\lte throws around the deposition every safeguard. The character of the officers authorized tv take it is liniited in number. All of them are officials under commission and sworn. 'fhe magistrate, after taking the deposition, must retain it himself until he delivers it with his own hand to the court; or, if he sends it, he must seal it up, and it must remain under his seal until opened in court. Thus every precaution is taken to preserve the integrity of the testimony, to assure the court that that which is reported is the exact testimony given by the witness taken down at the time in his presence. Without sucn assurance it is not testimony. In this case weare without such assurance. The terms of the act should .have been complied with, and such compliance certified to the court. The deposition must be suppressed. But in this instance, and in the instances of the two other depositions for the same party heretofore .suppressed on motion of Mr. Bryan, the reasons moving the court to grant the motion are based on the omission or carelessness or inexperi.of the magistrate. There was no fault on the part of the petitioner or of his counsel. Beside .this, the testimony so taken was to be used . before a master, who was ordered to take the testimony in the cause and report it to the court in aid of the court. It thus appears that there is testimony in existence. bearing on the issues in this case which is.. not before th.e court because of the conduct of others not of counselor parties in this cause. Can the court, with this knowledge, go on and try cause without such testimony, if it be within reach? Following the precedent set by Judge S'l'ORY, I will, under these circumstances, give the parties an opportunity of correcting this error. Leave is given to the parties in this case to re-examine by deposition the witnesses whose names are.in the depositions suppressed iQ this cause, provided that such depositions be taken before 1st of September next.
Circuit Oourt. No D.Oalifornia. July 81, 1888.)
A misrecital in the caption of an indictment of the date of its finding, it. reading "]885," for "lSSS," where from the whole record the error appears tobe merely clerical, is not fatal, as the caption is no part of the indictment. S.SAIIIE-REV. ST. U. S. § 1025. . . . Such error also 'comes within the purview of Rev. St. U. S. § 1025, which. provides that no indictment shall be deemed insufficient ·by reason of any defect in matter of form only, which does not tend to prejudice the defendant.
INDICTIIIENT-CAPTION-MISRECITAL OF DATE OF FINDING.
At Law, Motion to quash indictment. Jackson Hatch, U. S. Dist. Atty., for the United States. S. G. HilbIYfn,' for defendant. SAWYER, J. The caption of the indictment, commences as follows:. . "At a stated teim of the said court, hegi;m and hQlden at the city and
UNITED STATES V. BORNEMANN.
county San Francisco,. within and for the district of California, on the first Monday of February in the year of our Lord one thousand eigqt hundred and eightY:five," whereas it should have been eighty-eight, the word "five" by a clerical error having been written for the word" eight." rfhe offense charged is alleged, in the body of the indictment, to have been committed on the 21st day of August, 1885, after the date when the grandjury is recited in the caption to have been impaneled. For this discrepancy between the caption and the body of the indictment, defendant moves to quash. The indictment is signed by "John T. Carey, United States Attorney," who was such officer at the February term, 1888, but not at the February term, 1885. The indictment is indorsed, "A true bill. ALEXANDER BOYD, Foreman;" and it is also indorsed by the clerk of the court, "Presented and' filed in open court, this 1st day of May, A. D. 1888. L. S. B. SAWYER, Clerk." The minutes, journals, and other records of the cpurt show, that the grand jury was in fact impaneled for the February term, 1888, of which Alexander Boyd was foreman, and that a bill lor the offense charged in said indictment, was duly presented and filed on the day indicated by the filing of the bill, while there was no such proceeding indicated anywhere in the records of the court for the February term, 1885. Thus all the records except the date in the caption show that the indictment must been, and in fact, it was found, and presented by the grand jury duly imparteled at the February term, 1888,and the defendant's attorney was present when the jury was impaneled, and took part in their examination. The question is, whether the clerical error, apparent from the whole" record, of writing the word "five," for the word "eight," in the caption, vitiates the indictment. In the opinion of the court it does not. Under the practice in England, to which the criminal practice in the national courts generally, and substantially conforms, in the language of Mr. Archbold, "the caption is no part of the indictment. It is merely the style of the court where the indictment was preferred, which is prefixed as a kind of preamble to the indictment upon the record, when the record is l1'1ade up, or when it is returned on certiorari." Archb. Crim. Pl. 27. He then gives the form of the caption, which is somewhat more full than that of the indictment in this case. Mr. Bishop, after stating that the practice in some of the states is different from that of England, says: "It follows from what has been said, that though the caption is 1\ part the record, it is not of the indictment, and it may be amended to the same extent as the record in any other place." 1 Bish. Crin·. Pro § 661. And he adds: "The commencement, whether in England or this <lountry, is not a part of the indictment. It is a preliminary statement, liable to be corrected, like an indorsement on the indictment by the clerk of the court, or a docket entry, before it becomes of record, or afterwards, in the same manner as any other part of the record. Such is pretty plainly the true view, though the authorities on the question are not entirely uniform and distinct." Id. § 622. So that neither what ie 1echnically,called the "caption" nor the "colllmencement" is a part of the indictment. '
That clerical errors of the kind apparent on the face of the wh91e reeordd6not'vitiate the indictment is determined in . Com. v. Hines, 101 Mass.. 33; Com. v. Stone, 3 Gray, 453; Corn. v. Mullen, 13 Allen, 551; v.TIiompson', 6 McLean, 56. In the case of State v. ,Davidson, 36 Tex'. 825, the facts are not fully stated. But if in point, it is against the current Of authorities where the matter'does not depend upon statutes. In U. S. v. McNeal, 1 Gal. 387, the error was in the body of the indictment. So in State v. Litch, 33 Vt. 67, the error was in the body of the indictment charging the offense to have been committed at an impossible time. These cases ,do not affect the question. We are satisfied that the error in the caption, where the whole record clearly shows it to bea mere clerical error, is not fatal, We also think the case is within the provisions of section 1025, Rev. St., which are that, Cl no indictment found and presented by a grand jury in any district or circuit or other court of the United States shall be deemed insufficient, nor shall trial,judgment,or other proceeding thereon be affected by reason of any defect or imperfection in matter of fonn only, which shall not tend to the prejudice of the defendant." If not within this statute it is difficult to petceive what useful purpose this section can serve. There is no defect- or im perfection that can, possibly, tend to the prejudice of the defendant. The motion to quash the indicio ment is ,
(Diatrlct Oourt, 8. D. OaZifornia. October 28,1887.)
POST-OFFICE-LARCENY :FROM: MAILs.
The second count in an indictment under Rev. St. U. S. § 5467, charged defendant, a clerlt in the Los post-office, with stealing therefrom a registered lettel' addressed to the IJC>stmaster at Santa Monica, and intended to be conveyed by mail, to him. ,The evidence tended to show that defendant received the letter, receipted for it. and in the presence of witnesses put it in the Santa Monica pouch, and locked it; that the pouch was received locked at the railway station, and carried safely, and delivered at Santa Monica locked; that, on opening it there, the card of notification was found, but not tbe letter, and that other persons had access to the Los Angeles post-office bllsides defendant. ,Held, that the jury, if they believed this evidence, must beli6ve beyond a reasonable doubt tht\t defendant removed the letter from the pouch before it left the Los Angeles post-office before they could tind him guilty. By reasonable doUbt is not meant a possible orimaginary doubt, but a doubt that is reasonable in :view of all the evidence adduced. '
CRIMINAL LAW-REASONABLE DOUBT.
,A conviction may be had on evidence alone, where all the circumstances distinctly point to the /tuilt of the accused, and al'e incapable of explanation upon any other reasonable hypothesis.
S:.um-CoNFESSIONS AND ADMISSIONS.
Oral declaratio,lls or admissions, claimed to Jiave been made by the accused, should be viewed with caution, and remarks made by him at the time of af-