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evidence shows that the end and object were hostile to or forcible against the republic of Mexico, then it would be, to all intents and purposes, a military expedition. . Again, the prosecution is bound to prove that the act of beginning or setting on foot a military expedition or enterprise was within the territory or jurisdiction of the United States; and you are instructed, in this connection, that the western district of Texas is within the territory and jurisdiction of the United States. And the proof must further show that the expedition or enterprise was to be carried on from the territory or jurisdiction of the United States against the republic of Mexico.
1. From the evidence, you must be satisfied, beyond a reasonable doubt, that the defendant began a military expedition, or set on foot a military enterprise, in the western district of Texas, to be carried on from thence against the republic of Mexico.
2. The proof must establish in your minds that the expedition or enterprise was a military expedition or enterprise, and evidence showing that the end and objects were hostile to or forcible against a nation at peace with the United States characterizes it, to all intents and purposes, as a military expedition or enterprise.
3. You must be satisfied from the evidence that the defendant did begin a military expedition, set on foot a military enterprise, as charged in the indictment, or was present, actively aiding and abetting in the commission of the offense, before you can return a verdict against him.
In reaching a conclusion as to the guilt or innocence of the defendant, you will consider all the facts and circumstances in evidence be
A criminal offense may be established or proved by circumstantial evidence as well as by direct testimony. But, “when the prosecution, in a criminal case, relies upon circumstantial evidence,that is, upon proof of the facts or circumstances which are to be used as a means of arriving at the principal fact in question,-it is a rule that these facts or circumstances must be proved, in order to lay the basis for the presumption which is sought to be established. circumstance essential to the conclusion must be proved to the same extent as if the whole issue rested upon the proof of such essential circumstance.” In a case depending on circumstantial evidence,and the government here partly relies upon evidence of that character,—the rule is that,First, “the hypothesis of delinquency or guilt of the offense charged in the indictment should flow naturally from the facts proved, and be consistent with them all; and, second, the evidence must be such as to exclude every reasonable hypothesis but that of guilt of the defendant of the offense imputed to him; or, in other words, the facts proved must all be comsistent with, and point to, guilt, only, and must be inconsistent with innocence.”
It is insisted by the defendant that certain witnesses who testified for the government were active participants in the crime charged against him, and that, therefore, their testimony, standing alone and uncorroborated by other evidence which connects the defendant with the offense imputed to him, is insufficient to justify a conviction. You can readily recall the names of those witnesses who testified to their connection with the movement designated by them as the
"Garza Expedition.” Some of them are, by their own statements, clearly accomplices, while at least two others claim that they were captured by Garza's men, and were compelled to join the expedition under the pressure of force and threats of violence. If any of the witnesses testifying in the case were constrained or compelled to go with, and remain in, the expedition, because of violence, or threats of violence, offered to them by men engaged in the enterprise,--that is, if they did not join and remain with the expedition voluntarily, but were compelled to do so by men engaged therein,—then they would not be regarded, in law, as accomplices; for an accomplice is a voluntary assistant in a crime. "He is a person who knowingly and voluntarily, and with common intent with the principal offender, unites in the commission of an offense.” Bearing in mind this distinction between a person who is an accomplice and one who is not, you are further instructed that whether the testimony of an accomplice be true or false is a question which, like all controverted questions of fact, is submitted solely to you to determine for yourselves. It is not within the province of the court to pass upon controverted questions of fact, or upon questions affecting the credibility of witnesses. But it is the duty of the court to call your attention to certain rules which obtain in courts of justice in reference to these persons known in law as "accomplices.” On this point you are instructed "that a particeps criminis,—that is, an accomplice,-notwithstanding the turpitude of his conduct, is not on that account an incompetent witness." It is the settled rule in this country that an accomplice in the commission of a crime is a competent witness, and the government has the right to use him as a witness. It is the duty of the court to admit his testimony, and that of the jury to consider it. The testimony of an accomplice is, however, always to be received with caution, and weighed and scrutinized with great care by the jury; and it is usual for courts to instruct juries--and you are so instructed in this case-not to regard the evidence of an accomplice unless he is confirmed and corroborated in some material parts of his evidence connecting the defendant with the crime, by unimpeachable testimony. But you are not to understand by this that he is to be believed only in such parts as are thus confirmed, which would be virtually to exclude him, inasmuch as the confirmatory evidence proves, of itself, those parts it applies to. If he is confirmed in material parts connecting the defendant on trial with the offenses charged in the indictment, he may be credited in others; ain the jury will decide how far they will believe a witness, from the confirmation he receives by other evidence; from the nature, probability, and consistency of his story; from his manner of delivering it, and the ordinary circumstances which impress the mind with its truth. U. S. v. Kessler, Baldw. 22; U. S. v. Beeves, 38 Fed. Rep. 409, 410. With the rules above announced for your guidance, you will give to the testimony of such witnesses as have been shown to be accomplices such weight as you consider it entitled to receive.
As the court has already intimated, you are the exclusive judges of the credibility of witnesses, and of the weight to be attached to their testimony; and, in weighing and considering the evidence before you, you should endeavor to reconcile and harmonize it, if you can. “When
this cannot be done, you must determine for yourselves what portion of the conflicting testimony is most worthy of belief. The court can only give you a few general rules as guides for weighing and deciding between testimony that cannot be reconciled. You should look to the circumstances surrounding the respective witnesses, and the way in which they testify, in considering the weight to be given to their testimony; to their means of information, and opportunity of knowing the facts whereof they speak.
You should also consider the manner and bearing of the witnesses in testifying. Do they show a zeal in stating facts favorable to one side, and reluctance in disclosing facts that would benefit the other? Do they testify in that frank, candid, straightforward way which a witness should do, under the solemnity of an oath? Or do they evade or equivocate? You should also look to the consistency of their testimony. * You should especially look to the interest which the respective witnesses have in the suit, or in its result.
Where a witness has a direct, personal interest in the result of the suit, the temptation is strong to color, pervert, or withhold the facts.” Under the foregoing rules you will give to the testimony of the witnesses such weight as in your judgment it should receive.
You are further instructed that the presumption of law is in favor of the innocence of the defendant, until his guilt is established, by the evidence, to the satisfaction of the jury, beyond a reasonable doubt; and if, upon full consideration of all the facts and circumstances in evidence, you entertain a reasonable doubt of his guilt, you should give him the benefit of it, and acquit him. It is difficult to define, in exact terms, the nature of a reasonable doubt. It may be said to arise “from a mental operation, and exists in the mind when the judgment is not fully satisfied as to the truth of a criminal charge, or the occurrence of a particular event, or the existence of a thing. It is a matter that must be determined by the jury, acting under the obligations of their oaths and their sense of right and duty.” If, from an examination and consideration of all the facts and circumstances in evidence, taken in connection with the charge of the court, you are satisfied, beyond a reasonable doubt, that the defendant is guilty, as charged in the indictment, you will return a verdict in the following form: “We, the jury, find the defendant, Carmen Ybanez, guilty, as charged in the first and second counts of the indictment." If, however, you find him guilty either under the first or second count, but not guilty as to the other, you will frame your verdict accordingly, indicating under which one of the two counts he is guilty, and under what one he is found not guilty. If your finding be in his favor as to both of said counts of the indictment, you will simply say: "We, the jury, find the defendant not guilty."
It is said, gentlemen of the jury, by the learned judge from whose charge I have already quoted, that
“The all-pervading object of this neutrality law is peace with all nations,national amity,,which will alone enable us to enjoy friendly intercourse and uninterrupted commerce, the great source of wealth and prosperity; in short, to prevent war, with all its sad and desolating consequences."
Such being the object of the law, it is the duty of courts and juries to enforce it, whenever the occasion arises, with fairness and impartiality, but fearlessly and with firmness. While our own govern. ment affords protection and a safe asylum to honest, upright, and liberty-loving people, it has the right to demand, on their part, obe dience to law and respect for our international obligations; and although a citizen, or other person living under the influence of American institutions, may enjoy the utmost liberty, consistent with public order, yet that liberty is a liberty regulated by law. It is not an unrestrained license, conferred upon an individual, to violate the law with impunity, and thus produce anarchy at home, or, as the case may be, imperil the amicable relations which may subsist between our own government and that of a friendly foreign power. Men must obey the law, else the social fabric falls. Independent states and nations must discharge their international obligations to each other, if they desire the maintenance of peace, and the continuance of friendly intercourse. The evidence in this case makes it manifest that the executive department of the federal government, with the active assistance and co-operation of the state authorities, has performed its duty in the endeavor to prevent a violation of the neutrality laws, by dispersing armed bodies of men, who, from the inception of the Garza movement until recently, infested the lower portion of this judicial district, and by aiding in the arrest of numerous persons supposed to be offenders against the statute. Let us, also, gentlemen, perform the duty assigned to us. The defendant now on trial is charged with a violation of this law, and it is for you to say whether he is guilty or innocent of the offense. Give the case a fair, candid, and impartial hearing. If he be innocent, do not hesitate so to declare. But if, under the evidence and foregoing instructions, you deem him guilty, then so say by your verdict. The case is now remitted to your keeping. Take it, and render such a verdict as may be just both to the government and the defendant. 1
UNITED STATES v. BRADFORD.
(District Court, D. South Carolina. January 6, 1893.) FALSE PRETENSES-INTENT TO DEFRAUD.
Under Act April 18, 1884, making it a felony to falsely pretend to be an officer or employe of the United States, with intent to defraud the United States or any person, where an indictment charges such false personation in order to defraud the United States or a certain railroad company, it must be shown, to authorize a conviction, that defendant, to consummate his fraudulent intent, so falsely represented himself to some agent of the government, or to some agent of the railroad company. At Law. Indictment against Samuel J. Bradford for violation of Act April 18, 1884. Verdict of not guilty.
B. A. Hagood, Asst. U. S. Atty.
SIMONTON, District Judge. The defendant is indicted under the act of congress approved 18th April, 1884, (23 St. p. 11,) falsely and fraudulently pretending and assuming to be an employe of the United States in order to defraud the United States or the Northeastern Railroad Company. The admitted facts in the case are that on the morning of 19th December, 1892, Mr. Waring, postal clerk, was in his postal car at the depot of the Northeastern Railroad in Charleston. After assorting his mail, and while resting, he discovered the defendant concealing himself in a dark corner of the car. As soon as he discovered him, he sprung up and seized him by the collar. That defendant said at once, “I am Bradford, and in the service.” Waring denying that he was in the service, defendant then said, "I have been discharged, but I am trying to steal a ride to Florence.” Waring had an officer called, by whom defendant was arrested. In order to convict the defendant under this act, it must appear that he had formed an intent to defraud either the United States or the Northeastern Railroad Company; and that, to carry out this intent,-that is to say, as the means of consummating his intent,-he falsely pretended to be an employe of the United States. If it was his intent to defraud the United States, it must be shown by evidence that he falsely pretended to be such an employe to some agent of the government, in order, under this false personation, to consummate his intent. If his intent were to defraud the railroad company, then he must have represented falsely to some agent of the railroad company that he was an employe of the United States. These essential elements are wanting in this case. The jury must find the defendant not guilty
UNITED STATES V. HURSHMAN.
(District Court, D. Washington, S. D. November 16, 1892.) INDIANS-SALES OF LIQUOR.
Rev. St. § 2139, provides that every person who disposes of spirituous liquors to any Indian “under the charge of any Indian superintendent or agent
shall be punished. * *" Held, that an Indian of the Nez Perces tribe, a soldier in the United States army, is within the meaning of the statute.
At Law. Charles Hurshman was accused of the offense of unlawfully disposing of spirituous liquor to an Indian, under Rev. St. & 2139, and held to answer therefor by a United States commissioner. The grand jury, being uncertain as to whether or not the facts shown by the testimony of the witnesses for the government brought the case within the statute, made a special presentment of the case. The court, being of the opinion that the presentment contained all the requisites of an indictment, caused the defendant to be arraigned, and required him to plead thereto, which he did, first by a demurrer, and afterwards by a plea of not guilty. Demurrer overruled. Trial, and verdict of not guilty.
Patrick Henry Winston, U. S. Atty.
HANFORD District Judge. Although the defendant has been acquitted, and this particular case is no longer of importance, the question upon the demurrer is new, and merits a concise and precise