24 App. D.C. 337 | D.C. Cir. | 1904
delivered the opinion of the Court:
The first group embodies objections to the sufficiency of the indictment which were first raised on demurrers that were overruled, then on prayers for instructions that were refused, and, finally, on motions in arrest of judgment that were denied.
1. The first ground of the contention is that counts 2 to 12, inclusive, do not show the commission of any offense under the statute (Rev. Stat. § 5440, U. S. Comp. Stat. 1901, p. 3676) defining and punishing conspiracies to defraud the United States. As the sentence imposed upon each was not greater
This reference is sufficient. Blitz v. United States, 153 U. S. 308, 316, 38 L. ed. 725, 728, 14 Sup. Ct. Rep. 924; Crain v. United States, 162 U. S. 625, 633, 40 L. ed. 1097, 1098, 16 Sup. Ct. Rep. 952. Moreover, as the omission to repeat the averments of count 1, setting out the dishonest scheme and fraud, to effect the object of which the remaining counts charged different acts, was formal, and no substantial rights of the accused could be prejudiced thereby, the defect, if any, would seem to be cured by § 1025, Rev. Stat. (U. S. Comp. Stat. 1901, p. 720); Price v. United States, 165 U. S. 311, 315, 41 L. ed. 727, 729, 17 Sup. Ct. Rep. 366; Connors v. United States, 158 U. S. 409, 411, 39 L. ed. 1033, 1034, 15 Sup. Ct. Rep. 951; United States v. Rhodes, 30 Fed. 431, 434; Wright v. United States, 48 C. C. A. 37, 108 Fed. 805, 810.
Count 5 alleges a conspiracy formed on a later date, to wit, July 1, 1901, and sets out the entire scheme to defraud and the means by which it was intended to be accomplished, and an act done to effect the object. In these respects it is as complete and certain as count 1.
Of the remaining counts it is sufficient to say that they refer to count 5 in substantially the same manner as the counts before considered refer to count 1.
2. The next objection lies to each and every count of the
The indictment avers that Machen, as superintendent of the free-delivery division of the Postoffice Department, was charged with the duty of ascertaining the cost of articles needed in the administration of the business of that division, and, when so ascertained, with, in good faith, advising the First Assistant Postmaster-General to order the purchase of, and payment for, the same at the price. Therefore, when, as is also charged, he advised and procured the purchase of any number of such articles at the price of $1.25 each, knowing, at the same time, that they could be bought for 75 cents, the proposition that the United States were defrauded is too plain to admit of argument. If, then, as charged, he confederated with others in the doing of such an act, all concerned therein were guilty of a conspiracy to defraud the United States.» The fact that he may have participated in a division of the proceeds, of such transactions aggravated the offense, and supplied express evidence of his corrupt intent as well as a circumstance tending to show- the existence of the conspiracy.
3. As regards the objection that the indictment fails to, charge the want of knowledge of the First Assistant Postmaster-
It was proved on the trial that the First Assistant Postmaster-General had no knowledge of the conditions under which the purchases were made; but had it been shown that he had full knowledge, or was even a party to the conspiracy, the fraud perpetrated upon the United States would be none the less. In support of the general principles, see Ochs v. People, 25 Ill. App. 379, 414, 124 Ill. 399, 426; 16 N. E. 662; State v. Cardoza, 11 S. C. 195, 230.
The refused instructions, numbered 11 and 12, are to the effect that the scheme of fraud charged in the indictment is the alleged excessive price paid for the Groff fasteners, and that evidence of the number recommended to be purchased by defendant Machen, or of his activity in their introduction, cannot be considered as supporting the charge of the excessive price in determining the guilt or innocence of any one of the defendants. Charge 13 is to the effect that if the Groffs did not offer the fasteners to the government for 75 cents each, and that $1.25 was a fair and reasonable price, then there was no fraud upon the government, and the defendants should he acquitted. Charge 26 is to the effect that if the price of the fastener was fixed by the government before the time that Lorenz met either of the Groffs, or before he acquired any interest in the same or
(1) The charge in the indictment in respect of the contemplated fraud was not the recommendation of the purchase of an unnecessary article, or of quantities of a needed article in excess of the requirements of the service, or “undue activity” on the part of Machen in recommending the purchase of necessary articles, but, as has been heretofore stated, the recommendation of their purchase at the price of $1.25 each, when he and the parties conspiring with him knew that they could have been purchased for 75 cents. The confederation to obtain this excessive price for a large number of the fasteners through Machen’s use of his powers and opportunities as the adviser of the First Assistant Postmaster-General in such matters is the conspiracy charged. The fraud was in the price to be obtained, without regard to quantity.
By the terms of § 5440, Rev. Stat. (U. S. Comp. Stat. 1901, p. 3676), a mere conspiracy to defraud is not punishable. To make it so one or more of the conspirators must do some act to effect its object. Plence, after charging this conspiracy, the several counts allege separate and distinct acts of purchase at the excessive price, payment therefor, and further, the division of the same from time to time as received. In order to convict under each count it was necessary to prove each act as alleged. The evidence of each purchase of, and payment for, the fasteners consisted of documents on file in the Postoffice Department, and necessarily showed the quantity in each instance. This evidence could have been introduced for no other purpose than to prove the direct charges of the indictment and its several counts, and no exception has been taken to a single expression in the charge of the court that would permit its consideration by the jury for any other purpose. We are of the opinion, there
(2) Instruction 13 was properly refused as irrelevant and misleading, because the issue was not whether the price paid was a fair and reasonable one, but, as before stated, whether it was 50 cents in excess of a price which the patentees and manufacturers were willing to receive. And evidence of the arrangement between them and Lorenz through which they were to receive that sum was as competent to show that willingness, under the charge of the indictment, as evidence of a direct offer to Machen, the representative of the contemplated purchaser, to sell for that price, would have been. After refusing instruction 13, the court gave another requested by the defendants embodying the foregoing view and stating that proof of this willingness of the Groffs was necessary to the establishment of the fraud and the conviction of the accused.
(3) Instruction 19 was also properly refused. By no possible construction of the indictment could the conviction of Mach-en and Lorenz be made to depend upon the fact that the Groffs were also parties to the conspiracy.
(4) There was no error in refusing instruction 26. Whether the defendants were guilty of the offense charged in the indictment could not be made to depend upon the fact that the United States may have fixed the price of Groff fasteners at $1.25 or more in purchases made before the Groffs and Lorenz met or made their agreement. The evidence of such fact was proper for the consideration of the jury as a circumstance merely, and for the same purpose that they were directed in a special charge, given at the request of the defendants, to consider the action of Machen in 1899, voluntarily and without suggestion from a superior officer, reducing the payment for fasteners from $1.50 to $1.25 each.
Section 819, Rev. Stat. (U. S. Comp. Stat. 1901, p. 629), which regulates the practice in the United States courts throughout the States, without doubt requires that where there are several defendants in a case of any character they shall be deemed a single party for the purpose of all challenges thereunder. This provision is the conclusion of the general sentence providing for all trials save for treason or a capital offense, and is separated from the preceding part by a semicolon. The like provision— differing somewhat in phraseology, it will have been observed—
The contention on behalf of the appellants is that this inclusion in the sentence relating to all other cases, and the concluding words, “such challenges,” make it clear that the limitation was not intended to apply to the challenges allowed in the first two sentences.
We are unable to concur in this contention. In stating the grounds of this conclusion, we regard it as unimportant to discuss the rule of the common law in respect of the peremptory challenges that were allowed defendants in criminal cases, or the frequent legislation relating thereto since 1790, to which our attention has been called. It is sufficient to say that the general policy of that legislation has been to restrict the privileges of defendants and to increase those of the United States in criminal cases generally. The last general legislation was that of June 8, 1872, contained in § 819, Rev. Stat., heretofore mentioned. The intention to change the rule thereof as regards the first classes of offenses — “treason or a capital offense,” and “any other felony” — by increasing the number of challenges allowed the United States in trials in the District of Columbia, is expressed in § 918 of the Code in terms of absolute certainty. Pains were taken, moreover, to remove any possible doubt as to the offenses that might be included in the words “any other felony,” as used in the general statute, by substituting therefor the words, “offenses punishable by confinement in the penitentiary.” If there was a further intent to make a radical change of policy by limiting the provision requiring several defendants to be treated as one, to the lesser cases that were last mentioned in the statute, the failure to indicate it with something like the same certainty is inexplicable. The concluding words, “such challenges,” as readily relate to the challenges allowed in the trial of offenses of one class as of another; and if this provision, independent and general in its nature, had been separated from the preceding one by a period, or a colon even, instead of a semicolon, the speciousness of the argument for limiting its application thereto would be apparent. The question, then, is reduced
(1) Having proved that Machen was superintendent of the free-delivery division in the .office under the immediate direction of the First Assistant Postmaster-General, and his duties as charged in the indictment by J. J. Howley, who had for years been private secretary to the First Assistant Postmaster-General and then chief clerk in his office, the witness was asked what was the import to the First Assistant Postmaster-General of Machen’s initials indorsed upon letters in the usual method and course of business prevailing in the office. Objection to this on the ground that the witness had shown no knowledge of the matter having been overruled, he answered: The initials of Machen upon a letter or other document coming from his division indicated that it was regular and correct, and that there was nothing for the First Assistant Postmaster-General to do but sign the same. Other evidence was then given without objection, tending to show that about one hundred letters per day were submitted to the First Assistant Postmaster-General for signature; that it was physically impossible for him to read
Robert J. Wynne, then First Assistant Postmaster-General, was introduced as a witness. Having been shown a letter addressed to the Groff Brothers, July 9, 1902, and signed by him, on which the initials, “A. W. M.,” appeared, ordering 5,000 complete fasteners to be shipped to consignees at Adrian, Michigan, he said that he had personally nothing to do with the preparation of the letter, or with the question whether such supplies were necessary or not, and had signed it relying upon the initials of Machen indorsed thereon. This last statement was objected to. Witness then further stated, under objection, that Machen was charged with the duty of deciding for him everything relating to supplies, in all instances where no question was raised; and would indicate his decision hy indorsing his name or initials; where a question was raised it would be brought to the witness for decision. The objections were that the evidence was not warranted by any averment of the indictment. Motion was then made to exclude the answers on the further ground that the duty in respect of these matters was imposed by law on the First Assistant Postmaster-General; that it was incompetent for him to show his failure to perform his duty and its imposition by him upon others contrary to law. This having been overruled, the witness explained at length the volume of business in his office, embracing the expenditure of $60,000,000 to $70,000,000 per year, and the duties of Machen, and his reliance upon him in respect of the needs of his division, the quantities and prices of articles, etc. He also explained that he would only decide upon personal examination
The objections to Wynne’s testimony are not well taken. In so far as they involve the allegations of the indictment respecting his knowledge or want of knowledge they have been settled in passing upon the sufficiency of that instrument.
Nor can the defendant Machen escape the consequences of his misconduct in the discharge of the duties imposed upon him by the rules and usages of the office, on the ground that those duties were imposed by the law upon the First Assistant Postmaster-General, and therefore could not lawfully be intrusted to the chief of .a division, as they were. The law merely marks out the outlines of the powers and duties of the First Assistant Postmaster-General in the administration of his office. He is not forbidden the exercise, within those outlines, of some discretion in their performance, and the duties imposed upon Machen were within that discretion. United States v. MacDaniel, 7 Pet. 1, 14, 8 L. ed. 587, 592; Tyner v. United States, 23 App. D. C. 324, 355.
In respect of the evidence of Howley, which is of similar purport, it is sufficient to say that he was apparently well qualified to testify to the usage of the office.
(2) There was no error in admitting the evidence tending to show the actual cost of the Groff fasteners. It was a material circumstance for the consideration of the jury in determining the question whether the Groffs had been willing to sell for 75 cents an article for which the Hnited States paid them $1.-25; and also in ascertaining the real nature of their relations with Lorenz, who was charged with receiving the excess and
(3) Regarding the exceptions taken to the admission of statements made by the several defendants, but not in the presence of each other, after the termination of all acts in furtherance of the object of the conspiracy, it is sufficient to say that each was expressly offered and received as evidence against the party making the same alone. And in the charge the jury were told that these statements could only be considered against the parties who made them, and then only for the purpose of connecting them with the conspiracy if they should find that one had been entered into; and further that “this evidence is not to be considered by the jury in considering the question as to whether or not the defendants are guilty of the crime of conspiracy, but only as tending to prove the relation which the parties making the same may have had to any conspiracy that may have existed prior to that time.” There can be no question of the admissibility of the declarations under these limitations. Sparf v. United States, 156 U. S. 51, 54, 39 L. ed. 343, 344, 15 Sup. Ct. Rep. 273.
(4) In connection with the foregoing, it is convenient to consider another exception taken to the admission of certain acts of the defendants, individually, as well as their statements or declarations, that is embraced in another assignment. Some of this evidence consisted of official documents relating to the purchase, payment, and installation of Groff fasteners, which bore the indorsement of Machen as superintendent, and the objection was that to authorize their admission there must first have been prima facie evidence of the existence of the conspiracy. The general rule in such cases is that the order in which testimony shall be received is ordinarily a matter resting in the sound discretion of the trial court. Bloomer v. State, 48 Md. 521; and see 8 Cyc. Law & Proc. p. 682; 12 Cyc. Law & Proc. p. 442, where numerous decisions sustaining this doctrine are cited. Considering the peculiar character of the case on trial and the necessary nature of the circumstances relied on to prove
(5) In the course of the cross-examination of the defendant Machen, who testified on his own behalf, the prosecution was permitted to ask him if he had any other sources of income than his official salary. Considering the nature of the evidence offered to establish the conspiracy, and the nature of the explanation offered by the witness to account for the receipt of money from Lorenz, the question was not irrelevant.
(6) The last exception under this assignment relates to the introduction of a letter from the postmaster at Boston and one from the postmaster of Cleveland. Both were addressed to the First Assistant Postmaster-General, and bore dates of May and June, 1896, respectively. These letters contained certain criticisms of the Groff fasteners. As a witness, Machen said that the Boston postmaster in his letter about that time protested against the introduction of the fastener in that city and gave five reasons therefor. Nothing was said by him of the other letter. The letters need not be set out. They merely state certain reasons why, in the opinion of the writers, the introduction of the fasteners in their respective cities was not advisable. These letters, with or without proof of the signature of the writers, were irrelevant. They contained nothing bearing upon the conspiracy charged and attempted to be proved, for, as heretofore stated, there was no pretense that Machen acted improperly or fraudulently in advising the adoption of the Groff fasteners. The charge of conspiracy was to defraud the United States by advising their purchase at an excessive price. Bearing this in mind, as Machen substantially stated the contents of the Boston letter, and neither letter tended to contradict any evidence offered by the defendant, and in view of the further fact that witnesses for the United States had themselves testified to the efficiency of the Groff fastener and its superiority to all others, the admission of the letters was harmless error. They could have exercised no possible influence over the minds of the jury.
(I) In this connection may be considered, also, certain ex
No objection to any of the foregoing letters was made on the ground of irrelevancy or immateriality. It is possible that the qualification of Donovan to testify to Machen’s signature may have been sufficient to warrant the introduction of the two letters produced by him, especially when considered in connection with the evidence by Clark relating to Machen’s personal action in accordance with them, leaving the final determination of the genuineness of the signatures to the jury. See Shaffer v. United States, present term [post, 417 ). Likewise, the testimony of Clark, showing interviews with and orders by Machen and the payments by his authority of the money in accordance with the statements of the letters, may have warranted the introduction of those addressed to him. But these need not be determined. For the same reasons that have been given in respect of the postmaster’s letters before considered, these letters could have worked no conceivable prejudice to the defendants.
In determining the question it is to be borne in mind that the Groffs are not directly affected by it because of the proof and their admissions as to the bills made out and the receipt of the several sums of money; nor is Lorenz by reason of the proof as to him. It is to be remembered that the fraud charged is not as to the adoption and the purchase of the fastener at any time, or in numbers not actually delivered to and used by the Hnited States, but consists in the excessive price paid in each instance actually charged in the indictment. The transactions not specified therein in the course of which Lorenz received the pay
Now, as there is no charge of falsification of the accounts themselves, and the records contain no admission by Machen of any criminality in respect of the conspiracy to obtain an excessive price for the fasteners, but were part of the usual and necessary routine of the office for keeping the accounts of the department in accordance with the appropriations made for its use, it may be possible they were made evidence by the statute. See United States v. McCoy, 193 U. S. 593, 601, 48 L. ed. 805, 808, 24 Sup. Ct. Rep. 542. And if certified copies would be admissible there is no good reason why the originals themselves would not be. Bruce v. Manchester & K. R. Co. 19 Fed. 342, 346, citing Cate v. Nutter, 24 N. H. 108.
That point, however, need not be determined, for we are clearly of the opinion that, even if error was committed on that ground, it was cured by the subsequent testimony of Miss Ledbhart and the admissions of Machen. Both testified, as we have
Diller B. Groff testified, in support of the objections, that two of these inspectors called at his house and said they wanted a statement regarding the sale of fasteners. That he had had an attack of insomnia and swimming of the head the night before ; had slept about two hours only, and the night before that not at all. That he told them this, and desired them to put it off to another day, to which they replied, “Wé have got to have
At a later stage of tbe case, Differ B. Groff (a son of tbe defendant of tbat name) was called as a witness, and testified generally in tbe case, concerning tbe sales of tbe fasteners and tbe contract by which Lorenz acquired bis interest. He was thirty-one years old, and acted in a clerical capacity for bis father in tbe transaction of tbe business. He was then examined in regard to one of tbe visits of tbe inspectors and testified as follows :
“I beard a portion of tbe conversation between my father and Mr. Mayer and Mr. McKee. In looking out of tbe window I saw coming across tbe street six or eight men, my father and two men, my uncle, as I remember, with two other men, and several other men following them. After I bad gotten my papers I went downstairs, and I beard voices down there and listened. I bad beard of a statement my father bad made earlier in tbe year, and when I came down and beard these voices I listened. I was on tbe second floor of tbe bouse. I was at tbe ball door, and could not see who was in tbe room. I could not hear all tbe conversation, but beard someone say: ‘What we want you to do, Mr. Groff, is to come on tbe government’s side, and get into tbe government’s wagon, and we will see tbat you and your brother both get immunity.’ Then, again, tbe proposition was made to him. They said they needed them and tbat they would give them both immunity, and tbat tbe $13,000 would be paid and tbe statement made would be returned. Tbe voice was tbat of Mr. Mayer. My father turned them down flat-footed, and said be knew nothing about Mr. Machen. I beard them mention tbe Second National Bank. I beard them say tbat my father was paying money to persons to whom be had no right to pay it, and tbat be was being robbed, and my father said, ‘I guess not.’ I beard tbe name of Lorenz mentioned. On tbe morning in April when my father made tbat statement be was languid, and appeared to be a very sick man. He bad not slept at all tbat night, said be felt very miserable, and I could tell from bis conversation tbat be was not himself.
In submitting the case to the jury the court gave the following special instruction at the request of the defendants:
No. XXX. “The jury are instructed that before they can consider the written statement of Diller B. Groff, alleged to have been made and sworn to by him on the 3d day of April, 1903, as evidence in the case they must first find from the evidence in the case that said statement was freely and voluntarily made by said Groff.
“And, in determining the question whether or not said statement was freely and voluntarily made, they may examine all of the evidence in the case with relation to such statement, and if they find from such evidence that said statement was procured or extracted from said Groff by any sort of threat or violence, or obtained by any direct or implied promise, however slight, or by the exertion of any improper influence on the part of the postoffice inspectors securing such statement, then they are instructed that such statement is not a free and voluntary statement, and should be disregarded by them, and not considered in determining the question of the guilt of said Groff.”
When there is a conflict of evidence on the question whether a confession has been obtained by force or threats, or by holding out offers of immunity or reward, the question is one primarily for the decision of the court. If satisfied that it was voluntary he may admit it, leaving its final determination, however, to the jury, as was done in this case. Wilson v. United States, 162 U. S. 613, 624, 40 L. ed. 1090, 1096, 16 Sup. Ct. Rep. 895; Davis v. United States, 18 App. D. C. 488, 490; West v. United States, 20 App. D. C. 347, 352; Brady v. United States, 1 App. D. C. 246, 250.
Where the circumstances under which it was obtained are such as reasonably indicate that it was not voluntary, then it would be an abuse of discretion to submit it to the jury at all. Bram v. United States, 168 U. S. 532, 42 L. ed. 568, 18 Sup. Ct. Rep. 183; West v. United States, 20 App. D. C. 347, 352.
There was not only a conflict of evidence in this case, but a
“No. XVII. The jury are instructed that, even if they find from the evidence that the conspiracy to defraud the United States government, and complained of in the indictment, was entered into between the defendants, or any of them,' in 1895, and that, prior to the 29th day of June, 1900, Machen recommended the purchase of fasteners to the First Assistant Postmqster-General, or that he or any other of the defendants did any overt act in furtherance of the conspiracy, no subsequent overt act done or committed by the defendant Machen, or by any of the other defendants, pursuant to and in furtherance of the said alleged conspiracy, will keep alive or renew the said conspiracy, and the offense or offenses charged in the indictment would nevertheless be barred by the statute of limitations, and all of the defendants should be acquitted.
“No. XVIII. If the jury believe from the evidence that a corrupt agreement was entered into by the defendants, or any two or more of them, in the year 1895, and an overt act was done by said defendants, or any of them, during said year to further the object of said corrupt agreement, and that no further and other agreement has since been entered into by said defendants, or any of them, in respect to the matters and things charged in the indictment, then the court, as matter of law, charges the jury that
The court had previously given the following instruction at the request of the prosecution:
No. VII. “The jury are instructed that, in order to warrant a verdict of conviction, it is not necessary for the government to show, or for the jury to find, that the several conspiracies charged in the indictment, or any of them, were entered into upon the particular dates mentioned in the indictment. It is sufficient if it appear that the conspiracies alleged were entered inte at any time within the period of three years before the filing of the indictment, — that is to say, at any times within three years prior to the 22d day of June, in the year 1903. The fact, therefore, if you find it to be a fact, that the conspiracies charged in certain of the counts were not, or could not have been, entered into on the days on which they are charged, should not prevent your finding a verdict of guilty upon those counts if you find they were entered into at some other time or times within three years prior to the said 22d day of June, 1903.”
The dates of the conspiracy, and of the several acts in furtherance of its object, as charged in the indictment, are given as within three years next before that instrument was presented by the grand jury.
The contention on behalf of the appellants is that, if the conspiracy was in fact formed, and a single act in aid of-its object committed, more than three years before the finding of the indictment, then the offense was barred by the statute of limitations ; and that no other like act or acts, committed within three years, would amount to a renewal or continuance of the conspiracy so as to remove the bar.
We cannot agree with this contention. Undoubtedly, as argued, the conspiracy is the gist of the offense defined in § 5440, Rev. Stat. (U. S. Comp. Stat. 1901, p. 3616), though it is not indictable until some act shall have been done by one or more of the conspirators to effect the object of the corrupt agreement. The offense is then complete as to that act, and the statute at
“No. XXIV. The jury are instructed that the evidence of professional detectives upon disputed questions of fact arising in criminal cases should always be received with a large degree of caution. Erom the nature of their business, and the frequent and constant association with members of the criminal classes, their minds are oftentimes unduly biased and prejudiced against those accused of crime, and in whose arrest they have been instrumental, and their testimony thereby colored against them.” The next omits the use of the word “detectives,” hut directs that greater care should be used in weighing the testimony of persons interested in, or employed to find, evidence against the accused, than in other cases, “because the natural and unavoidable tendency and bias of mind of such persons to construe everything as evidence against the accused, and disregard everything which does not tend to support their preconceived opinions of the matter in which they are engaged.”
The third is substantially of the same effect as the second.
We are of the opinion that the court did not err in refusing each of these instructions. Moreover, the inspectors, at whom the instructions were specially aimed, were not what are known as “detectives,” but men occupying responsible public positions who made no concealment of their offices, their duties, or their purposes. All that the defendants had any right to demand is
“Yon are the sole judges of all questions of fact, and in this respect the court cannot be of any aid to you. It is for you to say as to the weight which you may give to the evidence of any witness who may have testified during the progress of this trial, and, in passing upon the question as to the credibility of the different witnesses, you should weigh carefully, every fact and circumstance in connection with the evidence which has been submitted to you for consideration. You have had an opportunity of observing the conduct of the witnesses while on the witness stand, as well as the interest which any witness may have had in the transaction about which he may have testified, and these are matters which should be considered by you in determining the question as to the amount of weight that you are to give to the evidence of any witness who may have been introduced either by the government or by the defense.
“It is your duty to arrive at a conclusion in considering the facts and circumstances of this case the same as you would come to a conclusion upon any other set of facts in life. There is no technical rule which prevents you from applying to them the same rule of common sense that you would apply to any other subject that might come under your consideration.”
It would serve no important purpose to consume time with a review of the voluminous evidence contained in the bill of exceptions, a general summary of which has been given in the preliminary statement. As regards Samuel A. Groff, the circumstances tending to show his connection with the conspiracy which the jury found to exist were neither so numerous nor so strong as those which tended to show the participation of Diller B. Groff therein, but we cannot say that they were insufficient to warrant the submission of the question of his guilt to the jury.
Whatever addition might have been intended to be made, by way of. explanation or qualification, at the moment of interruption, these remarks could have had no application to any issue in the case, and clearly exceeded the latitude permissible in argu
In the case at bar the defendants did not express an intention to make any motion whatever, as was done in that case, but that is of no consequence; they had the option to do so, with or without the expression of any intention. The trial justice could not, of his own motion, discharge the jury and order a new trial, and he could not be expected to direct a verdict of acquittal.
Having considered every point made on the elaborate briefs
It will therefore be affirmed; and it is so ordered.
Affirmed.
A petition by the appellants to the Supreme Court of the United States, for the writ of certiorari, was denied by that court.