[47] Argued and Submitted January 5, 6, 1899. Argued January 20, 1899. Decided April Decided April 11, 1899. 'N ERROR to the Court of Appeals 11, 1899. I District of Columbia to review,eals of the IN ERROR to the District Court of the of that court. See same case below, 11 App. D. C. 57. Messrs. D. W. Baker and Nathaniel Wil son for Metropolitan Railroad Company, plaintiff in error. Mr. Ernest L. Schmidt for Samuel R. Church, defendant in error. Messrs. Henry P. Blair and Corcoran Thom for the Brightwood Railway Company, plaintiff in error. Messrs. Raymond A. Heiskell and M. J. Colbert for O'Neal et al., defendants in JOE KIRBY, Plff. in Err., v. UNITED STATES. (See S. C. Reporter's ed. 47-64.) Presumption of innocence of accused-act of March 3, 1875, as to evidence, unconstitutional-indictment for receiving stolen property of the United States-need not state from whom property was received. 1. The presumption of the innocence of the ac- 2. The provision of the act of March 3, 1875, cution against the receiver, that the property United States for the District of South Dakota to review a judgment of that court convicting the plaintiff in error, Joe Kirby, for feloniously receiving property stolen from the United States, with intent to convert the same to his own use. Reversed, and case remanded with directions for a new trial and for further proceedings. The facts are stated in the opinion. The finding of a sufficient indictment by a grand jury is jurisdictional and a right of which the accused, under the Constitution, cannot be deprived. Ex parte Bain, 121 U. S. 1, 30 L. ed. 849. which the plaintiff in error was convicted United States v. Cook, 17 Wall. 174, 21 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 United States is a jurisdictional question; and such ownership at the time the crime is charged to have been committed must be distinctly alleged and proved. Affierbach v. McGovern, 79 Cal. 268; Miller v. People, 13 Colo. 166; State v. Lyon, 17 Wis. 238; People v. Vice, 21 Cal. 345; Higgins v. State (Tex. App.) 19 S. W. 503; State v. Lathrop, 15 Vt. 279; Thomas v. State, 96 Ga. 311. The indictment is also defective in that it fails to allege from whom the plaintiff in error received the stamps which had been stolen. United States v. De Bare, 6 Biss. 358; State v. Ives, 35 N. C. (13 Ired. L.) 338; Foster v. State, 106 Ind. 272; 2 Bish. New Cr. Law, § 1140. The indictment is also fatally defective for duplicity; it contains complete indictments against the principal felons, and what is claimed to be an indictment against the plaintiff in error. U. S. Rev. Stat. § 1024; State v. Lyon, 17 174 U. S. Wis. 238; State v. Longley, 10 Ind. 482; | in concealing, or have, or retain in his pos The mere fact that a party has, in the absence of the accused, said that he himself is guilty, is not to be received as evidence sufficient to justify the conviction of the ac cused. Com. v. Elisha, 3 Gray, 460; State v. Newport, 4 Harr. (Del.) 567; State v. Arnold, 48 Iowa, 566; State v. Westfall, 49 Iowa, 328; Hicks's Case, 1 N. Y. City Hall Rec. 66; People v. Kraker, 72 Cal. 459; Reg. v. Robinson, 4 Fost. & F. 43; Reg. v. Pratt, 4 Fost. & F. 315. If the record of the conviction of the principal felons be laid out of the case, there is then no evidence that the property was "stolen property," and the verdict must be set aside. State v. Caveness, 78 N. C. 484. The possession of stolen stamps by a regular practitioner in the court ought not to be considered as a presumption against him, unless long continued and coupled with some other incriminating circumstances. Durant v. People, 13 Mich. 351; State v. Bulla, 89 Mo. 595; State v. Caveness, 78 N. C. 484; Wilson v. State, 12 Tex. App. 481. Mr. James E. Boyd, Assistant Attorney General, for defendant in error: Commonly in England and in numbers of our states, the indictment does not aver from whom the stolen goods were received. 3 Chitty, Crim. Law, 991; Arch. Crim. Pl. & Ev. 10th Lon. ed. 269, 19th ed. 472; Arch. New Crim. Proc. 474; Jupitz v. People, 34 Ill. 516; Cohen v. People, 5 Park. Crim. Rep. 330; State v. Murphy, 6 Ala. 845; Com. v. Lakeman, 5 Gray, 82; Queen v. Goldsmith, L. R. 2 C. C. 74; Horan v. State, 24 Tex. 161; Rex v. Jervis, 6 Car. & P. 156; Thomas's Case, 2 East, P. C. 781. The plaintiff in error Kirby was indicted in the district court of the United States for the southern division of the district of South Dakota under the act of Congress of [48] March 3d, 1875, *entitled "An Act to Punish Certain Larcenies, and the Receivers of Stolen Goods." 18 Stat. at L. 479, chap. 144. The first section provides that "any person who shall embezzle, steal, or purloin any money, property, record, voucher, or valuable thing whatever of the moneys, goods, chattels, records, or property of the United States shall be deemed guilty of felony, and on conviction thereof before the district or circuit court of the United States in the district wherein said offense may have been committed, or into which he shall carry or have in possession of said property so embezzled, stolen, or purloined, shall be punished therefor by imprisonment at hard labor in the penitentiary not exceeding five years, or by a fine not exceeding five thousand dollars, or both, at the discretion of the court before which he shall be convicted." By the second section it is provided that "if any person shall receive, conceal, or aid session with intent to convert to his own use or gain, any money, property, record, voucher, or valuable thing whatever, of the moneys, goods, chattels, records, or property of the United States, which has theretofore been embezzled, stolen, or purloined, such person shall, on conviction before the circuit or district court of the United States in the district wherein he may have such property, be punished by a fine not exceeding five thousand dollars, or imprisonment at hard labor in the penitentiary not exceeding five years, one or both, at the discretion of the court before which he shall be convicted; and such receiver may be tried either before or after the conviction of the principal felon, but if the party has been convicted, then the judgment against him shall be conclusive evidence in the prosecution against such receiver that the property of the United States therein described has been embezzled, stolen, or purloined." 18 Stat. at L. 479, chap. 144. The indictment contained three counts, but the defendant was tried only on the first. In that count it was stated that Thomas J. Wallace, Ed. Baxter, and Frank King on the 7th day of June, 1896, at Highmore, within the jurisdiction of the court, feloniously and forcibly broke into a postoffice of the United States, and feloniously stole, took, and carried away therefrom certain moneys and [49] property of the United States, to wit: 3,750 postage stamps of the denomination of two cents and of the value of two cents each, 1,266 postage stamps of the denomination of one cent and of the value of one cent each, 140. postage stamps of the denomination of four cents and of the value of four cents each, 250 postage stamps of the denomination of five cents and of the value of five cents each, 80 postage stamps of the denomination of eight cents and of the value of eight cents each, and also United States Treasury notes, national bank notes, silver certificates, gold certificates, silver, nickel, and copper coins of the United States as well as current money of the United States, a more particular description of which the grand jury were unable to ascertain, of the value of $58.19; and that the persons above named were severally indicted and convicted of that offense, and had been duly sentenced upon such conviction. It was then alleged that the defendant on the 9th day of June, 1896, at the city of Sioux Falls, the postage stamps "so as aforesaid feloniously stolen, taken, and carried away, feloniously did receive and have in his possession, with intent then and there to convert the same to his own use and gain, the said Joe Kirby then and there well knowing the said postage stamps to have been theretofore feloniously stolen, taken, and carried away, contrary to the form, force, and effect of the statutes of the United States in such cases made and provided and against the peace and dignity of the United States." At the trial of Kirby the government offered in evidence a part of the record of the trial of Wallace, Baxter, and King, from which it appeared that Wallace and Baxter after severally pleading not guilty withdrew their respective pleas and each pleaded guilty and was sentenced to confinement in | found, by a careful consideration of all the the penitentiary at hard labor for the term evidence, beyond a reasonable doubt, that the of four years. It appeared from the same property alleged in the indictment was storecord that King having pleaded not guilty len, then you will proceed to consider was found guilty and sentenced to the pen- whether or not the defendant ever at any itentiary at hard labor for the term of five time, either on the date alleged in the indictyears. ment or any other date within three years previous to the finding of the indictment, had in his possession or received any of this property which was stolen from the postoffice at Highmore. Now, in order to find the defendant guilty of the offense charged in the indictment, you would have to find beyond a reasonable doubt from all the evidence that he either actually received a portion or all of the property which was stolen from the postoffice at Highmore, and that he thieves who committed the theft at the Highmore postoffice or some agent of these thieves. The statute punishes, you will observe, both the receipt of stolen property, knowing it to have been stolen, with the intent described in the statute, and also the having in the possession of such property, knowing it to have been stolen, with the intent to convert it to the person's own use or gain. If you find beyond a reasonable doubt that any of the property which was stolen at the postoffice at Highmore was actually received or had in the possession of the defendant, then you cannot convict unless you further find that the defendant had the property in his possession or received it from the thief or his agent, knowing at the time that it was stolen property. Now, upon the question of whether the defendant knew that it was stolen property, you will, of course consider all the evidence in the case. You have the right to find that the person or the defendant knew that it was stolen property from the admissions he may have made, if he made any, if there is such evidence in the case, or from other circumstances that you would have the right to infer that he did know. [52] Now, if a person received property under such circumstances that would satisfy a man of ordinary intelligence that it was stolen property, and you further find beyond a reasonable doubt that he actually did believe it was stolen property, then you have a right to infer and find that at the time of the receipt of the property the person knew that it was stolen. Now, the next point in the case is in regard to the intent the defendant bad in regard to the use or disposal of the property. The statute requires that this receipt of stolen property, knowing it to have been stolen, must also be with the intent to convert it to the use of the party in whose possession it is found. There are statutes which simply punish the knowingly receiv ing of stolen property. That was the common law. But this statute has added this further ingredient that it must be done with the intent to convert it to the party's own use and gain. It was probably put in for the reason that the statute goes further than the common law, making it punishable to conceal or aid in concealing with intent to convert it to his own use and gain. Now, all these propositions that I have charged must be made out by the prosecution, of The admission in evidence of the record of the conviction of Wallace, Baxter, and King, was objected to upon the ground that the above act of March 3d, 1875, was unconsti[50] tutional so *far as it made that conviction conclusive evidence in the prosecution of the receiver that the property of the United States described in the indictment against him had been embezzled, stolen, or purloined. The objection was overruled, and the record offered was admitted in evidence, with ex-eceived that property from the thief or ceptions to the accused. After referring to the provisions of the act of March 3d, 1875, and to the indictment against Kirby, the court, among other things, said in its charge to the jury: "In order to make out the case of the prosecution, and in order that you should be authorized to return a verdict of guilty in this case, you must find beyond a reasonable doubt from the evidence in the case certain propositions to be true. In the first place it must be found by you beyond a reasonble doubt that the property described in the indictment, and which is also described in the indictment against these three men [Wallace, Baxter, and King] who it is alleged have been convicted, was actually stolen from the postoffice at Highmore, was the property of the United States and of a certain value. Second. You must find beyond a reasonable doubt that the defendant Joseph Kirby received or had in his possession a portion of that property which had been stolen from the postoffice at Highmore. Third. That he received or had it in his possession with intent to convert it to his own use and gain. Now, upon the first proposition-as to whether the property described in the indictment was stolen as alleged in the indictment-the prosecution has introduced in evidence the record of the trial and conviction of what are known as the principal felons--that is, the parties who it is alleged committed the larceny. Now, in the absence of any evidence to the contrary, the record is sufficient proof in this case upon which you would be authorized to find that the property alleged in that indictment was stolen as alleged; in other words, it makes a prima facie case on the part of the government which must stand as sufficient proof of the fact until some evidence is introduced showing the contrary, and, there being no such evidence in this case, you will, no doubt, have no trouble in [51) coming to a conclusion that the property de scribed in the indictment was actually stolen, as alleged, from the postoffice at Highmore. But I don't want you to understand me to say that that record proves that the stamps that were found in Kirby's possession were stolen property, or that they were the stamps taken from the Highmore postoffice. Upon the further proposition that the court has suggested, after you have course, beyond a reasonable doubt, and in case you have a reasonable doubt of any of these ingredients, it will be your duty to acquit the defendant." In response to a request from the jury to be further instructed, the court, after referring to the indictment and to the second section of the act of 1875, said: "This indictment does not contain all the words of the statute. This indictment charges the defendant with having, on the 9th day of June, 1896, received and had in his possession these postage stamps that were stolen from the United States at Highmore. Now, if you should find beyond a reasonable doubt from all the testimony in the case, in the first place, that the postage stamps mentioned in the indictment or any of them were stolen from the postoffice at Highmore by these parties who, it is alleged, did steal them, and | you further find beyond a reasonable doubt that these postage stamps or any portion of them were on the 9th day of June, 1896, received by the defendant from the thieves or [53] their agent, knowing the same to have been so stolen from the United States by these parties, with the intent to convert the same to his own use or gain, or if you find beyond a reasonable doubt that they were so stolen at the Highmore postoffice, as I have stated, and that the defendant, on or about the 9th day of June had them in his possession or any portion of them, knowing the same to have been so stolen, with the intent to convert the same to his own use and gain, and you will find all these facts beyond a reasonable doubt, you would be authorized to return a verdict of guilty as charged." The jury returned a verdict of guilty against Kirby. The exceptions taken by him at the trial were sufficient to raise the questions that will presently be considered. As shown by the above statement the charge against Kirby was that on a named day he feloniously received and had in his possession with intent to convert to his own use and gain certain personal property of the United States, theretofore feloniously stolen, taken, and carried away by Wallace, Baxter, and King, who had been indicted and convicted of the offense alleged to have been committed by them. Notwithstanding the conviction of Wallace, Baxter, and King, it was incumbent upon the government, in order to sustain its charge against Kirby, to establish beyond reasonable doubt: (1) That the property described in the indictment was in fact stolen from the United States; (2) that the defendant received or retained it in his possession, with intent to convert it to his own use or gain; and (3) that he received or retained it with knowledge that it had been stolen from the United States. How did the government attempt to prove the essential fact that the property was stolen from the United States? In no other way than by the production of a record showing the conviction under a separate indictnt of Wallace, Baxter, and King-the ents against Wallace and Baxter restupon their respective pleas of the judgment against King rested upon a trial and verdict of guilty. With the record of those convictions out of the present case, there was no evidence [54] whatever to show that the property alleged to have been received by Kirby was stolen from the United States. We are of the opinion that the trial court erred in admitting in evidence the record of the convictions of Wallace, Baxter, and King, and then in its charge saying that in the absence of proof to the contrary the fact that the property was stolen from the United States was sufficiently established against Kirby by the mere production of the record showing the corviction of the principal felons. Where the statute makes the conviction of the principal thief a condition precedent to the trial and punishment of a receiver of the stolen property, the record of the trial of the former would be evidence in the prosecution against the receiver to show that the principal felon had been convicted; for a fact of that nature could only be established by a record. The record of the conviction of the principals could not, however, be used to establish, against the alleged receiver, charged with the commission of another and substantive crime, the essential fact that the property alleged to have been feloniously received by him was actually stolen from the United States. Kirby was not present when Wallace and Baxter confessed their crime by pleas of guilty, nor when King was proved to be guilty by wit nesses who personally testified before the jury. Nor was Kirby entitled of right to participate in the trial of the principal felons. If present at that trial he would not have been permitted to examine Wallace and Baxter upon their pleas of guilty, nor cross-examine the witnesses introduced against King, nor introduce witnesses to prove that they were not in fact guilty of the offense charged against them. If he had sought to do either of those things-even upon the grourd that the conviction of the pricipal felons might be taken as establishing prima facie a vital fact in the separate prosecution against himself as the receiver of the property-the court would have informed him that he was not being tried and could not be perinitted in anywise to interfere with the trial of the principal felons. And yet the court below instructed the jury that the conviction of the principal felons upon an indictment *against them alone was[55] sufficient prima facie to show, as against Kirby, indicted for another offense, the existence of the fact that the property was stolen-a fact which, it is conceded, the United States was bound to establish beyond a reasonable doubt in order to obtain a verdict of guilty against him. One of the fundamental guaranties of life and liberty is found in the Sixth Amendment of the Constitution of the United States, which provides that "in all criminal prosecutions the accused shall be confronted with the witnesses against him." Instead of confronting Kirby with witnesses to establish the vital fact that the property alleged to have been received by him had been stolen from the United States, he was con fronted only with the record of another crim-dicted for feloniously receiving from one inal prosecution, with which he had no con- Sarah Rich certain goods and chattels therenection and the evidence in which was not tofore feloniously stolen by her from one given in his presence. The record showing Martha Clarke. At the trial before Mr. Justhe result of the trial of the principal felons tice Patteson it was proposed to prove a was undoubtedly evidence, as against them, confession of Sarah Rich, made before a magin respect of every fact essential to show istrate in the presence of the prisoner, in their guilt. But a fact which can be pri- which she stated various facts implicating marily established only by witnesses cannot the prisoner and others as well as herself. be proved against an accused-charged with The evidence was not admitted, but the court a different offense for which he may be con- admitted other evidence of what Sarah Rich victed without reference to the principal of said respecting herself only. The prisoner [57] fender-except by witnesses who confront was convicted and sentenced. The report of him at the trial, upon whom he can look the case proceeds: "Having since learned while being tried, whom he is entitled to that a case occurred before Mr. Baron Wood cross-examine, and whose testimony he may at York, where two persons were indicted toimpeach in every mode authorized by the es- gether, one for stealing and the other for tablished rules governing the trial or con- receiving, in which the principal pleaded duct of criminal cases. The presumption of guilty and the receiver not guilty, and that the innocence of an accused attends him Mr. Baron Wood refused to allow the plea throughout the trial, and has relation to of guilty to establish the fact of the stealing every fact that must be established in order by the principal as against the receiver, the to prove his guilt beyond a reasonable doubt. learned judge thought it right to submit to "This presumption," this court has said, "is the learned judges the question whether he an instrument of proof created by the law in was right in admitting the confession of favor of one accused, whereby his innocence Sarah Rich in the present case. The learned is established until sufficient evidence is in- judge thought it right to add that the pristroduced to overcome the proof which the law oner, one Taylor, and Sarah Rich had imme has created." Coffin v. United States, 156 diately before been tried upon an indictment U. S. 432, 459 [39: 481, 493]. But that pre- for burglary, and stealing other property in sumption in Kirby's Case was in effect held the house of Mrs. Clarke on the night of the in the court below to be of no consequence; 22d of August; and that Taylor and Rich for as to a vital fact which the government had been found guilty, but the prisoner had [56] was bound to establish affirmatively, he was been acquitted, there being no proof of his put upon the defensive almost from the out-presence. The learned judge did not pass set of the trial by reason alone of what ap- sentence upon Sarah Rich immediately; but peared to have been said in another criminal a new jury was called, and the prisoner was prosecution with which he was not connected tried as a receiver, so that either party and at which he was not entitled to be rep- might have called her as a witness. In Easresented. In other words, the United States ter term, 1832, all the judges (except Lord having secured the conviction of Wallace, Lyndhurst, C. B., and Taunton, J.) met, and Baxter, and King as principal felons, the de- having considered this case, were unanimousfendant charged by a separate indictment ly of opinion that Sarah Rich's confession with a different crime-that of receiving the was no evidence against the prisoner; and property in question with knowledge that it many of them appeared to think that had was so stolen and with intent to convert it Sarah Rich been convicted, and the indictto his own use or gain-was held to be pre- ment against the prisoner stated, not her sumptively or prima facie guilty so far as conviction, but her guilt, the conviction the vital fact of the property having been would not have been any evidence of her stolen was concerned, as soon as the govern- guilt, which must have been proved by other ment produced the record of such conviction means; and the conviction was held wrong.' and without its making any proof whatever In a later case, Keable v. Payne, 8 Ad. & El. by witnesses confronting the accused of the 555, 560, which was an action involving a existence of such vital fact. We cannot as- question as to the admission of certain evisent to this view. We could not do so with- dence, and was heard in the Queen's Bench out conceding the power of the legislature, before Lord Denman, Chief Justice, and Litwhen prescribing the effect as evidence of tledale, Patteson, and Williams, Justices, the records and proceedings of courts, to im- Mr. Justice Patteson, referring to Rex v. pair the very substance of a right long Turner, above cited, said: "On an indictdeemed so essential for the due protection of ment for receiving goods feloniously taken, life and liberty that it is guarded against the felony must be proved; and neither a legislative and judicial action by provisions judgment against a felon, nor his admission, in the Constitution of the United States and would be evidence against the receiver. In in the Constitutions of most, if not of all, such a case I once admitted evidence of a [58] the states composing the Union. plea of guilty by the taker; and it was held that I did wrong." A note in Starkie_on Evidence, p. 367, is to this effect: "In Rex v. Turner, 1 Moody, C. C. 347; Rex v. Ratcliffe, 1 Lewin, C. C. 121; Keable v. Payne, & Ad. & El. 560, it is stated that many of the judges (all the judges except two being assembled) were of opinion that the record of the conviction of the principal would not This precise question has never been before this court, and we are not aware of any adjudged case which is in all respects like the present one. But there are adjudications which proceed upon grounds that point to the conclusion reached by us. A leading case is Rex v. Turner, 1 Moody, C. C. 347. In that ca prisoner was in |
