FEI!Elj,AL REPOlioTEB.', H" "" ._

'.J ·· " _

.· :,.

il,

,,',.

ticles composed" ofIndia rubber-congress has imposed a duty of 25 per t4at,if they are not necescentum ad valorem",bllt.ha,a saries, but simply 'playthings; such ainhe dolls and tOy8, intended for the amusement of children; then they,snuU pay ,at a higher rate, to-wit, 35 per centum ad valorem., " , ,',' ' , , " , ",', " composed, wh.ollyof India for you'ta the cbnditibn lnWhICh tney>are Imported by the plamtIff, ,for that IS the condition in which they are when they are called upon to pay duty, they 'at0 /dOl}$"oT'toys; In'detmrtlhing' tbatquestion, uIld.ei' the which you have, you are to take into consideration the predominant use to which they are put, and their to that uSrl evithe'way in which tbeyare han(}led,after .. ' , ' ," "
,. I 1.,J;.,

"I

!,)

,_,II,

'a_. .

:,,,,J

'thE; p,

./1

·

'

,

l

i

!

I

,.);

(.'j :

.J.j;

.I'

'/: 1.',;

"!UNriE'l>' SfAm". dARl>ltNTER' et qZ. :" : , ,;;
'::1

j

I

'...,:, "',.

'·. ,:

.

, , ; "(CiflCu(t D.' T'e7i'li6B8e& 1/ December 8,:18891) i (I : j;) "i'.' .',' i. '" .I; " l" ....ll11c:llfll " , " " ,. thE! Oml'llr ,and of ,eleotion ,ipte!1-ti9naijy pe.r.mit to be com,,1 "lIllttllid; at'ali of a tepl'esentativein congress,iIioyaot prohibited and ttlade t,: , ..__ 'w.,,i,\I4Al1le,QJ:Il>t' by t,h,e,s,tll.,te,tl,lllQ",t,l,'qn law,$o,: e,T,enn. SS,57llO,51'82;) violatiol1 , an, ,
'.1 l I '

I; ",:j'

'Oll" IN'TENT. "

,:

O!,'

'0"

'

Tba:intentito ,affecttbe'teflUlt of,an eleotion will bllJpi'esumed'when oqnlawfUl which naturally have, tlJAt,effeot, are ,l!;ltenWWal.1r ,QO,Il1IDitted, " .. ar'kndwingiy'petmltted, by those liMing charge of the election.' " '
'i,'" , ' ," " ',,) . .'

Qftloer. of,l!o!\ vrtt!1., tlle ballet-box, and' sUblltltutiilg another in its plaoe, or perpl.1ttmg it to be done t a fed1I ), , era!' supervis'ol','Whose cbaraeter'for 'teraoltY;was iniIieaohed,testitl.ed' tlilil:t tne bal"r J ; lpj;-q.ox dljJ,."jng. the dipnet, hourt:lvhiqh was, 'lie,Q.led by the , "Itwo superVisors of -election, ;ily the two olerks of electiojl, by The \' II eaiii& Witness :testifl.e'd','aria: 'llill'1\estimdn!ywiIl'corroborated; that at dinner-time 'he e, ,qut.',01,th,,!l "<lo,m, W"ller/t<. b,allPtcl)Qlt, waske, 1oA" i,'ustb!!,fore voting, w,$8 resumoo,he was caHed to the door of the room' that dUring, the dinner bourhe asked s'evaralof:defendants wanow him W look into tM'llel1JHvheretheballot:.box was placed by one of defendants on for dinn!'1:,bv.1;t1)at ,they refused. .' .f{eld',insu1liciellt to ,warrant c?n,'vie,tion.·, ' ," "
j '... '!

On indictment of the officer and judges of election for violation of the electionlaws, in committing, or permitting to be committed, offenses prohibited by such laws, show when" how, or what precise manner or , the Pr:osecution is not requireq ri ;: alIegedioffellSeB were committed, but,onljr to, J:latisfY,the iUt'y;be10ild a that iIl,tact , ,"
.-J;;

'" ISM.tE....BuilDENOll' PROOll'. "

0'

, ·

-,',

, ' ,

·

'

J"ll ,Ihp,w: ,that '- .le8&'numbllr o,f
,011 Illdictmentoharg;Jpg lOr: tl.nlaWfullt

IIWJ!,el'ea!DU'tIlberofvclteTS't$iitifythat:theyvoted a certabitlcket, and the'returns were, qouutlld and, $8 the for such and,omcers?f the the disthlJ ,omcer ,of witl).,l'hanging, altering"destroyballots, it lilI1,bt' ·for a con 'that,1Jle ,!/.nJJllM)ro;!, pall!)>> lIo.chaugea., the, numtier bemg unmaterial.
'j;"':' " ",,

,',0'

" j ' , " ,

·j: -iutrJ

: ' J,

ing;

On'Ihdictn1ent for·Vlolatidnof the Election Laws. Ed Carpenter, officer of election, and Joe Williams, John Catron, and: Plummer Thompson, judges of election; were indicted for violation, of. the ; election laws. N. Shadinger,the witness referred to in the charge, was; " one of the federal supervisors. S. W. Hawkins, U. S. Atty., W. W. Murray, and JohJn E. McOaU, Asst. U. S. Atty. Gant<!c Patterson, Clapp <!c Beard, lind J. J. Duprey, for defendants. JACKSON, J., (orally charging jury.) The discussion of this case has, taken avery wide range,-much wider than was warranted by the evi-, dence. The court did not interrupt counsel, for fear it might do some injustice, and because of the assurance it felt that an intelligent jury, un-' der the instruction of the court, would readily and promptly eliminate and discard all matters and considerations that were foreign tothd merits of the case, as disclosed by the evidence. It is ptoper now for the court, to briefly call your attention to some of the irrelevant and foreign matters which have been referred to in argument, and which should be exohlded' from your consideration in making up your judgment as to the gUilt or; innocence ohhe defendants. , COunsel for the defense have commented upon the fact that Plummer Thompson, the colored judge of the election, is not put upon trial with the' defendants, and the suggestion is made or intimated that there was some; political reason for this. Thompson witS regularly indicted with' the other' andbfficers of the election. His'name appears in the indiotment; a.s one of the parties Charged with the offenses therein set forth. When' the case was called for trial, Thompson, who was out on bond or recog-; nizance, did not appear. He ,was, called, and forfeited his recogriizance;· and a capias was ordered by the court for his arrest. Thbmpson not being' present, thidrial proceeded as to the other defendants who were present. I In the midst of the trial,and after a large number of witnesses had been examined on behalf of the government, Thompson made his appearance,; .and gave the court a satisfactory excuse why he was not present when the case was called for trial. Not having been represented by counsel, the couttcould not then, and at that stage of the case, put him upon his; trial with the other defendants. This course would have been taken by, the court, if -it could properly have done so. But the fact that Thompson is not now on trial in no way prejudices the defendants. It tendsinno i way toestl1blish either their guilt or innocence of thEi offenses charged against t,hem,and the jurysh<>uld dismiss that matter from their minds. It is wholly immaterial. ., , It is fUrther suggested by counsel for· the defense that this prosecution! the' is in somewayconneeted; with the pending election contest candidates for congress in this- district; that one of saidcontestl1nts, or' somebody in his, interest, is the power behind the throne,prompting'this suit;antlthat it is intended to: have a bearing upon that contest. Genthe jury, there is nothing intbetestimony t<>
l

fl

SS2

FEDERAL REP9R'J:'ER ,vol.

41.

gestion, and it is wholly foreign to the merits of this case. That contest between the candidates for congress at the last election is pending before another forum, on different evidence: and the result of this trial cannot properly have any effect or bearing upon it, one way or another. That suggestion should be entirely dismissed from your minds. It filhould have no influence on your verdict in this case. Counsel for defendants. have furthermore sought to impress_upon you the fact that some great and vital question, other than thp, guilt or innocence of the defendants on trial, is involved in this suit. This is a mistake, gentlemen of the jury. In the trial and proper disposition of this case upon the evidence, neither the court. nor the jury have anything to d.o with the race problem, or with the question of suffrage. The colored Ull;tll hall been regularly invested with the right of suffrage; . The constiW!tiOfiofthis. state confers the ri/ght to vote without upon all 21 years of age, who have resided 12 moptqijl in the state Imd6 months in,the countyin whi<;;h the right of is exercised. The:colored man has thebepefit of this constitutional prQvisionj and when he hl,l.s resided in the:state and cOlilnty the requisite. period he hae .right, before the 'law, to, cast his vote" and have it properly counted, that you and I have. This trial in no way invol,ves the consid.erlltion of the policy or impolicY of conferring this high privilege uponi {he oolored population. We have to deal simply with facts of this Qa..o;;e, ullder the law as '\Ve:find it established. When, therefore, yOIl cmne to the .consideration orthis case upon its merits, you should not 8lUQw any.of those suggestions of o01,1).1sel to have any weight or influence upon your minds. Let them b.e laid aside as wholly foreign to the qJ,1estion at issue, whic4 must be considered and determined strictly 'tP0t) the introduced before you. The testimony, with such deductions as may be properly drawn therefrom, should alone be,looked tojn r6flching.your conclusion, and arriving at your verdict. I' There are other suggestions, not wa;rranted by the evideJ;lce, to which the.. court will your attention later on. . . . ;, But litUe need as to the law applicable to this case. Congres!l h.4s,:byvarious acts, so far adopted the ,election laws of the several states !tato make all frauds and offenses committedllgainst those laws offenses 8g3iQstthe United States, when committed in any election at which a repJlasEln.tative in congress is to be voted for. The constitutionality of thjsJegislation has been fully established by the highest tribunal in the IMd·.. !tis not..controverted that at the election held on the 6th day of N.<\yember,1888,iI). the fourth civil district Qffayette county, Tenn., at Garnett's store, a representative in congress was to be,and was, in fact, £Qt·. U,.atthat electioll , the defendants, or either of them, comor permitted 8;Qts prohibited or made by the ,euch violations of their d\lty as judges and officers of said" ofl'epses against the United States. ..' . . i.ndictm,ent ;in this. 9ase sets out II!. prope,r, form that tl'ledegllilty of f()lloWIng offelliles. at . 'rh,e first:

'ONI'PED 'STA.TES 11. CARPENTER.

883

count charges them with putting into the ballot-box used at said election votes or ballots not cast or given by any voter; the second count charges them with permitting ballots that were not actually cast to be ·put into the ballot-box; the third count charges them with wrongfully taking or throwing out votes that were .put into the ballot-box; the fourth count charges them with knowingly permitting votes or ballots to be taken out of the box; the fifth count charges them with unlawfully taking out and destroying votes that were cast and put into the ballot-box; the sixth count charges them with wrongfully taking certain ballots out of the ballot-box, and putting in their place, in said box, other ballots, that were never voted; the seventh count charges them with permitting certain ballots to be taken out of the ballot-box, and others to be .puttherein. in place of those taken out; the eight count charges them with substituting ballot-box; and the ninth count charges them with another for the permitting another to be substituted for the right ballot.bo'x·. tions 5730 and 5732. of the Code of Tennessee, such acts, done or permitted by judges and officers of elections, are made misdemeanors.. The indictment alleges that the several offenses charged .were done or 'per.. mitted by defendants, for the purpose, and intent, 0faffooting the election, or the result thereof. The'intent thus chargedneed.not '00 shown by direct or positive evidence.. It may be presumed from .the doing'of the wrongful, illeglll, or prohibited act. The law presumes that every man intends the natural consequences of his acts, intentibnally done.. Wrongful acts, knowingly or intentionally committed, can neither be. j\lstified nor excused on the ground of innocent intent·.. The color of the act determines the complexion of the intent. In the investigation of human affairs,. whether conneoted with contractor crime, we are constrained to infer the motive from the act.' The intent to,affect the result of the election is properly presumed when unlawful acts, which naturally or necessarily have that effect, are proved to have looen .intentionallyDommitted,or knowingly petrnitted, by those having charge of lluch elections. So much as to the question of intent. . .While the offenses thus charged against tbe .defendants ha\'e, .from their very na.ture, called for and required the introduction ofevidenee to some extent. politica1 in its character, it would be 1n the highest degree improper and reprehensible for the court or jury to allow any party or sympathy or ,prejudice to either .bias or control theirjudgment or action in honestly considering and fearlessly deciding the'case on itsmerits,ancl as its merits are established by the evidence, to which alone we can rightfully look. To consciously permit either personal or party considerations to control our actions or conclusions in the case would be. to disregard th,e obligation of our oaths, and render :us worthy of the positions we respectively occupy. Let all party affiliations; prejudices be studiously laid aside, gentlemen of the jury, andelat the question of the. guilt or innocence oithe defendants be investigated and determined alone upon the evidence that has been introduced before you. . In weighing and considering .this e.vidence, you

soould ehi:leavor to'roooneileand'harnioni26 it, .if you When this cannot be done, youimilstdetermine foryourdelves what portion Of the conflicting testimony<ismost worthy of The court can only give Y'l/lu,S; few general rules,as guides for weighing and deciding between testimony that cannot be reconciled. You should look to the circum. stances surrounding the respective witnesses,and to the way ill which they testify, in considering' the weight to be given their :testimony; to their means of'informatiouand opportunity'of knowing thefacts where· eif:they speak; to their:relationship to the parties. A witness, although notidirectly interested',iIpthe result of the snit, may he strongly. biased 'by, his connection withonelationship to the parties or to the litigation; and you should determine. how far, if afall"8Uch connection or relationbiased, controlled, or influenced such witness 'or witnesses in his or their testimony. ,You should also consider the manner and bearingof. the witnesses ill testifying. Do 'they show a zeal in stating facts favqrable to one side, .and reluctance in disclosing faots that would benefit :the .other? . Do they testify in that frank, candid, and straightforward way.which a witness should do, under the solemnity ofan oath? @rdothey ,evade, and' equivocate? You should also look to the consiStency of. their testimony.. Which witness is most consistent with himaelf,and which is contradicted by himself? Whi<lh is' most cOllsistent with undisputed or well-established facts, about which you have no doubt? Which is corroborated or contradicted by other witnesses,who )'IOOl are satisfied have tQldthe truth? You should especially look to thel interest which the respective witnesses have in the suit, or in its reSult. The rules and principles of evidence are founded, ina peculiar upon practical good sense, and spring out of an enlightened view of' human nature. Where the witness has a direct personal interest in the result of the suit, ·the temptation is strong to pervert, or withhold the facts.. The law:permits the defendants; at their own request, to in their own .\lehalf. They.have availed· themselves of this privilege. This testimony is before you, and yon'must determine how :far·it is credible. ,The deep personal interest which1they have in the nlsultof the ,suit should the jury in 'weighing their evi· dence, and in determining bow far, ortowhat extent, if at all, it is worthy or. credit. ". and suggeations as· guides,; it is for you t .:, Waking these gentlelnen of thejury ,to apply them to the evideI;lce 'introd\l<iedbefore you,and determine what ,portionsofthe testimontyou,consider most mliable ·and· trustworthy, 'where sU<lh ·,·testimony ·is'conflicting. Your MEmy-dayexperience Il'IS;Y' be applied in analyzillg: lU\d'placing an esiimnooupon the statements made by:Witnesses,and: in determining which !\ide of conflicting and contradictory ·testimony .best· harmonizes with the tmtlioof"the' actual facts; 'and, having thus satisfied; your reason .and oonseience, your duty will be to act in accordance' with the .conviction thusfproduced.When'crediblewitnesses testify to a fact or facts aboue which there ,is tio ()()Jlfl.iotin, the testimony, then your plain and maw":

,":SITED STATES :tI.CABPENmB.

'335

: feat duty.: ,is' to g'ivecredit to such witness or witnesses,atid''Consider such fact or facts as established, a.nd follow the. same, to .its or their log·icalresults. :. ' Of all the witnesses who have testified before yoUj 'only one directly 'impeached, and his credibility attacked. Several credible wit,nessesonthe part-ofthe.defensehaveswom that N. reputation · furwuthand veracity was bad; ·that,hewas'unworthyofbelief; andthat they would not believe him on oath, in a ,court of justice.: On this testi· mony, ifyou believe it,you hav:etbe right to discredit aU that Shadenger has sbrtea, ,except in: so far as he is corroborated by the ,testimony of other witnesses,' whom yoti do believe. To: the extent his statements .are , corroborated by other testimony, you' should not discredit, him, although he has been, generally impeached. The' court will briefly. erill'ineratesome 'oftheipoints in which Shadengedms !been corroborated by ,other witnesses. He stated that the certificate which he signed in referenae to: the election was. upori a separate: sheet, and" not attached to, tlw- 're,turDs ,made by the officers holding,' the electj.on.'l'heproductiOn.of.the original returns .confirms this : He' states .that he went outi of the'foomin which the 'election was,held"andtheiballot-box was,.kept, at or. ahout dinner-time., Several· witnesses' cODrobomte this statement. , He. -that just. before the voting. was after dinner; ,he was,.called.to the door of the room ,by ·Esquire Garnett, ,and.aaked"to · point out his horse, so that Garnett could have him'put up and fed-;;Ln · this. Jie is -corroborated. He testified that ,during, :the dinnerhQur :he asked ,to, look into the desk. in which the ballot-bGx· was placed by:W;ill, iams.,ooe' df the: defendants, .when they adjourned Jor ,dinner; .that 1he askedl iWUliams for the key. for thatpurp<>se;· tha.t, failing ,to gettheMey ofthe:desldrom Williams, he applied to Garnett; that Garnett told:l;1im the ,or one ofilie boys, had thekeYr that be alSo sp,oke to,tlae defeIidant!Carpenter about the key, and failed to: obtain it" etc; In seteralsta;ements he iscorroborated,and it is for you" ·tb weigh, Wild consider the beating of the facts thus stated. 'Shadeogel' .fur.thet, istates ,that, in his conversation·with .defendantCarpenter abouttp'-e key.,ABd.his.desire tolQok in ,the Carpente.rused threatening 'lan"guag&ctowal'ds him" which intimidated· and· forced ,him to ,abandon.' his ,efforts tiD; ascertain.what :was·in the delik; where'tb.e ballot-box. w.asplaced ·duringr,the.adjournment for dionm:. "This: statelnentas tothreatSi6 de'Died by,Carpenter. ltis for you 'td deterwinewhiohof will ,believe. .Shadenger,Jurther testified that during,n,.e iter -dinner: the ballotMbox':was: changed; There is no,direct testinionyoQrRhea, the other supervisor.;. of :Wilsona:nd Maxwell, ,the clerks of ,the 'election, .-t6'S$y.,nothing oithe of the strongly to ·negative the fact stated by Shndenger.. The 'corrobotated statenientilof Shadengermay excite' suspicion; but,:in viewLof,thediscl'edii 'Placed upon'Shkdenger's i 'and ofthetestimcmJI of the other;mtnetlSes, denying tliat there; was '8oy change of the ,ballof;::.oox', the cOlilrtisLof,the ·opinion, an!l .gentlemeq. o(;the:'jUI1'; ,that the"evidenoe

"0

:'836

FBDERXLREPORTER,

vol. 41.

is not sufficient to warrant a conviction upon the eighth and ninth counts of theindictrnent, which charge the defendants with changing, and permitting the changing, of the ballot-box; and you should render a verdict of not guilty onsaidcqu.nts. . In respect to the other.bounts. of the indictment which have beEm enumerated, and which, itis;conceded,charge offenses against the law, ,the court calls your attention to the fact, and instructs you, that the · government is,not bound to show, nor are you required to find, the exact modeoi'mannerin which the fraudulent acts charged were done or permitted,if they were acttiallydone or permitted. 'fhe material question done, or permitted to be done, by these is, were they, or any ,defendants, or either oUhem? It is no part of the prosecution's case to ,. show when, how, orin ,what-precise manner or place, the alleged offenses were committed. If the' evidence satisfies YOU t beyond a reasonable '. doubt,.thaHhe fraudulent 'acts, all or any of them, as charged in the in-dictment, were commi1Jted or permitted by :the defendants, or either of Ahem,' it; will be no part of,&our drlty to ascertain or be sll,tisfied as how, , orJwhEln, orin :what.ex.aet-lvay, the thing wRsaccomplished bythe guilty · pariyorpat'ties.Fraual :eRn rarely' be established .by direct testimony ,as;to thepremsemanneD'of its accomplishment. Its perpetrators do not · adJDitwatnesses to the overhct. And it is no part of the jury's province or duty ,tin, this case, to ;iQquire into, or to be satisfied as to, the method or plan [adopted: and: employed in accomplishing the, fraudulent acts charged, iUbe evidencecon'Vinces you, beyond a reasonable doubt, that they wele done 01' perulitiliddby the defendants, or either o'ftnem. The matei'ialquestion for you"tp,determine is, were all or any of theoff'enses orpermitt,ed by all or either of thedeferidailts? If reptblican tickets or ballots :were by vQters' handed to the officer holding the elect.ion,and,instead: ofliepositing such tickets or ballots in the balhe should subsilitute:democratic tickets, and put the latter into · thebo:x;,thatwouldbeafmudulent and criminal act, covered by one or lUore of said counts ofthEdndictment. If such election oflicer, or the "judges of!the e1ection, when the votes came to be counted, should call outthenames of democratic candidates from republican ballots or vice versa,.tha1lfwould be the fraudulent substitution of one ticket or ballot for anotherjiundwould constirtute an ,offense, as charged in the indictment. If ballots th8ltwere cast are taken out of the box, and ,ethers, not voted, are 'placed ,therein, this would also be a gross violation of the law. Any , wrongful chapging or destruction of the ballots, any intentional failure to count, thevGtes as actually cast by the voters,and only those, is an of·funse against,the election .laws l and comes withiri the counts of the in,dictment uipbn;which,the, defendantsaTlt being 'tvied. :. The evidtJnee,relating'tothe first seveBcountiJ of the indictment, charging' the def-erldantswith doing, or permitting to be done, fraudulent acts, :of the ehameter above described, at the election held:'Novem ber 6, lR88, in and J0r:tnefonrth oivildistrict af Fayette county, maybe briefly ravilewediby: the conrt, with such comment thereon as maybe legitimately the province of the jury. In: such

'" ,UNI'I'En STATES t1.0ARPENTER.

337

statement of and comment upon the testimony as the court may make, the jury will understand that it is not the intention of tbe court to usurp their functions, or to control tbeir judgment. It is for the jury to datermine what facts areestablisbed by tbe testimony, and what conclusions they will draw from such facts. But, wbile leaving this duty and function to the jury, the court may properly restate the testimony bearing upon the material points in the case. Severnl witnesses testified population of the fourth civil district of Fayette county, that the on November 6, ISSS,numbered between 490 and500,-say about 500; thiltfrom SO to 100 of such voters were white men. and Democrats; that retliainder, numbering about 400, were colored men, and Republicans; thaton the day of the election there was a large turn-out of such · voters; that the colored voters present exceeded 300 in number. John · McGowan, .the Republican chairman of the district, states that there · were overSOO colored RepubliCAn voters present; that be directed many or most of them to go for their tickets to John C. Reeves, who occupied a position 10 or 20 steps from the' :voting place, and was distributing Republican tickets to Re.publican\torers;.that Reeves' position was in full view of the window at which· tber ballots. were-handed in to the eleetion omcers'; that he saw many of such tickets deposited or handed in to officers holding the election, but cannot swear to the exact number .that actually voted such Republican ticket. John C. Reeves testifies before you that he .was present; that he had in his possession Republican tickets, a sample ofwhich is produced and exhibited ill evidence, havcandidates, from presidential electors ing on it a full list of and congressmen down to state and county officers; that he issued to the colored voters on that day, upon their application for the same, 325 of those tickets, while at the voting place; that on his way home he met 4 or5 othervoters going tathepolls, to'whom he gave Republican tiokets. The names of 2 of these Yoters he finds upon the poll-list, at Nos. 407 and 409. Reeves further states that he saw over 100 of ,those to whom begavesuoh tickets go directly from him to the window where the votes were received, and hand them in to. the officer holding the. election. He could not swear that theyl1ctually deposited the identical ticket received from bim, but he saw no change of ticket or change of purpose on the part of the voters after procuring from himself the Republican ticket. Ile recognizes and identifies 011 the poll-list the names of about 100 of such Republican voters. Now, gentlemen of the jury, Reeves and MeGowan are in. no way impeached, nor are their statements in any wise contradicted. They stand before you as in every way credible witnesses, and their testimony is entitled to full faith and credit. If the case for the prosecution stppped with the testimony of Reeves and McGowan, it would .present a case of circumstantial evidence as ,to the vote actualLy .cast, having exceeded that wbich was counted and retained by the eleeo&icer and juqges. Where circumstantial evidence is relied, on to convict, ascounselfor defendants have urged, it should be of such,coIielusive qharacter as to exclude every reasonable hypothesis of innocence. But tl,legovernment's case does not stop with the circumstantialeviv.41F.no.5-22

-:-338

'REPOBTElti

v:01.41.

'dence 'lietailed iby Reeves' In addition to their state',ments, 108 witnesseS:;6'Xcluaive 'ofr,N."Sbadenger,have, one: by <>ne,sep· arately testified before Jyouthatonthe ofsaid election' they got from · ,Reeves Republican;:tickets; that they each voted such, 'ticket just as it i WRs'toodeivied without in any way scratching or chang·iog: the same. Br:sidesthese 108 witnesses, Allen Dodson states he voted 'asti'aight Republican ticket, which: he got from:Dave Bowlan,which ,differed somewhat in :appearance from ,those issued by. Reeves.. With ;'the exception ofeaid Dodson, the other 108 witnesses; eiXclusiveof Sha,denger, oomebeforeyoti,and severallyistatethatthe tibket which they ,oreape<ltively voted 'on the 6th Ndvernber, 1888, in said fourth district :ofrF"yette county,was received from Reeves; that:they each voted such :,ticR:-et jU6t as it wasreoeived by them, .withootehang6' 01' alteration'of 'any kiIill;thattheyhailded suchtieketto the officer holding the elec,:tion,inanyof,them stating Oarpenteritvas 'the person,to :wl'lpm,the ticket was at ibe;tiine of voting; fl'he' names of each 108 MIen Dodson; ,appear upon of the whiwlis introduced, in:e\Tidetl'deJ'" It is th'us · shown Ithnt; sa.id election. They the kil;ldof,tJicltetthey respootively voted!,! by showing frOUl .. whom: they received the'same, and ;thl:ttafter receiving, ticket they -'voted it without cbangeoralterati6h.;, .These witnesses n1!enot impeached, oriri;.any way They'stlmd beforeyouiMcredible as any that ,ha.ve! , in some; make' ·miata:kes in sayifig 'that,'Hari'ison's n!!orne' was on their'ticltiet, anI!: fail't6' retnem'ber other rlamelli',that wereQnit. !But i.ntellige't.lt, witnesse'S 'for'the defense, like Esq,tiire"Mat,Rhea, make siD;lilar',inistakes wheIi'theysay that CleveiJand's'llame was:ontl1e ,ticket they' 'MsO' faino remember the ,mm:iuis oHhe different()andidatesvoted!for; This·ianot1ria:terlal. The faet to be ascertainedirdm:thee'Videncijis, did/these 109 wit'nes'ses'{otl theprc:>secution vote thre which: theyteceived 'fromJbhnO. Reeves'? The witnesses swear directly and positively to ,the fa'et resting! upon ,edge. ,This 'iaoot:' circumstantial',': btn' evil:lenceiaild; iith! witnes8es'tJre believed,:the fact isestabiished 109 Republican. votes'were ,cast ,at that electioo district. 'The testimony· of these! me witnesseslsweatitlg: and positively to'this fact, cannot be pooperly disregarded :by the jurY,"because such witnesses,Dothtiving ,booniimpeiwhed oreontradicted, standJbefore yoU tlS'credibleas any that ,have, :testified. ,JIfthe:prosecutioni)a(f. 'simply ahowrfthat each one of ,;these:witneases wasseengohlgto i ,pdllswith 11 Republican ticket in i hisl band': which he" had; received' from' with;tti'de'claration' Of his ',intet1tion!tO' vote atleh tieket; sl!lcb, faeta >and acts would hit ted that ,such ticket. 'But"when the ,vo1ler,firir pe1'Son, cOmes beforeyotiM:a"witness, and' 'swears that: he put -jllto ,!the ·to;thfl' officer holding ,the election, the .identical ballot that he received from Reeves, that isilotcircumstlintilll, -but poaitive"testimony, ll.nd.establish-es'thefact, if the witness isered:.' . _. ,/;.
q

I'

I'

-

889
iblej and, unless'impeached, or directly interested in the reSult or the sUit, all witnesses are deemed credible. ,The jury shonldgive to such positive testimony its due weight and consideration, and the fact or facts thereby established should be followed out to their logical result. Counsel for defendants, in answer to this direct testimony, showing or tending to show at least 109 Republican votes actually cast, has suggested that the Republican candidate for congress, in connection with John C. Reeves, perpetrated a fraud upon the voter:s of said district, by placing in the hands of said Reeves tickets with a Republican heading, but with Democratic candidates' names thereon, and that those fraudulent tickets were the ones Reeves actually issued. There is no testimony whatEtver to warrant such a suggestion. Suchan act or fraudulent conspiracy would in-volve a gross violation of law, rord would constitute a criminal offense, and the jury are not at liberty to upon the mere suggestion of counsel, that other partiel! have committed a crime,in order to shield tends to defendan'ts, from the consequences of acts which establish against them. The jury may not indulge in any such presumption of guilt against others, not on trial, in order to relieve defendants,whose guilt or innocence must be found from the evidence before the jUry; and from that alone. I t is further suggested, by counsel for the defense that these 1'09 voters , were, before or after receiving their Republican tickets, bought up,and for a consideration were induced tode8troy the tickets received from Reeves, and vote Democratic tickets. This is open.to the sameobservation and objection as the other. It is not sUPPolted by any testimony. It invokes the presumption ofa criminal offense cilmmitted by unknown parties, upon the mere suggestion of counseL The jury: are not warranted in giving any. weight to this suggestion. 'The force of the evidence against defendants, whatever. it may be, cannot be:brokenby indulging in any such presumption. It is also suggested that, ifvotes of said witnesses were actually cast as they have testified, some person or persons other than these defendants hav-etamperedwiththeballots, and produced the results shown by theretums; that, if ballots were changed, destroyed, or wrongfully counted, some one else committed the offense and not these defendants. Is there any evidence before you to Stl pport, this theory? The court can recall nonejand you cannot properly, in the absence of testimony tending to establish the lact, indulge in any such presumption. It is shown that the ballot-box was in the exclusive and continuous possession :and custody of these defendants and their associate, Plummer Thompson, the RepUblican judge of election. The defendant Carpenter, as the offiCer holding the election, 'received the ballots as cast, and called off the votes from the tickets'when the were counted. The returns made by him and the judges of said election show that only 43 Republican votes wete castor countedataaidelection. You' have the positive swearing, of, thl;! witnesses,'exclusive of Shadenger, who cast 109 Republican, ballot,s at said, electi()n. If y(I)ubelieve the testimony of these witnesses, the faetis establisbed1liat'least 109.Republican bal10tsweredeliyered to; anWreoeived

840

DDEBAL· BEPORTlm,

vol. 41.

by the defendants, oI'by the defendant Carpenter, as the ofticet' holding
said election. lfteceived, why were they not found in the ballot? Or, if found therein,i why were they not counted? If these 109 ballots reached the defeQdants' possession and custody, it is itlCumbent upon them to giveyo\1 some reasonable explanation of how it happened that only 43 were counted out and returned as the Republican vote. Such reasonable explanation of this discrepancy is not furnished by the suggested theory,that somebody, without the knowledge. or permission of defendants, tampered with the ballot-box. and changed the votes. When the evidence brings home to the defendants, or either of them, a controlling fact, such as the actual receipt ofa larger number of Republican votes than were cQunted or retul'ned by them,·the duty rests upon them of how such a diRcrepancy has occurred. Responsibility for the result rests upon them until it is shown by evidence tbat the.fraud·,was committed .by others, and without their knowledge or permission, tacit or express. ·If you find that the defendants, or either of them, changed, altered, destroyed,or wrongfully counted any ballots castat:said election, or permitted suoh acts to be. done by'others, you!tre not required to find what particular number were thus chMlged, altered, destroyed, or wrongfully counted. The number of ballots fraudulently tampered with is not materiaL [f 10.0r 100 or. 109 are fraudulently changed ordeatroyed, the offenses charged are as effectually committed as though such changes amounted to 1,000,000. If the evidence satisfies your minds that some one of the defendants committed orpetmitted the frauds charged, and that the others had no knowledge of or connection with·such fraudulent you will return yoUr verdict accordingly. You may find sOme guilty,and acquit others.· As already stated,the evidence, and that alone,must satisfy you, l?eyond a reasonable doubt, that the offenses charged, or some of them, were committed or permitted by the sIefendants, or some of them, in Ordel' to convict all or either Of them. . This needs some. explanation, perhaps. In civil suits, mere preponderance of evidence willordinad-:1y turn the scales in favor of the party on whose side. it exists; but in criminal cases, with the presumption of innocenoe whioh the law makes in favor of the prisoner on trial, something more is .required thana mere balance or preponderance of proof against him, in orda.r. to warrant . it conviction. Before retnrning a verdict of guilty, tbe evidence should be of such a character as. to satisfy. the judgment and conscience of the jury a,8. to the guilt of the accused. . If the jury can reconcile the evidence with any· reasonable hypothesis consistent with the innocence ofthe de-fendant they should do so, and in that case acquit; or if, after weighing all the proof,8ndlooking only to the proof, and the reasonable tions to be drawn therefrom, the jury impartially and honestly iain the belief that the accused may be innocent of the:offenses charged againsthim,he is entitled to the benefit of.that doubt. It is no.t,.howl'lver, . meant by this, gentlemen of the jury, that the testimony shouldestabHsh the defendant's guilt to an absolutecertliinty, but merely that you .should :not.convict, unlessrfromalUhe,evidencB j yo.u b.elieve the,

UIUTED STATES". CAnPENTBlk

cused guilty beyond a reasonable doubt. While attempts to explain: the term "reasonable doubt" do not usually result in making the subject any clearer to the minds of the jury, and while the court might con.. tent itself with simply saying that you must be satisfied from the evidence of the defendant's guilt beyond a reasonable doubt, in order to convict them, or either of them, of all or any of the offenses charged against them, still, as it is the general practice of courts conducting criminal trials to give some illustration or explanation of the character of the doubt which may be deemed reasonable, the court will say, for your instruction and guidance, that speculative notions, theories, or "possibilities, resting upon mere conjecture, not arising out of or deduea.. ble from the proof, should not be confounded with what is meant by a "reasonable doubt. " A doubt suggested by the ingenuity of counsel, or by your own ingenuity, not warranted by the testimony, or arising out of its insufficiency; or one born of lenient inclination or disposition: to permit the defendant to escape the penalty of the law; or one promptedby sympathy Jor the,deftlUdants, or those connected with them by . ties of relationship or party; or one arising Ollt of opposition to the la.w sought to be enfofced,-is not what is meant by a "reasonable doubt." · On thecontra,ry ,a" reasonablEf doubt, " as that term is em ployed in the: administration of criminal. law, is an honest, substantial misgiving, generated by the insufficiency of the proof; an insuffi.ciency ovuncertainty.of the evidence, whioh fails to convince yourjudgment and con.,;: science,and satisfy your candid reason, as to.theguilt of the accused.. If the ,whole evidence; when carefully examined, weighed, and com.. par.l;ld,.pr04ucesin settledconvictiQn or belie!:. of the de- :. fendants' guilt, such a conviction as you would be willing to act. upon": in matters of great importance, relating to your own affairs, you are free from any reasonable doubt, and should find and return your verdict in accordance with such belief. As already stated, it is not required either that the evidence shall establish, or that you should have, an absolute certainty of the de(endants' guilt, but merely that degree of certainty or belief such as you would act upon in deciding upon and conduding your own transa.ctions of great nwment and importance. Having that sort or degree of conviction or beliefwith which you would enter upon transactions of great concern to yO\us.e1f, such a belief as. would '·. lead '. you to· feel safe in acting in matters· or affairs of great affecting your own personal or private interests, cannot be flaid. or that you had any reasonable doubt on' the' question at issue.' If, however, proof leaves your minds in such a state of uncertainty as to the guilt of accused, aswl;lUld deter you from acta state,cif mental ing in important matters which concern yoursel'f" uncertainty and indecision would constitute a xeasonable doubt. You may, therefore, in testing the character of the conviction or belief which ilie has minds as'to the iguilt pf all .or tlie" defendants, ask yourselves this question: "Would such a degree .of conviction, certainty, or opinion as the proof in this case has made upon my mind be sufficient to induce man a.e.t upon

ail;

J'1U)ERAT.. REPORTER,: vo1Aki

in;sfn;mMerofgreatconcem,land.i'nipdrtanceto his own ,personal If you question irithe:affirmative, then you cannot properly any as to,the guilt of the defendants., Oil the. other hand, if the proof oft 'guilt leaves your minds in a' state of such uncertain(y or wantof:convi<!ti0n as would deter or prevent a prudent man from; acting or prooeedibg in matters of great moment and concern tohimself,'that character of uncertainty or indecision would constitute a reasonable doubt which the'defendants are entitled to havt'l the benefit of. y ourvetdict respond to' each count oithe indictment, for the reason that each count contains a 'distinct and substantive charge or offem'le against the defendants;: Ii you find the ,defendants guilty on all the counts, you will say; by youl'foYeman: I'We find the delimdants guilty as charged in the indictment." If you find then not guilty on any of the: counts, you will returDa general verdict of not guilty. If you nnd!thedefendants guilty ODsome of the counts, and not'g'uilty on, others" you wUl specify in, your verdict the' oountson which you find them gUilty t and those onwhichyou find them not guilty. If you find ,someoUhe'defendants guilty as charged in uHor some of the counts, you will retilln'your verdict accordingly, naming such defendant, and 'him guilty. specifying the count or counts on which you I now:'lea,ve :the case in your :hands, gentlemen of the jury, feeling assured :tIhat, from the close attention you have given the testimony as it was introduced, and from your ability and willingness to weigh it properlyand'fairly, you will return an honest, upright, and impartial United States and the verdict,' and, a: ,true deliverance make between accused.,' '
i

!;{

',(

Court, E. D. NewYO'rk., iannary 25,1890.)

l.P.a.TBN'l'l! ;pdB bnNTIONs--INPRINGBllI:Blt,.....WUTE-TRAPS.

Letter8patent No. 286,746, for a waste-trap, ,were i8sued 00t0ber16, 1888, to Samuel Jjl.,'l'homIloS, who stated that the, object of his invention was a waste-trap, "wherein the'seaU1 is intbeupper portion, where the water <toes not come inciontact With it. ", .accoDlplished thill objElot by oastingthe central partition, for about half itslenS'lih frop:! the bottom, IIQli4 trap, leaving the upper part, ' of the pSrtitiOlifreefrom the' 1I1dewaJ.11I, 110 that thll1 portion ciould be bent down infriDged by,traps made nndet patent No. 871,107, fOr for, blloslps, ,granted October 4, 1887" ailio to' SamueE. TIrOmas, tn much of the partition 8.!l lies the exit-pipe fa also clUlt i,QtegnU witb the si4ewaus,',thus avoiding the objectionable seam.
PATENT: ' ;,

S. ,

a is void by, antloipation by an foreign patent, the patentee 'IS 8at0I>pell trom tJrgingtlUit as a defense to a SUIt by his alisiinee for an of the patent. ,' : : " ' ,
ji

. IQ:Equity

forinjunotion.