, and by force of such falsity to give it an operation which in truth and justice it ought not to have."
And if the deceit consists in making it appear that a man's own act was done under circumstances which would make it valid and genuine, when in fact it was false and unauthorized, the result is the same. In the report for 1840 of the English Commissioners of the Criminal Law, cited by Mr. Bishop, (2 Crim. Law, § 584,) it is said:
"An offender may be guilty of a false making of an instrument, although be sign and execute it in his own name, in case it be false in any material part, and calculated to induce another to give credit to it as genuine and authentic, when it is false and deceptive." And in Regina v. Ritson, L. R. 1 Cr. Cas. 200, (1859,) the very
point so suggested was decided accordingly. A person, being the owner of certain land, sold and conveyed the same to another, who went into possession. Thereafter the vendor conveyed the greater portion of the premises to his son, by an indenture which the}' both executed, and falsely antedated so as to make it appear to have been executed before the real sale took place. Thereupon the son brought suit to eject his father's vendee, who in return caused the parties to the in. denture to be indicted for forgery, of which they were duly convicted. The judges were of the unanimous opinion that the act was forgery. Mr. Justice KELLY, C. B., said "that every instrllment which fraud ulently purports to be that which it is not is a forgery, whether thb falsehood of the instrument consists in the fact that it is made in a false name, or that the pretended date, when that is a material por. tion of the deed, is not the date at which the deed was in fact exe. cuted." And Mr. Bishop, (2 Crim. Law, 585,) after a careful examination of the subject,on authority and principle, concludes: "Plainly, the broad doctrine is not maintainable that it is incompetent for a man to commit forgery of an instrument executed by himself." It may be admitted that this case is not in all particulars like any of thesi:l; that it is what may be called a new case. But in my judg. v.26F.no.6-28
ment there is no difference in law or morals in making a deed with a false date for the purpose of defrauding another, and falsely making and issuing a money order, as postmaster, without consideration or authority for the same purpose. In either case the party does, by force of his falsity and deceit, give the instrument, in the language of the authority above cited, "an operation which in truth and justice it ought not to have." This case also comes within the well-known rule, long since established, that it is forgery for an agent, who has authority to fill, with a particular sum, a blank in a paper signed by his principal, to fill it with a larger one; or to fill it at all without authority. 1 Whart. Crim. Law, §§ 671, 672. In my judgment, the filling the blank in each of these orders with the sum of $100 by the prisoner, when acting as the agent of the United States, contrary to his authority and the positive directions of his principal, being done with intent to defraud, was a false making and forgery thereof. It is not necessary to consider whether the prisoner committed forgery in writing the name of J. G. Wilson on the backs of 'the three drafts on the bank at Omaha. Forgery may be committed by thus writing the name of a fictitious person on an instrument. If the existence of such a person is a question of fact and not law, and the instrument appears to be valid on its face, the offense is complete, provided the act was done with intent to defraud. 2 Bish. Crim. Law, 543. The fraud on the United States was accomplished when the money oxders were paid to the bank for J. G. Wilson, alias Isaac N. Hibbs, and it is not apparent how he can be said to have intended to defraud anyone when he put this alias on the back of these drafts for the purpose of receiving the amount due thereon. And, although the money with which they were purchased may have been stolen from the United States, still the bank was not injured or defrauded by paying them to Hibbs as indorsee of .Wilson, and the fraud on the United States was already perpetrated. In conclusion, my judgment is'that the district court for the county of Nez Perces, Idaho, has jurisdiction of the prisoner, and of the crime 01 forgery for which he was extradited, and wherewith he is charged in the indictments pending thereon, and therefore this writ of habeas corpus must be dismissed, and the prisoner remanded to the custody of the marshal of Idaho. In the consideration of this case, I own, I have not been unmindful of the fact that while the law ought not to be forced or stretched to meet this or any other emergency, it would be a reproach to the law of this country if the prisoner could not be punished for his misconduct while acting as postmaster at Lewiston. It does not appear that his offense is embezzlement. That crime only occurs when an agent or servant converts to his own use property intrusted to his care and possession by his principal or employer. Rapalje & L. Law
UNITED STATES V. SEARCEY.
Diet. "Embezzlement;" 1 Whart. Crim. Law, § 1009. But the United States never intrusted Hibbs with the money he obtained from these several postmasters on these false orders, or in any way gave him the possession thereof. On the contrary, he obtained such possession fraudulently, by means of these false writings; and therefore it seems that, if his conduct does not constitute forgery, it is not embraced in the category of crimes defined and punishable by law. I also think it proper to call attention to the fact that the application for this writ was not made and verified by the prisoner, as required by section 754 of the Revised Statutes. The Oregon Code allows the writ to issue on the petition of the person detained, or that of anyone on his behalf. DoubtlesB, counsel who prepared the application did so under the apprehension that the proceeding waB governed in this particular by the Code, and it waB inadvertently allowed under probably the same apprehension. The prisoner mnst be remanded to the custody of the marshal of Idaho, from whence he was taken; and it is BO ordered.
UNITED STATES V. SEAROEY.
w: D. North Carolina.
SAME-PROVINCE OF COURT AND JURY.
While the court may always instruct the jury as to the force and effect of legal presumptions. presumptions of fact must always be drawn by the jury; and every fact and circumstance which tends to prove any fact which is evidence of guilt is admissible in evidence on the trial.
SAME-PRESUMPTIONS FROM CONNECTED FACTS.
Where presumptions arise from a number of connected and dependentfacts, every fact essential to the series must be proved.
Circumstantial evidence consists of a number of disconnected and independent facts which converge towards the fact in issue as a common center.
WEIGHT OF EVI-
SAME - CIRCUMSTANCES PROVED RY SEVERAL WITNESSES DENCE.
When circumstantial evidence consists of a nUI\lber of independent circumstances coming from several witnesses and different sources, each of which is consistent and tends to the same conclusion, the probability of the truth of the fact in issue is increased in proportion to the number of such circumstances.
CRIMINAL LAW-REASONABLE DOUBT.
The jury must not be satisfied by a mere probability of the truth of the charges in the indictment, but the evidence must produce in their minds an assurance and certainty of guilt beyond a reasonable doubt, before they can pronounce the accused guilty.l
Indictment. H. G. Jones, U. S. Atty., for the United States. J. W. Bowman, W. S. Malone, and A. M. Erwin, for defendant. DICK, J., (charging jury.) 'rhe counsel of defendant stated cor· rectly a well·settled principle of law and rule of evidence which arises in the commencement of your investigation. In all trials for crime, the prosecution must prove, to the satiofaction of a jury, that a crime has been committed, before the jury proceed to inquire as to who is the criminal. This elementary and conservative principle has always been regarded as very important in cases involving the life and liberty of the citizen, and it has generally been strictly observed in the courts. The offense charged in this indictment is the breaking into a distillery warehouse, and gaining access to the contents therein, in the absence of the proper officer. You will first proceed to inquire as to whether the offense charged was committed, and also as to the time when committed, as this fact is very important and material in applying the circumstantial evidence relied on by the prosecution as the ground of conviction. As there is no direct evidence of the breaking and entering into the warehouse, you must consider the facts proved, and determine whether they give rise to presumptions and inferences BuffiC'iently clear and conclusive as to fully satisfy you that the of. fense charged was committed. In criminal trials, juries, in their in· vestigations, often have to rely on presumptions and circumstantial evidence, as persons who commit crimes usually seek the security of secrecy and darkness to perpetrate their unlawful acts. The facts relied on as the foundation of presumptions, and as constituting the basis of circumstantial evidence, must always be clearly proved. I will briefly explain to you the legal doctrine of presumptions. A presumption is it probable inference, which common sense, enlight. ened by human knowledge and experience, draws from the connecISee note at end of case.
tion, relation, and coincidence of facts and circumstances with each other. When a fact shown in evidence necessarily accompanies the fact in issue, it gives rise to a strong presumption as to the existence of the fact to be proved. If the fact in evidence usually accompanies . the fact in issue, it gives rise to a probable presumption of the existence of the fact to be proved. If the fact shown in evidence only accompanies the fact in issue, it gives rise only to a slight and insufficient presumption; but even this fact may, in connection with other relevant and consistent facts and circumstances, constitute an element in circumstantial evidence. There is a difference between the legal doctrine of presumptions and evidence which is purely circumstantial. There are presumptions of law and presumptions of fact. Presumptions of law are usually founded upon reasons of public policy, and social convenience and safety, which are warranted by the legal experience of courts in administering. justice. Some of these presumptions have become established and conclusive rules of law, while others are onlyp1'ima facie evidence, and may be rebutted. The court may always instI'uct a jury as to the force and effect of legal presumptions. Presumptions of fact must always be drawn by a jury ;.and every fact and circumstance which tends to prove any fact which is evidence of guilt is admissible in evidence on the trial of a case. _ Presumptions of fact result from the proof of a fact, or a number of facts and circumstances, which human experience has shown are usually associated with the matter under investigation. Circumstantial evidence, strictly speaking, consists of a number of disconnected and independent facts, which converge towards the fact in issue as a common center. These concurrent and coincident facts are arranged in combination by a mental process of reasoning and inference, enlightened by common observation, experience, and knowledge. Where presumptions arise from a number of connected and dependent facts, every fact essential to the series must be proved. Such evidence is like a chain, in which no link must be missing or broken which destroys its continuity. Circumstantial evidence is, like a wire cable, composed of many small associated but independent wires. Wire cables are often used to sustain ponderous bridges over rivers. The strength of the cable depends upon the number of wires which are combined, but some of the wires may be broken, and yet the cable be sufficiently strong to uphold the structure. As no <lhain is stronger than its weakest link, a chain is less reliable when it has a great number of links, but a wire cable is strengthened by an increase in thfl number of its wires. This combination of attenuated wires may be stronger than a solid tod of iron of the same size which may have flaws affecting its strength. When circumstantial evidence consists of a number of independent circumstances, coming from several witnesses and different sources, each of which is consistent, .and tends to the same conclusion, the probability of the truth·of the
fact in issue is increased in proportion to the number of such circumstances. In the case before you there are 110 conclusive presnmptions of law. There is a legal presumption as to the innocence of the defendant, and that continues in his favor until you become fully satisfied as to his guilt. There are presumptions of fact as to the breaking and entering the warehouse, and as to the time when the act was done. The evidence as to the person who did the breaking is entirely circumstantial, and you must consider the nature of the circumstances in evidence, and the inferences which they suggest, and determine the question whether they are sufficiently strong to satisfy you beyond a reasonable doubt that the defendant is guilty as charged in the indictment. The witness Williams testified that he was the owner of the warehouse, and had susp'ended operations in his distillery in September, 1883. At the time of suspension there were eleven packages of whisky in the warehouse, and on each of them there was a warehouse stamp, the serial number and name of the owner. The witness went to his warehouse several times with the store-keeper, and withdrew some packages in the manner required by law. He had not visited the warehouse for three months previous to the thirteenth of February, 1884. On the morning of the fourteenth of February, 1884, a barrel of whisky was found above a half mile from the warehouse, near the public road on the way to Hendersonville. This barrel was properly marked for said warehouse, and about 10 gallons of whi'sky had been taken out. The witness, hearing that his warehouse had been broken and entered, went to it with the store-keeper on the sixteenth of February, and found the door locked; but he noticed that the staple had been drawn, and was not driven back to its former depth in the facing, and there were marks on the door indicating that some kind of a prize had been used to draw out the staple. On opening the warehouse he discovered that six packages had been taken away. There is a well-settled rule of law in cases of larceny: That upon proof that a larceny has been committed, and that the property stolen was shortly afterwards found in the possession of the def!'lndant, a presumption arises that he obtained the property feloniously. This presumption is strong if the finding is very 800n after the taking, and the weight of the presumption diminishes as the time of finding becomes more distant from the time of taking. This same l'ule has also been applied as evidence of guilt, in cases of arson and burglary, where property'known to have been in a house at the time of burning or breaking has been soon afterwards found in the possession of a person charged with the crime. In this case, as the barrel of whisky was not found in the possession of any person, no legal presumption arises as to who broke and entered the warehouse.
U:S-ITED STATES V. SEARCEY.
The finding is a fact connected with the transaction under investigation, and may constitute one of a series of circumstances tending to show the criminal actor, and when the act was done. No person had a right to enter the warehouse iu the absence of the store-keeper, and no package could be rigbtfuly removed without having a tax-paid stamp affixed. As the barrel found on the side of the road on the morning of the fourteenth of February had no tax-paid stamp affixed, you may well conclude tho,t'it had been unlawfully removed i from the warehouse. The witness Logan testified that he passed along the road on the evening of the thirteenth of February, and saw no barrel in the place where it was found on the morning of the 14th. You will consider this evidence in connection with the fact that the barrel was on the public road, exposed to public view, in deducing the inference as to the time when the barrel was placed on the spot where it was found. If you are fully satisfied from the evidence that the warehouse was broken open on the night of the thirteenth of February, you will then proceed to inquire who did the breaking. The evidenc" shows that the night of the 13th was dark and rainy. The first inquiry which will naturally suggest itself to your minds is whether there were tracks of any kind around or near the warehouse. Upon this point there is no evidence, and it does not appear what was the nature and condition of the ground,-whether it was hard and covered with decayed herbage, or soft, and capable of receiving impressions from footsteps or the wheels of any kind of vehicle. The warehouse was situated a short distance from the bank of Broad river, and there was a ford near by leading to the public road on the opposite bank of the river. The counsel of defendant insisted in argument that the removal of a number of large and heavy barrels of whisky would neeessnily have left some traces of the depredation. The theory of the district attorney, founded upon some evidence, is that a wagon could be turned around in the ford, and be backed to the bank of the river, near warehouse, and then be loaded by means of skids, and no perceptible impression be left on the ground. These suggestions of counsel are worthy of your consideration in connection with the evidence. There is evidence of frosbly-made wagon tracks in the public road, and that those tracks were traced along the road, and from thence through a plowed field in the direction of the house of defendant, but no witness followed the tracks to the house. On the afternoon of the thirteenth of February the defendant borrowed a one-horse wagon from the witness Hayden, for the professed purpose of hauling rails the next day. Defendant went for the wagon, through the rain, some time after dark, and next day he only hauled a small load of plank from a saw-mill. When the wagon was returned to the owner, the rear axle was broken, and the ends of the bottom planks of the wagon-bed were broken, and split in two places, two or three feet apart. The district attorney insisted that these in-
juries to the wagon-bed were caused by the ends of skids, undu the weight of heavy barrels. The counsel of defendant insisted that such damage was done hy the load of plank hauled from the saw-mill. The witness Littlejohn testified that on the morning of the 14th she went to house of defendant, and saw his clothes, wet and muddy, hanging on the yard fence. The witness Hodges testified that, about three months after the alleged breaking into the warehouse, he found an illicit distillery in the woods about a half mile distant from the house of defendant; that, as he was approaching the distillery, he heard the defendant call out to some one directing him to "bring away the still," and witness soon met the witness Watson with a still on his back. When he entered the distillery he found a whisky barrel in use as a "singling tub." One head was out, and near by he found a barrel head, on which was a part of the name and serial number of the Williams warehouse. An effort had been made with some dull instrument to obliterate these marks. The witness Howell testified that the defendant told him that he had seen the barrel head in Watson's distillery, and had attempted to cut off the marks with his knife. If you believe this testimony, you may consider the motive of the defendant in endeavoring to efface those marks on the barrel head. The actions of rational persons are usually prompted by some motive, and from the actions you can generally correctly infer the motives from which they spring. The witness Watson testified that he had no interest in the distillery at which he was found by the deputy collector Hodges; but he was arrested, tried, and convicted for the offense of illicit distilling at that place. He further stated that in the summer of 1884 he went to the house of defendant, and on request promised to assist him in removing a barrel of whisky to the house -of Mrs. Gibbs. The defendant carried him to a place in an old field, where a barrel was buried in the ground, and was covered with a pile of old rails. There was Ii warehouse stamp on the barrel, but he could not speak of the marks on the barrel, as he was unable to read. I will not make further reference to the testimony of Watson, as I feel sure that you remember all that he said about the transactions at the house of Mrs. Gibbs. He was implicated with the defendant in unlawful transactions, and you can give his testimony such credit as you may think that it deserves. I will not state fully the testimony of the witness Gibbs, as to defendant selling whisky in the woods near his house out of marked barrels. I will not attempt to recapitulate the testimony of the colored witnesses introduced by the district attorney. These witnesses had some difficulties and disputes with the defendant, and their feelings are somewhat hostile to him. You may properly consider the conversations of the defendant
V:\lTED STATES V. SEARCEY.
with Commissioner Thorn and some o,f the witnesses for the prosecution previous to the preliminary investigation of the charges in this case before the commissioner. A jury may legitimately draw inferences from attempts on the part of a defendant to prevent a fair or impartial investigation, by endeavors to tamper with witnesses for the prosecution, or by improper propositions to officers of justice. The rules of evidence and fair argument warranted the district to you that the force of suspicious circumstances, attorney in shown in evidence, is augmented whenever the defendant attempts no explanation of facts which he may reasonably be presumed to be able to explain by testimony which he could conveniently have introduced. The theory presAnted by the defense is that Williams plundered his own warehouse in the absence of the store-keeper. It was shown in evidence that Williams had two grog-shops, situated, one about 10 miles east, and the other about 10 miles west, on the public road passing near the warehouse; that a short time previous to the thirteenth of February, 1883, he was seen passing and repassing the residence of the witness Whitesides on said road, and on one occasion he had a large keg in his buggy. The witness Harris testified that a day or two after the alleged breaking into the warehouse, his brother, while hunting partridges, found an empty barrel in the woods, having on it the mark of the Williams warehouse, not far from the said public road; that he communicated the fact to Williams, and carried him to the place where the barrel was found. When Williams had gone away, he found a place where a colt had been previously tied in the woods, 'and a man's foot-prints near by, made by a No.8 shoe. He measured these foot-prints and tracks, and then compared them with Williams' foot-prints and the tracks of the colt which Williams rode, and found an exact correspondence. It is also in evidence that the young man who found the barrel rode a mule, and he is not present as a witness, and there is no evidence as to the size of his shoes and the tracks of the mule. No reason is assigned for the absence of this young man. The witnesses of the defendant further proved that he had, in the spring of 1884, purchased two barrels of whisky from McFarland, a regularly authorized distiller. I have not recapitulated all the facts and circumstances Bhown in evidence by the prosecution and defense. I feel confident that 12 minds will remember the entire testimony more fully and accurately than I do. You have listened with great patience and attention during the progress of this trial, and I feel sure that you will impartially discharge the important duty imposed upon you by the law, and I hope that you will come to a correct conclusion. You must not be satisfied by a mere probability of the truth of the charges in the indictment, but the evidence must produce in your minds an assurance and
certainty of guilt, beyond a reasonable doubt, before you can 'Properly pronounce the defendant guilty.
The guilt 01 the accused must be established beyond a reasonable doubt. Cornish v. Territory, (Wyo.) 3 Pac. Rep. 793. The rule requiring proofbeyonC! a reasonable doubt does not requITe that the jury be satisfied beyond a reasonable doubt of each separate link in the chain of evidence, isolated from its connection with the other testimony. It is sufficient, taking the testimony all together, if the jury are satisfied beyond a reasonable doubt that the defendant is guilty. Bressler v. People, (111.) 3 N. E. Rep. 521. But in Marion v. State, (Neb.) 20 N. W. Rep. 289, it is questioned whether this rule applies to cases where the evidence relied upon to convict is purely circumstantial. See Walbridge v. State, (Neb.) J.3 N. W. Rep. 209· .A reasonable donbt does not mean all doubt. U. S. v. Wright, 16 Fed. Rep.H2. The doubt must be a SUbstantial, and not an imaginary or speculative, doubt. U. S. v. Keller, 19 Fed. Rep. 633. It must besuch a doubt as a prudent and reasonable man would be likely to act upon in determining important affairs in life, Peoplev. Dewey, (Idaho,) 6 Pac. Rep. 103; or, as has been said, II such a doubt as a man of ordinary prudence, sensibiiity, and decision, in determining an issue of like concern to himself as that before the jury to the defendant, would allow to have any influence whatever upon him, or make him pause or hesitate in arriving at his determination," Leonard v. Territory, (Wash. 1'.) 7 Pac. Rep. 872; .. such a doubt as would cause a reasonable, prudent, and considerate man to hesitate and pause before acting in the graver and more important affairs of life," State v. Pierce, (Iowa,) 21 N. W. Rep. 195 j and such a doubt as fairly and naturally arises in the mind of the jury after fully and carefully weighing and considering the evidence which has been introduced, viewed in all the light and circumstances surrounding the case. State v. Stewart, (Iowa,) 3 N. W. Rep. 99. And it must arise fr6ma candid and impartial consideration of all the evidence in the case. State v. Pierce, (Iowa,) 21 N. W. Rep. 195. .A reasonable doubt is defined in Peo,Ple v. Guidici, (N. Y.) 3 N. E. Rep. 493, as" a doubt for which some good reason from the evidence can be given;" and in Minich v. People, (Colo.) 9 Pac. Rep. 4, as II such a doubt as would cause a reasonable man to hesitate and pause." Judge DICK says, in the recent case of U. S. v. Hopkins, post, 443, that" the inherent .imperfection of language renders it impossible to define 1Il exact and express terms the nature of a reasonable doubt. It arises from a mental operation, and exists in the mind when the judgment is not fully satisfied as to the truth of a criminal charge, or the occurrence of a particular evcnt, or the existence of a thing." . A 'preponderance of evidence in a criminal case is not necessary to raise a reasonable doubt. State v. Porter, (Iowa,) 20 N. W. Rep. 168 j State v. Red, (Iowa,) 4 N. W. Rep. 831. Neither the preponderance of evidence, nor the weight of preponderant evidence, is necessary to raise a reasollable doubt. See Walbridge v. State, (Neb.) 13 N. W. Rep. 209. And it has been said that II clearly proven" does not mean" beyond a reasonable doubt." State v. Stewart, (Iowa,) 3 N. W. Rep. 99. An instruction to the jury directing them to determine the question of the fact of proof beyond a reasonable doubt, "just as they would determine any fact in their own private affairs" is not sufficient, Territory v. Lopez, (N. M.) 2 Pac. Rep. 364; and that It is error to charge that" reasonable doubt" means doubt suggested by or arising out of the proof made, and that in considering the evidence, and arriving at a verdict, "what is called 'common sense' is perhaps the juror's best guide." It is not error to refuse to instruct the jury that if anyone of them entertains a reasonable doubt of the ilefendant's guilt there must be an acquittal, State v. Witt, (Kan.) 8 Pac. Rep. 769; but it is error to instruct that" while each juror must be satisfied beyond a reasonable doubt, to authorize a conviction, such reasonable doubt, unless entertained by all the jurors, does not warrant an acquittal." Stitz v. State, (Ind.) 4 N. E. Rep. 145. Eacll juror is to act upon his own judgment, and if he ell tertaills a l'easollable doubt is not required to surrender his convictions and render a verdict merely because the other jurors entertain no such doubt. State v. Hamilton, (lowa,) 11 N. W. Rep. 5. Proof is deemed to be beyond a reasonable doubt when the evidence is sutficielltto impress the and understanding of ordinarily prudent men with a conviction on which they would act in the most important concerns or affairs of life. Polin v. State, (Neb.) 16N. W. Rep. 898. Where a criminal charge is sought to be proved by circumstantial evidence, the proof must not only be direct. State v. Clemons, (Iowa,) 1 N. W. Rep. 546, but also consistent with the guilt of the accused. and inconsistent with any other rational conclusion. Walbridge v. State, (Neb.) 13 N. W. Rep. 209; People v. Davis, (Cal.) 1 Pac. Rep. 889.
U"JTED STATE::: V. HOPKINS.
fore render probable the hypothesis sought to be established by the prose(.Ution, but they must exclude to a Illoral certainty every hypothesis except the single one of guilt. People v. Davis, (Cal.) 1 Pac. Rep. 889. That testimony not believed does not raise a reasonable doubt. Binfield v; State, (Neb.) 19 N. W. Rep. 607. To establish the defense of an alibi preponderance of evidence is all that is required. Whether a defendant is entitled to acquittal if the evidence of the alibi is sufficient to raise a reasonable of his guilt, qurere. State v. Reed. (Iowa,) 17 N. W. Rep. 150. See State v. HamIlton. (Iowa,) 11 N. W. Rep. 5. It has been held that if there is evidence upon which a verdict of gnilty might reasonably be founded, an appellate court will not interfere, whatever may be their opinion as to the weight or preponderance of the evidence. Cornish v. Territory, (Wyo.) 3 Pac. Rep. 793.
It is not sufficicnt that the circumstances proved coincide witl), account for, and there-
(District Oourt, W. D. North Oarolina.
CRIMINAL LAW-PASSING COUNTERFEIT MONEY-WHAT CONSTITUTES Tl£RFEIT COIN.
A counterfeit coin is one made in imitation of a genuine coin. it is not necessary that the resemblance should be exact in all respects. The resemblance is sufficient if the coins are so far alike that the cbunterfeit coin is calculated to deceive a person exercising ordinary caution and observation in the transactions of business, although the counterfeit would not deceive a person who was expert or has particular experience in such matters.
Ordinary caution is such caution as is ordinarily exercised by prudent men in the particular transactions in which they are engaged.
The counterfeit coin must be passed with the intent to deceive before a de· fendant can be convicted of the crime charged. The mere act of passing 8 counterfeit coin on one occasion is not of itself evidence of a purpose to deceive: but the manner in which it was done and the attendant circumstances are to be taken into consideration.
Indictment for Passing Counterfeit Money. 1I. C. Jones, U. S. Dist. Atty., for th,e United States. F. C. Fisher, for defendant. DICK, J., (chm'ging jury.) Before the counsel proceeded to address you upon matters of fact, I required them to present to the court their views upon the questions of law involved in this case. The counsel for the defense insisted that the defendant could not be properly convicted on the first count, as the coin alleged to have been passed to the witness Shelton was so imperfectly executed as not to be calculated to deceive a person exercising ordinary caution and observation. The rule of law upon this subject has often been stated by text writers, and also by judges in the trials of similar cases. A counterfeit coin is one made in imitation of some genuine coin. It is not necessary that the resemblance should be exact in all respects. The resemblance is sufficient if the coins are so far alike that the counterfeit coin is calculated to deceive a person exercising ordinary caution and observation in the usual transactions of business, though the counterfeit would not deceive a person who was expert or has pa.l·ticular experience in such matters. This rule has been more fully applied in cases of written or printed instruments which are 'usecl in