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upon the appellate court, or as substituting circuit court in several early cases. David the rules of technical equity for the rules of son v. Bury (1824)2 Cranch, C. C. 516; Mad law.

ãow v. Stewart (1824) 2 Cranch, C. C. 523; The trial by jury, allowed by the seventh Denny v. Queen (1827) 3 Cranch, C. C. 217; section of the act, in a court of record, in Smith v. Chase (1828) 3 Cranch, C. C. 348. the presence of a judge having the usual | Yet the appellant in one of those cases, whose powers of superintending the course of the appeal had been dismissed as unauthorized trial, instructing the jury on the law and by law, was notwithstanding held liable on advising them on the facts, and setting aside his bond to prosecute the appeal. Chase v. their verdict if in his opinion against the Smith (1830) 4 Cranch, C. C. 90. law or the evidence, was undoubtedly a trial. The decisions in question would appear, by jury, in the sense of the common law, and by the brief notes *of them in the report of (40) oi ihe Seventh Amendment to the Constitu- Chief Justice Cranch, to have proceeded tion.

upon the assumption that the trial before a But a trial by a jury before a justice of the justice of the peace, by a jury impaneled peace, pursuant to sections 15 and 16 of the pursuant to the act of 1823, was a trial by act, was of quite a different character. Con- jury within the meaning of the Seventh gress, in regulating this matter, might Amendment to the Constitution, and there doubtless allow cases within the original ju- fore the facts could not be tried anew upon risdiction of a justice of the peace to be appeal. In Smith v. Chase, however, that tried and decided in the first instance by any learned judge (declaring that he spoke for specified number of persons in his presence. himself only) delivered an elaborate opinion, But such persons, even if required to be in which he maintained the position that, twelve in number, and called a jury, were upon the demand of a trial by jury, the cause rather in the nature of special commission was taken entirely out of the hands of the ers or referees. A justice of the peace, hav- justice of the peace; that he was obliged to ing no other powers than those conferred by summon and swear the jury, and to render Congress on such an officer in the District judgment according to their verdict; that of Columbia, was not, properly speaking, a ro authority was given him to instruct the judge, or his tribunal à court; least of all, jury upon matter of law or of fact, or to à court of record. The proceedings before set aside their verdict and grant a new trial; him were not according to the course of the and that the jury were not bound by his common law; his authority was created and opinion upon matter of law, but were to de I defined by, and *rested upon, the acts of Con- cide the law as well as the fact. 3 Cranch, gress only. The act of 1823, in permitting C. C. 351, 352. From these premises he incases before him to be tried by a jury, did ferred (by what train of reasoning does not pot require him to superintend the course of clearly appear) that such a trial by a jury the trial or to instruct the jury in matter of before the justice of the peace was a trial by law; nor did it authorize him, upon the re- jury within the meaning of the Seventh turn of their verdict, to arrest judgment Amendment to the Constitution; that the upon it, or to set it aside, for any cause what- facts so tried, therefore, could not be tried ever; but made it his duty to enter judgment anew in an appellate court; and that no apupon it forthwith, as a thing of course. A real lay in such a case. Curiously enough, body of men, so free from judicial control, that opinion, purporting to have been deliv. was not a common-law jury; nor was a trial ered at December term, 1828, refers to the ty them a trial by jury, within the meaning cpinion of this court in Parsons v. Bedford, of the Seventh Amendment to the Constitu- 3 Pet. 446–448 [7: 736, 737], which was not tion. It was no more a jury, in the consti- delivered until January term, 1830. tutional sense, than it would have been, if In 1863, all the powers and jurisdiction, it had consisted, as has been more usual in previously possessed by the circuit court of statutes authorizing trials by a jury before the District, including the appellate jurisdica justice of the peace, of less than twelve tion from justices of the peace, were transmen.

ferred by Congress to the supreme court of There was nothing, therefore, either in the District of Columbia. Act of March 3, the Constitution of the United States, or in 1863, chap. 91, 88 1, 3, 12; 12 Stat. at L. the act of Congress, to prevent facts once 762–764. "[Rev. Stat. D. C. 88 760, 1027.) tried by such a jury before the justice of | The foregoing decisions of the circuit the peace from being tried anew by a consti | court were followed in the supreme court of tutional jury in the appellate court. | the District at general term in 1873, with

VIII. The majority of the court of ap out much discussion, in Fitzgerald v. Leispeals, in the case at bar, in holding that no man, 3 MacArth. 6; and at special term in appeal lay from a judgment entered by a 1896, by Justice Bradley in [United States), justice of the peace on a verdict in the Dis: Brightwood Railway Co., v. O'Neal, 24 Wash. trict of Columbia, appears to have been much L. Rep. 406, and by Justice Cox in the presinfluenced by the practice, which it declared ent case. Capital Traction Co. v. Hof, 24 to have prevailed in the District for seventy Wash. L. Rep. 646. *But each of these two (41) years, in accordance with decisions made by judges, while holding himself bound by the the circuit court of the United States of the previous decisions of the courts of the DisDistrict of Columbia soon after the passage trict, expressed a clear and positive opinion of the act of Congress of 1823. But the rea- that they were erroneous. sons assigned for those decisions are un Apart from the inconsistencies in the opin. satisfactory and inconclusive.

ions delivered in the courts of the District of Such decisions, indeed, were made by the Columbia, it is quite clear that the decisions

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those courts, especially when they involve or for assault and battery) exclusive origiquestions of the interpretation of the Con- nal jurisdiction of "all civil pleas and acslitution of the United States, and of the tions, including attachment and replevini, constitutionality and effect of acts of Con- where the amount claimed to be due or the gress, cannot be considered as establishing the value of the property sought to be recovered law, or as relieving this court from the re- does not exceed” one hundred dollars, and sponsibility of exercising its own judgment. concurrent original jurisdiction with the suEx parte Wilson (1885) 114 U. S. 417, 425 preme court of the District of Columbia, [29: 89, 92); Andrews v. Hovey (1888) 124 where it is more than one hundred and not U. S. 694,717 [31: 557,563]; The J. E. Rum- more than three hundred dollars; "and bell (1893) 148 U. S. 1, 17 [37: 345, 349]. where the sum claimed exceeds twenty dol

IX. The legislation of Congress since the lars, either party shall be entitled to a trial oct of 1823 has not changed the character by jury.” And by $ 3, "no appeal shall be of the office, or the nature of the powers, of allowed from the judgment of a justice of the the justices of the peace in the District of peace in any common-law action, unless the Columbia, or of the juries summoned to try matter in demand in such action, or pleaded cases before those justices. The principal in set-off thereto, shall exceed the sum of five changes have been by enlarging the limits dollars; nor unless appellant, with sufficient of the civil jurisdiction of the justices of surety approved by the justice, enters into the peace, and by expressly requiring secu an undertaking to pay and satisfy, whatever rity on appeals from their judgments. final judgment may be recovered in the ap

By the act of February 22, 1867, chap. 63, pellate court.” 28 Stat. at L. 668. $1(14 Stat. at L. 401), Congress enlarged

Under the act of 1895, as under the previ. the jurisdiction of justices of the peace in ous acts of Congress, where the matter in the District of Columbia to “all cases where controversy exceeds five dollars in value, an the amount claimed to be due for debt or appeal lies to a court of record from any damages arising out of contracts, express or judgment *of a justice of the peace, whether (43) implied, or damages for wrongs or injuries rendered upon à verdict or not, and either to persons or property, does not exceed one party may have a trial by a common-law hundred dollars, except in cases involving jury in the appellate court; and the trial by the title to real estate, actions to recover jury in that court is, and the trial before & damages for assault, or assault and battery, justice of the peace is not, a trial by jury or for malicious prosecution, or actions within the meaning of the Seventh Amend. against justices of the peace or other officers ment to the Constitution. for misconduct in office, or in actions for The only question remaining to be considslander, verbal or written.” [Rev. Stat. D. ered is of the constitutionality of the proviC. & 997.] And on the same day, Congress, sions of the act of 1895, by which the civil by the act of 1867, chap. 64 (14 Stat. at L. jurisdiction of justices of the peace is ex403), provided that “no appeal shall be al- tended to three hundred dollars, and either lowed from a judgment of a justice of the party, on appealing from the judgment of peace, unless the appellant, with sufficient the justice of the peace to the supreme court surety or sureties, approved by the justice, of the District of Columbia, is required to enenter into an undertaking to satisfy and pay ter into an undertaking to pay and satisfy

all intervening damages and costs arising whatever judgment may be rendered in that (42) on the appeal;” and that, “when such*under court.

taking has been entered into, the justice For half a century and more, as has been
shall immediately file the original papers, in- seen, after the adoption of the earliest Con-
cluding a copy of his docket entries, in the stitutions of the several states, their courts
office of the clerk of the supreme court of uniforinly maintained the constitutionality
the District of Columbia ; and thereupon, as of statutes more than doubling the pecuniary
soon as the appellant shall have made the limit of the civil jurisdiction of justices of
deposit for costs required by law, or ob- the peace as it stood before the adoption of
tained leave from one of the justices, or from Constitutions declaring that trial by jury
the court, to prosecute his appeal without a should be preserved inviolate, although those
deposit, the clerk shall docket the cause," statutes made no provision for a trial by
and it should be proceeded with substantial. jury, except upon appeal from the judgment
ly in the manner prescribed by the act of of the justice of the peace, and upon giving
Congress of 1823. [Rev. Stat. D. C. 88 bond with surety to pay the judgment of
774, 1027-1029.)
In 1874, the provisions, above quoted, of have been understood to be the law of Mary-

the appellate court. And such appears to
the acts of 1823 and 1867, were re-enacted land and of the District of Columbia before
(with hardly any change except by subdivid-
ing and transposing sections) in the Revised and at the time of the passage of the act of
Statutes of the District of Columbia, at the Congress of 1823.

Legislation increasing the civil jurisdicplaces above referred to in brackets.

By the act of February 19, 1895, chap. 100, tion of justices of the peace to two or three 98 1, 2, justices of the peace of the District | hundred dollars, and requiring each appelof Columbia have been granted (with the lant from the judgment of a justice of the same exceptions as in the act of February 22, peace to a court of record, in which a trial by 1867, chap. 63, also excepting, however, ac- jury may be had for the first time, to give se. tions for damages for breaches of primise to curity for the payment of the judgment of marry, and not excepting actions foi assault the court appealed to, has not generally been

onsidered as unreasonably obstructing the controversy exceeds twenty dollars, the right right of trial by jury, as is shown by the to appeal from the judgment of the justice numerous statutes cited in the margint of the peace of a court of record, and to have from which it appears that the civil juris- a trial by jury in that court; that Congress, liction of justices of the peace has been in- in every case where the value in controversy Teased to three hundred dollars in Pennsyl. exceeds five dollars, has authorized either rania, Ohio, Michigan, Kansas, Arkansas, party to appeal from the judgment of the Colorado, and California; to two hundred justice of the peace, although entered upon und fifty dollars in Missouri; and to two | the verdict of a jury, to the supreme court Tundred dollars in New York. Indiana, Illi- of the District of Columbia, and to have a nois, Wisconsin, Delaware, North Carolina, trial by jury in that court; that the trial by Mississippi, and Texas; and that the appel a jury of twelve, as permitted by Congress ant is required (at least when the appeal to be had before a justice of the peace, is not, s to operate as a supersedeas) to enter into and the trial by jury in the appellate court

bond or recognizance, not only to prosecute is, a trial by jury, within the meaning of the nis appeal, but to pay the judgment of the common law, and of the Seventh Amendment appellate court, in all those states, except to the Constitution; that therefore the trial Pennsylvania; and in that state any corpo of facts by a jury before the justice of the ration, except a municipal corporation, is re- peace does not prevent those facts from being quired to give such a bond, but other appel. | re-examined by a jury in the appellate court; lants are required to give bond for the pay that the right of trial by jury in the appelment of costs only. And we have not been late court is not unduly obstructed by the referred to a single decision in any of those provisions enlarging the civil jurisdiction of states that holds such a statute to be uncon justices of the peace to three hundred dolstitutional in any respect.

lars, and requiring every appellant to give The legislature, in distributing the judi security to pay and satisfy the judgment of cial power between courts of record, on the the appellate court; that the legislation of one hand, and justices of the peace or other Congress upon the subject is in all respects subordinate magistrates, on the other, with consistent *with the Constitution of the (46) A view to prevent unnecessary delay and un- United States; and that upon these grounds reasonable expense, must have a considerable (which are substantially those taken by discretion, whenever in its opinion, because Chief Justice Alvey below) the judgment of *of general increase in litigation, or other the court of appeals, quashing the writ of change of circumstances, the interest and certiorari to the justice of the peace, must convenience of the public require it, to en- be affirmed. large within reasonable bounds the pecuni-! The effect of so affirming that judgment ary amounts of the classes of claims entrust will be to leave the claim of Hof against the ed in the first instance to the decision of jus. Capital Traction Company open to be tried tices of the peace, provided always the right by a jury before the justice of the peace, and, of trial by jury is not taken away in any after his judgment upon their verdict, to be case in which it is secured by the Constitu- taken by appeal to the supreme court of the tion.

District of Columbia, and to be there tried Having regard to the principles and to the by jury on the demand of either party. precedents applicable to this subject, we Judgment affirmed. should not be warranted in declaring that the act of Congress of 1895 so unreasonably

Mr. Justice Brewer concurred in the obstructs the right of trial by jury, that it must for this reason be held to be unconsti

judgment of affirmance, but dissented from so

much of the opinion as upheld the validity tutional and void. X. Upon the whole matter, our conclusion

of the provision of the act of Congress reis, that Congress, in the exercise of its gen

quiring every appellant from the judgment eral and exclusive power of legislation over

of a justice of the peace to give bond with the District of Columbia, may provide for

surety for the payment of the judgment of

the appellate court. the trial of civil causes of moderate amount by a justice of the peace, or, in his presence, by a jury of twelve, or of any less number, | Mr. Justice Brown did not sit in this allowing to either party, where the value in case, or take any part in its decision.

ARKANSAS. Digest 1894, $8 4317, 4431, | Howell's Stat. 1882, 88 6814, 7000. 4432.

MISSISSIPPI. Code 1892, 88 2394, 82. CALIFORNIA. Code of Civil Procedure 1872, MISSOURI. Rev. Stat. 1889, 88 6122, 6328. $ 114, 974, 978.

NEW YORK. Stat. 1861, chap. 158; Rev. COLORADO. Rev. Stat. 1867, chap. 50, 88 1, Stat. 1875, 6th ed. pt. 3, tit. 2, § 56; tit. 4, 38, 39; Gen. Laws 1877, 88 1482, 1519, 1520 ; § 53. Gen. Stat. 1883, 8$ 1924, 1979, 1980.

NORTH CAROLINA. Code 1883, 88 834, 884. DELAWARE. Rev. Stat. 1893, chap. 99, 88 1, 25. Ohio. Rev. Stat. 1880, $8 585, 6584. ILLINOIS. Rev. Stat. 1874, chap. 79, 88 13,

PENNSYLVANIA. Stat. July 7, 1879, chap. 62; Starr & Curtis's Stat. 1896, chap. 79, 88 16, 211; Purdon's Digest 1885, 11th ed. Justice of 115.

the Peace, $$ 35, 99, 100. INDIANA. R-V. Stat. 1881, 88 1433, 1500. TEXAS. Rev. Stat. 1879, 88 1539, 1639; Rev. KANSAS. Gen. Stat. 1868, chap. 81, 88 2, Stat. 1895, $$ 1568, 1670. 121; Gen. Stat. 1897, chap. 103, 88 20, 188. WISCONSIN. Rev. Stat. 18

MICHIGAN. Rev. Stat. 1872, $8 5249, 5433 ; 'Stat. 1898, 98 3572, 3760. 174 U. S.

889

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METROPOLITAN RAILROAD COMPANY,I tion that in criminal prosecutions the accused Piff. in Err.,

shall be confronted with the witnesses 0.

agalnst him.

3. An indictment for receiving stolen property SAMUEL R. CHURCH.

of the United States sufficiently alleges its ownership of the property when it was telo

nlously received by the accused, by alleging BRIGHTWOOD RAILWAY COMPANY, that the property was that of the United Plff. in Err.,

States when stolen, and was stolen two days

previously to Its being received by him, and LEW ZS I. O'NEAL and James T. H. Landon.

that he received it knowing that it had been

stolen. (See 8. C. Reporter's ed. 46.)

4. An indictment for receiving stolen property

need not state from whom the accused reNo. Xina, Capital Traction Company 1. Hof,

ceived it, or state that the name of such per. ante, p. 573, followed.

son is unknown to the grand jurors. [Nos. 114, 195.]

[No. 164.)

Argued and submitted January 5, 6, 1899. Argued January 20, 1899. Decided April Decided April 11, 1899.

11, 1899.

IN ERROR to the Court of Appeals of the IN ERROR to the District Court of the 1 District of Columbia to review judgments

1 United States for the District of South of that court. See same case below, 11 App. D. C. 57.

Dakota to review a judgment of that court Messrs. D. W. Baker and Nathaniel Wil

convicting the plaintiff in error, Joe Kirby, son for Metropolitan Railroad Company,

for feloniously receiving property stolen

from the United States, with intent to conplaintiff in error. * Mr. Ernest L. Schmidt for Samuel R.

vert the same to his own use. Reversed,

and case remanded with directions for a Church, defendant in error. Messrs. Henry P. Blair and Corcoran

rew trial and for further proceedings. Thom for the Brightwood Railway Company,

The facts are stated in the opinion.

Messrs. A. G. Sandford, C. 0. Bailey, and plaintiff in error.

Joe Kirby, propria persona, for the plainMessrs. Raymond A. Heiskell and M. J. Colbert for O'Neal et al., defendants in

The finding of a sufficient indictment by error.

a grand jury is jurisdictional and a right

of which the accused, under the ConstituBY THE COURT:

tion, cannot be deprived. In No. 114, METROPOLITAN RAILWAY

Ex parte Bain, 121 U. S. 1, 30 L. ed. 849. COMPANY V. CHURCH, and No. 195, BRIGHT

| The first count in the indictment under WOOD RAILWAY COMPANY V. O'NEAL, argued which the plaintiff in error was convicted at the same time, the judgments of the court is fatally defective. Every ingredient of of appeals of the District of Columbia, quash which the crime is composed must be actuing writs of certiorari to set aside proceed. I ally and clearly alleged. ings of a justice of the peace under similar

United States v. Cook, 17 Wall. 174, 21 circumstances, are likewise affirmed.

L, ed, 539; United States v. Cruikshank, 92
U. S. 542, 23 L. ed. 588; Reg. v. Martin, 9
Car. & P. 215.

The ownership of the property of the JOE KIRBY, Piff. in Err., United States is a jurisdictional question; v.

and such ownership at the time the crime is UNITED STATES.

charged to have been committed must be

distinctly alleged and proved. (See S. C. Reporter's ed. 47-64.)

Affierbach v. McGovern, 79 Cal. 268; Vil

ler v. People, 13 Colo. 166; $tate v. Lyon, Presumption of innocence of accused-act of 117 Wis. 238; People v. Vice, 21 Cal. 345; March 3, 1875, as to evidence, unconstitu- Higgins v. State (Tex. App.) 19 S. W. 503; tional-indictment for receiving stolen State v. Lathrop, 15 Vt. 279; Thomas F. property of the United States-need not | State, 96 Ga. 311. state from whom property was received. The indictment is also defective in that it

fails to allege from whom the plaintiff in 1. The presumption of the innocence of the ac- error received the stamps which had been

cused attends him throughout the trial, and stolen. has relation to every fact that must be es- United States v. De Bare, 6 Biss. 358; tablished in order to prove his guilt beyond State v. Ives, 35 N. C. (13 Ired. L.) 338; reasonable doubt.

Foster v. State, 106 Ind. 272; 2 Bish. New 2. The provision of the act of March 3, 1875, Cr. Law. $ 1140.

that the Judgment of conviction against the The indictment is also fatally defectivo principal felons shall be evidence in the prose-le cution against the recelver, that the property

for duplicity; it contains complete indictof the United States, alleged to have been !!

inments against the principal felons, and what embezzled, stolen, or purloined, had been em. is claimed to be an indictment against the bezzled, stolen, or purloined, is lp violation I plaintift in error.

of the clause of the United States Constitu. U. S. Rev. Stat. § 1024; State v. Lyon, 17 890

174 U.S.

Wis. 238; State y. Longley, 10 Ind. 482; | in concealing, or have, or retain in his pog. Elliott v. State, 26 Ala. 80; State v. Dario session with intent to convert to his own use bert, 42 Mo. 242; state v. Hall, 97 N. C. 474; or gain, any money, property, record, vouchState v. Wainwright, 60 Ark. 280.

er, or valuable thing whatever, of the The mere fact that a party has, in the ab- moneys, goods, chattels, records, or property sence of the accused, said that he himself is of the United States, which has theretofore guilty, is not to be received as evidence suf been embezzled, stolen, or purloined, such ficient to justify the conviction of the ac person shall, on conviction before the circuit cused.

or district court of the United States in the Com. v. Elisha, 3 Gray, 460; State v. district wherein he may have such property, Newport, 4 Harr. (Del.) 567; State v. Ar be punished by a fine not exceeding five fold, 48' Iowa, 566; State v. Westfall, 49 thousand dollars, or imprisonment at hard Iowa, 328; Hicks's Case, 1 N. Y. City Hall labor in the penitentiary not exceeding five Rec. 66; People v. Kraker, 72 Cal. 459; Reg. years, one or both, at the discretion of the v. Robinson, 4 Fost. & F. 43; Reg. v. Pratt, court before which he shall be convicted; and 4 Fost. & F. 315.

such receiver may be tried either before or If the record of the conviction of the prin- after the conviction of the principal felon, cipal felons be laid out of the case, there is but if the party has been convicted, then the then no evidence that the property was judgment against him shall be conclusive evi. "stolen property,” and the verdict must be dence in the prosecution against such reset aside.

ceiver that the property of the United States State v. Caveness, 78 N. C. 484.

therein described has been embezzled, stolen, The possession of stolen stamps by a reg. or purloined.” 18 Stat. at L. 479, chap. 144. ular practitioner in the court ought not to The indictment contained three counts, be considered as a presumption against him, but the defendant was tried only on the first. unless long continued and coupled with some In that count it was stated that Thomas J. other incriminating circumstances.

Wallace, Ed. Baxter, and Frank King on the Durant v. People, 13 Mich. 351; State v. 7th day of June, 1890, at Highmore, within Bulla, 89 Mo. 595; State v. Caveness, 7.8 N. the jurisdiction of the court, feloniously and C. 484; Wilson v. State, 12 Tex. App. 481. forcibly broke into a postoffice of the United

Mr. James E. Boyd, Assistant Attorney States, and feloniously stole, took, and carGeneral, for defendant in error:

ried away *therefrom certain moneys and (49) Commonly in England and in numbers of property of the United States, to wit: 3,750 our states, the indictment does not aver postage stamps of the denomination of two from whom the stolen goods were received. cents and of the value of two cents each, 1,

3 Chitty, Crim. Law, 991; Arch. Crim. Pl. 266 postage stamps of the denomination of & Ev. 10th Lon. ed. 269, 19th ed. 472; Arch. one cent and of the value of one cent each, 140. New Crim. Proc. 474; Jupitz v. People, 34 postage stamps of the denomination of four Ill. 516; Cohen v. People, 5 Park. Crim. cents and of the value of four cents each, 250 Rep. 330; State v. Murphy, 6 Ala. 845; Com. postage stamps of the denomination of five v. Lakeman, 5 Gray, 82; Queen v. Gold cents and of the value of five cents each, 80 smith, L. R. 2 C. C. 74; Aoran v. State, 24 postage stamps of the denomination of eight

x. 161; Rex v. Jervis, 6 Car. & P. 156; cents and of the value of eight cents each, Thomas's Case, 2 East, P. C. 781.

and also United States Treasury notes, na

tional bank notes, silver certificates, gold | *Mr. Justice Harlan delivered the opin certificates, silver, nickel, and copper coins of ion of the court:

the United States as well as current money of The plaintiff in error Kirby was indicted the United States, a more particular descripin the district court of the United States tion of which the grand jury were unable to for the southern division of the district of ascertain, of the value of $58.19; and that South Dakota under the act of Congress of the persons above named were severally inMarch 3d, 1875, *entitled “An Act to Punish dicted and convicted of that offense, and had Certain Larcenies, and the Receivers of been duly sentenced upon such conviction. Stolen Goods.” 18 Stat. at L. 479, chap. 144. It was then alleged that the defendant on

The first section provides that "any person the 9th day of June, 1896, at the city of who shall embezzle, steal, or purloin any Sioux Falls, the postage stamps "so as aforemoney, property, record, voucher, or valuable said feloniously stolen, taken, and carried thing whatever of the moneys, goods, chat- away, feloniously did receive and have in his tels, records, or property of the United possession, with intent then and there to conStates shall be deemed guilty of felony, and vert the same to his own use and gain, the on conviction thereof before the district or said Joe Kirby then and there well knowing circuit court of the United States in the dis- the said postage stamps to have been theretrict wherein said offense may have been tofore feloniously stolen, taken, 'and carried committed, or into which he shall carry or away, contrary to the form, force, and effect have in possession of said property so em of the statutes of the United States in such bezzled, stolen, or purloined, shall be pun- cases made and provided and against the ished therefor by imprisonment at hard la- peace and dignity of the United States.” bor in the penitentiary not exceeding five At the trial of Kirby the government of years, or by a fine not exceeding five thou-fered in evidence a part of the record of the sand dollars, or both, at the discretion of the trial of Wallace, Baxter, and King, from court before which he shall be convicted.” which it appeared that Wallace and Baxter

By the second section it is provided that after severally pleading not guilty withdrew "if any person shall receive, conceal, or aid' their respective pleas and each pleaded

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