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dence against the time of possible need. The then recent enactment of the Elkins law, approved February 19, 1903 (32 Stat. 847, c. 708), had for the first time made the receiving of rebates by a shipper a criminal act, and had rendered any direct contract between the carrier and shipper providing for the giving or receiving of an unlawful rebate exceedingly hazardous. Hence the occasion and supposed prudence of operating, if at all, through the medium of an intermediary who should be neither carrier nor shipper, nor subject to the penalties for the misdeeds of either under the interstate commerce law.

With the foregoing scheme claimed by the government to have existed between Thomas and Barton Bros. in mind, we proceed to a consideration of the errors assigned in the introduction of evidence. During the two years in question the firm of Barton Bros, received from the carriers at the hands of Thomas about $3,900 on legitimate claims for loss, damage, and overcharge, and in addition the individual members received each one-third of $10,300 from some source and on some account. These facts are undisputed. With a view of getting at the source of and reason for these individual receipts, George A. Barton, one of the partners, who was called as a witness by the government, was asked whether any of this money came from Thomas. He answered "No." He was then asked if it was received from anybody else acting for Thomas. After objections and rulings by the court, the witness answered and the testimony proceeded as follows:

"A. Our firm has received money from sources. Shall I state from whom?

"Q. Certainly. A. I think we received remittances from Mr. Kelby. [Kelby was clerk for Thomas.)

"Q. Do you mean by his hand or through him? A. We received remittances by express and through the mail, and I think Mr. Kelby was here once and left a draft.

"Q. Now, what were those remittances? In what form and in what amount and on what dates? A. Well, I have a record book made up by K. L. Barton of our firm, memoranda that he handed to me. They are not on our regular books.

"Q. Have you that record with you? A. Yes, sir. "Q. You may state what that book shows with reference to these payments.”

To this question the defendants objected, and, upon the objection being overruled, duly excepted. The contents of the book read in evidence showed that from time to time during the year 1904 amounts were received under a notation of "freight commissions” aggregating about $8,000 and in the year 1905 aggregating about $2,300. The proof showed that the money so entered in the private book by the senior member of the firm was equally divided between the three members, Kimber, George, and William, and that the amounts so received and divided did not include the legitimate amounts received by the firm for loss, damage, and overcharge which were regularly entered on the books of the firm. We think the court committed no error in receiving in evidence the contents of this private book. Sufficient evidence had already been introduced, to say nothing of evidence afterwards offered, to make a prima facie case of the conspiracy chargedevidence sufficient when considered with all the inferences naturally deducible from it to justify a finding by the jury that the conspiracy as charged had been entered into. Kimber L. Barton was its moving spirit. He made the preliminary arrangements and collected the unlawful proceeds. Although he was not expressly charged in the indictment as one of the conspirators, he falls well within the class of those "to the grand jurors unknown" who are so charged. He was engaged with Thomas and his copartners in the unlawful purpose, and his acts in furtherance of it, including the fact that he received the moneys, entered the same in a private book, and not in the regular books of the firm, and afterwards distributed them between the members of his firm, were clearly admissible against the defendants, his co-conspirators. We are not unmindful of the contention of defendants' counsel that there was no direct evidence of any unlawful undertaking with Thomas, and no direct evidence that Thomas paid Barton Bros. any money as rebates or concessions on freight charges. For argument's sake, this might be conceded. Conspirators do not act that way. Fraud is not often proven by direct testimony. A preconcerted plan to do an unlawful act must from the nature of the case be usually established by inferences drawn from the relation of the parties from the acts done and from the results achieved.

"It is not necessary to constitute a conspiracy that two or more persons should meet together and enter into an explicit or formal agreement for an unlawful scheme.

* It is sufficient if two or more persons in any manner or through any contrivance positively or tacitly come to a mutual understanding to accomplish a common and unlawful design." United States v. Babcock, 3 Dillon, 581, 585, Fed. Cas. No. 14,487.

"If the evidence shows a detail of facts and circumstances in which the alleged conspirators are involved, separately or collectively, and which are clearly referable to a preconcert of the actors and there is a moral probability that they would not have occurred as they did without such preconcert, that is sufficient if it satisfies the jury of the conspiracy beyond a reasonable doubt." Davis v. United States, 46 C. C. A. 619, 107 Fed. 753, 755.

"It is often that the intentions of a wrongdoer are ascertained entirely by acts done which are the natural effects of unlawful designs. The acts and circumstances which accompany them showing the connection between the acts, and the motives which produced them, are generally the mosts convincing evidence which can be adduced.” State v. Ripley, 31 Me. 386, 388.

Looking at the proof in the light of the foregoing well-understood rules, we entertain no doubt that the money which Kimber L. Barton received, entered in his book, and subsequently divided equally between his other partners and himself came from Thomas; that Thomas got the same from the railroad which carried Barton Bros.' freight through the colorable pretense of collecting exaggerated claims for loss, damage, and overcharge or commissions, and that all these things are clearly referable to a prearrangement to that end entered into between Thomas and the members of the firm and others. If there were any doubt about the unlawful intent of the defendants in their business relations with Barton Bros., that doubt is dispelled by the evidence of contemporaneous contracts and transactions made by

*

*Thomas with other merchants doing business in St. Louis, Kansas City, and Omaha. Those contracts were all equally fair and innocent on their face, calling for actual service by Thomas in the way of routing the shippers' freight, prosecuting, and collecting claims for loss, damages, and overcharges, but the merchants, by their evidence, disclose the unreality or comparative unimportance of any such service. One admitted that as a result of his firm's contracts with Thomas they expected to get a cheaper rate than the usual shipper. Another said it was "inferred without discussion that his house was to get certain money

that Thomas understood very well that I understood," and, again, that “the results were beneficial to us

in the sense of refunds which we were to receive.” Another testified that Thomas "was to look after all the claims we had for freight, and we were to receive a certain rebate on freights from west of the Mississippi river." Notwithstanding the explicit provision in the contracts that Thomas should attend to claims for loss, damage, and overcharge, some of the shippers testified that they took care of them and handled them for themselves without the intervention of Thomas. The evidence of all of them shows that the feature requiring Thomas to attend to their claims for loss, damage, and overcharge was treated with much indifference. Their testimony discloses, when read with discrimination and fair regard to the circumstances, that the real purpose of all of them in making contracts with Thomas was to secure rebates or refunds from the railroads on freight charges. In fact, they did receive money as a result of their arrangement. It came mysteriously to them, generally from known sources, sometimes by special messenger, sometimes by express, sometimes by deposit in bank to the credit of a fictitious name agreed upon, and always in currency. When received it was charged to some individual account out of the regular course of bookkeeping: It was obviously intended that the money received by them should not be traceable to any source. Tracks were covered as well as they could be, but the humiliating confession had to be made, and was made by some, that their real purpose was to secure unlawful rebates, and others are left by the proof in the uncomfortable attitude of receiving large sums of money in currency without knowing or inquiring whence it came or on what account it was paid to them. The conduct of the latter is consistent alone with the fact that they thought they were receiving money unlawfully, and all the circumstances point with much certainty to the conclusion that they actually received unlawful rebates or concessions on freight shipments as an intentional result of the contracts made between them and Thomas.

Objection was made to the introduction of evidence showing dealings between Thomas and the merchants other than Barton Bros., and the action of the court in admitting that evidence is assigned for error. There is no merit in that assignment. Nothing is better settled in the law of evidence in any case involving fraudulent intent than that other acts and dealings of the accused of a kindred character to those charged in the case in hand and performed at or about the same time are admissible to illustrate and establish the intent or motive in the particular act directly in judgment. Wood v. United

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States, 16 Pet. 342, 10 L. Ed. 987; Chitwood v. United States (C. C. A.) 153 Fed. 551; Exchange Bank v. Moss, 79 C. C. A. 278, 149 Fed. 340. The present case fitly illustrates the value of the rule in question. The same ostensible contracts, the same mystery, the same results appear in all the collateral transactions. They tell the same story of an attempted evasion of the law under the thin disguise of a formally executed contract and afford very persuasive evidence of the real intent and purpose of the accused in similar dealings with Barton Bros. in this case.

6. The contention is made that the evidence fails to disclose the formation of a conspiracy within the jurisdiction of the court below. This position under the proof to which attention has already been sufficiently called cannot be sustained. The fraudulent scheme seems to have been first devised and agreed upon in Kansas City, and it makes little difference where the misleading and deceptive formal contracts were executed. They were merely a step taken in carrying out the scheme and designed doubtless to make it more effectual.

7. It is earnestly contended that there was not sufficient evidence to connect defendant Taggart with the particular conspiracy charged in the indictment. While the proof does not connect him with the incipiency of that conspiracy, it is claimed by the government that facts appear from which it may be reasonably inferred that he came into it after it was concocted with full knowledge of its existence and character and with a purpose of furthering its design. If such are the facts, he was as much a conspirator as if he participated in its original formation. United States v. Newton (D. C.) 52 Fed. 280; United States v. Barrett (C. C.) 65 Fed. 62; United States v. Cassidy (D. C.) 67 Fed. 698. This contention presents a doubtful question of fact, and as the case, for reasons hereafter stated, must be remanded for another trial when new evidence may be presented on the issue, it is not deemed necessary or wise to further consider it at the present time.

8. Because of the verdict of not guilty and the judgment discharging the defendants Thomas, Taggart, and Crosby on the indictment against them which was consolidated with the present indictment against Thomas and Taggart for trial, the last-named defendants interposed a plea of former jeopardy as a bar to their conviction in the present case. This plea was disallowed, and defendants assigned that action of the court as error. A brief reference to the facts will dispose of the question. The indictment against defendants and Crosby was for a conspiracy to get the Chicago, Burlington & Quincy Railway Company to give rebates to divers shippers in Kansas City. The indictment against the defendants in this case (not including Crosby) was for a conspiracy to get Barton Bros. to receive rebates from divers railroads. Notwithstanding the similarity of evidence introduced in support and defense of the two prosecutions, the offenses charged in the two indictments were totally different as a matter of law. They were grounded on different provisions of the interstate commerce act of 1903, and the acquittal in one affords no ground for discharge in the other. There had been no jeopardy on the charge contained in the present indictment. “A plea of autrefois acquit"

1 82 C. C. A. 505.

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must be upon a prosecution for the same identical offense. 4 B1. 336. It must appear that the offense charged, using the words of Chief Justice Shaw, was the same in law and in fact. The plea will be vicious if the offenses charged in the two indictments be perfectly distinct in point of law, however nearly they may be connected in point of fact. Burton v. United States, 202 U. S. 344, 378, 26 Sup. Ct. 688, 50 L. Ed. 1057.

Other criticisms are made of the proceedings below, and error is claimed to have been committed in the charge to the jury and in refusing to give certain declarations of law requested by defendants, but, in view of the conclusions already reached and expressed on fundamental and important questions, it is not deemed necessary for the guidance of the trial court at the next trial to express our opinion on the several incidental and less important questions presented by the assignment of errors. Most of them are answered by the proper application of the principles already laid down.

As we have already indicated, the judgment must be reversed, and we will now proceed to a consideration of one error which renders that result inevitable. The court was duly and properly asked to instruct the jury that the defendants were presumed to be innocent of the crime charged against them, and that such presumption remained with them until it was overcome by the proof. This instruction the court refused to give and exception was duly saved. It is not claimed that the request was improper, or that it should not have been given, but it is claimed that its equivalent was given to the jury in the general charge. We have critically examined the charge with a view of extracting from it, if possible, some equivalent for the instruction asked and refused, but we fail to find it. All that counsel for the government point out and claim to be such equivalent is the repeated declaration found in the general charge that the jury must find the defendant guilty beyond a reasonable doubt before a verdict of guilty can be rendered. It is earnestly contended that such instruction is the full equivalent of the one asked and refused. However interesting an original discussion of this question might be, it is not open to us. The Supreme Court has conclusively settled it. In the two cases of Coffin v. United States, 156 U. S. 432, 15 Sup. Ct. 394, 39 L. Ed. 481, and Cochran & Sayre v. United States, 157 U. S. 286, 299, 15 Sup. Ct. 628, 39 L. Ed. 704, that court has unequivocally held that a proper instruction concerning the subject of reasonable doubt was not the equivalent of an instruction concerning the presumption of innocence, and judgments of conviction in both of those cases were reversed because of refusal to give a requested instruction upon defendant's presumption of innocence like that asked in this case, notwithstanding the fact that in each the trial court properly instructed on the subject of reasonable doubt.

On the authority of those cases, we have no alternative but to reverse the judgments, and remand the causes to the court below for a new trial; and it is so ordered.

SANBORN, Circuit Judge (concurring). I concur in the reversal of the judgments in these cases for the reason stated in the foregoing

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