do Jdst what a jury wouldprobablrdo. They would not be itble, and Ida not 8eehow anyone can sit down and figure out, by dollars and cents, from the statements of these witnesses, a satisfactory and mathematical statement of the amount of damages which the party has susta,ined. And I have done this, in my own mind: Taking the fact that this was of sixty-eight hundred dollars in value; that the ra;. ceiver evidently conducted the business fairly an,d satisfactorily, converting the property into cash, so far as he went, and selEng nothing on credit,-.-a. transaction and course of business which' ordinarily,I think, results in more profit than larger sales on credit; the amount of the property that he returned, and the time which the possession was detained from the owner; and also considering the fact that the fees of the receiver have already been taxed against the complainant,-I shall award damages.in:thesum of$250j forwhichsum,with all the costs that have taxed, an,execution will issue. ' '
UNl.'Tl!l])S'1lA'1'ES 11. BURKHARDT. '
At the close of the instructions to the jury the court, in response to a question from a juror, said the jury might give the verdict in the case in which ,the defendant committed the alleged perjury such consideration as they' thought it entitled to, when it also appeared from the record of the prior .aotion, and t:he other evidence before the jury, that the jury therein must have disregarded the evidence of the defendant herein alleged to be false. Held, that th$instruction was erroneous; and, although the verdict of guilty appeared to be fully justified by the evidence, the court could not say, on a motion for 'a new trial, that the error had no appreciable influence on the result, and therefore granted a new trial. '
(Syllabus by the Oourt.)
Indictment for Perjury. Motion for new trial. Lewis McArthUt·, for the United States. W. W. Page, for defendant.
DEADY, J. The defendant is accused by the grand jury of this district of the crime of peljury. The indictment states that on November 29, 1886, the case of Elizabeth Stapletcm v.' Oakland Home I'M. Co., an action to recover damages for the loss of the New Couch Hotel, destroyed by fire in this city on July 10, 1886, was on tria! in this court, when it became and was material to the determination of the issue therein whether said building was destroyed by the procurement of said Elizabeth, and whether the furniture contained therein had been removed therefrom by said Elizabeth· prior to said fire; that the defendant, being then duly sworn as a witness in said case, willfully and falsely: swore that about two weeks before said fire. and about two days before said Eliza-
.. FEDERAL REPORTER.
beth and her family left.said building for the seaside, at TIwaco, Washington Territory, Timothy Stapleton,her husband, with the aid of the defendant, and the knowledge and assistance of said Elizabeth, removed the furniture, bedding, crockery,. carpets, cooking' utensils, and cutlery from said hotel, with the exeeption of the bedsteads, and the mattres!$es thereon, and a sufficient amount of bedding, crockery, cutlery, and cooking utensils for four or .five perSons who remained in the building after the Stapletons left the same, to the Ash-street dock, in Portland, and then and there shipped the same, by the Oregon Railway & Navigation Company, to Ilwaco; whereas, in truth and in fact, as the defendant well knew when he so testified, none of said articles excepting five or six pairs of blankets, a small stove, two pulu mattresses, and sufficient cooking utensils and dishes to accommodate the Stapletons and their children while ,camping at ,IlwacO, were so removed or shipped, but were destroyed by fire in and· with said hotel on July 10, 1886. The defendant pleaded not guilty to the indictment, and was tried thereon May 24, 1887, and found guilty. He now moves for a new trial in arrest of judgment. On the argument nothing was said in support of the motion in arrest of judgment; and the burden of the argument fora new trial was the refusal of the court to allow the defendant to offer proof on the question whether the Stapletons did: cause theN"ew Couch Hotel to be burned, and the remark of the court, in refusing to admit evidence on the subject, that the question had been. decided in their favor in Stapleton v. OaklandHdme Ina. 00., and was altogether immaterial in this case. Certainly there was no errOr in the exclusion of this evidence, or rather in refusing to allow the defendant to go into the question. As was said. by' the court at the if Burkhardtwas indicted for falsely swearing on the trial of John: Doe for the murder ,of Richard Roe, that Doe bought'a'pistol of hiin, about the time ofthe homicide, such as it waselaIniedwas used in the killing, it, would be equally absurd and irrelevant to offer evidence in defense tending to prove that Doe did kill Roe. The remark that the question whether the Stapletons caused the burning of the hotel hali been settled in their favor by the jury that tried the insurance case may have been improper. But it was a mere casual remark, in the course of the colloquy between the court and counsel, and it is not likely that the jury paid any attention to it. And, furthermore, counsel'xor the defendant provoked the remark, and is largely responsible for it.. He endeavored to prejudice the case of the prosecution by indirectly· impressing the jury with the idea that the Stapletons caused the burning oBhe hotel, by insisting, in their presence, that he ought to be allowed to go into that question; and manifesting surprise when he was refused. It is also· claimed that the evidence is insufficient· to support the verdict. . The theprosecutian left no room for reasonable doubt that the defendant, on the trial of Stapleton v. Oakland Home 1m. 00., willfnllyand,falsely swore that the larger portion of the furniture,pai-
UNITED S'l'A'l'ES V. B1:JRKHARDT.
ticularly in value, of the New COuch Hotel, a building fitted for the lodging and boarding of at least 50 persons, was hauled to the Ash-street dock, and shipped to Ilwaco by the defendant and TImothy Stapleton; with the knowledge and, consent of his wife, Elizabeth; that the articles so removed amounted to three wagon-loads,""-one two-horse one, and two one-horse ones; and the shipment took place within a day or two of the departure of the Stapleton's for Ilwaco, and not earlier than , June the 24th. It wa$ also satisfactorily shown that the Stapletons did $end a camping outfit of small value, as stated in,the indictment, on June the 23d, from the hotel to the Ash-street dock,which was shipped ()n June 24, 1886, to Ilwaco, by the Oregon Railway & Navigation Company, and that the defendant helped to put these things in the wagon, and deliver them on the' dock; and there was no testimony tending to show that the Stapletons, or either of them, shipped any othez: of the furniture or furnishings of this hotel to Ilwaco, or elsewhere, about this time, or.at all. An attempt was made by the defense to prove that some articlesboxes and trunks-were taken, away from the hotel during the' high water, and in the early part of June, in express wagons, but it alJiounted to nothing., In a public house, patronized largely by the floating,laboring population, it would have been strange if:eipress wagons were not .coming and going night and day with the baggage and effects of parties going to and from the hotel and steam-boat landings and railway stations. But, besides all this, the testimony did not tend in the least degree to identify any of these transactions with the wholesale removal of the furnishings of the hotel that the d,efendant swore took place, with his assist:ance, on the day before tIle Stapletons went to Ilwaco, June the 23d. An attempt was ,also made in the testimony and argument for the defense to show that the' defendant in his testimony in the insurance case did not confine the removal of the articles to one occasion, but left it indefinite as to time,. But the weight of the evidence is to the contrary. In fact, the impression made by his teatimony in the insurance case, according to my notes, ill that the removal of the goods WItS one continuoustransactiop.; and certainly he said nothing to the On the trial of this case, after hearing the witnesses for the prosecutIOn and the defense, and having his attention called to the matter, he went on the witness stand in his own behalf, and admitted tp,at he 'Sworeonthe former that three wagon-loads', comprising the best part in value of the property of the hotel, Were taken from there to the Ash-street dock within a period of two days, and just prior to the departure ofthe Stapletoos for lliaco; that he marked some of the articles Ilwaco. and accompanied the last load to the dock, and would not say be did accompaoyithe other two IQads also. A new trial is also asked on account of an error in' the instruction of the court. In the progress of the trial the judgment roll in Stapleton v. Oakland Home Ins. .. wasofrered in evidence by the prosecution, to ' ,ilhow a,ctioo, and isSue thereio, ",herein and whereabout the defendant is alleged to have sworn, falsely. After the
illstrnctions to tbe jury were closed, and they were in the act of retiring, one of their number asked thE\.question, "What effect .shall be given to of the jury in the tn$urance case?" to which the court plied, without suggestion 01' from counsel, "Give it such consideration as you may think it entitled to." Upon reflection.! am satisfied. that this.' instruction was erroneous. Whart. Orirn. Ev. § 602a. And while I feel satisfied that the verdict of thejury is fully justified by without thisinstt,uction, yet I cannot, in the nature of' things, be; assured thllt it didn9t have some appreciable influence on the result., The verdict in the, insurance case, in., connection with the evidence, showed that thejury,iQl finding for the plaintiff, must have disbelievE0 the evidence.bf:thedefendant, and that fact may have had some influence with the jury in thiscaf:!e.infinding that the defendant . ' , was guilty of perjury. !tis to be regretted that thisapptJ.rently jus.t verdict must be set aside on account of this error. But the defendant, whatever may, appear tl> be the merit ,or demerit of his case, is entitled to the verdict of a jury thereon impaneled to try the sarne, wi.thou t reference to the finding or opinion. of anYi-other jury in any other case to which he was not a party. . The, motion for a new trial is, tJ.1lowed, and the defendant is held to. bail to await such trial in .the sum of$2,OOO.
STATJAS 1.'. RIDGEWAY.
(Circuit Oourt, 8. D.Geor,gi""
,I. INSANITY-As A DEFENSE-BtmDEN OF PROOF. When adefiindant sets up" plea of insanity, he assumes the burden of proof to sustain the'plea. j " , The possession of spasmodic and abnormal muscular, strength, coincident with great and continuous wlJ,kefulness, a deranged system, great restlessness, an abnormal of the eye, with a vacant expression, are evidences of insanity. " ,
A party who believes, that he·has not slept a moment fQr more than eight. years issuft;ering from a mental delusion which amounts to a mania on that subject. ' ..
4. SAME--J>OWER TO DISTINGUlBHBE;TWEEN RIGHT AND WRONG. If one charged with crime possesses that degree of mental intelligence which
enables ll.j):ll to distinguish ,right and wrong, .as to the particular matter involved in the crime for Which lie is on trial,he is held responsible for hi.s action, although he may suffer from a mental aberration on other matters 'not connected therewith. .' .' , ' .
While the prisoner's manner of testifying, his general bearing as a witness, thefntelligibility and continuity of his testimony, are important matters . to be considered by the jury, these are not conclusive on the q"uestion of his , mental soundness.
SAME-MA.NNER OF TESTIFYING.