Слике страница
PDF
ePub

ference. It would be a dangerous practice, and tend to mislead instead of enlightening a jury."

Thompson, in his work on Charging the Jury (section 78), approves this rule, for it is instinct with justice and fair play. Cahn v. Reid et al., 18 Mo. App. 115, 135, 136.

As the charge of the court in respect of the McKibben entries and the purpose for which it was admitted, commented on in this opinion, were excepted to, and error assigned thereon, the judgment, in my opinion, should be reversed for the palpable error committed therein; and I am of opinion that the cause should be reversed for the refusal of the court to give the nineteenth and twenty-first requests for instructions asked by the defendant below, and for its failure in its charge, directly or indirectly, to advise the jury of the statute of limitations applicable to this case, and for not even submitting to them the question of fact as to whether there was any evidence of a renewal of the conspiracy or any joint participating acts of the parties in subsequent overt acts, from which the existence of the fact of its renewal could be inferred.

No hardship results to the government from the foregoing views. Statutes of limitation are statutes of repose and peace. They are favored by the law, not only because they give repose and security to title to property, but because they give protection as well to the life and liberty of the citizen. If the government desires to prosecute such offender as Ware for his alleged continued frauds committed upon the government in thwarting its public land laws, he is liable to prosecution every time he does the forbidden act in pursuance thereof, either by himself or through another acting as his agent or instrument, if such act be not barred by the three-year statute of limitations. But if the government, in order to inflict upon him the severer penalty under the conspiracy statute, does not or did not avail itself of its right to prosecute when the offense was committed by the overt act within three years thereafter, it is its own fault, and, if not discovered until after the three-year limitation, it is sufficient to say that the law prefers to protect the citizen against the severer punishment after the lapse of such a length of time, when the evidence, perhaps, has been lost, the witnesses are inaccessible, leaving the government its right to proceed against the offender independent of the conspiracy statute.

In other respects, I concur in the opinion of the majority.

NOTE.

Commencement of Period of Limitations Against Prosecutions for

Continuing Offenses.

I. IN GENERAL. [a] (U. S. 1878) An indictment charged that B. demanded of defendant a sum of money, which he, as her agent and attorney, had collected and received from the United States on account of a pension awarded to her, and that he then, and continuously thereafter, wrongfully withheld it from her. Held, that the crime charged was not a continuous one, so as to prevent the running of limitations against it.—United States v. Irvine, 98 U. S. 450, 25 L Ed. 193.

[b] (Ark. 1877) The offense of bigamy is barred, under the statute, by the lapse of three years from the date of the bigamous marriage, the offense being complete upon the second marriage, subsequent cohabitation not entering into it or rendering it a continuing offense.-Scoggins v. State, 32 Ark. 205.

[c] (Iowa, 1880) Under Code, $ 4009, providing that, "if any person who has a former husband or wife living marry another person, or continue to cohabit with such second husband or wife, in this state, he or she is guilty of bigamy," cohabitation after a bigamous marriage, contracted here or else where, is sufficient to constitute the crime; and, where such cohabitation continues until the indictment is found, the fact that the marriage was contracted more than three years before will not bar the prosecution.-State v. Sloan, 56 Iowa, 217, 7 N. W. 516.

[d] (Mo. 1880) A prosecution for obstructing a public road may be begun after two years from the putting up of the fence which constitutes the obstruction, if the fence remained up to the time of indictment filed.-State v. Gilbert, 73 Mo. 20.

[e] (N. Y. 1897) The limitation of time for the finding of an indictment for the seduction under promise of marriage of a female of previous chaste character, fixed by Pen. Code, $ 283, begins to run from the first act of illicit intercourse between the parties after the female was able to comprehend its enormity, though at the time she was under the age of consent.—People v. Nelson, 153 N. Y. 90, 46 N. E. 1040, 60 Am. St. Rep. 592.

[f] (N. C. 1886) The statute requiring prosecutions for misdemeanors to be commenced within two years after the commission of the offense does not bar an indictment for maintaining a public nuisance in obstructing a public highway, though the obstruction was placed in the highway more than two years prior to the finding of the indictment, because the nuisance was a continuous one.-State v. Long, 94 N. C. 896.

[g] (N. C. 1904) Persons who, as employés of another, place posts in a waterway, constituting a nuisance, may not, 12 years after they have ceased to be in his service, be convicted of maintaining the nuisance.-State v. Poyner, 134 N. C. 609, 46 S. E. 500.

[h] (Pa.) The limitation of Cr. Proc. Act 1860, $ 77, is a bar to a prosecution for bigamy after two years from the second marriage, although cohabitation under it continued until within two years of the prosecution.—(1874) Commonwealth v. MeNerny, 10 Phila. 206, 6 Leg. Gaz. 183 ; (1876) Gise v. Commonwealth, 81 Pa. (31 P. F. Smith) 428, 2 Wkly. Notes Cas. 589, 33 Leg. Int. 257, reversing (1876) 11 Phila. 655, 23 Pittsb. Leg. J. 138, 23 Leg. Int. 102.

[i] (Tenn. 1873) A prosecution for maintaining a nuisance, which had existed for 18 years before the presentment of the indictment, is not barred by limitation, since the continuance of the nuisance is a new offense.- Nashville & D. R. Co. v. State, 60 Tenn. (1 Baxt.) 55.

[j] (W. Va. 1901) An indictment for obstruction of a public road will not be barred by limitation, though such obstruction began more than a year before the indictment, provided it was continued within such year, as every day's continuance of it is a new offense.-State v. Dry Fork R. Co., 50 W. Va. 235, 40 S. E. 447.

II. CONSPIRACY TO COMMIT CRIME.

[a] (U. S. 1907) A prosecution for conspiracy to defraud the United States under Rev. St. $ 5440 [U. S. Comp. St. 1901, p. 3676), is maintainable if instituted within three years of the commission of the last overt act.-Bradford v. United States, 152 Fed. 617, 81 C. C. A. 607.

[b] (U. S. 1887) The crime defined in Rev. St. & 5440 [U. S. Comp. St. 1901, p. 3676), prescribing punishment "if two or more persons conspire either to commit any offense against the United States, or to defraud the United States, and one or more of such parties do any act to effect the object of the conspiracy,” is composed of the conspiracy and an act done in pursuance there. of; and, as soon as the one is formed and the other committed, the crime is consummated, and the statute of limitations begins to run against a prosecution therefor. Subsequent acts committed pursuant to the conspiracy do not render it a continuing crime.—United States v. Owen (D. C.) 32 Fed. 534.

[c] (U. S. 1895) A conspiracy to defraud the United States by making unlawful entries of public lands cannot, for the purpose of avoiding the statute of limitations, be split up into different conspiracies for each section of land entered or for each overt act done; nor can it be held that there is a new conspiracy by the parties to the original conspiracy, whenever a new party is brought into the scheme, so as to make the statute of limitations begin to run from that time.-United States v. McCord (D. C.) 72 Fed. 159.

[a] (U. S. 1905) An overt act being necessary to sustain a prosecution for conspiracy to defraud the United States, under Rev. St. § 5440 (U. S. Comp. St. 1901, p. 3676], the statute of limitations does not begin to run against such a prosecution until the commission of an overt act; and since every such overt act is a renewal of the conspiracy, a prosecution may be instituted within three years after the commission of any overt act, although more than that length of time may have elapsed since the conspiracy was first formed or the first of such acts was committed thereụnder.—United States v. Bradford (C. C.) 148 Fed. 413.

[e] (U. S. 1906) Where an alleged conspiracy to defraud the United States out of public lands was formed in September, 1902, and the necessary affidavits to consummate the fraud were filed on the 7th and 8th of October, 1902, the filing of such affidavits constituted an overt act, which started limitations against a prosecution for conspiracy, which was barred on October 8, 1905, under Rev. St. § 1044 (U. S. Comp. St. 1901, p. 725), limiting prosecutions for federal offenses to three years after the offense shall have been committed.Ex parte Black (D. C.) 147 Fed. 832.

[f] (U. S. 1907) The crime denounced by Rev. St. § 5440 [U. S. Comp. St. 1901, p. 3676), providing that, if two or more persons conspire either to commit any offense against the United States or to defraud the United States in any manner, and one of them does an act to effect the object of the conspiracy, all shall be liable to a penalty, etc., consists in putting a corrupt agreement into active operation, and hence limitations run from the date of the last overt act committed for the purpose of completing the object of the conspiracy.—United States v. Brace (D. C.) 149 Fed. 874.

[g] (D. C. 1904) Where a conspiracy is formed and a single overt act in aid of its object is committed beyond the statutory period of limitation before the finding of the indictment and subsequent overt acts are committed within that period, then, through the repetition of such acts, the conspiracy is made a continuing offense, and by each of such acts it is repeated and entered into anew, and the prosecution is not barred.—Lorenz v. United States, 24 App. D. C. 337.

[h] (Ill. 1888) Limitations do not commence to run against a prosecution for conspiring to obtain money by false pretenses until the commission of the last overt act in furtherance of the conspiracy.-Ochs v. People, 124 Ill. 399, 16 V. E. 662.

[i] (N. Y. 1898) The statute of limitations is no bar to a prosecution for conspiracy, although the corrupt agreement took place at a date barred by the statute, where the crime continued in active operation as to overt acts within such time.—People v. Willis, 23 Misc. Rep. 568, 52 N. Y. Supp. 808.

[j] (Pa. 1876) Where defendants were charged with conspiracy to deceive the insurance commissioner of Philadelphia, the statute of limitations does not begin to run until the end of the conspiracy.—Commonwealth v. Wishart, 8 Leg. Gaz. 137.

[k] (Pa. 1877) A count, after charging a conspiracy to cheat, without laying it within the statutory period, charged a series of fraudulent acts in pursuance thereof, some of which were laid within two years from the finding of the bill. Held, that the prosecution was barred by the statute of limitations. -Commonwealth v. Bartilson, 85 Pa. 482.

(156 Fed. 961.)

VANDIVER V. UNITED STATES.
(Circuit Court of Appeals, Third Circuit November 11, 1907.)

No. 3 (1,856). 1. CUSTOMS DUTIES_APPEAL FROM GENERAL APPRAISERS-CONCLUSIVENESS OF

FINDINGS.

Findings of the Board of General Appraisers, unless unsupported or against the weight of evidence, or additional evidence has been taken, will not be disturbed by the courts on appeal.

[Ed. Note.—For cases in point, see Cent, Dig. vol. 15, Customs Duties,

§ 205.) 2. SAME-DECISION BY COLLECTOR OF CUSTOMS-PRESUMPTION OF CORRECTNESS.

The classification by a collector of customs of imported goods under a tariff law is presumably correct. Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.

There was no opinion below. The Circuit Court affirmed a decision of the Board of United States General Appraisers, which had affirmed the assessment of duty by the collector of customs at the port of Philadelphia. The subject of the controversy consisted of sulphur, which was shown by chemical analysis to contain in one instance .0015 per cent. of nonvolatile impurities, and in another instance .00437 per cent. of ash.

S. Morris Waln, for the importer.

Jasper Yeates Brinton, Asst. U. S. Atty., and J. Whitaker Thompson, U. S. Atty.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

BUFFINGTON, Circuit Judge. The appellant, John L. Vandiver, imported certain sulphur and contended it was dutiable under paragraph 674 of the tariff act (Act July 24, 1897, c. 11, § 2, Free List, 30 Stat. 201 [U. S. Comp. St. 1901, p. 1688]), viz.:

“Sulphur, lac or precipitated, and sulphur of brimstone, crude, in bulk, sulphur ore as pyrites, or sulphuret of iron in its natural state, containing in excess of twenty-five per centum of sulphur, and sulphur not otherwise provided for."

The collector classified it as refined sulphur, under paragraph 84, viz.:

"Sulphur, refined or sublimed, or flowers of, eight dollars per ton."

On appeal by Vandiver, the Board of General Appraisers, and thereafter the Circuit Court, approved the collector's action. The case turns on the question whether this sulphur was refined. Being invoiced by: the shipper as "refined roll sulphur,” it would seem the burden was on the importer to show the importation was not refined, as thus invoiced. The General Appraisers, after referring to the large mass of testimony, state that:

"A careful consideration of it strengthens the opinion that the sulphur is not crude, but is in fact refined.”

We are of opinion the court below committed no error in adopting this view. The presumption was that the collector's classification was correct. Pickhardt v. United States, 67 Fed. 111, 14 C. C. A. 341. And the collector's classification was supported by the findings of the Board of Appraisers. These findings, unless unsupported, against the weight of the evidence, or where additional evidence is before the court, will not be disturbed on appeal. Apgar v. United States, 78 Fed. 332, 24 C. C. A. 113; In re Van Blankensteyn, 56 Fed. 475, 5 C. C. A. 579.

The evidence warranted the Board's finding, and the appeal is therefore dismissed.

(157 Fed. 19.) HAMILTON COUNTY V. MONTPELIER SAVINGS BANK & TRUST CO. (Circuit Court of Appeals, Seventh Circuit. October 1, 1907. Rehearing De

nied November 19, 1907.)

No. 1,319. 1. COUNTIES-FUNDING BONDS-CONSTITUTIONAL LIMITATION OF INDEBTEDNESS.

Const. Ill. 1870, art. 9, § 12, which limits the amount of indebtedness which may be lawfully contracted by any municipality to 5 per cent of the value of the taxable property therein, relates solely to the creation of indebtedness thereafter, and neither authorizes repudiation, nor affects the making of terms for payment of existing legal liabilities ; hence the funding of such liabilities by a county, authorized by statute and vote, was unaffected by the limitation, and the fact alone that funding bonds issued for that purpose, reciting that "binding, subsisting legal obligations of said county" were thereby funded exceeded such limitation, neither implies nor amounts to a violation of the constitutional provision which can only be made to appear by impeaching such recital as to the validity of

the indebtedness funded. 2. SAME--RECITALS IN BONDS-EFFECT AS ESTOPPEL.

Rev. St. Ill. 1881, c. 113, authorizes counties and other municipalities to issue bonds for the purpose of retiring outstanding obligations. A coun. ty had an outstanding issue of bonds. After years of litigation in both state and federal courts the liability of the county was established in favor of the holders of a majority of such bonds, and judgments entered against it thereon, while other portions of the issue had been adjudged invalid, and the holders defeated. Others of the bonds were in the hands of holders whose rights had not been adjudicated. In such state of facts a compromise was effected, pursuant to which the county voted to issue funding bonds under such statute, to be used in settlement of the judg. ments and the outstanding unadjudicated bonds, and they were so used; judgments being entered on the unadjudicated bonds by consent, and all judgments satisfied in exchange for the funding bonds. Such bonds re cited that they were issued under such statute, and that "binding, subsisting legal obligations of said county" were thereby funded. Held that, under the statute, the county officers, authorized thereto by a vote of the electors, had power to make the compromise, and for that purpose to de. termine on behalf of the county that the unadjudicated outstanding bonds were valid and subsisting obligations, and that their recital of such fact estopped the county as against a bona fide holder for value of the funding bonds to deny their validity, on the ground that all or any part of the ob. ligations thereby retired were invalid, either on constitutional or statutory grounds. In Error to the Circuit Court of the United States for the Eastern District of Illinois.

The judgment against county of Hamilton is in assumpsit, for recovery upon so-called “funding bonds,” issued by the county, and held by the Montpelier Savings Bank & Trust Company, the plaintiff below. These bonds were issued under the provision of a general act of the Legislature of Illinois, mention

« ПретходнаНастави »