72 F. 159 | W.D. Wis. | 1895
(charging jury). Had not the questions raised by the evidence in the case made by the prosecution been very thoroughly argued, and abundance of authority produced, the court would hesitate to decide finally upon them at this stage of the trial, but would submit the case to the jury, and reserve the questions for further and more elaborate consideration; but according to the view which the court takes of the case,, it would be very doubtful whether the court would get any further light
It is incumbent upon the prosecution in a criminal case to show that a criminal act has been committed within the time limited by the statute of limitations, — that the statute of limitations has not run upon it. It is incumbent upon the government to show, —and the rule is different in criminal cases from what it is in civil cases, where the statute of limitations is held to be a defense, and must be pleaded, — it is incumbent upon the prosecution, as an affirmative proposition in a criminal case, to make a case that is satisfactory to the jury, on which the statute of limitations has not run. In a criminal case under the United States statutes it is incumbent on the prosecution to show that an offense has been committed within the three years immediately preceding the finding of the indictment or the commencement of the prosecution, by information or otherwise. Now, in the judgment of the court, that has not beeti done in this case. Even if you allow' that what
There is no doubt in the mind of the court — the authorities are all to that effect — that the gist of an action for conspiracy under the statutes of the United States is the saíne as it always was at common law. The statutes of the United States do not undertake to define what a conspiracy is, or to create any new offense. They merely speak of the crime of conspiracy as a crime already recognized by law, and we have got to go to the common law and the decisions of the English and American courts to find out just what a conspiracy is, and what the limitations are. All the provision extra is that in order to complete the offense, so that an indictment will lie, there must be some overt act. The congress of the United States, as well as the legislatures of most of the states, have modified the common law to that extent, — that in order to be indicted and punished for conspiracy, (he gist of the offense being an unlawful combination, there must be an overt act. Such grace is allowed by the statutes of several states and by the law of congress to the defendant, — that there must be some overt act. Any overt act, however slight, intended to effectuate the object of the conspiracy, and whatever its character may be, whether it is itself criminal or perfectly innocent in its nature, is sufficient to fix the offense and to make it indictable. Now, it seems to me the material question in this case is, when the statute of limitations commenced to run, whether these defendants might have been indicted, under the evidence of this conspiracy, in the spring of 1891; and that they might, seems to me quite clear from the testimony. In fact, the most damaging testimony in the case — ■ nearly all the testimony in the case tending to show any original conspiring together or illegal combination between these different defendants — 'relates to a time prior to the three years previous to the filing of this indictment; that is, it relates to the late winter and early spring of 1893, when it was supposed that this land was to come into market, and lines of men were formed to homestead it. The letters of Mr. McCord to Mr. Day, who was acting as his principal agent in regard to the matter, — perhaps the most damaging evidence that has been introduced in the case against these defendants, — were written in March, 1891, and near
I have no doubt that the statute of limitations has stood in the way of this prosecution from the first, and that counsel for the government have felt the difficulty. They admit that the indictments may properly have been found in March, 1891; that the conspiracy to defraud the government was then formed by the defendants, and various overt acts performed intended to effectuate its objects. If this be so, it is difficult to see why the statute did not then begin to run. Otherwise, you would have a different period of limitation in conspiracies from what you have in other offenses against the government, which could not have been the intention of the law. The purpose evidently was to make a uniform rule, applicable to all offenses of the same grade. Counsel no doubt anticipated this difficulty, and sought to avoid it by alleging an overt act committed on October 23, 1891, so as to avoid the claim of the running of the statute. Now, to make good this contention, it is claimed that a conspiracy is a continuing offense.
It is maintained here by counsel, but I do not think with much plausibility, that this is a question of fact that ougjit to be submitted to the jury. That might be so, if the evidence was conflicting. That rule would apply if the defendants’ evidence was in, and there' was a conflict of testimony upon these different points. Of course, then it would have to be submitted to the jury, but that is not this case. The -whole case rests upon the testimony made* by the prosecution. There is no conflict of testimony in the case made by the prosecution. It would not be proper for the counsel to claim that there is any conflict in the testimony, the defendants not having put in any lesiiinony at all. It would not be for the interest of the prosecution to maintain that, and they do not claim it. Then the question is simply' a question of law, and however much the court might be willing to shift the responsibility of deciding this case upon the jury, the court does not feel that it ought to do so. The responsibility' must be taken and met wherever it properly belongs, and in the mind of the court the motion raises a pure question of law. Suppose this question should be submitted to the jury, and they should find that there was a separate conspiracy made in the fall of 1891, on which the statute of limitations had not run. Could the court say, on a motion for a new trial, that there was sufficient evidence to support such a verdict as that? I think not. I think the whole tendency of the evidence (and there is no conflict in it) is to show that the conspiracy was one indivisible thing, and was formed in the spring of 1891. Of course it was not consummated. It may never have been consummated. It is not necessary, in order to punish for a conspiracy, that it should be con