or sue for, or collect in any other manner, the money that ought to have been paid to the government for the stamps that were not used. Not being provided for by the statute, the course pursued by the defendant-demanding and collecting cash under threat of suit-was without authority, and the exaction was therefore unlawful. Congress possessed the sole power to authorize this tax, and the sole power to prescribe the means by which it should be collected. Meriwether v. Garrett, 102 U. S. 515, 26 L. Ed. 197. No remedy by suit is given or implied by the act in question, nor is there to be discovered any authority to demand and accept money in lieu of the stamps that are required by law to be affixed. The attorney general has recently shown clearly, in an opinion published in 3 Treas. Dec. 24, that the stamp taxes imposed by Schedule A contemplate an instrument or paper to which the stamp can be affixed, and has pointed out further that the act requires the making of certain instruments that are liable to be taxed, while it leaves to the option of the parties the making of other instruments that, if made, are also taxable. A penalty for failure to obey this statutory requirement is provided, but I find no other remedy in the act. Moreover, even if written agreements to resell ought to have been made by the plaintiff or his customers, the obligation rested upon the plaintiff only as to some of the agreements in question. In many instances he was not the seller, but the buyer, while Schedule A requires a bill or memorandum of sale to be made and delivered by the seller' to the buyer. Upon any theory of the obligation imposed by the act, therefore, the plaintiff seems to have a good claim for at least $3,029.94. But, for the reason already given, I think the whole claim is good. In the case of White v. Treat (C. C.; decided by Judge Lacombe in March of this year) 100 Fed. 290, it appears that Treat, the collector, required White, who had sold numerous 'calls' or written options to buy stock at a certain price, to purchase stamps and affix them to the respective calls. This method of procedure does not seem to have been objected to, and it may, perhaps, have been justified. If the calls ought to have been stamped, White was not likely to object to the collector's demand that the stamps be put in, since he was already liable to indictment, and might be obliged, under section 7 of the act, to pay a maximum fine of $100 for each offense; but, if he had refused to affix the stamps, I am unable to discover any other remedy than the proceeding by indictment. In like manner, Fleshman would have been liable to indictment if, and so far as, he, and not his customers, was bound to affix a second stamp to the agreements between his customers and himself upon the completion of the game in which they were engaged, and if he failed so to do. If, and so far as, he was bound to execute and deliver an agreement to resell, and failed to do so, Schedule A itself provides a penalty of fine or imprisonment for such omission. He could not have been sued at law to recover the face value of the stamps alleged to have been necessary, and the exaction of payment under a threat of suit was therefore unlawful." We are of opinion, therefore, that on both the grounds stated the judgment of the court below should be affirmed, and it is so ordered. (106 Fed. 884.) BARTLETT v. UNITED STATES. (Circuit Court of Appeals, Ninth Circuit. February 11, 1901.) No. 617. PERJURY-FALSE SCHEDULE IN BANKRUPTCY-INDICTMENT. An indictment charging the accused with having committed perjury by falsely omitting assets from his sworn schedule in bankruptcy, which alleges that he knew his schedule was false, and that he knew he was the owner of a specified sum of money in addition to what was mentioned in his schedule, is fatally defective, unless it also charges directly that he had other property than that described in his schedule. In Error to the District Court of the United States for the District of Montana. The plaintiff in error was found guilty of perjury under an indictment which charged him with making a false oath to a schedule which he, as a voluntary bankrupt, filed in bankruptcy. The indictment charged him with deposing that he had $168.90 in money, and that his schedule contained a statement of all his estate, both real and personal. It further charged that he then and there well knew that the schedule did not contain a statement of all his estate, both real and personal, in accordance with the acts of congress relating to bankruptcy; that he then and there well knew it was not true that the said schedule aforesaid contained a statement of all his estate, both real and personal, in accordance with the acts of congress relating to bankruptcy, but that he "then and there well knew that, in addition to the said estate so set forth as aforesaid in the schedule aforesaid, he was then and there the owner of the sum of five thousand dollars in money, the said money being lawful money of the United States, a more particular description of which said money is to the grand jurors aforesaid unknown." The plaintiff in error demurred to the indictment for the reason that the facts stated were insufficient to constitute a public offense, in that the indictment failed to state that the accused was the owner of the sum of $5,000 which was alleged to have been omitted from his schedule. One of the assignments of error is that the court overruled the demurrer. McHatton & Cotter, for plaintiff in error. Before GILBERT, ROSS, and MORROW, Circuit Judges. GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. Is the indictment fatally defective for the reason that it fails to allege directly that the accused, at the time of making his affidavit, had in fact other property than that which he deposed that he had? There can be no doubt that at common law it is absolutely necessary to an indictment for perjury to include direct and specific allegations negativing the truth of the alleged false testimony, together with affirmative averments setting up the truth by way of antithesis. This requirement was not one of form merely, but was regarded as going to the essence of the indictment. It was considered necessary to make such "assignments of perjury" in order to inform the accused of the nature and cause of the accusation against him. Section 5396 of the Revised Statutes enacts the substance of the commonlaw rule in this regard by requiring that an indictment for perjury must set forth the substance of the offense charged, "together with the proper averment to falsify the matter wherein the perjury is assigned." Said the court in Markham v. U. S., 160 U. S. 319, 326, 16 Sup. Ct. 288, 40 L. Ed. 441: "An indictment for perjury that does not set forth the substance of the offense will not authorize judgment upon a verdict of guilty." The supreme court has repeatedly declared the rule to be universal "that every ingredient of which the offense is composed must be accurately and clearly expressed in the indictment or information, or the pleading will be held bad on demurrer." U. S. v. Mann, 95 U. S. 580, 24 L. Ed. 531; U. S. v. Carll, 105 U. S. 611, 26 L. Ed. 1135; U. S. v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588. An indictment which charges the accused with having committed perjury by falsely omitting from his schedule in bankruptcy certain of his property must not only allege that his deposition was false in that regard, but it must go further, and allege that he had other property, and describe the property so omitted; otherwise, it does not inform him of the offense with which he is charged, and does not contain proper averments to falsify the matter wherein the perjury is assigned. T. S. v. Pettus (C. C.) 84 Fed. 791; U. S. v. Morgan, Morris, 341. The indictment in the present case does not directly charge that the accused had, at the time of making his affidavit, property other than that which was described in his schedule. It alleges that he knew that his affidavit was not true, and that he knew that he was the owner of the sum of $5,000 in addition to what was mentioned in his schedule. This is not an allegation that the accused owned $5,000 above what was mentioned in his schedule. It is contended that it is equivalent to such an allegation, because it may be reasoned that he had the money from the allegation that he knew he had it; or, in other words, that he could not have known he had it unless he had it. The facts material to be charged in an indictment must be stated clearly and explicitly, and must not be left to intendment, or reached by way of inference or argument. The indictment in this instance states no ultimate fact in regard to the ownership of the $5,000, or even as to its existence. It states only a condition of the mind of the accused, knowledge that he is said to have possessed. This is not sufficient. Harrison v. State (Tex. Cr. App.) 53 S. W. 863; Com. v. Still, 83 Ky. 275; Com. v. Porter (Ky.) 32 S. W. 138; Com. v. Weingartner (Ky.) 27 S. W. 815. In the case last cited the indictment charged the defendant with falsely deposing that one to whom he had let a house had, without his knowledge or consent, sublet the same; and that he well knew that he had authorized and consented to the subletting of said house. It was held that this was not tantamount to charging that the accused swore that his tenant had sublet the house without his knowledge or consent. The court said: "In the case under consideration we may reach the conclusion by a process of reasoning, and only by such process, that to aver that the witness 'well knew' he had authorized and consented to the subletting is equivalent to the averment that he had authorized and consented to it; but it is not in fact a specific averment of the falsity of the matter on which the false swearing is assigned, and this is held to be necessary in all the cases." In Com. v. Porter it was charged that the defendant swore falsely that he did not see a certain person at a certain place, that he knew the testimony to be false, that the said person was at said time and place "in the presence and sight" of the defendant. It was held that this was insufficient, and that the indictment must aver that the defendant then and there actually saw the person. "Barker could have been in the presence of the accused," said the court, "and still not have been seen by him. He could have been in his sight, that is to say, at a point where accused could have seen him had his eyes been cast in that direction, and still not have been seen by him." We think the demurrer to the indictment should have been sustained. The judgment is reversed, and the cause remanded, with instructions to quash the indictment and discharge the plaintiff in error. (106 Fed. 892.) MULLEN et al. v. UNITED STATES. (Circuit Court of Appeals, Sixth Circuit. February 12, 1901.) No. 885. 1. CRIMINAL LAW-PRESUMPTION OF GOOD CHARACTER-RIGHT TO INSTRUCTION. In a criminal trial in a federal court, where no testimony has been offered as to the previous character of the accused, a presumption of good character exists in his favor, of which, upon a request therefor, the jury should be instructed. 2. SAME-INSTRUCTIONS-COMMENT ON DEFENDANT'S CHARACTER. It is prejudicial error for the court, in charging the jury in a criminal case, to comment unfavorably upon the general character of the accused, or to intimate his opinion that the accused is not of good character, where there was no evidence in the case upon the subject. It is only permissible for a judge in a federal court to express an opinion on the facts when it is based upon evidence in the case; and such comment is, moreover, inconsistent with the presumption of good character which the law raises in favor of the accused, and deprives him of the benefit of such presumption with the jury. In Error to the District Court of the United States for the District of Kentucky. The plaintiffs in error were indicted for alleged violations of the Revised Statutes of the United States (section 5508), in that, being respectively judge of the election, sheriff of election, clerk of election, and challenger, at an election held on November 7, 1900, at Louisville, Ky., for the election of persons to fill certain state and municipal offices, they had entered into a conspiracy to injure, oppress, threaten, and intimidate certain colored persons, on account of their race, color, and previous condition of servitude, in the free exercise and enjoyment of the right and privilege which such persons then and there had, and which was then and there secured to them by the constitution and laws of the United States, of voting for persons to fill said offices. In the progress of the trial no evidence was offered, either by the government or defendants, concerning the general character of the accused prior to the commission of the alleged offense. In the course of the charge the learned judge said: "Now, it is a fact that cannot escape your attention-could not probably escape your attention—that, if these defendants desired, or anybody behind them desired, to have colored men deprived of the right of voting, that it would be at such a precinct as this; and it is not improbable that just such men as these defendants would be chosen to carry that object into execution. Those are circumstances that you might weigh in this case in reaching a conclusion." At the conclusion of the charge, in the presence of the jury, counsel for the prisoners excepted to this comment, to which the court responded: "What I said on that subject may stand, because it is well qualified. The jury understand it was only the comment of the court, which they were not bound by." Further, counsel for plaintiffs in error, at the conclusion of the charge, said: "If your honor please, we offered your honor an instruction that the defendants were presumed to be persons of good character, and that that presumption prevailed during the progress of the case." To which the court responded: "I do not think that the jury should be told that the defendants are presumed to be persons of good character, but they are presumed, as the court had told the jury, whether of good character or bad character, to be innocent until their guilt has been established to the exclusion of a reasonable doubt by testimony." An exception was taken to the court's ruling in declining to instruct the jury as to the good character of the accused, and, before the jury retired, the defendants, and each of them, moved the court to instruct and charge the jury as follows: "You are charged that the law presumes the good character of the accused, and such presumption is to be considered as evidence in favor of the accused in considering the question of the guilt or innocence of them, or any of them." But the court refused to so instruct the jury, to which ruling of the court each of the said defendants then excepted. Lawrence Maxwell, Jr., Swager Sherley, and Thos. R. Gordon, for plaintiffs in error. R. D. Hill and W. C. P. Breckenridge, for the United States. DAY, Circuit Judge, after stating the foregoing facts, delivered the opinion of the court. The comment of the judge in his charge and the several refusals to charge in the exceptions noted raise the question whether in a criminal trial, in a court of the United States, where no testimony has been offered as to the previous good character of the accused, a presumption of such good character exists in favor of the accused, of which, upon a request to that effect, the jury should be instructed. The supreme court of the United States, dealing with the presumption of innocence in criminal trials, in the case of Coffin v. U. S., 156 U. S. 432, 460, 15 Sup. Ct. 394, 405, 39 L. Ed. 481, 493 (opinion by Mr. Justice White), said: "The fact that the presumption of innocence is recognized as a presumption of law, and is characterized by the civilians as a presumptio juris, demonstrates that it is evidence in favor of the accused: for in all systems of law legal presumptions are treated as evidence giving rise to resulting proof to the full extent of their legal efficacy." This reasoning applies to the presumption, if such exists, of good character of the accused, and should be given in the charge to the jury where a specific request on that subject is made at the trial. Does such presumption exist? We fail to find any difference of opinion in the well-recognized text writers upon this subject. All assert that a presumption exists in favor of the accused in the absence of testimony that he had a good character previous to the time of the alleged commission of the offense in question. It is true that the government may not attack the character of the accused until he puts it in issue by affirmative testimony on his part. He is not obliged to do this, but may. if he sees fit, rest upon the presumption raised by the law. Bishop states the doctrine thus: "The doctrine is that the defendant is presumed to be innocent, and his character to be at least of ordinary goodness." 1 Bish. New Cr. Proc. (4th Ed.) § 1112, par. 2. This philosophical writer couples the presumption of innocence with that of character. Underhill, in his late work on Criminal Evidence, states the law in the following terms: "The character of the accused means his reputation; 1. e. the general consensus of opinion regarding him, based on his deportment and conduct, which is held by his neighbors, friends, and acquaintances. The accused may always prove his good character. If, however, he offers no evidence on this point, the law presumes he has a fair and respectable, if not, indeed, an excellent, character; and does not permit any presumption of guilt to arise from his silence, or from his failure to offer evidence on this point. That his character is bad can never be presumed, nor should the prosecution be permitted to comment unfavorably upon this omission." Section 76. |