heretofore applied by this court whenever further enacted that every case, in which the Congress, in legislating for the District of sum demanded exceeded twenty dollars, Columbia, has borrowed from the statutes should, if either party so requested, “be tried of a state provisions which had received in by a jury" of twelve men before the justice that state å known and settled construction of the peace. before their enactment by Congress, that con- In all acts of Congress regulating judicial struction must be deemed to have been adopt proceedings, the very word "appeal," unless ed by Congress together with the text which restricted by the context, indicates that the it expounded, and the provisions must be facts, as well as the law, involved in the construed as they were understood at the judgment below, may be reviewed in the aptime in the state. Metropolitan Railroad pellate court. Wiscart v. Dauchy (1796) Co. v. Moore (1887) 121 U. S. 558, 572 [30: 3 Dall. 321, 327 [1: 619, 622]; Ře Neagle 1022, 1026); Willis v. Eastern Trust & Bkg. (1890) 135 U. S. 1, 42 (34: 55, 64); Dower Co. (1898) 169 U. S. 295, 307, 308 (42: 752, v. Richards (1894) 151 U. S. 658, 663, 664 758).

[38: 305, 307, 308]. (37) "VII. The questions of the validity and the By section 7 of the act of 1823, the right

effect of the act of Congress of 1823 then pre- of appeal to a court of record was expressly sent themselves in this aspect:

given "in all cases where the debt or demand The Seventh Amendment to the Constitu- doth exceed the sum of five dollars, and eithtion of the Unite States secures to either er plaintiff or defendant shall think him or party to every suit at law, in which the value herself aggrieved by the judgment of any in controversy exceeds twenty dollars, the justice of the peace.” The words “in all right of trial by jury; and forbids any such cases,” in their natural meaning, include suit, in which there has once been a trial by cases which have been tried by a jury before jury, within the sense of the common law i the justice of the peace, as well as those tried (38) and of the Constitution, to be tried anew up: by him without a jury; and we perceive no on the facts in any court of the United necessity and no reason for restricting their States.

application to the latter class of cases, and Congress, when enlarging, by the act of thereby allowing the fact, that upon the de1823, the exclusive original jurisdiction of mand of one party the case has been tried justices of the peace in the District of Co- by a jury before the justice of the peace, to lumbia from twenty to fifty dollars, mani. prevent the other party from appealing to festly intended that the dictates of the Con- a court of record and obtaining a trial by stitution should be fully carried out, in let-jury in that court. ter and spirit. With this object in view, Neither the direction of section 1, that the Congress first enacted that "in all cases” be- justice of the peace should give judgment fore a justice of the peace, in which the de-according to the laws existing in the Dismand exceeded five dollars, either the plain-trict of Columbia, and the equity and right tiff or the defendant should have a right to of the matter,” nor the similar direction of appeal from the judgment of the justice of section 7, that the case should be determined the peace to the circuit court of the United on appeal "according to law, and the equity States, and either of the parties might elect and right of the matter,” can reasonably be to have "a trial by jury” in that court. Con- construed as conferring chancery jurisdicgress also, by way of additional precaution, I tion, either upon the justice of the peace, one after another; and If any of the persons, place, without meat or drink, except water; you whose names shall be so drawn shall not ap- will not suffer any person to speak to them nor pear, or shall be challenged and set aside, then speak to them yourself, unless by order of the such further number thereof shall be drawn as justice, unless it be to ask them whether they shall make up the number of six who do ap- have agreed on their verdict, until they have pear, after all legal causes of challenge allowed agreed on their verdict.' And when the jurors by the said justice, unless the said parties agree bave agreed on their verdict, they shall deliver that the said constable shall summon six men at the same to the justice in the same court, who his discretion; and the said six persons so first is hereby required to give judgment thereupon, drawn and appearing, and approved by the court and to award execution in manner hereafter dias indifferent, shall be the jury who shall try rected." N. Y. Stat. 1801, chap. 165, $ 12. the cause, to each of whom the sald justice shall "In every action to be brought by virtue of administer the following oath : 'You do swear this act, wherein the sum or balance due, or in the presence of Almighty God, that you will thing demanded, shall exceed twenty-five dol. well and truly try the matter in difference be- lars, if either of the parties, the agent or attween-plaintiff and-defendant, and a true torney of either of them, after issue joined, and verdict will give according evidence.' before the court shall proceed to inquire into the And after the said jury have taken the oath merits of the cause, shall demand of the court aforesaid, they shall sit together, and hear the that such action be tried by a jury, and that such Beveral proofs and allegations of the parties, jury shall consist of twelve men, the venire to which shall be delivered in public in their pres- be issued shall in every such case require twenty ence." (Provision is then made for the form good and lawful men to be summoned as jurors, of oath to be administered to witnesses.) “And and the jury for the trial of every such issue after hearing the proofs and allegations, the shall in such cases consist of twelve men, inJury shall be kept together in some convenient stead of six, as in other cases of trial before a place until they all agree upon a verdict, and for justice; and the provisions in the ninth and which purpose a constable shall be sworn, and to tenth sections of the act above mentioned (of whom the said justice shall administer the folo | 1813, chap. 53, re-enacting the statute of 1801, lowing oath, riz.: 'You do swear in the presence chap. 163, $$ 12, 13), shall be followed, and of Almighty God, that you will, to the utmost of shall be deemed to apply in every other respect." your ability. keep every person sworn on this | N. Y. Stat. 1818, chap. 94, $ 22. Inquest together in some private and conveniert



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. Burr (1824)2 Cranch, C. C. 615; Mach law.

dow v. Steroart (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. Č. 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] of the 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. bimself 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 a 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 do (39) 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 not 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 trans

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 pres. influenced 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 opinsatisfactory 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



three promissory notes, each for five thou- | maturity, at the rate of ten per cent per sand dollars, payable four months after date, annum, until paid. with interest at the rate of ten per cent per

McCarthy & Joyce Co. annum from maturity until paid. Said

Geo. Mandlebaum, Sec'y & Treas. Brown and Allis afterwards indorsed and de- A, 73477. No. 2. Due Ap’l 7-10, '93. livered said notes to the defendant First National Bank, and said bank before maturity They were indorsed as follows: "James

and for a valuable consideration indorsed, Joyce, H. G. Allis, First National Bank, LitRp 2 rediscounted, and delivered said notes to tle Rock, Ar.; H. G. Allis, Pt.”

plaintiff. That on December 7, 1892, the *The receiver only answered, and his an-(128) McCarthy & Joyce Company, a corporation swer as finally amended denied that “either resident in the city of Little Rock, Pulaski of the notes described in the plaintiff's comCounty, Arkansas, and organized and doing plaint was ever indorsed and delivered to the business under the laws of Arkansas, exe- First National Bank; he denies that either euted and delivered to James Joyce, a citi- of said notes was ever the property of or in zen of the state of Missouri, its two promis- the possession of said bank; and denies that sory notes, each for five thousand dollars, the said bank ever indorsed or delivered payable to his order at four and five months either of said notes to the plaintiff; he derespectively after date, with interest from nies that said bank ever received any conmaturity at the rate of ten per cent per sideration from said plaintiff or any inannum until paid. Said Joyce afterwards dorsement or delivery of said notes to indorsed said notes to the defendant First it;" and averred “that the name of the National Bank, and said bank before ma- defendant bank indorsed said turity and for a valuable consideration in. notes by H. G. Allis for his personal dorsed, rediscounted, and delivered said benefit without authority from said bank; notes to plaintiff. Said notes were each at that the said Allis, assuming to act for de

maturity presented at the First National fendant bank, procured the plaintiff to ad. 1-]Bank in Little Rock, Arkansas,* for payment, vance or loan upon said notes a large sum of

and payment being refused, they were each money, which he appropriated to his own duly protested for nonpayment, the fees for use; that said Allis had no authority from which, amounting to twenty-five dollars, said bank to negotiate said loan or to act were paid by plaintiff. Copies of said notes, for it in any way in said transaction; if said with the indorsements thereon, are hereto at- transaction created an indebtedness against tached, marked 1 to 5 inclusive, and made the defendant bank, then the total liability part hereof. No part of said notes has been of said defendant bank to the plaintiff by paid, and the same have been presented to the virtue thereof exceeded one tenth of the receiver of said bank for allowance, which he plaintiff's capital stock, and the total li. has refused to do."

ability of the defendant bank thereby ex. Judgment was prayed for the debt and ceeded the amount of its capital stock actother relief.

ually paid in; that the plaintiff knowingly Three of said notes are in the following permitted its officers 'to make such excessive

loan under the circumstances aforesaid;

that the transaction aforesaid was not in the $5,000. 34131

usual course of banking business which Little Rock, Ark., Dec. 7th, 1892. either the plaintiff or the defendant bank Four months after date we, or either of us, was authorized to carry on; that the plain. promise to pay to the order of G. R. Brown tiff is not an innocent holder of either of said and H. G. Allis five thousand dollars, for notes; that the defendant bank received no value received, negotiable and payable, with benefit from said transaction; that it had no out defalcation or discount, at the First Na- knowledge thereof until a few days prior to tional Bank of Little Rock, Arkansas, with its suspension; that no notice of the dishonor interest from maturity, at the rate of ten of said notes was ever given to the defendper cent per annum, until paid.

ant bank." Also that at the date of the City Electric St. R’y Co. suspension of the First National Bank H. G. Bradford, P't.

the United States National Bank was inW. H. Sutton, Sec’y.

debted to it in the sum of $467.86, that sum No. A, 73485. Due Apr. 7–10, '93.

then being on deposit in the said United

States National Bank to the credit of the
The following indorsement appears on First National Bank of Little Rock; and
each: "Geo. R. Brown, H. G. Allis, First that the same has never been paid."
National Bank, Little Rock, Arkansas; H.

The receiver prayed that “he be discharged
G. Allis, P't.”

from all liability upon the notes sued on Two of the notes were in the following herein, and that he have judgment *against(120) form:

the plaintiff for the said sum of $467.86, and

interest from the 1st day of February, 1893." $5,000. 34128.

The plaintiff bank denied the indebtedness Little Rock, Ark., Dec. 7, 1892. of $467.86, and averred "that at the time Four months after date we, or either of us, said First National Bank failed it was inpromise to pay to the order of James Joycé debted to plaintiff in a large amount, to wit, five thousand dollars, for value received, ne- the notes sued upon herein, and plaintiff apa gotiable and payable, without defalcation or plied said $467.86 as a credit upon sald discount, at the First National Bank of Lit- indebtedness.” tle Rock, Arkansas, with interest from The issues thus made up were brought to


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

shall be confronted with the witnesses

against him. SAMUEL R. CHURCH.

3. An indictment for receiving stolen property

of the United States sufficiently alleges its
ownership of the property when It was felo-

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

States when stolen, and was stolen two days 0.

previously to its being recelved by him, and LEW IS I. O'NEAL and James T. H. Landon. that he recelved it knowing that it had been


4. (See s. C. Reporter's ed. 46.)

An Indictment for receiving stolen property

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

ceived it, or state that the name of such per. ante, p. 73, followed.

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

(No. 164.]

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

11, 1899. N ERROR to the

IN ERROR to the District Court of the of that court. See same case below, 11 App: D. C. 57. convicting the plaintiff in error, Joe Kirky,

Dakota to review a judgment of that court Messrs. D. W. Baker and Nathaniel Wil for feloniously receiving property stolen son for Metropolitan Railroad Company, from the United States, with intent to conplaintiff in error. Mr. Ernest L. Schmidt for Samuel R. and case remanded with directions for a

vert the same to his own use. Reversed, Church, defendant in error.

rew trial and for further proceedings.
Messrs. Henry P. Blair and Corcoran

The facts are stated in the opinion.
Thom for the Brightwood Railway Company, Messrs. A. G. Sandford, C. O. Bailey, and
plaintiff in error.
Messrs. Raymond A. Heiskell and M. tiff in error:

Joe Kirby, propria persona, for the plain-
J. Colbert for O'Neal et al., defendants in

The finding of a sufficient indictment by 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 actu-
ing writs of certiorari to set aside proceed. 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 (67) JOE KIRBY, Piff. in Err.,

United States is a jurisdictional question;

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; Mil.

ler v. People, 13 Colo. 166; State v. Lyon, Presumption of innocence of accusedact of 17 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 v.
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 gullt 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 proser for duplicity; it contains complete indict.
cution against the receiver, that the property ments against the principal felons, and what
of the United States, alleged to have been
embezzled, stolen, or purloined, had been em- is claimed to be an indictment against the
bezzled, stolen, or purloined, is id violation I plaintiff in error.

of the clause of the United States Constitu- U. S. Rev. Stat. 8 1024; State v. Lyon, 17


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