·.272
i'EDERAL REPORTER.
UNITED STATES'
v.
HINZ
et ale
(Oircuit Oourt, No D. California. May 21.1888
1
Hinz, accused as an accomplice in crime, upon a promise of immuI!ity if he would testify truly before the grand and trial juries, and thereby aid in the indictment and conviction of bis co-conspirators, testified fully before the grand jury. and upon his testilpony a joint indictment was found against his as'sociates in crime arid himself.. After a trial jury had been impaneled to try three of the parties, to whom a separate trial had been granted, Hinz informed the prose.cuting attorney of his determination to so change his testimony as .to partiell ,and thereby.' it impossible. to conl'lct'tbem upon testImony tlien aVRllable; and, upon bemgthreatened WIth a prosecution for perjury, if his testimony should be so changed, he refused to testify at all, and the prosecuting attorney was then constrained to make. and did make, an arrangement with another accomplice to testify upon similu ierms. who, having- testified, was discharg-ed and a nolo pros. as to him entered. Hinz wanhereupon arrested, and held to answer to the indictment. , Afterthl;l,9ther testimony of the prosecutiiln and of the defense was all in, . ,.Hinzoffered! and anx.:ious.. to te.stify in rebuttal,. nis offer was declined. ,Heidi that Hmz,by refusmg to testIfy before the trIal Jury, as he had agreed ,to do, ,notwithstanding his testifying' before thegrsltd jury, had forfeited all righ,L,to imm).lnity or clemency. and subjected himself totrial and conviction; and the, Gourt"refused'to continue the case in order to allow him an opportunity' to' apply' to the president fora pardon before conviction.
CRIMINAL UNITED STATES EVIDENCE-RIGHT 'l'0 IMMUNITy-FORFEITURE BY BAD FAITH.
,2. ,
SAME'-DrSCRETIoN OF C O U R T . '
,
S:: SAM'E. . 4.
, Whetb;er ll,n sc.complice already indicted shall. upon promise of immunity. be sdmittedas a ,witness for the.government "'l' not, is determined by the judges iu their dlscret'ion, as maY best serve the purposes of justice. ,.. .'
, munity appears to have been the principal offender, he should be rejected. 8A.ME'-00NFj;:SBIONB.
If the accomplice offering himselras a witness with the expectation or im-
If an accomplice, haYing made a private conression, upon a promise of pardon by the attorney general, should afterwards refuse to testify. or in bad faith testify falsely, he may be Cl>IlYictedupon the eYidence of that confession.
5. 6
SAME-ACCOMPLIC: TESTIMONY-CORHOBORATWN. "
The court will ad,viseajury not to convict of felony upon. the testimony of an s<;c\lmplicealolle, without corroboration. 1 . '..
SAME. . .
to corroborate each other; but the same rule applies, and the same corrobo.rlttioll:is as if therewllre hut one. 1
If tw6
or more accomplices are produced as witnesses, they are not deemed .: ·
"
7.·
.. ' Alth\lp,gh the prosecuting attorney has no authorIty, to contract that a per. . son convicted of crime shall not be' prosecu'ted, if. when examined asa witness against his accomplices"he declares, fully and fairly, his and their guilt, ,yet when he dDlls,so,under promise of immunity, and,his evide' ce is accepted by thtl colIrt, he is .equitablyentitled to immunity, and a recommendation for
the of the testimony of an accomplice, in order to 1!Ustain a conviction, and the extent of such corroboration, see People v. Elliott, (N. Y.)12 and note: People Y. ;Kunz, (Cal.) Pac. Itep. 836; Patterson v. COIIi.,(Ry.) 5 8. W. E,e"p. 387; PeoplE:' v, Clongh, (Cal.) 15 Pac. Rep. 5; Stlite v. Dana, 10 Atl., Rilp. 127i, Dodson v; 8tate, (Tex.) 6 S. W. Itep.548; Boyd Y. 8tate, Id.853; WIsdom 'l". feo.ple,. ((;010.) 17 PlJ,c. Rep. 519; Pool v. State, (Tex.) 88. W. Rep. 817; BUchannan v. State', Id.e65.' As to who is' an accomplice within the rule, see Sm,ith v. State, (Tex.) 5 S. W. Rep. 219, and note. ' . .. ">1
STATES fl. HINZ.
273
pardon; and should the prosecuting attorney not' enter a nolle proaequ(, but insist upon a trial, the court will continue the case in order to allow time for the accused to apply to the president for a pardon. (Syllabu8 by the Oourt.)
On Motion to Continue Case. Indictment for conspiracy to land Chinese on forged certificates. H. C. Dibble, for motion. J. T. Carey, U. S. Atty., contra. Before SAWYER, Circuit Judge, and HOFFMAN and SABIN, Di.strict ' . Judges. SAWYER, J. In October, 1885, the district Judge called the attention of the grand jury then impaneled to the supposed conspiracy charged in this indictment, and directed that body to investigate the matter. After a full investigation upon the evidence then at the command of the gov· ernment, the grand jury were unable to find an indictment, and the bill was ignored. Afterwards, a fortuitous concurrence of circumstances brought the defendant, Hinz, into communication with Mr. Scott, a deputy-collector, who introduced him to Mr. McPike, the assistant United States attorney. In the conference had, the assistant United States attorney promised Hinz that. if he would disclose all the facts in regard to the conspiracy, and testify to the whole truth fairly before the grand and petit juries, he should not be prosecuted. This proposition having been accepted by Hinz, he was taken before the grand jury at that time in session, by the United States attorney, where he testified fully in regard to the matter, the result of which was the finding of the present bill, charging William A. Boyd, F. D. Ciprico, E. W. McLeah, W. W. Whaley, and the party now before the court, A. Hinz, himself, with the conspiracy in question. Hinz, and deputy-collector Scott, were the only witnesses examined before the grand jury. It was very clear from the evidence developed on the trial of Ciprico, McLean, and Whaley that Scott could not have testified as to many of the principal and essential facts, and that the indictment could not have been properly found upon any evidence then in possession of the government without the testimony of Hinz. All the parties charged, except Hinz, were arrested, and all arrested .were discharged on bail except Boyd, who, being unable to procure bail, was committed to prison, where he remained until the trial of Cipricoand McLean. All the parties arrested having pleaded 110t guilty, on motion of Ciprico, McLean, and Whaley, with the consent of the assistant attorney, who tried the case, a separate trial was granted to them, leavillg Boyd to be tried alone. The United States attorney determined to try Ciprico, Whaley, and McLean first, doubtless believing that he could make a stronger case against them than against Boyd, for Mrs. Boyd was a vitally important witness against those defendants, and .she would be an incompetent witness against her husband; and in this case, had Boyd been on trial at the same time, her testimony would have been inadmissible. A conviction of Ciprico, also, might v .35F.noA-lS
'FEDERAL REPORTER"
to the more cbl'lviction of Boydv The fact that Mrs. hicompetent witpess in ca'le()f a joint trial, may also Boyd would be account. for the readiness of the 'attorney of the Uniteq States to consent to a separate trial. However this may have been, Ii separate trial was granted, and it was determined to try Ciprico, Whaley, and McLean first, an,d the trif1,l was set for Tuesday. March 27th. On the morning of that day,a jbry was impaneled by Asst. Atty. Weller, Mr. MCP1A:e, who was to try the case, being engaged in the trial of another case in the district court; and, after the jury was impaneled, the trial was adjourned over till Thursday, March' 29th. What then o«curred to affect the action of the prosecuting attorney we will state in his own language. taken from his letter to the attorney general, read on behalf of Hinz on this motion,. suggesting a pardon, which we have no doubt is literally and strictly true, as it corresponds exactly with the account given to the court at the time, for the purpose of explaining his sudden change in the course of the proceedings. He says: "On the daythat the jury was impaneled, I met Mr. Hinz; told him that! had no time to go over his testimony again with him; and asked that he furnish me with a written statement he proposed to testify to before the trial jury, which he did. Upon examination, I found that. thegove:rnment could 1,10t depend upon Mr. Hinz as a witness against Ciprico and McLean, they having procUl'edseparate trials from defendant Boyd. This written statement of Mr. Hinz being so much at variance withh'is testimony before the grand jury, my suspicions were immediately aroused. anei T saw at once, that if I were,to depend upon him, Ciprico and McLean WOllld,be acquitted be.yond all question; that defendant Bpyd, from thisoircumstance, would gather hope, and in all probability, the case against him would also fail, and the goyernment suffer the humiliation of not being able to prove the existencllofthe conspiracy, or punish the guilty parties. 1 firmly belieyed at the time that ,Mr. Hinz had been induced by corrupt means to change his testimony, and thereby defeat the government, for his was the only testimony upon which I could depend to'give a history of the rest of the evidence being only in corroboration. Accordingly, on the evening before the trial began, I visitep. thejali where defendant Boyd was, ll,nd inQuced him to turn state's evidence,promising him exemption frolil p,unishment, if he would do BO. He came into the court-room the next morning, ,and was the first witness on tbe stand. I then introduced what corroborati ve testimony I had at hand, and restedthe case." , Mr. Pike, further on in his statement. says: · "It must be admitted that his conduct inofferhig .to change his testimony can 'receive no extenuation, " and '''it is true that by his acts he compelled me to have recourse to Boyd, but this fact did not add to his guilt as a conspira-tor." , ,And in connection with these remarks he submits some considerations for the exercise of clemency. notwithstanding these facts. In his affidavit in opposition to the present motion,' after stating th\' testimony given by Hinz before the grand jury, and the testimony which he proposed to give at the trial, Mr. McPike,among other things, says: "Affiantha(lthree conversations with to what his testimony would De'upon the trial of said cause,-one in affiant'.sprivate office in the presence of H. H. Scotti' one in affiant's rooill'. in 'the office of the
c>pen the
an
STATESV. RINZ.
275 '
United Stat,es a.ttorney'sbffice; and one in the cOlm-room. The last two named were atter tlle jury had been impaneled for the trial of said cause. In each of int;erviews affiant used all honorabJeeffQrts possible to induce eaid Hinzto etate thefacte as he had detailed them bllforethe grand jury,but which saill Hinz declined to do, and steadfastly petsis,tedin changing histes" timony so as to defeat the prosecution. Affiant being put to straits, then summoned the grand jurors, or some of them. for the [email protected] of being prepared to estabJi/:lh the statements made by said Hinz, before that body, and informed said Hinz that. if he insisted upon testifying as threatened by him. he would have him arrested for perjury. Hinz. after being informed by affiant of his purpose to arreat him' for if he should falsify his statemellt made before the grand jury, refueed to testify in the cause at all. In each and all of Said conversations said Hinz refuaed to testify as had theretofore done before said grand jury, but insisted that he would testify as stated in said written J,llernoran4um, which said statement wholly exonerated the defendant Ciprico from 1\11 participation in said conspiracy and charges contained in said indictment. Uudel' these circumstances it was that affiant offered inducements to thedefendant W .A. noyd and procured him to turn state's evidence. After said BO,Yd had taken the witness stand, and had testified,and the prosecution had closed the case tor the government. said Hinz came to alliant, and offered h0,had before the grand jllry, and disclosed to affiant that be, .1finz, ,had pad interviews with defendant Ciprico, anp. that. by certain stiltementsmat;ie to hIm, he bad induced to change 111$ testimouy." Confirmatory of the foregoing statement of Mr. McPike, .Deputy-Col. lector Scott,in his affidavit read on behalf of Hinz, says: "Ai short time beforetbe case came on for triaillgainst Ciprico and McLean, Mr. Hinz came to see affiant, at the custom-homle, and told affiant that it Was that hE] had made a in his testimony before the grand jury, to his McLean at Mr. Boyd's houl:le. There was ,some cunversation onthisI:Qatter betwee,naffiant and Mr. Hinz, alld he then left. Affiant did Mt see Mr. Hinz again till the night before the case was to come on for trial. 'There was then sOllie conversatlOll between affiant, Hinz, and McPike,from whiJh affiant concluded that Hinz would not testify as he had done before the grand Jury. McPike and affiant then thought It would not be safe to put Mr·. Hinz on the stand as a government witness. Affiant further says morning in cuurt he met Mr. Hinz with McPike, Hnd from the conversation tlwnhad, affiant understood that Mr. Hinz would not testify on the trial as he had'testified before the grand jury. " ' And in his affidavit .relj.d in opposition to the motion, Scott furtheJ" states, as follows: .. Affiant furthe,: deposes anp., says that jnst befol'e the trial of Ciprico was coming to be heard, affiant was present at an interview had between said Hinz and said McPike; that in ,said interview said Hmz stated the changes he proposed to make in his testimony, and itwas Wholly atval'iance with what he had theretofore stated the £octcts to be, and with what he testified to befoni the United States grand jury, which had found the, indictment in said case; that changes made in his testimQny were, in subi:llance. that he not see McLean at Buyd's house on the evening of the 8th or 9th of January, 1885: evening of the 8th or 9th January, 1885. at Boyd's that, he there on busio-llsS relative to an in,collJinl{ or outgQingtihip or vt'tlseT; that' itwas the third party present thateyeoing who 'mentioned the Chinese certifidttes, but Ciprico did not; that it was this third party,whothenext,nJorni'hgwent on boa/'d the City of Peking, as said lIinz madet.he reUlark;.' The::damni;ld
/276
FEDERAL REPORTER.
cal bas only given you one hundred instead of five hundred certificates.' HiS changed testimony, in substance, was such that Ciptico was in no way connected with the conspiracy charged, nor with the delivery,· or .knowledge of the delivery, of the certificates to Hinz. Affiant further deposes, and says that, at no time prior to the trial of Ciprico, did said Hinz inform this affiant, that Ciprico had desired him to modify or change his testimony, norof any efforts. that had been made to have hLu change his testimony, nor of any interviews or meetings he had had with Ciprico and others for the purpose, but. on the contrary, affiant says that Hinz, when accused of having meetings with Ciprico, denied that he had seen him, except upon one occasion he had met him on the street; that afUant did not know that Hinz wascorisidering the matter of changing his testimony, as far as Ciprico was concerned, nntil the day the jury was impaneled in the trial of the cause of the United States against Ciprico."
On the trial of Ciprico and McLean, on the cross-examination, in answer to numerous questions by the prosecuting attorney upon matters not called out in the examination in chief, and, consequently; it was the testimony of ,the pro('lecution, Ciprico fully corroborates the idea that, in several interviews, Hinz had admitted that he had dona Ciprico injustice before the grand jury', and indicated a determination to correct his errors at the trial. ,This testimony was given on the trial, bMore the statements of Mr. McPike and Scott, before quoted, were made,and when Ciprico, who was himself taken by surprise at the turn of affairs, could not have known the nature of theinformation upon which the prosecuting attorney changed hi(> course of proceedings from that anticipated. So, also, Hinz's own statement embodied in Mr. McPike's communication to the attorney general, made after Boyd's testimony and his own arrest, when he was extremely anxious to present himself in a most favorable aspect-after he had changed his prior written statement-corroborates the views taken of his action by McPike and Scott, as it shows he had several interviews with Ciprioo,and his attorneys, and discussed this whole subject, and agreed at least to change hig testimony as to McLean, and was manifestly understood by Ciprico to agree to change it as to Ciprico, also. Upon a full consideration of the case as presented, we cannot doubt that Mr. McPike and Scott had ample grounds to take the view they did, when they dropped Hinz and sought to arrange with Boyd. We are satisfied, now, that they were not then mistaken, and that Hinz had determined to change his testimony in such manner as to exonerate Ciprico. as well ag McLean, and that their action was based upon a well-grounded belief that Hinz would prove false and faithless.. 'l'hat Hinz connected Cipricowithtbe conspiracy in his testimony before the grandjury, necessarily appears, or the indictment could not have been found. At the close of Boyd's testimony implicating Hinz) Mr. McPike, believing that Hinz inte!lded to break faith with him, and had, by his conduct, forfeited all just claims to further immunity frOUl punishment, asked that Hinzbe taken into custody under the indictr'nent, and held to bail to appear for trial; and the court, belieVing it proper , under theeircumstil.nces, made the order, which was executed, andhe was held to. bail in thesurn of $5,000. Boyd paving fully testified, as he had agreed to do, the prosecuting attorney, in accordance with his pro·mise, immediately; entered a
UNITED STATES V. HINZ.
277
nolle as to him, and he was discharged from custody. The court having, on the resting of the prosecution, adjourned over for several days to the next week, it is evident that Hinz began, in the mean time, to realize the critical position in which he found himself. He was now liable to be convicted himself on the testimony of Boyd, with other corroborating testimony, and perhaps his own testimony·before the grand jury, in case he should not be accepted as a witness, or ifhe should be accepted, and testified differently from his testimony before the grand jury, he was liable to be indicted and convicted for perjury. Manifestly, realizing the situation, he at once set about retracing his steps. He sought to appease and reassure the prosecuting attorney, and became anxious to carry out his original arrangement, and go upon the stand. When his proposition was rejected, just before the close of the rebutting testimony, he became so urgent as to waive all right to immunity, and testify without conditions. But even this would have given him an equity, and the district attorney himself interfered, and objected to his going upon the stand, under the circumstances, at this stage of the case, when his testimony, under the rules of law; ccmldadd no force to tfiat of his CO-COll8pirator, Boyd. The concurred with the district attorney, and he was not examined. With a view to applying the law to the case, the following additional facts should be stated: The testimony of Boyd, on the trial of Ciprico and McLean, if it is to be believed,-and there is nothing tothe contrary,-shows that Boyd and Hinz are the original and principal conspirators-the originators of the whole scheme, and the principal actors in carrying it out. Boyd was in the collector's office, having the facilities for obtaining and he did obtain the fraudulent certificates in all re.spects genuine in form, execution, and appearance. He furnished them to Hinz, who carried them in person to China, or received them through the mails or other channels, and sold them, or caused them to be sold. Boyd testifies that Hinz had been to China, and engaged in this business, at least once before the voyage on the 10th of January, 1885, now in question; that they two, without the aid .of Ciprico and McLean, had successfully carried on this nefarious business from ten months to a year .or so before Ciprico and McLean were let into the arrangement, cir had anything to do with it, and that Hinz was the first to suggest the scheme to Boyd; thatCiprico connected himself with the conspiracy not more than two or three weeks before the alleged meeting at Boyd's house on the evening of 9th day of January, 1885, and was first introduced .by him (Boyd) to Hinz at the saloon on Post street about a week before the meeting at his house. Thus, if his testimony be true, Boyd and Hinz are the originators of the conspiracy, and the principals in it,"'-the .conspirators who performed the leading and principal parts,-,-while Ciprico and McLean, if they participated at all, came in late, and performed the subordinate, though highly important and criminal, part of knowingly landing Chinese upon certificates in all respects duly executed and ,sealed, and in all particulars, apparently, genuine, furnished and sold to the Chinese by Boyd arid Hinz. While this fact does not mitigate the .offense committed by Cipricoand McLean, if they conspired with the
'FEDERALr'REPORTER. '
others and should not prevent aconvictibu, if sufficient legal anrQ, proper evidence can, be produced of their gnilt, it does. have some bearing up(m the rules of law applicable to the evidence of accomplices" and to the motion for continuance now before the court. At the opening of the trial, a nolle was entered as to Whaley, the prosecuting attorney no evidence to present against him, and none afterwl;lrds connected him with the matter. But very slight corroborative evidence was presented against McLelln,he and Ciprico having testified on their own behalf,' and positively denied aU connection with the conspiracy, and the jury could not properly do otherwise than acquit him, as they did. Boydw!'\;s discharged upon testifying, as a last resort, at the earnest solicitation of Mr. McPikej when he had abandoned all hope of getting honest evidence from Hinz. Andit only l'emainSllow to againtl'Y Ciprico,who, if guilty, played a subordinate though highly1J:nportantpart, and to determine whether remaining principal conspirator, shall go free after havHinz, ing, by courae" secured the discharge of the other originator in conspiracy The latter question must applicable to the foregoing state of facts. Says Mr. work on Evidence, whioh has been arecog"uj;hppJy, on that subject in the courts for more than half , , a century: ' ''It iSll! rule Of evidence, that a particeps criminis, notwithstanding"the turpitude of his conduct, is not on that account an incompetent witness,so'long aflhe remains not convicted, and sentenced for an infamous crime. Tile admission of accomplices as witnesses for the government is justified by the necessity of the case, it being impossible to bring the principal , offendersto justice' without them." After stating the usual proceedingsin such cases,he proceeds: "But whptheran accompliceitlreli.dy charged with a crime by indictment, shaH be a witness for the government, or not, is determined by the judges in their diScretion asfuay best serve the purposes of jnstice. 'If heappeltl's to have, been the principal offender, he will be rejected. And if an accomplice, baving made a, pl'ivate confession upon a promise of pardon made by the attOflley generall)houldrefuse afterwards to testify, he Illay be convicted upon ' . evidence of that confession." 1 GreenI. Ev. § 379. So, also, "judges in their discretion will advise a jury not to convict for felony upon the testimony of an accomplice alone, and without corroboration janditis now So generally the practice to give them such advice, that its omission would oe regarded as an omission of duty on the part of the jlldges. And considering the respect always paid by tho' jury to this advicafrom the bench, it may be regarded as the settled course of practice not to convict a prisoner in any case of felony, upon' the SQle uncorroQorated testimony of an accomplice." rd. § 380. Under, the Penal Code of California there is no advisory discretion in the but a conviction on the uncorroborated testimony of an a.ccomabsoluteJy prohibited. Pen. Code, § 1111. So, also, "iftwo' ' or more accomplices are produced as witnesseR, they are deemed not to ' corroborate each other; but the same rule is applied" and the same con-
UNITltD' B'tATE!! V.atNZ.
(.279
·firmation required, as ifthere' were but one." ; '1 'Greenl. Ev. § 381.; So says the United States supreme court in the Whiskey Cases: ' "Offenders of this kind are notadIJ1itted to testify as of course, and suffieientauthority exists for saying that, In 'the practice of the English courts, it made for the purposei and that the court, is usual that a motion to in view of all. the circumstances, will admit or disalIc>w,the evidf'luce. aa will ,best promote the ends.of public justice. Phil. Ev. 87; 3 Huss. Crimes, (9th 4mer.Ed.) 598." 99 U. S. 603. In the Whiskey Cases it was also held that "the district attorney has no authority' to:contractthat a person accused of an offense against the '. United States shall not be prosecuted, if, when examined as a witness against his accomplices, he discloses fully and fairly his and their guilt." Id. 594. In the same cases, after stating that the prosecuting officer will grant 1m interview to an a.ccomplice;a:nd the ctlmmunication will be regarded as confidential, and that if he is subsequently calledand,ex8Ill1' ined, be will be entitled to a·recommendation'·for,executive clenlency, · the court adds: " Promise of pardon is never given in such interviews, nor any inducement held out beyond what thE' before-mentioned' usage · and practice of the courts allow." Id. 604.':Vhe<Jdurt :fUl'ther says: ((Such offenders, if they make a full disclosure Of an mattets within their knowledge, in favor of the prosecution! will not be subject tci 'punishment; , but if they refuse to testify, or testify falsely, they are tobe'tried,and maybe convicted, upon their own confession." Id.605; ,Thus it will 'beseen, that the authol'ity to prOlnise itnmunitytt> aJn: aceo:mplioeupon his turning state's evidence, is not ve!lted in ihEl' prosecuting officer, bat whether they 'will be admitted to testify, and thus seCUre: an equitable right to clemency, il; vested iIi the discretionof:theoourts,to be exerdsed cautiously, in view of all the circumstances of the case, and to pro'mote the ends of justice. If the testimony is offel:'ed, and: the party testifies fully,and frankly, without objection by the court, it will, of course. be regarded as given with the sanction of tne court, and he is equitably entitled to be exonerated from punishment. But in this case, although · the defendant Hinz testified before the grand. jury, yet before coming to the trial of Ciprico and McLean, he gave Deputy-Collector Scott, and the prosecuting attorney distinctly to understand, that his testimony would not be such as to implicate either Ciprico or McLean.' And after· wards, when threatened with prosecution for petjury, in case he should testify falsely, he, flatly, refused to testify, at all; in the case. He might well, perhaps, have been doubtfulaboutMcLean, as it seems probable now, that he did not know him at the time; but as it !leems to us, there, certainly, could have been no possible ground for doubt as to Ciprico. That Hinz did not, honestly, change,his mind as to the testimony he was about to give as to Ciprico, as is now claimed on his behalf, is apparent from the fact, that, at last, he offered, when too late, to again testify all he had done before the grand jury, and connectCiprico with thecoIlspiracYi that Scott and McPike firmly believed, an:dhad ample to believe, that Hinz would not testify against Ciprico;8.rid that, without his testimony, there was no possibility of a convidtionof either
280
of the defendants on trial, there can be no possible ground for doubt. Only this state of facts could possibly justify, or excuse the prosecuting attorney in the sudden, and extraordinary change of the course of the prosecution. Boyd, together with Hinz, turns out in the evidence adduced on the trial to be not accomplice, merely but the prirlCipal and the original prime conspirator. In all particulars he and Hinz were the actual chief conspirators, while Ciprico, if connected with them, at all, is but a subsequent accomplice. The rule of law as I have announced it, if rigidly construed, would perhaps exclude the principals Boyd and Hinz entirely, from te8tifying. Says the rule, "If he [the witness offered] appears to be the principal offeniler, he will be rejected." 1 Greenl. Ev. § 37°. J. S. y Lee, 4 McLean, [04; People v. Whipple, 9 Cow. 707. The. prosecuting attorney after his arrangement, made at the last moment, with Boyd, offered him as a asked the court to permit him to testify in pursuance of the arrangement, and the court appreciating the dilemma in which he so, unexpectedly, found himself, and not knowof Boyd as principal offender, as was, subsequently, develing the . oped, reltl(ltantly. consented; and Boyd, having testified fully, was dischargerl. Had: his exact relation to the conspiracy, as subsequently developed in the testimony: been known to the court, at the time, would have hesitated long before permitting-him to obtain imJDunity by testi. fying against his subordina te, though criminal, accom plices. If Hinz had not indicated a purpose to change his testimony in such manner as to exonerate Ciprico and McLean,but had gone on the stand and testified of the court, he would have been fully and frankly, with the entitled to immunity; and if the United States attorney had, then, declined to enter a nolle, the court would have continued the case, in order .. to allow an opportunity to apply to L,e president for a pardon in advance of the trial; an.d would have even recommended a pardon. U. S. v. Lee, 4 McLean, 103. This principle is also recognized in the Whiskey Caseti already cited. But thedifficuHy is, he did not do it, but, on the contrary, indicated his purpose to retract his testimony, and hE> thereby compelled the prosecuting attorney at the last moment, to fall back upon the other chief conspirator, or fail in the prosecution. By so doing, notwithstanding the fact that the indictment was fonnd upon his testimony, he did not stand up to his agreement, and by his course he compelled the prosecuting attorney to seek other evidence, and grant immunity to another principal conspirator. By this action, in our judgment, he fore feited all right, equitable or otherwise, to immunity, or to leniency. And so are the authorities. Whiskey CaSeti, 99 U. S. 605; Com. v. Knapp, , 10 Pick. 477; 1 Greenl. Ev. § 379·. His action in the matter was, in our opinion, fully equivalent to an absolute refusal to go upon the stand and testify at all, or, having taken the stand, testified falsely in bad faith in favor of, instead .of against, the defen4ants on trial. And he did in fact, . finally, ref\lse to testify at all, till too late. To exonerate Hinz now. would be, through his action to secure not only his own immunity, but also that of Boyd, the ,other original and principal conspirator,-all the
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principals,-and to turn their united efforts upon Ciprico. This would savor too much of a conspiracy encouraged by the government, of the two original and principal offenders-the concocters and most active executors of the nefarious schemes-to convict an accomplice, who if particeps criminis, came later into the conspiracy, and played a secondary and subordinate, however important, and criminal part, in carrying it out, Should Hinz go free there only remains Ciprico to be tried again, and the jury having disagreed as to CiMcLean having been prico. It is true that Hinz at last, offered in rebuttal to testify fully and as he did before the grand jury, and to thus ultimately carry out his agreement; and so desirous of doing so was he that upon his rejection by the United States attorney, Carey, that he offered to go upon the stand without conditions. But this was too late. The mischief had been accomplished. The arrangement had been made with Boyd, who had performed his part, and had been exonerated; and Hinz in the mean time had been arrested, and held to answer the indictment. It was not till he found himself in this predicament. when he was likely to be tried and convicted on the testimony of Boyd and other corroborating evidence pointing to him, that did not point towards Ciprico, and perhaps on his own previous testimony, that he became so anxious. At this time the prosecution had no possible use for him. His testimony at that stage of the case, ailer Boyd had testified, would have had no legal effect. It could not under the law of evidence have strengthened the case. As we have seen: "If two or more accomplices are produced as witnesses, they are not deemed to corroborate each other, but the same rule is applied, Qnd the same confirmation required as if there were but one." 1 Greenl. Ev.§ 379. Under this rule Hinz's testimony would have been of no sible use. It was too late, and nothing could have been done affording an equitable consideration for immunity. So, there will be no use for him on the trial, if Ciprico should be tried again, as Boyd is still under obligation to testify in that case, in order to maintain the immunity that has been accorded to him. We see no good grounds for favor or reason for continuing the case in that Hinz may apply to the president for a pardon in advance of conviction. To grant the motion for the purpose desired, would, doubtless, be regarded as a tacit or implied recommendation by the court that the pardon be.granted; a position in which we cannot conscientiously place ourselves. Besides, the prosecution now has the evidence at command, and should a pardon not be granted, there is no knowing whether or not it can be had at the next term of court, two months or more hence. Should a plea of guilty be entered, or a conviction had, the same grounds for pardon will exist, then, as now. It will not prevent the president from extending the executive clemency, if, in his judgment, there are good grounds for such action. The conviction will in no way affect the question. The discretion and responsibility in that matter rest upon the executive, and not upon the courts. We are clearly of the opinion that the application for a continuance .hould be denied, and it is so ordered.
·
282: NORTH 'CAROIJINA V. VANDERFORD.
W:, D. North, Garolina. ,4.pril Term.tSSS. MALICIOtJS':MISCHtEF"':'DESTRUCTIONOF ILLICIT WHISKY BY REVENUE OFFICER.
Where a·baiTel of whisky is without the stamps and brands required by law. the mere ,ppssession of title; and ,a revenue officer who seizes such'a b'arrel concealed private premises. and in good faith destroys it, is not 'guilty ofamisdemeanor under 1 Code N. C. § 1082, prohibiting "wanton and will!ulinjuries to personal property." ' .
Indictmentun<ier i CodeN. O. §1082, for a wantoll and willful injury to pereonal property. ThlJ,t section, as amended by Laws 1885, c. 53, p.94,isas follows: , II If I1-ny ,persoDshall wantonly. and willfully injure theperso:nalproperty of another, he shall bEl guilty 0; a misdebe punished meanor, whether the: propertybe destroyed or not, by fine or iInprisomnent, 01'. both, in the discretion of thecourt/' The jury returned a special B. F. Lo:ng, for the State. , . . " ,'. H. a. JO'M8;, Diet. Atty. , a:nd G. F. Brown, Asst. Dist. Atty., for defendant. , ,
.
DICK, J. This indictment was found by a grand jury in a state court, and was duly removed to this court: for trial, upon the application of the defendil,nt, a revenue agent of the United States. The indictment i5 founded upon, section 1082 orthe Code of North Carolina, as amended by chapter 53 oBhe Acts of 1885. "The charge preferred against the defendant is a wanton and willful destruction of the personal property of John L. Shoemaker, a citizen of Iredell county. The only question directly involved in this case is whether the defendant committed the act in the manner and form set forth in the bill of in.; dictment. ,The object of the prosecution is not to afford redress for a private injury, but to vindicate the law alleged to have been.violated by the commission of a wanton and willful wrong injurious to the public welfare. Before passing upon the facts found by the jury in the special verdict, I ,will consider some questions of law that were presented and discussed by counsel in argunients before the court. The solicitor for the state said in the course his argument that the primary purpose of this prosecution was to have determined by judicial judgment the question of law whether an officer of theinternal revenue service of the United States could with impunity destroy private property, before it had been condemned, as forfeited in the manner provided by law. He insisted. with much earnestness and eloquence that the well-settled principles of the common law, and provisions of the state and federalconstitutions t had been grossly violated by the action of the dlilfendant, as a citizen of the state had been "deprived of his property without due processoI Jaw." I have already stated that this question cannot be properly determined in this trial, as it is not directly involved in the issues presented in the pleadings. It has an incidental connection with the transaction
