52 F. 275 | S.D. Iowa | 1892
(orally charging jury.) In the indictment presented in the case now on trial John C. Newton and Millard F. Oxford are jointly indicted, but the court has ordered a separate trial as to these defendants. In the case now under consideration, John C. Newton alone is on trial. Your verdict will establish the guilt or innocence of the defendant, Newton, leaving the guilt or innocence of Mr. Oxford to be established in another trial, wherein another jury shall determine his—that is, Oxford’s—guilt or innocence. To the indictment herein John C. Newton pleads not guilty. This plea puts in issue every point necessary to be proven in order to convict; and before the government is entitled to a verdict of guilty, every point necessary to convict must be satisfactorily proven. The defendant is presumed by the law to be innocent. The case starts with this presumption in defendant’s favor; and to overthrow this presumption, and justify a verdict of guilty at your hands, the guilt of defendant must be established beyond a reasonable doubt. The indictment in this case contains two counts. The court instructs you that the second count is now withdrawn from your consideration, and you will confine your- deliberations to the first count of the indictment, and the verdict which you will return into court will be confined to the first count; and the evidence submitted, and instructions given you, will be applied by you to the first count of the indictment, and your finding relate only to the question of guilt or innocence of defendant under said first count. The charge in the first count of the indictment is that of conspiracy to defraud the United States, and that one of the parties to the conspiracy committed an act which is stated in the indictment, and which was so committed in furtherance, or to effect the object, of such conspiracy. Briefly stated, the conspiracy so charged may be said to be that the defendant, John C. Newton, entered into a conspiracy with Millard F. Oxford, and other persons to the grand jurors unknown, to defraud the United States; and that such defrauding was to be accomplished by, and had for its object, the unlawful and fraudulent procuring from the United States of money on the unlawful and fraudulent pretense and claim that under the statutes and arrangements then existing between the United States and the Des Moines & Kansas City Railway Company (of which company said Newton was at said date the vice president and general manager) said company was car
The general facts introduced in evidence are largely undisputed, and the controversy in this trial is largely as to whether the facts proven constitute a conspiracy, and whether defendant, Newton, was connected with such a conspiracy, to defraud the government. The evidence shows without dispute that in the winter of 1890 and the early months of 1891 the Des Moines & Kansas City Railway Company was operating a line of railway between Des Moines, Iowa, and Cainesville, Mo., and that said line of railway was a post route, and known as “No. 148,084,” and the mails were being carried over the entire length of that line; that some time about the month of November, 1890, the superintendent of said railway company applied to the post-office authorities for a reweighing of the mails, with a view to an increase in the compensation then being paid to the company for carrying the mails; that this application was based on the ground that an increase had actually occurred in mail matter so carried, and thereby an increase in compensation was rightfully due to the company. Prom a subsequent letter from said superintendent to the post-office authorities who had charge of the adjustment of such compensation it appears that the reweighing was refused by the
At this point I may properly call your attention to the- law with reference to the method in which the compensation to be paid for carrying the mails is determined. The statute provides that at dates to be fixed by the postmaster general, and not less frequently than once in every four years, there shall take place on each of the mail routes, such as that of said railway company, an actual weighing of the mails for not less than 30 successive working days, and the average weight of the mails actually carried on the route as thus ascertained during such weighing period should thereupon constitute the basis upon which was to be computed, at the prices fixed by law, the compensation to be received by the company for carrying the mails. The testimony shows without contradiction that the weighing of the mails provided for in said letter of notification was entered upon and proceeded with during such weighing period, and the results of the said weighing for each of the said weighing days were daily forwarded to the post-office authorities, and to the officials of the said railway company. One complete set of these daily reports is in evidence before you, and shows that said weighing extended over the entire line of said railway from Des Moines to Cainesville. The undisputed evidence further shows that, during at least a large portion of this
The main questions presented for your consideration herein may be placed under three points: First. Did a conspiracy, as charged in the indictment, exist? Second. If such conspiracy existed, was the overt act charged in the indictment committed in furtherance of such conspiracy? Third. If you find the conspiracy and overt act as charged, was defendant, Newton, a member of it; that is, was he one of the conspirators? The duty of the government, before it can properly demand a verdict of guilty at your hands, must be fulfilled in satisfactorily proving to you, as hereafter stated, each of these three propositions. If it fails in satisfactorily proving any one of these three propositions, then you cannot convict; that is, if the proof is found by you to establish the existence of the conspiracy, and not of the overt act charged, or if such proof shall establish the conspiracy, and the committal, in furtherance thereof, of the overt act charged, but does not satisfactorily prove to you that defendant, Newton, was a member of such conspiracy, then the government has not fulfilled the requirements of the law as to proving the guilt of defendant, Newton; and in either such a case your verdict must be for the defendant. But if you find under the evidence and the law as I shall presently state it to you that the conspiracy charged did exist, and that in furtherance thereof the overt act charged in the indictment was committed, and that defendant, Newton, was one of the conspirators, then the government has met all the points it is compelled to prove;
What is a conspiracy, as the statute uses that term ? and how is it formed ? First. Two or more persons must enter into it. One person cannot constitute a conspiracy. If every part of the acts charged in the indictment had been done by defendant, Newton, alone, and without any other person having combined with him in any arrangement or agreement with reference thereto, or with reference to any result to be arrived .at, through or by means of said act, then there would be, in law, no conspiracy. And this would be true even though the result to be attained or the act committed towards effecting that result was criminal, and wholly criminal. No conspiracy can exist without at least two persons being conspirators therein. Second. It is not necessary, in order to constitute a conspiracy, that two or more persons should actually meet together,—that is, personally be together,—and then enter into an explicit or formal agreement for an unlawful or criminal scheme; nor is it necessary, before a conspiracy can be formed, that two or more persons shall directly—that is, expressly, by a writing or by spoken words—state or agree as to what that unlawful or criminal scheme is to be, or the particulars of the plan, or the means to be applied in carrying out such a conspiracy. Persons agreeing upon or entering upon a scheme to defraud the government are most likely to confer together in secret with reference to such a scheme, and secretly to develop any plans they may agree upon; and such secret agreement, and the scheme thus concocted, and the plans to be used therein, can rarely, in such cases, be-proven by direct testimony. Conspiracies are seldom, indeed, formed in a manner open to direct proof. A conspiracy is rather a thing of darkness. Instead of coming out into the light of a written or completely expressed agreement, it lurks in secret. It loves darkness rather than light, for its deeds are evil. And accordingly it is sufficient to constitute a conspiracy that two or more persons in any manner, or through any contrivance, positively or tacitly, come to a mutual understanding to accomplish a common and unlawful design. In other words, where an unlawful end is sought to be effected, and two or more persons, actuated by the common purpose of accomplishing that end, work together in any way in furtherance of the unlawful scheme, every one of said persons becomes a member of such conspiracy, irrespective of whether the part he takes is a superior or subordinate part, and irrespective of whether he performs his part in the presence of his co-conspirators, or at a remote distance from them, and from the place where they are performing their parts in the conspiracy. A combination formed of two or more persons to effect an unlawful end, said persons acting under a common; purpose to accomplish the unlawful end designed, is a conspiracy. Such connection with or relation to a conspiracy as the law takes notice of and punishes is not dependent upon personal, pecuniary interest in the result of the unlawful adventure. Where there is an attempted attainment of an unlawful end by two or more persons, who are actuated by
The indictment in this case is found under section 5440 of the Revised Statutes of the United States. That section provides that—
“If two or more persons conspire, either to commit an offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of said parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty,” etc.
You will notice that the provisions of this section are very broad,— conspire to defraud the United States in any manner or for any purpose.” It is not necessary that the conspiracy be successful. It may fall short of the actual commission of the fraud intended. The government may not have been actually defrauded. The conspirators may have been arrested, or the conspiracy discovered, and its purpose thwarted before the conspiracy has resulted in defrauding the government, and
Before you can find that the conspiracy charged in the indictment actually existed,'you must find from the evidence that one or more persons were acting in concert or combination with the defendant, Newton, towards effecting or causing the result or end claimed in the indictment, viz., to defraud the United States. If the evidence does not satisfactorily prove to you that some person or persons acted in concert with defendant, Newton,—that is, were knowingly assisting said Newton, or participating with him, in the conspiracy charged, or in carrying out the same,—then you cannot find that a conspiracy existed. You will thus see that the assistance or participation in the alleged unlawful acts must be intentional. It follows, therefore, that proof of mere suspicion, or bare knowledge, that the act is being done by others, without such intentional participancy in it or connection with it, is not sufficient. While knowledge of the commission of the unlawful acts may properly be taken into consideration the jury in connection with whatever facts or circumstances may be proven, to aid in determining whether or not any other person was connected with the defendant, Newton, as a participant in or a party to the alleged unlawful acts, if any such acts are proven, yet such mere knowledge, without more, by another person, — that is, knowledge that defendant, Newton, was attempting to defraud the United States, (if you find the evidence shows he was so attempting to defraud,)—would not make such other person a party to the acts. The proof must go further. Knowledge of the attempt must combine with an intent to defraud. If Mr. Oxford or any other person knew that defendant, Newton, was doing any act with intent to defraud the United States, and having such knowledge aided in doing those acts, assisted defendant, Newton, in the commission of the acts, if any such were being committed, (the intent wherein was to defraud the United States,) and in so assisting intended to aid the defendant in carrying out such intent, then I say to you, that Mr. Oxford, or such other person as the proof may show, by thus participating while having such knowledge, becomes and is in law a party to a conspiracy to so defraud. It is not essential, however, to the existence of a conspiracy that each conspirator shall have knowledge of all the details of the conspiracy. The conspiracies, from the nature of the ease, must be very few in which all the details that enter into the con
I may say to you at this point that it is possible that an act which may not be unlawful when performed by one person may become unlawful when performed by two or more persons. There are crimes which cannot be committed—as, for instance, a riot—by one person. This is also true, as I have heretofore stated, of the crime of conspiracy. And in this case your verdict will not be for or against the defendant, Newton, on the ground that what he did, if done by himself, would or would not have been a criminal act; that is, an act made criminal by the statute. You cannot acquit or convict the defendant, Newton, on such grounds. He does not stand here charged with committing by himself alone any crime, but he is charged with having, in conspiracy or unlawful combination with Mr. Oxford and others to the grand jurors unknown, committed the crime charged. And therefore, if the act charged to have been committed by the defendant, Newton, when done by himself alone, would not be a criminal act, but when committed by said defendant in connection with others would under the instructions given you become criminal, and if the evidence shall satisfy you that such act was committed by defendant, Newton, and such other person or persons, and they were acting in concert to a common end in commission of such unlawful act, then such evidence would properly be taken against defendant, Newton, as showing the existence of a conspiracy. Let me recall the test to be applied in this connection. I have already said, in substance, that, in order to establish a conspiracy, it is not necessary that there shall be any explicit or formal agreement for an unlawful scheme between the parties. Nor is it necessary to prove that the parties to the conspiracy were ever in this district wherein this case is being tried. Their personal presence in Iowa is not necessary to constitute the crime under the indictment. The criminal conspiracy charged in the indictment may have been in existence, and yet none of the conspirators ever have been within this state, or ever have personally met together. Upon this point the court charges you that, if the overt act, as it is frequently called,—that is, the act charged in the indictment as having been committed in furtherance of the conspiracy, —was committed within this district, and as charged in the indictment, then it does not matter where the conspiracy was formed, or the unlawful agreement was entered into; for in contemplation of law such conspiracy is held to be renewed, or as it is sometimes, and perhaps more properly, said, it is continued, in the district where such overt act is performed; and such act gives to the court in that district jurisdiction of the case. Therefore it becomes immaterial where the conspiracy* if it
One word as to the time or date. The indictment states the date of the formation of this conspiracy as having been the 10th of March, 1891. Now, the government is not restricted to that date. The only restriction is the statute of limitations. For the purpose of this trial it is sufficient as to the date of this conspiracy, if one is found by you, that the same existed within three years prior to the finding of the indictment herein, which finding was upon May 12, 1891.
I have suggested that direct and positive proof is not required to be made of any express agreement to do the act forbidden by law. It is frequently impossible to produce such proof. Persons planning or arranging a conspiracy do not usually meditate or plan their conspiracy in the presence of witnesses not parties to it, nor in the terms of express agreement. All concerted action to commit a fraud is secretly originated, and is ordinarily shown by separate and independent acts, tending to exhibit a common design. . The common design is the essence of the charge, and it is not necessary to prove that the parties came together and actually agreed in terms to have that design, and to pursue it by common means. Hence it is competent to prove the alleged conspiracy by circumstances. The understanding, combination, or agreement between the parties in the given case to effect the unlawful purpose charged in the indictment must be proved, because without the unlawful, or, as it is sometimes called, the corrupt, agreement or understanding, there is no conspiracy. (And in this connection I may say that the term “ corrupt,” as applied to a ' conspiracy, means an “unlawful” agreement.) The acts of the parties, the nature of those acts, with the accompanying circumstances, the character of the transactions or series of transactions, as the evidence may disclose them, should he investigated and considered, and are sometimes the only source from which to derive the evidence of an agreement, which may be express or may be implied, to do the act which the law condemns. If, in this case, the evidence shall satisfy and prove to you that the defendant, Newton, and Mr. Oxford, or said defendant, Newton, and other persons, did actually concur in a common purpose and common design to defraud the United States as charged in the indictment, then it is not necessary that the government should prove any other agreement to concur.
It has been claimed by counsel in argument, that, in order to justify a verdict of guilty under the indictment, the government must show a conspiracy to have been formed and in full existence before the weighing of the mails, as alleged in the indictment, was entered upon. In this view the court cannot concur. If the jury find from the evidence that at any time during the period of the said weighing of the mails, as shown in the evidence, the defendant, Newton, and Mr. Oxford, or the defendant and any other person or persons, formed or came together in a common design of
Evidence has been permitted to be introduced in reference to certain alleged rewrapping and remailing at Cainesville, Mo., by Mr. Oxford, or under his express direction, of certain portions of the newspaper matter which had been mailed over this post route; that is, the line of railway from Des Moines to Cainesville. This evidence cannot be taken as proving the overt act, or act performed to carry out the object of the conspiracy, as stated in the second point submitted in these instructions. Such overt act must be proven as laid in the indictment; that is, that within this district there was mailed from Des Moines, during said weighing period, over said post route, the mail matter described, and as described in the indictment; and unless such overt act is proven as it is laid in the indictment, and as I have stated it to you, the crime charged cannot be found by you to have been proven. But this evidence as to said rewrapping and remailing by said Oxford at Cainesville, Mo., has been admitted before you, and is to be considered by you, for the purpose of bringing before you the nature, the extent, the plan, and operations of the conspiracy, if such conspiracy existed. There has been laid before you evidence tending to show conversations when defendant, Newton, was not present, and acts done by others than said defendant in his absence. These conversations and these acts in defendant’s (Newton’s) absence are not evidence to show his connection with the conspiracy unless they are brought home to him. These conversations and acts by others than defendant, Newton, and in his absence, were admitted to show the nature and purpose, the plans and operations, of a conspiracy if one
You will have observed in the trial of this cause that one of the theories upon which is based the claim of defendant’s (Newton’s) innocence is that defendant, Newton, was not acting in concert or agreement with any other person in whatever acts he did, as shown in the evidence; that is, that no agreement or combination with reference to such acts had been entered into between him and any other parties, and that they were not acting together in the matter with any common design or purpose to effect a common end. I have already with considerable detail stated the law applicable to this claim. I will now only add, if you find from the evidence that the acts claimed -by the government to have been committed in the conspiracy charged were by the parties committing them performed simply as employes, servants, or agents'of defendant, Newton, and were not performed by them as parties to or members or abettors of such conspiracy, then your verdict must be for the defendant. But if any of the parties performing any of said acts performed the same with a common design, purpose, and understanding on their part and that of defendant, Newton, as I have heretofore charged
It is contended on behalf of defendant, Newton, and thus argued by his counsel before you, that said defendant had the lawful right to mail the said newspaper mail matter, which the undisputed' evidence shows he did mail, and that such mail matter was, under the law, mailable; and that defendant, Newton, having prepaid thereon the postage prescribed therefor by law, he was guilty of no crime in mailing the same; and that the law contains no limit for the amount of such mailable matter he could lawfully thus mail; and that said defendant thereby violated the law in no particular. On the other hand, it is admitted by the government that the act of defendant, Newton, in mailing any amount of mailable matter, so long as he alone was a party to such mailing, did not violate the statute prohibiting conspiracies. But the government contends that as soon as he and any other person or persons combined together, or by a common design and understanding, and for a common purpose, mailed the matter of the nature of that introduced in evidence, and in the quantities proven, and under the circumstances shown in evidence, that thereby there is shown an attempt to defraud the United States, which, because of the common design and purpose, had become and was a violation of the statute with reference to conspiracies to defraud the government. The position of the government, as stated by counsel in argument before you, does not concede that the mailing proven, if performed by defendant alone, would not, under the circumstances attending same, have been performed by him with intent to defraud the United States, but it is claimed that such concert of action between defendant, Newton, and Mr. Oxford has been shown as to render the parties thereto amenable to the statute punishing conspiracies to defraud the United States. And counsel for defendant, Newton, while denying any such conspiracy existed, contend that the acts of any person other than the defendant in mailing said mail matter was the act of an employe, servant, or agent of defendant, and was performed in such capacity, and by said defendant’s express directions. I will not here attempt an elaboration on this point. The contention is substantially covered by a former portion of these instructions. But I may here repeat that, if there is proven an intent to defraud the United States, and that defendant, Newton, and Mr. Oxford, or defendant, Newton, and others, worked together with a common purpose and design to effect that end, one performing one part and another another part in the working out by common means of such common design, then a conspiracy is
Reference has been made in the argument before you, by counsel upon either side, as to the effect to he given, upon the question of guilt, to the knowledge or the lack of knowledge on the part of defendant, Newton, and Mr. Oxford, and of others, if others were associated with them therein, that the acts by them performed were a violation of the law; that is to say, as to whether you could rightfully find that a conspiracy existed, as charged, if the parties performing the acts, which it is claimed were a part of, or were performed in carrying out, the conspiracy, did not at the time know that such acts were a violation of law. On this point I have to say to you, gentlemen, that a conspiracy cannot exist without a guilty intent being then present in the minds of the conspirators; but this does not mean that the parties must know that they are violating the statutes of the United States. The government is not required to prove, in order to sustain a verdict of guilty, that the parties knew that some statute forbade the acts they were performing. If these acts, in the manner and under the circumstances surrounding their performance, were in fact violations of law, the parties are held guilty accordingly; and the question of their knowledge or of their ignorance of such acts being contrary to law is a matter which the court would be authorized to consider in passing sentence if a verdict of guilty should be found by you. It is the fact of violation of law, and not the knowledge by the violater that he is violating the law, which you are to pass upon. Accordingly, if you find from the evidence that a conspiracy, as I have defined the same in these instructions, did exist to defraud the United States, as charged in the indictment, and that some one or more of the parties connected, there with, in carrying out the object of said conspiracy, committed the overt act charged in the indictment, and that defendant, Newton, was connected wdth such conspiracy, then you are authorized to render a verdict of guilty herein. And it would not avoid the guilt if you were further to find that defendant, Newton, or Mr. Oxford, or any other person charged in this indictment or connected by the evidence, was ignorant of the fact that such acts made them liable to punishment. Indeed, if such conspiracy existed, and every person connected therewith was ignorant that there was a statute making such conspiracy criminal, yet such ignorance could not, of itself, prevent a verdict of guilty. It would be a most serious impediment to the administration of justice if a verdict of. guilty in trials like the present could not be found without first proving that the parties had knowledge at the time of the guilty act that there was a statute punishing such act. No person has a right to defraud the United States. And whether or not an attempt to defraud the government is punishable by law is determined by the application of the statutes to the act proven. And if a
In considering the acts proven by the evidence herein, and determining to whom the responsibility therefor attaches, you will apply the general rule of law that that person is responsible for an act who either performs it himself, or causes another to perform it at his request or by his direction; that is to say, that it was not necessary, before the defendant, Newton, or any other person can be held responsible for whatever may legally attach thereto, that he should in person have wrapped up the newspapers, and he himself have written or stamped the address thereon, and in person have deposited them in the mails. If he procured or caused others to perform these acts, or any of them, for him, and by his order, the law regards his relation thereto the same as though he had himself and in person performed the acts. Your verdict, gentlemen, must be found upon the evidence introduced before you and considered by you, under the law as given by the court. The indictment in this case has not been introduced in evidence, nor can its allegations be taken by you as proof of what it states. The office of the indictment has been fully performed in this case, when, having been presented by the grand jury, the defendant is placed upon trial, and the trial proceeds within the lines marked out by said indictment. The fact that such indictment has been found by the grand jury affords no presumption of the guilt of defendant. As I have heretofore said to you, this trial commences before you with the presumption of innocence in favor of defendant, and .your verdict must be for defendant, unless you find that the evidence overthrows this presumption, and brings your minds beyond a reasonable doubt to a verdict of guilty. The evidence introduced shows that the route agents, post-office inspectors, and certain other employes or officials in the post-office service knew, at the time of the mailing complained of in the indictment, that it was being done, and that they suspected that it was being done with a fraudulent intent. Whether they did or did not know these facts or suspect this intent is not important as affecting the guilt or innocence of the defendant herein, and cannot change such guilt or innocence as the same may be proven by the other evidence introduced. If the defendant is otherwise proven guilty of the crime charged, the knowledge of such post-office officials or employes cannot shield him. But the jury are authorized to consider whatever publicity or secrecy attended the acts proven, as circumstances in the case, to be taken in connection with all the other facts proven by evidence. .
Defendant, Newton, has produced witnesses who have testified to the reputation of defendant in the vicinity of his residence for honesty and personal integrity. This is competent evidence, and the good character
I have to say to you further, gentlemen, and this statement is to be understood as affecting the entire charge given you, that if you can reconcile the evidence before you upon any reasonable hypothesis of the defendant’s innocence, it is your duty so to do; and before you can find the defendant guilty of the crime charged in the indictment you must find such guilt beyond a reasonable doubt. This does not mean that upon every proposition of fact under the evidence you must find that proposition proven beyond a reasonable doubt. This reasonable doubt relates to the question of defendant’s guilt under all the evidence. You will take up the evidence bearing on each proposition of fact, and from that evidence determine whether such fact proposition is by the evidence satisfactorily proven to you; and then, when applying the fact propositions proven to the question of defendant’s guilt, you will act upon the rule I have stated, and must find him guilty beyond a reasonable doubt, before you can return a verdict of guilty. And after considering all the evidence, if you have a reasonable doubt of the guilt of defendant, you must acquit him; but if, upon such consideration, you do not have a reasonable doubt of his guilt, it is your duty to return a verdict of guilty. A reasonable doubt, as I have used that term, is what the term indicates. It is a doubt based on reason, and which is reasonable in view of all the evidence. It is an honest, substantial misgiving, generated by insufficiency of proof. It is not a captious doubt, nor a doubt suggested by the ingenuity of counsel or jury, and unwarranted by the testimony; nor is it a doubt born of a merciful inclination to permit the defendant to escape conviction, nor prompted by sympathy for him or those connected with him. But if, after an impartial comparison and consideration ■of the evidence, you can candidly say that you are not satisfied of the ■defendant’s guilt, you have a reasonable doubt. If, however, on an impar-tial comparison and consideration of all the evidence, you have an abiding conviction of the guilt of defendant, such a conviction as you would be willing to act upon in the more weighty and important matters relating to your own affairs, then you have no reasonable doubt.
Gentlemen, you are the sole judges of the testimony. Under the oaths you have taken you are to receive as the law applicable to the case the instructions given you by the court, and you are to be governed by them. But it is your sole province to determine the weight to be given to the testimony which has been introduced. Consider the demeanor of the
ADDITIONAL INSTRUCTIONS.
The jury having sent to the court the following interrogatory, “ Hon. Judge Woolson: Have we the right to consider the remailing at Cainesville, Mo., as evidence of a conspiracy? L. L. Collins, Foreman,”— the jury were called into court, and the following additional instructions given them:
Gentlemen of the Jury: I am in receipt of your inquiry this morning, as to whether you have the right to consider the remailing at Cainesville, Mo., as evidence of a conspiracy. The instructions given you upon yesterday were intended to cover this point. You were instructed that three things must be found by you to justify a verdict of. guilty: First, that a conspiracy such as charged in the indictment existed; second, that one of the parties in the conspiracy committed the overt act charged in the indictment; third, that defendant,. Newton, was a party to such conspiracy. I expressly instructed you, and your present inquiry indicates that you so understood the court, that the remailing at Cainesville, Mo., would not prove, or tend to prove, the overt act, because that act is by the indictment charged to have been done in the southern district of Iowa; and that this remailing by Oxford could not be considered as proving or tending to prove that the defendant, Newton, was a member of a conspiracy, unless®such remailing was brought home to and connected with him; and that his connection with a conspiracy must be proven by his own acts or declarations; and that, while any letters or telegrams in evidence from Newton to Oxford might be considered upon the question of defendant’s (Newton’s) connection with a conspiracy, the act of the remailing by Oxford would not, and could not, be proof
The jury found a verdict of acquittal.