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dictment. In respect of this the court told the jury that this evidence "was received solely for the purpose of throwing light upon the transactions mentioned in the indictment, so far as it might, in determining: First, whether or not there was a conspiracy such as charged, upon the part of any of the parties connected with said entry; and, second, to determine the motive and intent of the parties in entering into such conspiracy or agreement."
No refinement or specious reasoning can obscure the fact that the jury were thus authorized to determine whether or not there existed the conspiracy charged in the indictment by having recourse to the McKibben entries. In other words, the jury were warranted in inferring the existence of the essential fact of a renewal of the antecedent conspiracy, barred by the statute of limitations, from the character and quality of an overt act done more than three years prior to the conspiracy laid in the indictment; and the jury were further authorized, from such antecedent barred overt act, "to determine the motive and intent of the parties in entering into such conspiracy or agreement.” What conspiracy or agreement was meant? As the McKibben entries were in furtherance of the original agreement, legitimately it could only be employed to throw light upon the character of that antecedent conspiracy. It could not throw light upon the claimed renewal conspiracy not then in existence. Yet, as shown by the majority opinion, the McKibben entries are referred to and used to support the conclusion that Ware's purpose was to secure to himself, by reason of the conspiracy agreement, the entire use and benefit of the simulated homestead entries.
The charge of the court further in this immediate connection was as follows:
“But unless you find the defendant guilty beyond a reasonable doubt upon one or more of these specific arrangements or overt acts, alleged in the indictment, or at least upon one of them, you cannot find him guilty, even if you should believe him guilty of an unlawful conspiracy or agreement in respect to any of these matters wbich are not specifically alleged in the indictment. He is upon trial for the specific acts charged in the indictment, and those only, and you cannot find a verdict of guilty for some other act not charged in the indictment.”
From which the jury might well have conceived that the thought conveyed to them was: (1) That they might infer the existence of the conspiracy charged within the three years from "the overt acts, or at least upon one of them”; and (2) that the only reason why a conviction could not be based upon the McKibben entries was because they were not counted upon in the indictment. Inviting, as did the introduction in the case of the McKibben entries, the invoking of the statute of limitations thereto, the court refrained from any allusion whatever to it as a reason that no prosecution or conviction could be predicated thereon, and from the beginning to the end of the charge of the court not a single allusion is made to the defense persistently pressed by Ware's counsel of the question of the statute of limitations. Yet, the majority opinion states that “there was also persuasive evidence that Lambert procured one McKibben to make an entry under this agreement more than three years before either of the indictments were found, that there was no new or different agreement subsequent to that time, and that in the execution of this agreement he procured, within three years, at least 15 persons to enter tracts of land within the inclosure of the U. B. I. Company,” and that the parties did acts thereunder indicating the continuation of the conspiracy.
If there was no “new or different agreement” from that under which the McKibben entries were made, and that agreement was barred when the overt act evidenced by said entries was committed, then subsequent overt acts within the three-year period were clearly referable to, and were in pursuance of, the original agreement. So if the McKibben entries had occurred inside of the three-year period, then every subsequent overt act could have been laid in one and the same count as in furtherance of the agreement entered into in October, 1902.
Thus we are confronted with the proposition of a continuing offense without any direct proof of the meeting of the minds of the parties in a new or renewal agreement, in der to toll the statute of limitations.
In United States v. Irvine, 98 U. S. 450, 25 L. Ed. 193, an attorney was indicted for unlawfully withholding pension money after demand. The indictment was found in 1875, when the attorney had wrongfully withheld the money since 1870. After holding that the crime could not begin until the attorney had received the money, and had either refused to pay it over, or had done such act as indicated an intention to wrongfully withhold it, the court said:
"When it [i. e., the wrongful act] is committed, the party is guilty and is subject to criminal prosecution, and from that time, also, the statute of limitations applicable to the offense begins to run.
He pleads the statute of two years, a statute which was made for such a case as this: but the reply is: 'You received the money. You have continued to withhold it these 20 years; every year, every month, every day, was a withholding within the meaning of the statute.' We do not so construe the act. Whenerer the act or series of acts necessary to constitute a criminal withholding of the money have transpired, the crime is complete, and from that day the statute of limitations begins to run against the prosecution."
The leading case relied upon by the majority opinion is that of Commonwealth v. Bartilson, 85 Pa. 482. The indictment in that case contained two counts. The first alleged a certain conspiracy and overt acts done in pursuance thereof, some of which were within the two-year period of limitations, and others without the two years. The second count alleged simply the conspiracy, but no overt acts. Upon demand by defendant's counsel, pursuant to the provisions of the Pennsylvania practice, the prosecutor presented a bill of particulars of the matters he expected to prove under the second count. When furnished, the particulars disclosed that the prosecutor expected to prove the same conspiracy and the same overt acts as those charged in the first count. Thereupon the court quashed both counts. The Supreme Court sustained the action in quashing the first count, and reversed it as to the second count, not, however, upon the notion that each overt act was a renewal of the conspiracy, but it was merely evidence. The court said:
"It is strongly urged, however, that inasmuch as it was averred in said count that the defendants had, in ‘pursuance and renewal of said conspiracy,'
committed divers overt acts specifically described in said count, the date of one of which at least was within the statutory period, there was a continuance and a renewal of the conspiracy from time to time, and the statute was thereby tolled. This is plausible but unsound. The offense charged was the conspiracy. According to all the authorities, the conspiring is the essence of the charge, and if that be proved the defendants may be convicted.
According to the first count, the offense was complete on the 20th of December, 1874. The overt acts set forth do not constitute the offense. They are the evidence of it, and are sometimes said to be the aggravation of it. An overt act may or may not be unlawful, per se. It is because of its relation to an unlawful combination that it becomes obnoxious to the criminal law.
The commonwealth must allege and prove a conspiracy within two years. If this cannot be done, the commonwealth has no case. The pleader evidently felt the strain of this part of his case when he introduced the averment that the overt acts were in ‘renewal of the original conspiracy. It was practically laying an offense with a continuando. It was an attempt to prove the existence of a crime within the statutory period, by showing its commission outside of such period, and that it had been continued down to a time within it.”
Then adverting to the language employed in a former decision by the same judge, to the effect that there was no such thing as a continuing offense, he said that it was not intended to assert that a man might not repeat an offense from day to day, as in the case of maintaining a nuisance, and other familiar instances which might be referred to, which might be done daily for an indefinite period, and then said:
“But a man could not be convicted of maintaining a nuisance charged to have been committed 10 years prior to the finding of the bill of indictment by proving that he had continued the nuisance, day by day, to a time within the statutory period.”
The court held that the trial court erred in suppressing the first count, as it charged a conspiracy within the period of two years, as the jury might be warranted in finding the essential fact or a new or renewal conspiracy from the character of the acts done thereunder. From which it is quite clear, to my mind, that the court intended nothing more than to say that the existence of the conspiracy itself might be found to exist, in the absence of direct evidence as to its formation and its terms, by overt acts indicating that it had been renewed from time to time, when “each renewal constitutes a fresh conspiracy for which an indictment will lie.”
There is no disguising the fact that this case was tried throughout upon the idea that the mere proof of overt acts, done within three years, was sufficient to toll the statute of limitations. This was the theory upon which the attorney for the government laid stress in his argument before this court. The whole substance of the charge of the court respecting the conspiracy was: (1) That the first inquiry should be: "Was there an unlawful agreement entered into by two or more parties named in the indictment to defraud the United States out of certain of its public lands mentioned in the indictment." (2) That this agreement “must be proved, because without a cor. rupt agreement or understanding there is no conspiracy, but circumstantial evidence may be resorted to to show the agreement or conspiracy, the acts of parties in the particular case, and the character of the transactions or series of transactions, with the accompanying
circumstances as the evidence may disclose them, from which evidence may be derived of the existence or nonexistence of an agreement, which may be expressed or implied.” And (3) “should you find that there was a conspiracy entered into, as charged in the indictment, and that the defendant, Ware, was one of the parties to such conspiracy, then you should inquire whether or not one or more of the parties to such conspiracy did the act or acts in pursuance or in furtherance of such conspiracy and unlawful agreement, as is charged in the indictment, which I have denominated and called the overt act.”
In so, far as the jury were advised by the court, if they believed the testimony of the witness Lambert, that he and Ware entered into an agreement in October, 1902, to effect the homestead entries for Ware's sole use and benefit, that as that "was an unlawful conspiracy or agreement entered into of the character charged in the indictment,” they were authorized to convict on that agreement. The subsequent language, "if you find that there was an unlawful conspiracy of the character charged in the indictment,” was perfectly consistent with what preceded. "A conspiracy entered into as charged in the indictment” by no reasonable intendment can be held to have conveyed to the minds of the jury that it was essential to find that the agreement and the first overt act done thereunder must have occurred within three years next before the finding of the indictment. This for the palpable reason that the government's evidence showed that the agreement was entered into beyond the three-year period; and, as already shown, the court told the jury that the McKibben entries, made in furtherance of that agreement, could be looked to as throwing light on the character of the conspiracy agreement, and to enable them to determine whether or not there was a conspiracy. As already stated, there was not one syllable in the charge suggesting to the jury that there was such a thing as the statute of limita. tions applicable to prosecutions for such conspiracy, nor was there a single suggestion of the necessity of proving, after the statute of limitations attached to the McKibben entries, to the satisfaction of the jury, beyond a reasonable doubt, that there had been a renewal of the original agreement, or even that they should find that there had been overt acts pursuant thereto committed within the three years, participated in by both the parties.
The majority opinion suggests certain acts done within the threeyear period from which the jury might be warranted in finding the required renewal, or joint participation by both Lambert and Ware. It is sufficient to say that no such question was submitted by the court to the jury. That was a question of fact which the jury alone was authorized to respond to in a criminal case. On discussion before them they might have entertained a different notion of the effect of such facts from that of the court.
The nineteenth request made by defendant for an instruction was:
"Unless you [the jury] find from the evidence beyond a reasonable doubt, that he [Ware] did make such an unlawful agreement with Frank W. Lambert as is set out in one or both of the indictments in question, and that that agreement was made within three years prior to the finding of such indictment, and that the first overt act done by either the defendant or Lambert pursuant to such agreement was done within three years prior to the finding in the indictments herein or one of them, you will return a verdict of not guilty.”
The twentieth request was to the effect that if the jury found from the evidence that whatever agreement was made between Ware and Lambert was made either in August or October, 1902, and that the filing referred to in the first of the McKibben entries was made prior to November 24, 1902, and that all of the filings and entries which were given in evidence were made or procured in pursuance of and to effect the object of the agreement made between the defendant and Lambert in August or October, 1902, or prior to November 24, 1902, without a new agreement or conspiracy between the defendant and Lambert, they should find a verdict of not guilty.
The twenty-first request asked the court to charge the jury that the burden was upon the government to prove that such unlawful conspiracy or agreement was entered into by the defendants within the period of three years next prior to the 24th of November, 1905, and if the evidence fails to satisfy the jury, beyond a reasonable doubt, both that such unlawful conspiracy or agreement was entered into by the defendant and Lambert, and that such unlawful agreement or conspiracy was entered into within the three-year period prior to the 24th of November, 1905, it was their duty to acquit him.
If it be conceded that the twentieth request was objectionable in the employment of the term "without a new agreement or conspiracy," yet the other requests were not subject to that criticism. The substantive effect of them was that, unless the jury should find that the conspiracy or agreement charged in the indictment was entered into and the overt acts thereunder were committed more than three years before the finding of the indictment, or unless the jury should find beyond a reasonable doubt that both the unlawful conspiracy and the overt acts thereunder were entered into and committed more than three years before the indictment, they should acquit the defendant. The attention of the court was thus directly invited by these requests to the applicability of the statute of limitations to this case. As heretofore shown in this discussion, the general charge given by the court did not in substance or effect cover either of these requests or express any substantive equivalent therefor, but left the jury without any thought in their mind even of the existence of the statute of limitations or the necessity of finding any renewal or continuation of the original conspiracy or joint participating acts of the conspirators mentioned in the majority opinion of the court. Mr. Justice Story, in Livingston v. Maryland Insurance Company, 7 Cranch 506-544, 3 L. Ed. 421, discussing the proposition that a party is entitled to a direct declaration upon a distinct phase of the case, said:
"If in point of law the plaintiff's were entitled to such direction, the court erred in its refusal, although the direction afterwards given by the court might, by inference and argument, in the opinion of this court, be pressed to the same extent. For the party has the right to a direct and positive instruction, and the jury are not to be left to believe in distinctions where none exist, or to reconcile propositions by mere argument and in