washing the ceiling above the shaft, he noticed the coupling, and saw that the shaft was in rapid motion; that as he began to work he tried to keep -away from it, because he was afraid of it, and was apprehensive that he might get hurt if he touched it. In other words, the plaintiff's own testimony warranted an inference that he knew that the shaft was not perfectly smooth, and that there might be some slight projections in the vicinity of the couplings, which would catch his clothing if it came in contact with the shaft. Under these circumstances it was erroneous to instruct the jury, as the court did instruct it, in substance, that because the plaintiff claillled "that he could not see that there were set screws protruding on the coupling" when it was in motion, therefore he "did not assume the risk connected with working near a coupling provided with protruding bolts or set screws." If the plaintiff was conscious that he might get hurt if his clothing came in contact with the coupling, and if he tried to keep away from the coupling for that reason. then it would seem to be a reasonable deduction from his testimony that he was aware of the alleged latent dangers connected with the revolving shaft when he began to work in proximity thereto. The general rule of law stated in the foregoing instruction, that an employe does not assume the risk of being hurt by unknown and latent dangers incident to the place where he is set to work, is not denied: but the important issue in the present case appears to have been whether the alleged latent dangers were not in fact well known to the plaintiff, and assumed by him. As we have sufficiently shown. there was evidence from which a jury might well have inferred that he knew that the shaft was not entirely smooth, that he might get hurt if his clothing came in contact with it, and that he tried to avoid it for that very reason, but in a thoughtless moment suffered his arm to approach too near to the shaft, and by so doing sustained an injury from the very risk that he had apprehended and assumed. For error in the instruction the judgment is reversed, and the cause is remanded for a new trial.
UNITED STATES v. WILSON et al. (District Court, D. Oregon. No. 3.594. For the purpose of impeaching the verdict of a jury In a criminal case, the defendant, upon a motion for a new trial, offered the affidavit of one S. to the effect that one of the jurors, before being taken upon the jury, had said to S. that he would lil;:e to get on the jury, and to "cinch" the defendant. This statement was contradicted by the juror, and no explanation was offered of the failure of S.-,vho was deeply interested in the defendant's behalf, and was present at the trial-to disclose the circumstance until after the trial. Held, that the atlidavit was insufficient to impeach the verdict. 2. NEW 'fRIAL-DocmlENTS hIPROPERl,Y IN POSSESSION OF THE .JURY. Upon the trial of several defendants for conspiracy, some 50 letters WNo admitted in evidence provisionally, subject to further proof. Though no further proof was offered, the letters were taken to the jury room, and remained In the possession of the jury two hours; until they were sent for
July 31, 1895.)
UNln;n STATES V. WILSOX.
by the judge and removed. During this time the jury were realling and discussing the letters. Only three of the letters contained statements claimed to be prejudicial to the defendants, and these, under the instructions given by the court relative to other letters in evidence, could not have been regarded by the jury as evidence against the defendants on the only litigated issue. Held, that the jury's possession of the letters was no ground for a new trial.
SAME-STATEMEN'l'S AS TO PENALTY FOR CRIME.
In reply to an inquiry by the jury, the court, with the consent of the defendants' attorney, informed them of the penalty for the crime with which the defendants were charged. The attorney fOT the United States then stated that it was within the power of the court to impose a nominal penalty, to which the court added that the jury were not, therefore, to infer that if the defendants were found guilty the court would impose such a penalty. Held, tllat these proceedings afforded no ground for a new trlal. '
This was an indictment against John Wilson, James Lotan, and Seid Back for a violation of Rev. St. § 5440. After a verdict of guilty, the defendants moved for a new trial. Daniel R. Murphy, U. S. Atty., John M. Gearin, Special Counsel, and Charles J. Schnabel, Asst. U. S. Atty., for the United States. C. W. Fulton, Raleigh Stott, W. W. Thayer, Rufus Mallory, and George O. Stout, for def.endants. BELLINGER, District Judge. The defendants James Lotan and Seid Back move for a new trial on the following grounds: That the evidence is not sufficient to justify the verdict; that the verdict is against law; misconduct of the jury; errors of law occurring at the trial. The defendants submit the affidavit of Garibaldi Stahr, whoswearR to statements made to him, while th.e jury was being impaneled by S. A. Hart, to the effect that he (Hart) would like to get into the jury box; that he would like to cinch that Chinaman,-meaning the defendant S.eid Back. Hart was, shortly after the alleged statements were made, taken upon the jury, after having sworn in his examination touching his qualifications to serve on the jury, that he had not talked with anyone about the case, and had no prejudice against the Chinese defendant, or his race. These statements attributed to Hart by Stahr are contradicted by the affidavit of the juror himself. Stahr says that the statement of Hart was in answer to his own statement that he would "like to get in that jury bOX," and this was assumed by defendants' attorneys, in the argument of the motion, to mean that Stahr was a friend of Seid Back, and desired to get on the jury so as to acquit him of the crime for which he was being tried. If such an affidavit could, under any circumstances, be allowed to impeach a juror, still this affiant is not, in my judgment, entitled to belief. There is no attempt to explain why Stahr should not have made the disclosure contained in his affidavit until after a verdict was returned against the defendant. Hart was sworn on the jury on May 21st. Stahr did not inform anyone of Hart's alleged statements to him until the date of his affidavit, May 28th, although he was deeply interested in behalf ofSeid Back, and was in attendance at the court room in the
hope that he might have an opportunity to serve him. The attorneys for this motion confess themselves unable to explain Stahr's silence during the trial. It is incredible that having this important fact to communicate, and ooing deeply interested in the welfare of Seid Back, he should have kept silent for a period of one week, and until after the verdict was rendered. The fact principally relied upon in support of the motion grows out of the possession by the jury for a time of what are known as the "Dunbar Letters." There are between 50 and 60 letters written by Blum and Dunbar to Maj. John Wilson, at Victoria, and relating, so it is claimed, to the conspiracy charged in the indictment. The admission of these letters in evidence was objected to by the defendants on the ground that they were not proven so as to entitle them to be read in evidence. '1'he court was of this opinion, and, in the state of the proof as to this, admitted the letters "provisionally,"-'-subject to further proof, or to such further examination ap, to the proof already made as should relieve the existing doubt as to their admissibility. No further proof was offered, nor was anything further said, concerning these letters, until the attorney for the government, in the closing argument to the jury, undertook to discuss them. On objection being made, the court refused to permit him to discuss the letters, because they had not been referred to by the attorneys for the defendants in their argument to the jury. and because of the state of the proof concerning them. Some two hours after the jury had retired to deliberate on their ve.rdict, the judge of the court, remembering these letters, asked ·one of the attorneys for the government if they had been taken to the jury room; and, upon receiving an' affirmative answer, he at once sent/a bailiff to the jury room, with instructions to bring the letters away, which was done. The affidavits of some of the jurors nccompany this motion. As to these letters, they show that, "during most of: the" two hours during which they were in possession of the letters, "different jurors were reading and discussing" their contents. Only three of the letters are claimed to be prejUdicial to the defendants. These three letters refer to the amount of money necessary to be charged and collected at Victoria to secure passage ttl Portland, and the landing here, of Ohinese laborers. In one of them the writer says:
"Now be very C111'eful what you do. First, we want to pay the banks anll I cannot work here on less than $60 50 for Land 10 for certificates and fare Olll stl'. dOwn..",
The second of these three letters
"Now be very carefUl. I require $50 each to them through. 10 fare to the boat s(, yoti can pay the other 40 to the bank. That only means 100 to t.hem. up. Suppose you get 10 trip, we can do all in three months. You Jnust remember I have to put up the money here before they get off so you will have to collect and remit before the steamer arrives here."
The third letter repeats the statement in the above quotation as to the necessity the writer is under to "put np here [in Portland] before they get ashore." 'rhl'ee of the jurors make affidavits i'll defendants' behalf, in im· peachment of their own verdict. Two of these affidavits state the
UNIl'ED STATES V. WILSON.
opinions of the affiants that certain other matters particularly stated \V,ere prejudicial to the defendants. The disposition of these jurors, as shown by these affidavits, makes it reasonably certain that if either of these three letters was read or discussed, to their knowledge, by anyone or more of the jury, or if they believed any of the jurors had read these particular letters, they would have stated the fact in the affidavits made by them. There is no inference that, out of some 50 or 55 these 3 were read. To authorize an inference that the jury were influenced by matters not proper for their consideration, and prejudicial to the defendants, the fact that such matters came to their knowledge should be shown. There can be no inference upon an inference,-no inference that the jury were influenced from an inference that they saw the 3 particular letters out of the interdicted batch of 55. But, if the jury did see these letters, they could not have considered them as tending to connect these defendants with the crime charged, under the very explicit instructions of tbe court as to other letters properly in the case,known as the "Mulkey Letters." As to these letters, the court instructed the jury as follows:
"You may consider the letters known In this case as the 'Mulkey Letters.' These letters do not depend for their proof of authenticity wholly upon the testimony of Blum. There Is· the testimony ot witnesses, not accomplices. tending to prove that these letters are in Mlllke;r's handwriting, but as to this there is a conflict in the testimony. It these letters were written by :\fulkey, they tend to establish the conspiracy, and to connect Mulkey with it; but any references you may' find in these letters and in the Dunbar letters to other defendants, not connected with such letters, if you should find such references, are not competent evidence tending to connect the persons so referred to with such conspiracy. The connection ot such other persons must be otherwise shown."
This subject was further adverted to by the court at the conclu· sion of the charge, when the following proceedings were had:
"Mr. Fulton (for the defense): We do not want any other excelltions than those that were taken, at that time, and ma.rked, I think. With this addition, I think Drobably your honor did not intend to state it as you did, or possibly I mIsunderstood you. You stated that acts or declarations of a coconspirator was not sufficient of itself,-I don't know whether you used the word 'itself; or not,-was not sufficient to connect other parties with the conspiracy. The Court: I did not wish to qualify my statement to the jury by the word 'itself.' I say that the acts and statements of one conspirator do not tend In any degree to llrove the conr.ection of another person charged with the conspIracy; that such connection must be established by independent evidElnce, not by the acts in pursuance ot the conspiracy of the conspirators themselves from whom the acts proceed; and I illustrated that by saying that, for instance, the references in the Mulkey letters to other defendants are not to be taken as proving the connection of the other defendants with the conspiracy, but are merely to be taken-those letters are-as proving the existency of a conspiracy, and Mulkey's connection with it, and Blum's. Mr. Fulton: That was what I desired."
Under these instructions, the jury could only consider these letters as tending to prove the existence of a conspiracy between Blum, Dunbar, and Wilson; and, if the plea of not guilty had the effect to put this in' issue, it was, at most, but a technical denial of the existence of a as charged between these three persons. There was no attempt to deny the existence of a conspiracy on the
trial. The attorney who Op the case for the defense admitted ned the existence of a conspiracy that at least included Jackling and Blum, and he stated that they might have been assisted by Dunbar. Another of the attorneys for the defense, in his concluding argument to the jury, said:
"Now, I am willing to concede that Jackling and Blum and Sig Baer were In the conspiracy. I haven't any doubt but what they were, and I don't know but what there were more. There were others in the conspiracy with them. But that does not prove, gentlemen of the jury,that these parties were in that conspiracy; not at all."
This shows that there was no issue of fact on the trial as to the existence of what was constantly referred to during the trial as "the" conspiracy. The issue was as to the connection of the defendants on trial with that conspiracy; and, as to this issue, the rights of the defendants were not affected, under the instructions of the court, by the Dunbar letters. The jury having returned for further instructions, and having, after such instructions were given, asked the court what the punishment was, provided for the crime charged, the court inquired of defendants' attorney Mr. Fulton if there was any objection to an answer to the question asked. Mr. Fulton said there was no objection. The court then stated to the jury the substance of the provision of the statute on that subject. Thereupon the attorney for the United States stated that it was within the power of the court to imprison the defendants for one day, and impose a fine of one dollar. In response to this statement by the attorney for the United States the court said, addressing the jury:
"You are not to infer from the statement made by the attorney for the TJnited States that if the defendants are found guilty the court will only impose a nominal punishment upon them." ·
The object 'of this remark by the court was to prevent the jury from acting upon the suggestion or belief that a verdict of guilty would only result in a nominal or light punishment. It cannot be presumed, in the face of this statement by the court, that the jury would be influenced by the remark of the attorney for the United States to return a verdict against the defendants, under the belief that the court would impose only a slight punishment. The statement of the court to the jury had a contrary tendency,-a tend.ency . to warn them that the punishment not be as suggested by the attorney for the United States, since it warned them against any inference of that character. The motion for a new trial is denied.
UNITED STATES v. THOMAS. (District Court, S. D. California. No. 742.
CRIMINAL LAW-INDtoTMENT-REV. ST.
July 8, 1895.)
§ 5470. .. An Indictment which charges that the defendant did aid in buying, receiving, and selling a draft, "knowing that said draft had been stolen and is insufficient, under'Rev. St. § 5470, which imposes a