be evidence of the fact, where the indictment | seems that a record of conviction of a prinagainst the accessory alleged, not the convic- cipal in the crime of stealing, who pleads tion, but the guilt of the principal. And on guilty, would not now be received as evidence principle it would seem to be evidence only of the guilt of the principal against the rewhen the indictment alleges the conviction ceivers of the stolen property, or the acces of the principal, and simply to support that sory after the fact; and it is said to be doubtallegation." ful whether a record of the conviction of the principal on his plea of not guilty would be admissible against the accessory. As proof of the fact of conviction, the record would be admissible and conclusive, but it seems not to be admissible evidence of the guilt of the convict, as against another person charged with being connected with him in crime, the record being in this respect res inter alios acta. It is evidence that a certain person, named in the record, was convicted by the jury, but not evidence as against a third person, supposed to have been engaged with him in a particular transaction, as to the ground on which the conviction proceeded, namely, that the convict committed the criminal act described in the record." 2 Phillips, Ev. 3d ed. pp. 22-3. *Taylor in his Treatise on Evidence, after [60] stating that a prisoner is not liable to be affected by the confessions of his accomplices, says: "So strictly is this rule enforced, that where a person is indicted for receiving stolen goods a confession by the principal that he was guilty of the theft is no evidence of that fact as against the receiver (Rex v. Turner); and it would be the same, it seems, if both parties were indicted together, and the principal were to plead guilty. (Id.)" 1 Taylor, Ev. 6th ed. § 826.

The leading American case on the question is Commonwealth v. Elisha, 3 Gray, 460. The indictment was for receiving stolen goods knowing them to have been stolen. The court, speaking by Metcalf, J., said: "This indictment is against the defendant alone, and charges him with having received property stolen by Joseph Elisha and William Gigger, knowing it to have been stolen. It is not averred, nor was it necessary to aver or prove (Rev. Stat. chap. 126, § 24), that they had been convicted of the theft. But it was necessary to prove their guilt, in order to convict the defendant. Was the record of their conviction on another indictment against them only, upon their several pleas of guilty to a charge of stealing the property, legal evidence, against the defendsnt, that they did steal it? We think not, either on principle or authority. That conviction was res inter alios. The defendant was not a party to the proceedings, and had no opportunity nor right to be heard on the trial. And it is an elementary principle of justice, that one man shall not be affected by another's act or admission, to which he is a stranger. That conviction being also on the confession of the parties, the adjudged cases show that it is not evidence against the defendant. Rex v. Turner, 1 Moody, C. C. 347, and 1 Lewin, C. C. 119; 1 Greenl. Ev. 8 233; Rosc. Crim. Ev. 2d ed. 50; The State v. Newport, 4 Harr. (Del.) 567. We express no opinion concerning a case differing in any particular from this, but confine ourselves to [59] the exact question presented by these exceptions. Our decision is this, and no more: The record of the conviction of a thief, on his plea of guilty to an indictment against him alone for stealing certain property, is not admissible in evidence to prove the theft, on the trial of the receiver of that property, upon an indictment against him alone, which does not aver that the thief has been con

victed."

The principle to be deduced from these authorities is in harmony with the view that one accused of having received stolen goods with intent to convert them to his own use, knowing at the time that they were stolen, is not within the meaning of the Constitution, confronted with the witnesses against him when the fact that the goods were stolen is established simply by the record of another criminal case with which the accused had no connection and in which he was not entitled to be represented by counsel. As heretofore stated, the crime charged against Wallace, Baxter, and King and the crime charged against Kirby were wholly distinct-none the less so because in each case it was essenTo the same general effect are some of the tial that the government should prove that text-writers. Phillips, in his Treatise on the property described was actually stolen. the Law of Evidence, referring to the rule as The record of the proof of a vital fact in one to the admissibility and effect of verdicts or prosecution could not be taken as proof in the judgments in prosecutions, says: "A record other to the existence of the same fact. The difof conviction of a principal in felony has ficulty was not met when the trial court failed been admitted in some cases, not of modern as required by the act of 1875 to instruct the date, as evidence against the accessory. jury that the record of the conviction of the King v. Smith, 1 Leach, C. C. 288; Rex v. principal felons was conclusive evidence of Baldwin, 3 Campb. 265. This has been the fact that the property had been actually supported on the ground of convenience, be- stolen, but merely said that such record made cause the witnesses against the principal a prima facie case as to such fact. The funmight be dead or not to be found, and on damental error in the trial below was to adthe presumption that the proceedings must mit in evidence the record of the conviction be taken to be regular, and the guilt of the of the principal felons as competent proof for convicted party to be established. Fost. any purpose. That those persons had been Disc. iii. chap. 2, § 2, p. 364. But this is not convicted was a fact not necessary to be esstrictly in accordance with the principle re-tablished in the case against the alleged respecting the admissibility of verdicts as evidence against third persons. From the report of the recent case of Rex v. Turner, it

ceiver; for under the statute he could be prosecuted even if the principal felons had not been tried or indicted. As already stated,

they were out of the possession of the United States and were stolen property when they came to the hands of the accused.

[1]the effect of the charge was to enable the | the stamps before they were received by government to put the accused, although Kirby, and that the indictment charges that shielded by the presumption of innocence, upon the defensive as to a vital fact involved in the charge against him by simply producing the record of the conviction of other parties of a wholly different offense with which the accused had no connection.

It is scarcely necessary to say that to the rule that an accused is entitled to be confronted with witnesses against him the admission of dying declarations is an exception which arises from the necessity of the case. This exception was well established before the adoption of the Constitution, and was not intended to be abrogated. The ground upon which such exception rests is that from the circumstances under which dying declarations are made they are equivalent to the evidence of a living witness upon oath, "the condition of the party who made them being such that every motive to falsehood must be supposed to have been silenced, and the mind to be impelled by the most powerful considerations to tell the truth." Mattox v. United States, 146 U. S. 140, 151 [36: 917-921]; Cooley, Const. Lim. 318; 1 Phillips, Ev. chap. 7, § 6.

For the reasons stated it must be held that so much of the above act of March 3, 1875, as declares that the judgment of conviction against the principal felons shall be evidence in the prosecution against the receiver that the property of the United States alleged to have been embezzled, stolen, or purloined had been embezzled, stolen, or purloined, is in violation of the clause of the Constitution of the United States declaring that in all criminal prosecutions the accused shall be confronted with the witnesses against him. Upon this ground the judgment must be reversed and a new trial had in accordance with law. But as the case must go back to the circuit court for another trial, it is proper to notice other questions presented by the assignments of error.

Another contention by the accused is that the indictment was fatally defective in not stating from whom the defendant received the stamps. This contention is apparently supported by some adjudications, as in State v. Ives, 35 N. C. (13 Ired. L.) 338. But upon a careful reading of the opinion in that case it will be found that the judgment rests upon the ground that the statute of North Carolina, taken from an old English statute, made the receiver of stolen goods strictly an accessory and contemplated the case of goods being received from the person who stole them. As already stated the act of Congress upon which the present indictment rests makes the receiving of stolen property of the United States with the intent by the receiver to convert it to his own use or gain, he knowing it to have been stolen, a distinct, substantive felony, for which he can be tried either before or after the conviction of the principal felon, or whether the latter is tried or not. Under such a statute the person who stole the property might be pardoned, and yet the receiver could be indicted and convicted of the crime committed by him. Bishop in his New Criminal Procedure says that while some American cases have held it to be "necessary in an indictment against the re[63] ceiver of stolen goods to state from whom he received the goods, "commonly, in England and in numbers of our states, the indictment does not aver from whom the stolen goods were received." Vol. 2, § 983. By an English statute, 7 & 8 Geo. IV., chap. 29, § 54, it was enacted that "if any person shall receive any chattel, money, valuable security, or other property whatsoever, the stealing or taking whereof shall amount to a felony, either at common law or by virtue of this act, such person knowing the same to have been feloniously stolen or taken, every such receiver shall be guilty of felony, and may be indicted and convicted either as an accessory after the fact, or for a substantive felony, and in the latter case, whether the principal felon shall or shall not have been previously convicted. or shall or shall not be amenable to justice." etc. Under that statute a receiver of stolen goods was indicted. It was objected that one of the counts did not state the name of the principal, or that he was unknown. Tindall, Ch. J., said: "It will do. The offense

The accused contends that the indictment is defective in that it does not allege ownership by the United States of the stolen articles of property at the time they were alleged to have been feloniously received by him. This contention is without merit. The [62] indictment alleges that the articles *described were the property of the United States when they were feloniously stolen on the 7th day of June, 1896, and that the defendant only two days thereafter, on the 9th day of June, 1896, "the postage stamps aforesaid so as aforesaid feloniously stolen, taken, and car-created by the act of Parliament is not reried away, feloniously did receive and have in his possession, with intent then and there to convert the same to his own use or gain, the said Joe Kirby then and there well knowing the said postage stamps to have been theretofore feloniously stolen, taken, and carried away." The stamps alleged to have been feloniously received by the accused on the 9th day of June are thus alleged to have been the same that were stolen from the United States two days previously. The larceny did not change the ownership, and it must be taken that the United States had not regained possession of

ceiving stolen goods from any particular person, but receiving them knowing them to have been stolen. The question therefore will be, whether the goods are stolen, and whether the prisoner received them knowing them to have been stolen. Your objection is founded on the too particular form of the indictment. The statute makes the receiving of goods, knowing them to have been stolen, the offense." Rex v. Jervis, 6 Car. & P. 156; 2 Russell, Crimes, 6th ed. 436. In State v. Hazard, 2 R. I. 474 [60 Am. Dec. 96], an indictment charging the accused with fraudulently receiving stolen goods, knowing them

Mr. Justice Brewer did not participate in December, 1896. the decision of this case.

Mr. Justice Brown and Mr. Justice Mc- the eastern district of Michigan, on an inKenna dissented.

Submitted January 19, 1899. Decided April issued from the district court in admiralty."

And further: "The only question which arises under this treaty therefore is whether PPEAL from an order of the District upon the facts stated in the return which Court of the United States for the East- was not traversed, the petitioner has had the ern District of Michigan, denying an appli-opportunity secured him by that treaty to

57

[69]

COMPANY, Piff. in Err.,

v.

HALL, Treasurer of Arapahoe
County, Colorado.

(See S. C. Reporter's ed. 70--82.)

Tax on railroad cars.

[21: 287, 290], Mr. Justice Swayne, speak- | AMERICAN REFRIGERATOR TRANSIT [70] ing for the court, said: "When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is FRANK a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another state; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. In [Anonymous] 6 Mod. 231 it is said: "The bail have their principal always up on a string, and

The state may tax the average number of refrigerator cars used by railroads within the state, but owned by a foreign corporation which has no office or place of business within the state, and employed as vehicles of transportation in the interchange of interstate commerce.

[No. 226.]

may pull the string whenever they please, Argued and Submitted March 16, 17, 1899. and render him in their own discharge.' The rights of the bail in civil and criminal

Decided April 24, 1899.

ERROR to the Supreme Court of the

cases are the same. They may doubtless per- I State of Colorado to review a judgment

mit him to go beyond the limits of the state within which he is to answer, but it is unwise and imprudent to do so; and if any evil ensue, they must bear the burden of the consequences, and cannot cast them upon the obligee."

We think the conclusion cannot be maintained on this record that, because of Cosgrove's temporary absence, he had waived or lost an exemption which protected him while he was subject to the state authorities to answer for the offense for which he had been extradited.

The case is a peculiar one. The marshal initiated the prosecution in the state courts, and some weeks thereafter the indictment was found in the district court for the same act on which the charge in the state courts was based. The offenses, indeed, were different, and different penalties were attached to them. But it is immaterial that Cosgrove might have been liable to be prosecuted for both, as that is not the question here, which is whether he could be arrested on process from the district court before the prior proceeding had terminated and he had had opportunity to return to the country from which he had been taken. Or, rather, whether the fact of his going to Canada pending the state proceedings deprived him of the immunity he possessed by reason of his extradition so that he could not claim it though the jurisdiction of the state courts had not been exhausted; he had come back to Michigan; and he had had no opportunity to return to Canada after final discharge from the state prosecution.

*We are of opinion that, under the circumstances, Cosgrove retained the right to have the offense for which he was extradited disposed of and then to depart in peace, and that this arrest was in abuse of the high process under which he was originally brought into the United States, and cannot be sustained.

Final order reversed and cause remanded with a direction to discharge petitioner.

of that court reversing the judgment of the District Court of Arapahoe County in that State and dismissing a suit in equity brought by the American Refrigerator Transit Company, plaintiff, against Frank Hall, Treasurer of said County to restrain defendant from enforcing payment by plaintiff of certain taxes assessed upon refrigerator cars owned by it and used for transportation over various lines of railroad. Judgment of Supreme Court affirmed.

See same case below, 24 Colo. 291.

Statement by Mr. Justice Shiras:

In March, 1896, the American Refrigerator Transit Company, a corporation organized under the laws of the state of Illinois, filed, in the district court of Arapahoe county, state of Colorado, against Frank Hall, treasurer of said county, a bill of complaint seeking to restrain the defendant from enforcing payment by the said transit company of certain taxes assessed upon refrigerator cars owned by the company, and used for the transportation of perishable freight over various lines of railroad throughout the United States. The bill alleged that the business in which said cars were engaged was exclusively interstate commerce business; that the company has and has had no office or place of business within the state of Colorado, and that all the freight transported in plaintiff's cars was transported either from a point or points in a state outside of the state of Colorado to a point within that state, or from a point in the state of Colorado to a point without said state, or between points wholly outside of said state; that said cars had no taxable situs within said state; that said assessment of taxes upon said cars was without authority of *law and void and that complain- [71] ant had no plain or adequate remedy at law.

A demurrer to the complaint was overruled and answer was filed denying some and admitting other allegations of the bill.