253 F. 224 | W.D. Wash. | 1917
The issue in this case is raised by the indictment which has been returned by the grand jury, to which each of the defendants have entered a plea of not guilty, and that places in issue every material allegation in the several counts of the indictment. While the indictment has two counts, it in fact charges' only one offense. It is a different statement of the same charge against the defendants, and it will be considered only as one count; and
It is charged that the defendants did unlawfully and feloniously combine,, conspire, confederate, and agree together, and one with the other, to commit an offense against the United States; that is, to violate the act of Congress approved May 18, 1917 (40 Stat. 76, c. 15) entitled “An act to authorize the President to increase temporarily, the military establishment of the United States,” and the regulations prescribed by the President, the object and'purpose of the conspiracy being to obtain the discharge of John Edward McHugh from the Selective Service Act upon false, fraudulent, and fictitious grounds, and to which the said John Edward McHugh was not lawfully entitled; that each of the defendants knew that the said John Edward McHugh was at that time not entitled, and would not thereafter be entitled, to such exemption from the said act and regulations, it being the intent and purpose of the defendants to make and file a false, fraudulent, and fictitious claim for exemption from said act and the regulations made by the President, by asserting that he is the son of an aged and infirm father, dependent for support upon the labor of the said John Edward McHugh, and each and all defendants, knowing the said assertion and claim to be- false, made certificates and affidavits in support of such claim, and that said affidavits and claim were false, as fully set out in the indictment, and then states the doing of certain overt acts to carry out the objects of the conspiracy as set out. In the indictment, likewise, is set out the charge that the statements with relation to the income were false, and known to be -false by the defendants.
The common design is the essence of the charge, and, while it is not necessary, to establish a conspiracy, to prove that two or more persons met together and entered into a formal and explicit agreement or understanding, or that they should directly or by words or in writing state what' the unlawful scheme was to be, or the general ■understanding or detail of the plan or means by which an unlawful combination was to be made effective, if they knowingly work together for a common purpose, and that purpose is the illegal act charged as their object, and if- the acts of the parties so dovetail and
In this case evidence was received of a statement claimed to have been made by the defendant James A. McHugh, the father, in the absence of the oilier defendants, John Edward McHugh and Gordon. So far as Mr. Gordon is concerned in this case, the action will be dismissed. In other words, you will be directed to return a verdict of not guilty as to him. There is no evidence before the court that would justify the court in submitting to you the claim of the government, charging him with being a party to the conspiracy in this case, if one did exist. This statement of the defendant James A. McHugh cannot be received against John Edward McHugh, unless it is established by the evidence that the conspiracy was entered into.
The government contends that the claim made by the defendant John Edward McHugh was false, that the defendants knew it was false, and that it was the intent and purpose of the defendants to
You are instructed that intent is an element of the offense charged, and it must be established by the same degree of proof as any of the other elements that enter into the completed offense. It is psychologically impossible to enter into a man’s mind and determine by testimony what the actual intent was. So that you must conclude with relation to the element of intent from the facts disclosed by the evidence in this case, taking into consideration the conduct of the parties with relation to the matter charged, and every circumstance which bears upon the issue, bearing in mind that a man intends the natural consequences of his act intentionally or knowingly done; and when you have considered all of the acts of the parties, their relation to each other, the object to be attained, the things that were done, the circumstances under which they moved, and the motives that prompted the various acts so far as disclosed from the evidence, from all these you will determine what the intention of the parties really was.
You are further instructed that, as to the income from the lands, cows, and horses which he owns, you must determine from the evidence; but you are instructed that tile law does not contemplate that a man can hold property which he does not use himself, and the value of which can be utilized for the support of himself and family, and not use it for that purpose, and claim that he is dependent. Before the defendant James A. McHugh can be dependent for support upon John Edward McHugh, he must exhaust his own resources. By that I mean his property in excess of what he needs to properly house his family, and such as his family can cultivate for their own use and for the purpose of pasturing such cows as may give milk for his family and supply the family with butter for their home consumption. He cannot
Much evidence has been received and comment made with relation to income for the year previous to the time of the charge made. That was permitted to go before you, so that you would have all of the facts and circumstances before you. If you find that the defendant James A'. McHugh was dependent upon John Edward McHugh for support, and believe or have any reasonable doubt as to whether this statement was made ignorantly as to income, even though you believe it was wrong, then, of course, the defendants would not be guilty upon that charge.
Evidence was likewise received upon the physical infirmities of the defendant James A. McHugh, and that condition is a fact to be established by the evidence in the case, and need not be established by medical expert or physician testimony, where the facts presented to the jury are convincing or sufficient to raise a reasonable doubt in the minds of the jury; but when the defendant had consulted a doctor with relation to the illness complained of, and has not consulted him for six years, the jury must consider such fact in connection with all the evidence bearing upon the matter of physical infirmity. The jury also has the right to take into consideration their observation of the defendant before the jury — his appearance — and consider that with his testimony, and all other testimony presented, and conclude with relation to his physical infirmity. Upon this phase of the case you are instructed, however, that if you are convinced by the evidence that ■the defendant is not dependent, and that he has means of support of his own, then his infirmities would not be material.
You are further instructed that evidence has been presented in this case of reputation as to truth and veracity in the community in which he resides, and likewise as to being a law-abiding citizen. You are instructed that such evidence is competent' in a criminal case. It is the only instance where hearsay testimony can be received. Character or reputation testimony is necessarily hearsay. It is testimony as to what the people — the man’s neighbors or the people residing in the community where he lives — think about him or say about him with relation to his truthfulness or with relation to his being law-abiding; and it is based upon the presumption that, when a man has lived in a community a long time and has earned a reputation, he is entitled to it, and that what his neighbors, what people in the community, say about him, should be considered by the jury. You will give consideration to this testimony that was presented, for it was presented on both sides. Now, this evidence is only valuable when the witnesses disclose to you that they have a basis upon which to base their conclusion; and you will approach that testimony from that viewpoint, and give the weight to those witnesses who> you believe are the better qualified to testify with-relation to reputation for truth and veracity and for being law-abiding. You will weigh that testimony by the same rule as you will all of the other evidence in the case.
You will try this case fairly and impartially, bearing in mind that
The defendants are clothed with the presumption of innocence, which prevails throughout the trial and until it is overcome by evidence in this case which shows to your satisfaction beyond every reasonable doubt that both of the defendants are guilty. In this case you cannot find one of the defendants guilty and the other not guilty. One man cannot conspire with himself. It takes two to conspire; and the testimony, as I told you a moment ago, does not show that Mr. Gordon knew anything about this, except as he was requested bjr the defendant James A. McHugh to come in and sign an affidavit. Now, what he did there was wrong. He signed something which he says that he knew nothing about. Of course, if he knew nothing about it, he could not have conspired, and the testimony of the witnesses on the part of the government is not of such a character as to overcome the presumption of innocence, and not enough to connect him with a conspiracy, more than the act of signing the affidavit. The defendants James A. McHugh and John Edward McHugh, therefore, are either both guilty or both innocent of this offense.
In this case each party has examined you with relation to prejudice, or preconceived notions of the issue, or knowledge of the facts, and you have convinced both sides that you are free from any prejudices
As I have intimated a moment ago, you are the sole judges of the facts in this case, and you must determine what they are. Any reference that I may have made to any fact in this case, or expressions used to convey to you some idea, was not done with the purpose of expressing any opinion which I may have of a fact; and I desire you to eliminate from your mind and from your consideration any such thought that you may have received as to any opinion of mine with relation to any'.fact, and determine this yourself solely upon the evidence which has been presented.
You are likewise the sole judges of the credibility of the witnesses who have testified before you, and in determining the weight or credit you desire to attach to the testimony of any witness you will consider the demeanor of the witness upon the witness stand, the opportunity of the witness for knowing the things about which he has testified, his interest or lack of interest in the result of this controversy, and the reasonableness or unreasonableness of the átory of the witness, and from all of these determine where tire weight of the evidence is, and where the truth in the case lies. You will attach to tire testimony of every witness who has testified before you the same tegt that you would apply to any other person in the ordinary affairs of life whose truthfulness or falsity may be under consideration by you. Brom your conclusions there is no appeal. I merely suggest this, so that you inay be impressed with the responsibility that rests upon you. If you find that any witness has willfully testified falsely concerning any material fact in this case, you have a right to disregard the testimony of such witness entirely, except in so far as it may be corroborated by other credible evidence or circumstances developed upon the trial of the case.
It will require your entire number to agree upon a verdict, and when you have concluded you will cause the verdict to be signed by your foreman, whom you will elect immediately upon retiring to the jury room. The form of the verdict will be: “We, the jury in the above-entitled cause, find the defendants John Edward McBIugb and James A. McHugh-r guilty.” If you find them guilty, you will write in the word “are.” If you find them not guilty, you will write in the word “not.” The other form will be: “We, the jury in the above-entitled cause, find the defendant James Gordon not guilty.” You will have these three with you.
Where there are two inferences possible, one of guilt and one of innocence, that of innocence should be adopted by the jury, and that every reasonable doubt upon any fact disclosed in the testimony should likewise be resolved in favor of the defendants.