Paragraph 21, the material portion of which is repeated in each of the 21 overt acts, states:

"That in pursuance of the said conspiracy and in order to effect the object of the same, the said defendants," etc.

This language answers the contention that the indictment is bad because it does not appear that the overt acts followed the forming of the conspiracy.

We conclude that the indictment describes acts by one or more of the parties to the conspiracy to effect the object of the conspiracy within the definition of the Conspiracy Act. See Houston v. Ûnited States, 217 Fed. 854, 133 C. C. A. 562; Witte v. Shelton, 240 Fed. 265, 273, 153 C. C. A. 191.

[7] Does the evidence support the verdict?

Plaintiffs in error, and each of them, strenuously insist that the court erred in refusing to take the case from the jury: (1) Because the evidence failed to establish the alleged conspiracy. (2) Because there was no proof that any of the plaintiffs in error committed any one of the overt acts charged in paragraphs 21-40.

In conspiracy cases, the proof must, from the very nature of the charge, consist largely of circumstantial evidence. Rarely can the government find documentary proof of any unlawful combination to defraud it or to violate its laws. The test of the sufficiency of the evidence to support a conviction under this section has not infrequently been set forth. See Marrash v. United States, 168 Fed. 226, 229, 93 C. C. A. 511; Alkon v. United States, 163 Fed. 811, 812, 90 C. C. A. 116; Wharton's Criminal Law (10th Ed.) § 1401; 2 Bishop's New Criminal Law, § 227; United States v. Hamilton, Fed. Cas. No. 15,288; United States v. Lancaster (C. C.) 44 Fed. 896, 10 L. R. A. 333.

In the present case the question whether the proof is sufficient to sustain a conviction is one that has required careful study. Many violations of the oleomargarine law are clearly shown. Participation in these violations by salesmen of the Jelke Company, including the plaintiffs in error, is likewise clearly established, but the proof of the unlawful combination-the conspiracy charged-rests solely upon the deduction and inferences from facts established on the trial.

After examining all of the testimony carefully from the standpoint of each of the plaintiffs in error, we are convinced that there was evidence sufficient to support the conviction. The claims of the govern ment, set forth in the statement of facts, find support in the evidence. Single isolated instances tending to establish the conspiracy charged are explainable upon the theory of each of the plaintiff's innocence, but all of the evidence leads the mind logically to the conclusion that the plaintiffs in error, prompted by a desire to profit through increased sales of oleomargarine, conspired to accomplish their purpose by a violation of the Oleomargarine Act. The extent of the operations, and the similarity with which the illegal practices were conducted, invites the belief and justifies the conclusion that it was the result of a premeditated plan. Because of the common interest and continued participation in various illegal acts by the same parties, the plaintiffs in

error, the jury was justified in finding there was a premeditated plan, a conspiracy to which all the plaintiffs in error were parties.

Nor should it be conceded that all of the individual acts standing alone were perfectly consistent with the innocence of the plaintiffs in error. Some of these isolated facts are so suggestive of criminality and consistent with the charge of the indictment as to shake, if not to entirely remove, the presumption of innocence upon which the plaintiffs in error throughout the trial so persistently rested. To il lustrate: It appears that one of the plaintiffs in error sought out a butter and egg retailer and gave him the name of a baker, that he might use and advised him to purchase white oleomargarine in this baker's name from the John F. Jelke Company. In a single year the Jelke Company sold this "moonshiner" under a fictitious baker's name 183,576 pounds of white oleomargarine.

Bakers were excepted from certain provisions of the law (see section 16), and in order to get the advantage of these exceptions and to prevent the government from detecting the "moonshiner's" business, the various plaintiffs in error advised retailers to make cash purchases of white oleomargarine from the Jelke factory in the name of a nearby baker. In six months the names of 12 bakers appeared on the books of the company as having purchased 34,034 pounds of white oleomargarine. Upon the trial it was proven that 11 of these bakers had not purchased a pound of white oleomargarine during that period, while one had purchased 72 pounds.

Another "moonshiner" was advised to purchase in the name of Heins and to give his street number as 5102 Elizabeth street. The Jelke Company books showed that Mr. Heins purchased on January 7, 1908, 7,500 pounds of white oleomargarine, the street number being 5102 Elizabeth street. Upon the trial it appeared that Heins was a fictitious person and that at 5102 Elizabeth street there was a little cottage occupied by a widow, Mrs. Schmidt.

These were but a few of the many instances of fraud that were practiced upon the government. Nor does the record fail to connect the plaintiffs in error with these transactions. Frequently not one, but two or three of them, on various occasions, participated in the "moonshining" business, and invariably, according to the testimony, the "moonshiner's" entry into the illegal business was brought about through persuasion by one or more of the plaintiffs in error.

This is not a case where an uncorroborated statement of an accomplice stands contradicted by the sworn testimony of the defendant. It is a case where the testimony of many alleged accomplices, corroborated by other evidence, stands undisputed by the statement of any one of the plaintiffs in error. Notwithstanding the jury was required. to find the conspiracy from deductions and inferences drawn from undisputed facts, we are convinced that the record justifies the ruling of the court in denying the motion of the plaintiffs in error to direct a verdict in their favor, based on insufficiency of the evidence.

Plaintiffs in error further contend that the proof fails to connect any one of them with the overt acts charged in the indictment. It is claimed that the deliveries of white oleomargarine specified in the in

dictment were made by the John F. Jelke Company, and not by any of the plaintiffs in error. It appears that some of the plaintiffs in error were officers, directors, and stockholders of the John F. Jelke Company. An examination of the indictment (paragraphs 21-22) shows that the pleader did not restrict the government to proof of actual delivery of white oleomargarine by one of the co-conspirators but included in all the overt acts the statement that one of the co-conspirators "caused to be delivered a large quantity* of white oleomargarine," etc. We conclude that the evidence is in strict accord with the allegations of the indictment.

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Motion to Elect.-At the close of the trial each of the defendants moved the court to compel the government to elect "to proceed to the jury on only one of the several conspiracies joined in the indictment. The court's refusal to grant the motion is assigned as error. This motion is based upon the position of the plaintiffs in error. heretofore considered, that the indictment charged a conspiracy to conspire followed by numerous charges of conspiracy entered into between the plaintiffs in error and each of the "divers individuals" named and unnamed and therein referred to. We are unable to accept this contention. The indictment charged but one conspiracy, and that appeared in paragraph 5. There being but one charge of conspiracy, the court properly denied the motion of plaintiffs in error.

[8] Instructions.-An examination of the record in this case well illustrates the impracticability, if not the impossibility, of the trial judge giving each requested instruction correctly stated. The requested instructions in this case were innumerable. If printed in the ordinary brief, they would cover 100 pages. The proposed instructions that were refused, and to which exceptions were taken, and which constituted a very small part of the requested instructions, cover 23 pages.

The trial judge covered the substance of much of these requested instructions, and clearly and succinctly and with reasonable elaboration presented the issues which were involved in this trial.

Only a few of the criticisms will be separately considered, although we have endeavored, in view of the importance of this case, to carefully consider each and every assignment of error and all the contentions in respect thereto. We are not justified in setting forth the entire charge of the court to the jury, because of its length, although it would be but fair to the learned trial judge that this be done.

[9] The most serious criticism presented by plaintiffs in error arose out of the court's use of the following language:

"It is the position of the defendants that many of these witnesses were fellow wrongdoers with the defendants; that they helped to commit a crime and that, therefore, their testimony should be rejected in this case."

Plaintiffs' particular attack is directed to the words printed in italics. We agree with counsel for plaintiffs in error that this language was unfortunate, and, standing alone, misstated the defendants' position. It was not the defendants' position that they were wrongdoers, nor did they admit that they were fellow wrongdoers with any of the government witnesses.

But this criticism, like many others, must be viewed in the light of the entire charge. The sentence complained of was given when the court was obviously speaking of the testimony of accomplices, and when he was pointing out the dangers of predicating a conviction upon the testimony of men who were themselves wrongdoers. He said:

"I shall also at this time refer to the situation of many of the witnesses. They have been referred to by counsel in arguments both to the court and to you as accomplices.'

"It is the position of the defendants that many of these witnesses were fellow wrongdoers with the defendants, that they helped to commit a crime, and that, therefore, their testimony should be rejected in this case.

"It is the law that the uncorroborated testimony of an accomplice is subject to rejection, and when, therefore, in a case it appears to you that the witness in testifying discloses the fact he is an accomplice, you are not at liberty at the outset to reject his testimony, but it simply advances to you to inquire respecting the question of whether his testimony stands alone, whether there is proof in the case which corroborates him in respect to what he testifies to; and if you find there is proof acceptable to you, which is corroborated, then you are not at liberty to reject his testimony solely because he was an accomplice, but you are required then to proceed with an analysis of his testimony as you proceed with the analysis of the testimony of other witnesses respecting whom that infirmity does not exist."

The following further reference to the testimony of an accomplice was made by the court:

"If you find any witness has deliberately sworn falsely as to any material matter in the case, you are at liberty to reject the whole of his testimony, unless you find it is corroborated by other credible evidence."

We cannot believe that any of the defendants were prejudiced by the criticized portions of the charge when read in the light of all the instructions quoted. The impression which the court conveyed to the jury by this language was unfavorable to those witnesses who testified for the government, and who were referred to as "accomplices." The court intended by this language to warn the jury against conviction upon the testimony of accomplices. It was a further elaboration of his charge previously made bearing upon the weakness of testimony given by co-conspirators.

Plaintiffs in error complain because of the court's definition of the words "reasonable doubt," and because of the language used by the court in reference to the burden of proof. They further complain because the court ignored the rule which makes the presumption of innocence, evidence upon which a reasonable doubt may be based. The first paragraph of the charge clearly made the presumption of innocence in favor of each one of the defendants a fact in evidence which the jury was required to consider and weigh on each and every one of the issues presented. The language used in defining reasonable doubt is supported by many authorities and is in harmony with the language usually used on similar occasions.

The criticism directed to the court's definition of an overt act is answered by the case of Witte v. Shelton, supra.

Criticism is made of the following language used by the court:

"While the fact is for you to find, gentlemen, I express to you the opinion, you need not accept it if you do not care to, and if your judgment leads you to the contrary you may reject it; but I express to you the opinion that, aside from the alleged disclosures made by these defendants, there is corroborative evidence in the case."

This was not error. Simmons v. United States, 142 U. S. 148, 155, 12 Sup. Ct. 171, 35 L. Ed. 968; Vicksburg & Railroad Co. v. Putnam, 118 U. S. 545, 7 Sup. Ct. 1, 30 L. Ed. 257; United States v. Philadelphia & Reading R. R., 123 U. S. 113, 8 Sup. Ct. 77, 31 L. Ed. 138.

In fact, upon all of the evidence in this case it would not have been error for the court to charge the jury as a matter of law that there was corroborative evidence supporting the alleged declarations of the plaintiffs in error.

The government contends that no proper exception was taken by plaintiffs in error to present the various questions raised by the court's charge to the jury, or its failure to charge as requested, and reliance is placed upon the case of Allis v. United States, 155 U. S. 117, 15 Sup. Ct. 36, 39 L. Ed. 91. We have chosen, however, to examine the charge fully, as well as the requested instructions, to determine whether the trial judge held the scales of justice in even balance, saying all that was necessary to guard the rights of the accused. We find no reversible error.

[10] Evidence.-Error is assigned because the court admitted evidence of transactions occurring prior to July 1, 1902, when the Oleomargarine Act went into force.

In this respect the trial judge possessed much discretion as to the period of time during which he would allow the government to produce testimony showing, or tending to show, the motive for the conspiracy, as well as the intent with which the acts were committed. Heike v. United States, 227 U. S. 131, 33 Sup. Ct. 226, 57 L. Ed. 450, Ann. Cas. 1914C, 128.

The history of this industry, as well as the laws affecting it, were receivable in evidence, in order that the jury might better understand the claims of the respective parties.

But it is contended that numerous specific acts of fraudulent transactions prior to July 1, 1902, were received in evidence for no other purpose than to prejudice the jury against the plaintiffs in error. If the purpose and the sole purport of this testimony was merely to show the defendants were willing to violate the laws of the land, it was, of course, erroneously admitted. On the other hand, this evidence was admissible if the acts described were closely connected with and involved in the object of the conspiracy, and were quite similar to the subsequent acts of the conspirators, of which the government complains.

Prior to July 1, 1902, there was an oleomargarine act in force. Although the tax on colored oleomargarine was increased under the latter act, and the incentive to violate the law through illegal marketing of their product was greater, it was nevertheless the same motive