In an indictment for smuggling opium, a description of the
property smuggled as "prepared opium, subject to duty by law,
to-wit, the duty of twelve dollars per pound," is a sufficient
description of the property subjected to duty by paragraph 48 of
§ 1 of the Tariff Act of October 1, 1890, c. 1244, 26 Stat.
567.
It is no valid objection to an indictment that the description
of the property in respect to which the offense is charged to have
been committed is broad enough to include more than one specific
article, and any words of description which make clear to the
common understanding that in respect to which the offense is
alleged to have been committed are sufficient.
A defendant who waits till after verdict before making objection
to the sufficiency of the indictment waives all objections which
run to the mere form in which the various elements of the crime are
stated, or to the fact that the indictment is inartificially
drawn.
One good count in an indictment containing several is sufficient
to sustain a judgment.
United States v. Carll, 105 U.
S. 611, distinguished from this case.
A charge that the defendant willfully, unlawfully, and
knowingly, and with intent to defraud the revenues of the United
States smuggled and clandestinely introduced into the United States
prepared opium carries with it a direct averment that he knew that
the duties were not fully paid, and that he was seeking to bring
such goods into the United States without their just contribution
to the revenues, and is therefore not subject to the objection that
a
scienter is not alleged.
An objection to the admissibility of testimony as to a count
upon which the accused is acquitted is immaterial.
Page 156 U. S. 186
Secondary evidence is admissible to show the contents of letters
in the possession of the defendant in a criminal proceeding, when
he refuses to produce them on notice to do so, and cannot be
compelled to produce them.
When a competent witness testifies that a writing which he
produces was received by him and that a defendant on trial in a
criminal proceeding admitted that he sent it to him, a foundation
is laid for the introduction of the writing against the defendant,
although not in his handwriting.
An instruction objected to as misrepresenting the testimony and
as attempting to enforce as a conclusion from the misrepresented
testimony that which was only a possible inference therefrom is
examined and held to fairly leave the question of fact to the jury,
and not to overstate the inference from it, if found against the
defendant.
An instruction to the jury that
"a reasonable doubt is not an unreasonable doubt -- that is to
say, by a reasonable doubt you are not to understand that all doubt
is to be excluded; you are required to decide the question
submitted to you upon the strong probabilities of the case, and the
probabilities must be so strong as not to exclude all doubt or
possibility of error, but as to exclude reasonable doubt,"
gives all the definition of reasonable doubt which a court can
be required to give.
On July 14, 1893, there was returned into the District Court of
the United States for the District of Oregon an indictment against
the defendant, William Dunbar, now plaintiff in error, charging him
in five counts, under § 2865, Rev.Stat., with the crime of
smuggling. On November 25, 1893, there was also filed in the same
court a second indictment, charging him in nine counts with a
violation of § 3082, Rev.Stat.
Section 2865 provides:
"If any person shall knowingly and willfully, with intent to
defraud the revenue of the United States, smuggle, or clandestinely
introduce into the United States any goods, wares, or merchandise,
subject to duty by law, and which should have been invoiced,
without paying or accounting for the duty, . . . every such person
. . . shall be deemed guilty."
The charge in the third count of the first indictment was
"That on the second day of September, 1892, in the State of
Oregon and in the District of Oregon, and within the jurisdiction
of this Court, the said William Dunbar did, on the steamship
Haytian Republic, a steamship plying between the port of
Portland, Oregon, in the United States, and Vancouver, in the
Province of British Columbia,
Page 156 U. S. 187
Dominion of Canada, willfully, unlawfully, and knowingly, and
with intent to defraud the revenues of the United States, smuggle
and clandestinely introduce into the United States, to-wit, into
the State of Oregon, and within the jurisdiction of this Court, and
from a foreign country, to-wit, the Province of British Columbia,
in the Dominion of Canada, certain goods, wares, and merchandise,
to-wit, a large quantity of prepared opium, being about 1,400
pounds of prepared opium, the exact number of pounds being to the
grand jury unknown, of the value of $15,400, subject to duty by
law, to-wit, a duty of twelve dollars ($12) per pound, and which
should have been invoiced, without paying or accounting for said
duty or any part thereof, and without having said opium or any part
thereof invoiced, contrary to the form of the statutes in such
cases made and provided, and against the peace and dignity of the
United States of America."
The fourth count was different only in the time and the amount
of opium charged to have been smuggled.
Section 3082 is as follows:
"If any person shall fraudulently or knowingly import or bring
into the United States, or assist in so doing, any merchandise,
contrary to law, or shall receive, conceal, buy, sell, or in any
manner facilitate the transportation, concealment, or sale of such
merchandise after importation, knowing the same to have been
imported contrary to law, such merchandise shall be forfeited and
the offender shall be fined,"
etc. The substance of the second, fourth, and fifth counts of
the second indictment was that the defendant did
"willfully, unlawfully, and knowingly, and with intent to
defraud the revenues of the United States, smuggle and
clandestinely introduce into the United States'"
certain amounts of prepared opium. The ninth count charged
that
"On the 5th day of February, 1893, said William Dunbar, in the
District of Oregon, and within the jurisdiction of this Court, did
willfully, unlawfully, fraudulently, and knowingly, and with intent
to defraud the revenues of the United States, facilitate the
transportation after importation of a large quantity of prepared
opium, to-wit, about 200 pounds of prepared opium, the exact number
of pounds being to the grand jury unknown, which prepared
Page 156 U. S. 188
opium was subject to a duty by law, to-wit, to a duty of twelve
dollars ($12) per pound, and which should have been invoiced, and
which prepared opium, on said 5th day of February, 1893, had been
knowingly, willfully, unlawfully, and fraudulently brought,
imported, smuggled, and clandestinely introduced into the United
States and into the District of Oregon, and within the jurisdiction
of this court from a foreign country, to-wit, from the Province of
British Columbia, Dominion of Canada, and upon which prepared opium
no duty had been paid or accounted for according to law, and none
of said prepared opium had been invoiced, he, the said William
Dunbar, then and there well knowing that no duty had been paid or
accounted for according to law on said prepared opium, and that
none of said prepared opium had been invoiced, and that the same
and the whole thereof had been unlawfully, willfully, knowingly,
and fraudulently brought, imported, smuggled, and clandestinely
introduced into the United States and into the District of Oregon
from said foreign country, said province of British Columbia, in
said Dominion of Canada as aforesaid; that the said William Dunbar
did then and there facilitate the transportation of said opium,
after importation, by packing the same in trunks, and causing the
same to be transported as baggage from Portland, Oregon, to San
Francisco, California, contrary to the _____ of statute in such
cases made and provided, and against the peace and dignity of the
United States."
On November 27, 1893, the court made an order consolidating the
two cases for trial. Upon the trial of the consolidated cases, the
jury returned a verdict of guilty, as charged in the six counts
above referred to of the two indictments. A motion for a new trial
having been overruled, judgment was entered sentencing the
defendant to pay a fine of $1,000, and to be imprisoned for a term
of two years. To reverse such judgment and sentence, the defendant
sued out this writ of error.
Page 156 U. S. 189
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The first question presented for our consideration is as to the
sufficiency of these counts in the indictment. The description of
the property charged to have been smuggled is "prepared opium, . .
. subject to duty by law, to-wit, the duty of twelve dollars per
pound."
The Revenue Act of October 1, 1890, c. 1244, 26 Stat. 567,
commonly known as the "McKinley Act," was in force at the time of
the commission of these alleged offenses, and the only clauses in
it in terms prescribing a duty on opium imported from foreign
countries are paragraphs 47 and 48 of section 1, which read:
"47. Opium, aqueous extract of, for medicinal uses, and tincture
of, as laudanum, and all other liquid preparations of opium, not
specially provided for in this act, forty percent
ad
valorem."
"48. Opium containing less than nine percentum of morphia, and
opium prepared for smoking, twelve dollars per pound, but opium
prepared for smoking and other preparations of opium deposited in
bonded warehouse shall not be removed therefrom without payment of
duties, and such duties shall not be refunded."
The contention is that opium is dutiable only in certain
specified forms and conditions, as follows: aqueous extract of
opium for medicinal uses; tincture of opium, as laudanum; all other
liquid preparations of opium not specially provided for in the act;
opium containing less than nine percentum of morphia, and opium
prepared for smoking. That there is nothing known to the revenue
law simply as "prepared opium." And therefore that a charge of
bringing in "prepared opium" without any payment of duty states
nothing which the law prohibits. It is true that the language of
paragraph 48 is "opium prepared for smoking," while the indictment
reads "prepared opium," and thus does not limit the description by
stating the purpose for which the opium charged to have been
smuggled was prepared. Opium may,
Page 156 U. S. 190
it is said, be prepared for many uses. The statute only imposes
a duty on "opium prepared for smoking." Hence, the indictment is
not precise, as it must be, because the terms of description are
broad enough to include opium prepared for purposes other than
smoking, and not subject to any duty.
But although these are purely statutory offenses, it is
unnecessary to resort to the very words of the statute. The pleader
is at liberty to use any form of expression, providing only that he
thereby fully and accurately describes the offense, and the entire
indictment is to be considered in determining whether the offense
is fully stated. The argument made by counsel omits to notice other
words which clearly limit any generality in the term "prepared
opium" and so limit it as to bring the article charged to have been
smuggled within the bounds of the statute. The description is not
merely of "prepared opium," but of such opium "subject to duty by
law, to-wit, the duty of twelve dollars per pound." In other words,
the defendant is charged to have smuggled that kind of prepared
opium which is subject by law to a duty of $12 a pound. Turning to
paragraph 48, we find that "opium prepared for smoking" is the only
"prepared opium" expressly subject to such duty. It is no answer to
this to say that opium containing less than nine percent of morphia
is also subject to the same duty, and that the term "opium," in
this clause, is broad enough to include both crude and prepared
opium; for if "opium," as there used, does not exclusively refer to
crude opium, and if opium prepared for other uses than that of
smoking is, when containing less than nine percent of morphia,
subject to the duty of $12 a pound, "prepared opium, subject to
duty of twelve dollars per pound," can mean only opium prepared for
smoking, which, irrespective of the amount of morphia contained in
it, is subject to that duty, or opium having less than nine percent
of morphia, and prepared for other uses, which is also subject to
like duty. In either case, the property charged to have been
smuggled is property within the very terms of paragraph 48.
Further, paragraph 48 is not the statute describing the offenses
and imposing the penalties. Sections 2865 and 3082
Page 156 U. S. 191
are the penal sections, and the description in the one is
"goods, wares, and merchandise subject to duty by law," and in the
other simply "merchandise." While, in an indictment under those
sections, it might not be sufficient to use only those words in
describing the property charged to have been smuggled, because they
are too general, and do not sufficiently identify the property, yet
any words of description which make clear to the common
understanding the articles in respect to which the offense is
alleged are sufficient. There can be no doubt that the defendant
knew exactly what he was charged with having smuggled, and that the
description was so precise and full that he could easily use a
judgment under these indictments in bar of any subsequent
prosecution. It is true some parol testimony might be required to
show the absolute identity of the smuggled goods, but such proof is
often requisite to sustain a plea of once in jeopardy. It is no
valid objection to an indictment that the description of the
property in respect to which the offense is charged to have been
committed is broad enough to include more than one specific
article. Thus, an indictment charging the larceny of "a horse, the
property of A. B.," is not overthrown by proof that A. B. is the
owner of many horses, any one of which will satisfy the mere words
of description. Yet, to make available a judgment on such an
indictment in bar of a subsequent prosecution, something besides
the record might be required to identify the property mentioned in
the two indictments.
See United States v. Claflin, 13
Blatchford 178. In that case, which was one of smuggling, the
description was
"certain goods, wares, and merchandise, to-wit, six cases
containing silk goods, of the value of $30,000, a more particular
description of which is to the jurors unknown,"
and it was held sufficient. The rule is that if the description
brings the property in respect to which the offense is charged
clearly within the scope of the statute creating the offense, and
at the same time so identifies it as to enable the defendant to
fully prepare his defense, it is sufficient.
Further, no objection was made to the sufficiency of the
indictments by demurrer, motion to quash, or in any other
Page 156 U. S. 192
manner until after the verdict. While it may be true that a
defendant, by waiting until that time, does not waive the objection
that some substantial element of the crime is omitted, yet he does
waive all objections which run to the mere form in which the
various elements of the crime are stated, or to the fact that the
indictment is inartificially drawn. If, for instance, the
description of the property does not so clearly identify it as to
enable him to prepare his defense, he should raise the question by
some preliminary motion, or perhaps by a demand for a bill of
particulars; otherwise, it may properly be assumed as against him
that he is fully informed of the precise property in respect to
which he is charged to have violated the law.
In this connection also, reference may be made to § 1025,
Rev.Stat., which provides that
"no indictment . . . shall be deemed insufficient . . . by
reason of any defect or imperfection in matter of form only, which
shall not tend to the prejudice of the defendant."
This, of course, is not to be construed as permitting the
omission of any matter of substance (
United States v.
Carll, 105 U. S. 611),
but is applicable where the only defect complained of is that some
element of the offense is stated loosely, and without technical
accuracy. For these reasons, we are of opinion that the first and
principal challenge of the indictment cannot be sustained.
A second objection, which is made to all of these counts with
the exception of the ninth in the second indictment, is that a
scienter is not alleged. But one good count is sufficient
to sustain the judgment, and as it is conceded that the ninth is
not open to the objection, it is perhaps unnecessary to consider
whether the others are justly exposed to such criticism.
Nevertheless we have carefully examined them, and are of the
opinion that to none is this objection well taken. They charge that
the defendant
"did willfully, unlawfully, and knowingly, and with intent to
defraud the revenues of the United States, smuggle and
clandestinely introduce into the United States"
the prepared opium. It is stated in 1 Bishop Crim.Pro. (3d ed.)
§ 504, that
"the word 'knowingly' or 'well knowing' will supply the place of
a positive averment
Page 156 U. S. 193
that the defendant knew the fact subsequently stated."
And to like effect are the authorities generally. The language
of the indictment quoted excludes the idea of any unintentional and
ignorant bringing into the country of prepared opium upon which the
duty had not been paid, and is satisfied only by proof that such
bringing in was done intentionally, knowingly, and with intent to
defraud the revenues of the United States. Indeed, the word
"smuggling," as used, carries with it the implication of knowledge.
In Bouvier, vol. 2, p. 528, smuggling is defined: "The fraudulent
taking into a country, or out of it, merchandise which is lawfully
prohibited." And such is the general understanding of its meaning.
We have therefore both the use of a term which implies intentional
misconduct and a specific averment that what was done was done
willfully, knowingly, and with intent to defraud. But it is said
that there should be a specific averment that the defendant knew
that the duty had not been paid on the opium, and in support of
that contention,
United States v. Carll, supra, is
referred to. In that case, an indictment charging the defendant
with passing a counterfeited obligation of the United States was
held fatally defective in failing to allege that the defendant knew
that the obligation was counterfeited, and this notwithstanding
that the language of the indictment closely followed the words of
§ 5431, Rev.Stat., the section under which it was found, and
which provides that
"Every person who, with intent to defraud, passes, utters,
publishes, or sells . . . any falsely made, forged, counterfeited,
or altered obligation, or other security, of the United States,
shall be punished,"
etc., the Court saying that
"knowledge that the instrument is forged and counterfeited is
essential to make out the crime, and an uttering, with intent to
defraud, of an instrument in fact counterfeit, but supposed by the
defendant to be genuine, though within the words of the statute,
would not be within its meaning and object."
But the analogy between the two cases is not perfect. The
purpose of the statute in that case is the protection of the bonds
or currency of the United States, and not the punishment of any
fraud or wrong upon individuals. Hence, it is not sufficient
Page 156 U. S. 194
to charge that a party is trying to defraud an individual, and,
in carrying that fraud into execution, uses a bond or note of the
United States which he may suppose to be genuine, but which in fact
is counterfeit; for that discloses no criminal intent in respect to
the bond or note, but only a criminal intent as against the
individual sought to be defrauded -- an intent which may exist
independent of any knowledge of the character of the bond or note.
The purpose of the sections under which these indictments were
found is the protection of the revenues of the United States, and,
while those revenues may be in fact lessened by one ignorantly and
innocently bringing into the country property subject to duty upon
which the duty is not paid, there can be no intent to defraud those
revenues unaccompanied by knowledge of the fact that the duties
have not been paid. The wrongful intent charged is not to violate
the revenue laws of the United States, which might be satisfied, as
suggested by counsel, by proof that defendant willfully, knowingly,
unlawfully, and fraudulently failed to have the opium invoiced or
included in the manifest of the cargo of the steamship, or to pass
the packages containing it through the customhouse, or submit them
to the officers of the revenue for examination. An intent to
defraud the revenues implies an intent to deprive such revenues of
something that is lawfully due them, and there can be no such
intent without knowledge of the fact that there is something due.
So when the charge is made that the defendant willfully,
unlawfully, and knowingly, and with intent to defraud the revenues
of the United States, smuggled and clandestinely introduced into
the United States prepared opium, it carries with it a direct
averment that he know that the duties were not fully paid, and that
he was seeking to bring such goods into the United States without
their just contribution to the revenues. For these reasons, we
think that this objection to the indictment also fails.
Again, it is insisted that the court erred in permitting one
Nathan Blum, an accomplice, who had turned state's evidence, to
give testimony as to the contents of a letter he had written to the
defendant, and also of letters written by defendant to parties in
British Columbia. According to the bill of exceptions,
Page 156 U. S. 195
the testimony in respect to the first letter was given by the
witness while testifying as to the third count of the second
indictment; and, as the jury found the defendant not guilty under
that count, the error, if error there was, may be considered as
immaterial.
With reference to the letters written by the defendant, the
witness testified that they were all copied in the letter books
belonging to the Merchant Steamship Company, and were all in the
possession of the defendant; whereupon the following proceedings
were had, as shown by the bill of exceptions:
"Mr. Gearin (counsel for the United States): Counsel says they
have not had any notice. We now give counsel and the defendant
notice to produce these letters and the copies they have -- the
letters written to Dunbar and letterpress copies of letters written
by him."
"Mr. McGinn (counsel for defendant): There are no such letters
in existence. We have not got any such letters."
"Court: If you have the letterbooks of the company, you can
produce them."
"Mr. McGinn: Does your honor make a ruling on the request of
counsel?"
"Court: You have objected to this evidence on the ground that he
has not produced these letters. The witness says they are in the
letterbook itself of Dunbar & Company."
"Witness: Yes, sir."
"Court: Counsel has notified you that you may produce these
letterbooks."
"Mr. McGinn: We have no such letters, and never have had."
"Court: You may produce the letterbooks if you want to."
No objection was made to the time or manner in which this notice
was given; no suggestion that the defendant wished time to look
over the letterbooks and among his papers to see what he could find
corresponding in any degree to the description given by the
witness. On the contrary, the positive declaration was that he had
no such letters, and never had them. Under those circumstances,
there was no error in permitting the witness to testify as to what
he claimed
Page 156 U. S. 196
to have been in the letters. According to his testimony, the
originals or the letterpress copies thereof were in the possession
of the defendant, and as the defendant failed to produce them, and
could not be compelled to produce them, the door was opened for
secondary evidence of their contents. Of course, whether any such
letters were ever written, and what, if written, they contained,
presented a question of fact defending on the credibility of the
witness, and that question of fact was for the consideration of the
jury, and not for the determination of the court.
Again, error is alleged in respect to the admission in evidence
of a certain telegram. The facts in respect to this matter are as
follows: the witness Blum was stating that defendant telegraphed
certain things to him. An objection being raised, he produced a
typewritten telegram and said that he received it from the
defendant. It was further objected that it was not the original,
the one prepared and signed by the defendant; whereupon the witness
testified that it was delivered to him by the telegraph company,
and that he afterwards talked with the defendant about it, who
confirmed it, and admitted that he had sent it. Thereupon the court
permitted the telegram to be read in evidence. In this there was no
error. Whatever may be the rule in other cases, an admission by
defendant that the writing which is offered is the message which he
sent is sufficient to justify its introduction in evidence. An
admission as to a writing is like an admission of any other fact,
and when a competent witness testifies that certain writing, which
he produces, was received by him, and that the defendant admitted
that he sent it to him, he has laid the foundation for the
introduction of the writing, and this though it be not in the
handwriting of the defendant.
Again, it is objected that the court erred in permitting a
witness, Sigmund Baer, to testify that he had appropriated the
proceeds of the sale of some of the opium charged to have been
smuggled, in part to take up a draft drawn by the defendant, on the
ground that the paper was itself the best evidence as to the party
by whom it was drawn. The witness
Page 156 U. S. 197
at first called the paper a note, but afterwards said that it
was a draft drawn by the defendant on Blum, and was held by a bank
for collection; that he paid the money to the bank, took up the
draft, and forwarded it to Blum. The record is silent as to whether
this paper was produced in evidence or not, but even if produced,
it would not disclose by whom or with what moneys it was paid, or
what disposition was made of it after payment. Those were
independent facts, to be shown by other testimony, and it was not
error to permit the witness to give such other testimony. The
substantial matter was the disposition of the moneys realized from
the sale of the opium, and the witness who handled such moneys was
competent to testify as to the disposition he made of them. Part he
used in taking up a draft, and part he deposited to the credit of
the defendant in the Anglo-California Bank. This he said he did in
obedience to instructions. Calling the paper a draft drawn by
defendant on Blum was a mere general description, and, as the
receipt of the paper and its subsequent transmission to Blum were
only incidental to the disposition of the moneys, it was not
improper to thus generally describe it. In this connection we may
notice the following instruction:
"The ninth count charges the defendant with having facilitated
the transportation of 200 pounds of opium on the 5th day of
February, 1892. Now this is the opium that it is claimed was sold
probably by Sigmund Baer. I think it is claimed to be the opium
sold by Sigmund Baer, as is claimed, for Dunbar and Blum. Sigmund
Baer testifies that Dunbar's drafts were paid out of the sale of
opium, and it is claimed it was the sale of this opium, and that
the balance of the money after the payment of the draft was
deposited to Dunbar's credit. If that is so, the circumstances
would be inconsistent with innocence on the part of Dunbar of this
transportation, and the tendency would be to connect Dunbar with
it, because ordinarily men do not deposit money to pay the debts of
other people, or deposit it to the credit of other people, unless
that money belongs to those people, and there is some understanding
that it is to be done. Dunbar has denied that he has any
Page 156 U. S. 198
knowledge of any transaction of this character. Whether this
denial is overcome by the testimony on the part of the government
is left to your judgment."
The complaint of this is first that it misrepresents the
testimony, and second that it attempts to enforce as an absolute
conclusion from such testimony, thus misrepresented, that which is
only a possible inference therefrom. We do not think that it is
justly exposed to this criticism. It refers to the testimony of the
witness Baer, and, stating that the defendant denies any knowledge
of the transaction as testified to by Baer, submits to the jury the
question as to whether this denial is overcome by the testimony
offered by the government. If so overcome, and the jury find that
not only was the money, the proceeds of the sale of the smuggled
opium, in fact applied to defendant's benefit, but also that it was
so applied with his knowledge, a legitimate inference would be that
he was connected with the importation; for ordinarily men do not
dispose of money in the manner indicated unless it belongs to the
party for whom it is so used. This instruction, it must be borne in
mind, is given in reference to that count in the indictment which
charges the defendant with facilitating the transportation of the
opium, and not those which charge him with being himself the party
who was guilty of smuggling. If he knowingly permits the
appropriation of the proceeds of the smuggled opium to his own
benefit, either in the payment of his drafts or in increasing the
amount of his account at the bank, he is helping to make successful
the unlawful venture, and certainly those facts would be
inconsistent with the idea of his entire innocence in respect to
the matter. It will also be borne in mind that this instruction is
not that if these things be so, the defendant must be found guilty,
but only that they are inconsistent with his innocence in respect
to the transportation. We think that the question of fact was
fairly left to the jury, and that the inference from those facts,
if found against the defendant, was not too strongly stated.
Again, error is alleged in the instructions in respect to the
matter of reasonable doubt. It is urged that the court failed
Page 156 U. S. 199
to instruct the jury as to what constitutes a reasonable doubt,
and that, in speaking of it, it used the term "strong
probabilities." Repeated attempts have been made by judges to make
clear to the minds of the jury what is meant by the words
"reasonable doubt," but, as said by Mr. Justice Woods, speaking for
this Court in
Miles v. United States, 103 U.
S. 304,
103 U. S. 312:
"Attempts to explain the term
reasonable doubt' do not usually
result in making it any clearer to the minds of the jury." And so,
when the court in this case said to the jury:
"I will not undertake to define a reasonable doubt further than
to say that a reasonable doubt is not an unreasonable doubt -- that
is to say, by a reasonable doubt you are not to understand that all
doubt is to be excluded. It is impossible in the determination of
these questions to be absolutely certain. You are required to
decide the question submitted to you upon the strong probabilities
of the case, and the probabilities must be so strong as not to
exclude all doubt or possibility of error, but as to exclude
reasonable doubt,"
it gave all the definition of reasonable doubt which a court can
be required to give, and one which probably made the meaning as
intelligible to the jury as any elaborate discussion of the subject
would have done. While it is true that it used the words
"probabilities" and "strong probabilities," yet it emphasized the
fact that those probabilities must be so strong as to exclude any
reasonable doubt, and that is unquestionably the law.
Hopt v.
Utah, 120 U. S. 430,
120 U. S. 439;
Commonwealth v. Costley, 118 Mass. 1, 23.
It is further objected that the court erred in stating to the
jury that the testimony of certain witnesses was of the character
of corroborating testimony -- that is, testimony tending to support
that given by accomplices. As the record fails to preserve all the
evidence, either that of the accomplices or that of the
corroborating witnesses, we are unable to say from the reference
thereto made by the court in its charge that there was any error in
this respect. So far as we can gather from what is before us, it
would seem that the court made no mistake in pointing out certain
items of testimony as corroboratory to that furnished by the
accomplices. One purpose in
Page 156 U. S. 200
these references, as stated in the charge, was to indicate to
the jury that as to certain counts there could be no conviction,
because as to them the testimony was only that of an accomplice,
and uncorroborated. Of course, the defendant cannot complain of an
instruction that no conviction can be had on any count supported by
only the uncorroborated testimony of an accomplice.
These are the substantial questions presented by counsel. We
have examined them all carefully, and are of the opinion that no
substantial error appears in the record. The judgment is
therefore
Affirmed.
MR. JUSTICE FIELD dissented.
