of Burton v. United States, 196 U. S. 283, 25 Sup. Ct. 243, 49 L. Ed. 482, is directly in point. Burton was charged with receiving money for practicing before the Post-Office Department while a United States Senator. The indictment charged that Burton received the money at St. Louis, Mo., through a check there drawn on and paid by a St. Louis bank, and the indictment was found and prosecuted to conviction in the Eastern District of Missouri. The case showed that Eurton had arranged in St. Louis to render the services, had there received $500 for his services in that behalf theretofore rendered; that after he was in Washington his employers mailed a check at St. Louis on a St. Louis bank to Burton at Washington. That he received the check in Washington, deposited it with Riggs' Bank in that city, which placed the amount to his credit and thereafter collected the same from the bank on which it was drawn in St. Louis. The court held that the payment of the check to defendant in this manner was a payment at Washington, and if any crime was committed it was not at St. Louis, and reversed the case; and the court further held that it was not a case of the commencement of a crime in one district and its completion in another, so that the court in either district would have jurisdiction. If we follow the case of Burton, it would seem to be clear that the embezzlement in the instant case was committed in the Southern District of New York, and not in the Southern District of Georgia. All the foregoing questions seem to me to have been wrongly ruled in the court below, and that the rulings therein constituted such prejudicial error as to entitle the plaintiffs in error to a new trial. As on a new trial the errors in question might be avoided, perhaps with the same result, I might have limited myself under the glamor, not to say clamor, attending this case, to a formal dissent. But there is matter plain on the record duly saved in the court below and duly assigned here which, in my judgment, entitles the plaintiffs in error to a reversal on such grounds as would practically put an end to the prosecution, and therefore I feel bound to further outline my reasons for dissenting.

The matter is this: The plaintiffs in error were tried upon three indictments: No. 322, found December 8, 1899; No. 371, found February 28, 1902; and No. 476, found November 18, 1905.

Indictment No. 322 is insufficient in form and substance. In United States v. Greene (D. C.) 100 Fed. 941 et seq., Judge Browne very clearly shows how and why the first eight counts are defective. In United States v. Greene (D. C.) 115 Fed. 343, Judge Speer shows clearly how and why the two remaining counts were held bad, so that the plaintiffs in error were not tried upon them. But it is not necessary to discuss this indictment further than to say that if it can be held good in law it is in all its intents and purposes an indictment for conspiracy under section 5440, Rev. St. U. S., an offense for which the plaintiffs in error could not be and were not extradited. That under section 5440 the offense does not consist of the conspiracy and the overt acts charged, but of the conspiracy alone, is explicitly held in United States v. Britton, 108 U. S. 204, 2 Sup. Ct. 531, 27 L. Ed. 698. See, also, Pettibone v. United States, 148 U. S. 202, 13 Sup. Ct. 542, 37 L. Ed. 419. In United States v. Hirsch, 100 U. S. 33, 25 L.

Ed. 539, it was held that under section 5440 the offense charged was so distinctively conspiracy alone that the three years applied, although the overt acts charged were of themselves crimes against the revenue to which longer limitations applied; and in Berkowitz v. United States, 93 Fed. 452, 35 C. C. A. 379, the Circuit Court of Appeals for the Third Circuit held that a person tried and convicted of conspiracy under section 5440 might under other sections of the Revised Statutes of the United States afterwards be indicted, tried, and convicted of the overt acts charged in the conspiracy indictment. That conspiracy is not an extraditable offense under our treaties with Great Britain, see Johnson v. Browne, recently decided by the Supreme Court, 27 Sup. Ct. 539, 205 U. S. 309, 51 L. Ed. 816. A cursory reading of the extradition warrant in this case, or of the proceedings in the Canadian and English courts found in the record, shows clearly that Greene and Gaynor were not extradited to be tried for conspiracy.

Indictment No. 371 was found over four years and eight months, and indictment No. 476 more than eight years and four months, after July 7, 1897, the date of the last offenses therein charged. It is undisputed that the limitation of three years given by section 1044, Rev. St., bars these indictments, unless within the three years following the commission of the offenses the plaintiffs in error fled from justice within the intent and meaning of section 1045, Rev. St.

The case shows the following state of facts as to the residence and conduct of Greene and Gaynor before and after the matters charged in the indictments, and I understood that there is no dispute as to the same: Greene lived in Washington and Gaynor lived in Fayetteville, N. Y. They contracted for and did work in Georgia, South Carolina, and Virginia. While Washington and Fayetteville were their legal residences, their principal place of residence was in the city of New York. They went back and forth to Georgia and other places as business interests required. This continued until July 7, 1897, the date of the last overt act charged in the indictment. During the time mentioned they entered into and executed many contracts with the government; they signed many bonds, proposals for contracts, guaranties of proposals for other contracts, all of which were approved by government officials at Washington. In each instance they named their place of residence. In 1887 Gaynor signed a contract and a proposal stating his residence to be in the state of New York. During the period of time in question the government and the business world generally were well aware of the residence and habitations of the defendants. In 1892 the Atlantic Contracting Company was incorporated in West Virginia by Greene and Gaynor and others, and its principal place of business was declared in the charter to be in New York City. Gaynor was the president of the company, and in all the contracts entered into with the United States the residence of the corporation was stated to be New York; its address was given as New York City, state of New York. On September 5, 1896, Greene and Gaynor signed a guaranty of proposal for a dredge contract for the Savannah Dredging Company, and therein Gaynor gave his residence as Fayetteville, N. Y., and Greene his as Stamford, Conn. On October 8, 1896, Gaynor, as president, signed the contracts for the harbor improvements in Savannah and

Cumberland Sound, the execution of which forms the basis of the indictments in this case. In those contracts it was stated that the Atlantic Contracting Company was of New York City, New York state. Copies of the above contracts were in triplicate, and the government had copies filed in Washington. During the time mentioned Greene signed proposals and guaranties of proposals for contracts with the government, triplicates of all of which were filed in Washington. In all of these he gave his residence as Washington first, and later New York. and later still Stamford, Conn. His actual residence was at the Manhattan Hotel, New York City, where he belonged to the principal clubs and was well known, and he had a farm at Stamford, Conn., where he claimed his legal residence. Gaynor actually resided at the Hoffman House, New York City; he was widely known in the city and over the state of New York, being a member of the Democratic state central committee. From the signing of the contracts for the Atlantic Contracting Company in 1896 to July 7, 1897, both Greene and Gaynor resided in the North as theretofore, going south to Georgia and elsewhere as their business required. In July, 1897, Greene and Gayner were working on the contracts entered into in 1896. Will and Ed. Gaynor were the superintendents, and looked after the actual construction of the work. In July, 1897, Capt. Carter was transferred from Savannah to London, and left Savannah to enter upon his duties at London. Major Gillette succeeded him as engineer in charge. In August, 1897, Greene went to Savannah to see Major Gillette, and then he returned to New York. In the fall of the same year Greene again went to Savannah to appear before the board of inquiry appointed to examine into charges against Capt. Carter. In the spring of 1898 both Greene and Gaynor went to Savannah to testify before the Carter court-martial, and thereafter they returned to New York. From July. 1897, to January 8, 1899, Greene spent part of his time at his farm in Connecticut, but the greater portion of his time in New York City. where he had permanent rooms at the Manhattan Hotel; and Gaynor spent part of his time at Favetteville, New York, but the greater part of his time was spent in New York City, where he had permanent rooms at the Hoffman House.

The first indictment No. 322 was returned December 8, 1899; upor this indictment a bench warrant was issued to the marshal of the Southern District of Georgia, on which he made a return of not found On the 13th of December, 1899, the assistant district attorney for the Southern District of New York, having in possession a certified copy of indictment No. 322 and bench warrants from the Southern District of Georgia against Greene and Gaynor, filed an affidavit before the United States commissioner for the Southern District of New York to procure the arrest of the indicted parties and their removal to the Southern District of Georgia. Immediately after the defendants had notice of this action, and on December 14, 1899, Greene and Gaynor went before the commissioner and surrendered themselves, demanded a hearing, and, pending the same, were arrested and bailed. On the hearing before the commissioner the defendants attacked the validity and sufficiency of the indictment No. 322, pointing out their objections to the same. On hearing, the commissioner ordered the commitment

of defendants for trial. On this finding of the commissioner the district attorney applied to Judge Brown, of the Southern District of New York, for a removal order, and on April 4, 1900, an adverse opinion was filed refusing the application, on the ground that the evidence adduced, which was merely a certified copy of indictment No. 322, was insufficient. In his opinion (D. C.) 100 Fed. 941, Judge Brown held, on the plea that the indictment was bad on its face, that the first eight counts of the same were bad. On June 26, 1900. Judge Brown referred the matter back to the commissioner for further testimony, and in the order of reference directed the hearing to be commenced on July 6, 1900, and ordered Greene and Gaynor to attend at the time and place, and on that day and from day to day thereafter they attended and submitted themselves to the orders of the court. On July 7, 1900, the three years of limitation prescribed by section 1044, Rev. St., were fully accomplished, for the offenses charged in indictments Nos. 371 and 476 were committed, if at all, on or before July 7, 1897. After further evidence was taken by the commission, and on May 29, 1901, Judge Brown ordered Greene and Gaynor to be removed to the Southern District of Georgia for trial, and to give bail for their appearance. Thereupon, in the Circuit Court of the United States in New York, Greene and Gaynor sued out a writ of habeas corpus on various grounds, which writ was denied, and an appeal was thereupon taken to the United States Supreme Court, where the order denying the application for the writ was affirmed on January 6, 1902. After the decision of the Supreme Court Greene and Gaynor proceeded to Georgia and there reported to the District Court for the Southern District for trial. They filed a demurrer to indictment 322, which was sustained as to two counts, overruled as to eight, and thereupon the case was continued until March 10th. On February 28th indictment No. 371 was returned, and thereon Greene and Gaynor were ordered to appear and plead on March 6th. All this time they had been on bail, but on March 7th they failed to appear, and their bail was forfeited. It seems they had fled to Canada, from which after much trouble and litigation, in September 1905, they were extradited and returned to the United States for trial for "(1) participation in fraud by an agent and trustee, (2) participation in embezzlement, and (3) receiving money and property, knowing the same to have been fraudulently obtained."

Under the above state of facts, it clearly appears that prior to July 7, 1900, the statutory time for the bar to attach, there was no actual flight on the part of Greene and Gaynor from justice or from anything else. They did not leave the country for any purpose, nor abscond nor hide from, or even evade, arrest; on the contrary, as soon as proceedings for their removal were instituted in New York, where it was well known they practically resided, they voluntarily surrendered themselves to the custody of the law. It follows, then, they are entitled to the benefit of the statute, unless (1) the exemption from further prosecution or amnesty once acquired may be forfeited and lost by subsequent flight from justice, or (2) the failure to stay and remain the full three years in the Southern District was a flight from

justice, or (3) the surrender in New York, accompanied with a demand for a hearing, resulting in delay, was a flight from justice.

1. That an exemption once acquired under section 1044 may be forfeited by subsequent conduct is not supported either by the statute, reason, or authority.

2. The failure to constantly remain in the Southern District after their contract with the government was ended, instead of going about their business and staying at their homes and usual well-known resorts, cannot be treated as a flight from justice without trenching on unreason to the verge of absurdity.

3. There remains, then, the question of dilatory proceedings, and this the government relies upon. The flight from justice claimed by the government seems to be a sort of constructive flight, based upon the proceedings in the courts of the United States of the Southern • District of New York, which are charged to have been dilatory and from which the jury might infer an intention to evade the jurisdiction of the District Court in the Southern District of Georgia; and that such dilatory proceedings with such intention would be equivalent to a flight from justice within the intent and meaning of section 1015; and we find that on this line, over the objections of the accused, the trial judge charged the jury:

"It would be abhorrent to all principies of justice that these defendants. for instance, could, through the adoption of dilatory proceedings in the courts of the United States, so that the statutes of limitation could run in their favor, and then for some technical defect have the court rule on demurrer. as it did in this case, that two of the counts of the old indictment were bad. and then to hold that the government could not supply those counts or obtain additional indictments which the dilatory tactics adopted may render appropriate."

And the court refused to give, among other requested charges, the following:

"The courts of the United States are always open to a person who desires to defend his rights as to matters of which said courts have jurisdiction, and a person does not become a person fleeing from justice by reason of his having availed himself of the rights and remedies given to him by the Constitution of the United States and the statutes enacted thereunder."

It is now hornbook law that statutes of limitation are to be liberally construed in favor of accused persons. Wharton, Cr. Pl. & Pr. art. 316 (8th Ed.); and to the same purport see Leffingwell v. Warren, 67 U. S. 606, 17 L. Ed. 261. On the other hand, exceptions or provisos are to be established within the words as well as in the reason thereof. United States v. Dickson, 15 Pet. 165, 10 L. Ed. 689. An unlawful intent cannot be inferred from lawful acts; it must be prov ed. The only dilatory proceedings that can be charged against Greene and Gaynor prior to the statutory bar are the surrender to the law and the demand for a hearing. Government counsel argues that the surrender was concerted and formed a sort of conspiracy-I suppose a conspiracy to do a lawful act in a lawful manner and for a lawful purpose. They had a lawful right to demand a hearing. Why did the hearing called for by them result in any material delay? The answer is plain: Because the government asked for the removal, and after full notice insisted upon it on insufficient evidence, to wit, solely