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tion is "irrelevant, immaterial and incompetent.” It may be doubted if these objections are sufficiently specific to require us to review the ruling on them. We learn from the argument for the plaintiffs in error that the objections to this statement, “That Jack had his life insured; that he had hired Lipscomb to kill him, -are that it narrates a past transaction; that the declarant could have had no knowledge of the fact stated; that it is mere opinion; in short, that it is hearsay,—does not come properly within the exception as to the res gestæ. In Insurance Co. v. Mosley, 8 Wall. 397, 19 L. Ed. 437, the action was on an accident policy. The insured accidentally fell downstairs, receiving injuries from which he died. The circumstances of the accident were proved only by the declarations of the insured made to his wife and son. He was sleeping upstairs, and went down. When he came back, he told his wife he had fallen down the back stairs, and received injuries. He made similar declarations to his son. The supreme court held these declarations admissible as a part of the res gestæ. “To bring such declarations within the principle," said the court, "generally, they must be contemporaneous with the main fact to which they relate. But this rule is by no means of universal application." The court then quoted approvingly Baron Pork in Rawson v. Haigh, 2 Bing. 99, as saying:

"It is impossible to tie down to time the rule as to the declarations. We must judge from all the circumstances of the case. We need not go to the length of saying that a declaration made a month after the fact would, of itself, be admissible; but if, as in the present case, there are connecting circumstances, it may, even at that time, form a part of the while res gestä."

After quoting other cases, the court said: “Here the principal fact is the bodily injury. The res gestæ are the statements of the cause made by the assured almost contemporaneously with its occurrence, and those relating to the consequences made while the latter subsisted and were in progress.

* Rightly guarded in its practical application, there is no principle in the law of evidence more safe in its results. There is none which rests on a more solid basis of reason and authority. We think it was properly applied in the court below. In the ordinary concerns of life no one would doubt the truth of these declarations, or hesitate to regard them, uncontradicted, as conclusive. Their probative force would not be questioned. Unlike much other evidence, equally cogent for all the purposes of moral conviction, they have the sanction of law as well as of reas n. The want of this concurrence in the law is often deeply to be regretted. The weight of this reflection, in reference to the case under consideration, is increased by the fact that what was said could not be received as 'dying declarations, although the person who made them was dead, and hence could not be called as a witness.”

State v. Thompson, 132 Mo. 301, 34 S. W. 31, was a trial for murder, by poison contained in a luncheon claimed to have been handed deceased by the defendant. It was held that the statements of deceased, while eating the luncheon, as to how and from whom he received it, were admissible as a part of the res gesta.

It cannot be said that Stewart certainly had no knowledge of the fact stated. He, Jack, and Lipscomb were at the rear end of Jack's store, talking, the afternoon that Lipscomb gave Stewart the capsule. Lipscomb was in Jack's store that afternoon. What knowledge Stewart had as to what occurred we cannot know. It is enough that he makes the statement as a fact. The jury were, of course, not bound to believe the statement. If the circumstances indicated a want of knowledge in the declarant on the subject of the declarations, that would be considered as lessening or destroying the weight of the declarations. That would be for the jury. í Greenl. Ev. 160; People v. Taylor, 59 Cal. 640, 645. In Insurance Co. v. Mosley, supra, the court said, referring to the doctrine of res gestæ: “The tendency of recent adjudications is to extend, rather than to narrow, the doctrine." And Lord Chief Justice Cockburn said: "People were formerly frightened out of their wits about admitting evidence, lest juries should go wrong. In modern times we admit the evidence, and discuss its weight.” Reg. v. Churchwardens, etc., of Parish of Birmingham, 1 Best & S. 763; State v. Thompson, 132 Mo. 321, 34 S. W. 31. The fact that the defendant now is allowed to testify has greatly tended to liberalize the rule as to declarations claimed to be part of the res gesta.

The case has been argued as if a specific objection had been made separately to that part of the declaration that Jack had hired Lipscomb to kill the declarant, and we have examined the case as if such objection had been made, and we are of opinion that, in view of all the circumstances, this case should not be reversed, because this declaration was admitted.

Other Objections to Evidence. To make Lipscomb's acts evidence against Jack, it was necessary to show that they had conspired to defraud the defendant. It is not often that direct proof of such a conspiracy can be made. Usually it must be proved by a variety of circumstances. One circumstance, standing alone, may seem trivial; but, if it is relevant, it is evidence, and many circumstances may be convincing proof. It was admissible to prove Jack's relations to Lipscomb,—that they appeared to be unfriendly, but were in fact on good terms, and that they were connected in securing other fraudulent insurance. Jack's declarations that Lipscomb was a "very handy man for him to use in getting out bad insurance risks," and in fact any circumstance, were admissible that tended to show they were acting in concert. Objections to such evidence were all properly overruled. It is, of course, true that evidence of another and distinct crime committed by a defendant, in no way connected with the one for which he is on trial, is inadmissible. If, however, the evidence is relevant, if it tends to prove the commission of the offense for which the defendant is on trial, it must not be excluded because it also shows that the defendant has committed another offense. Wood v. U. S., 16 Pet. 342, 10 L. Ed. 987; Wallace v. State, 41 Fla. 547, 26 South. 713; Barnett v. Insurance Co., 115 Mich. 247, 73 N. W. 372.

One of the issues submitted to the jury was whether Jack secured the insurance on the life of Stewart in good faith to secure a debt Stewart owed him, or did he procure it for improper purposes, and with criminal motives. On such issue it was admissible, considering the evidence of Lipscomb's connection with Stewart's death, for the defendant to show that Jack and Lipscomb were engaged in the business of procuring fraudulent insurance, and that the insurance on Stewart's life was a part of such scheme. State v. Brady (Iowa) 69 N. W. 290, 36 L. R. A. 693; Beberstein v. Territory (Okl.) 58 Pac. 641; People v. Summers, 115 Mich. 537, 73 N. W. 818; Carroll v. Com., 84 Pa. 107; Whart. Cr. Ev. (9th Ed.) 31; 3 Greenl.

Ev. 15.

After Stewart's death, Jack made proof to secure the insurance money on his life by sending a statement to Lipscomb, to be signed by him. Lipscomb was at that time in jail, charged with Stewart's murder. The record also shows that incidents occurring between Jack and Lipscomb, and statements and declarations made by Lipscomb after Stewart's death, were received in evidence. It is urged here that there was error in receiving this evidence, because, if a conspiracy had been established to kill Charles T. Stewart, the same had been accomplished, and that no declarations or conduct of Lipscomb could be admissible in evidence against Guy Jack after the accomplishment of the conspiracy. The fallacy of this position is that the conspiracy did not have for its aim and end the killing of Stewart. The purpose of the conspiracy was to get the insurance on his life. If this could have been accomplished without Stewart's death, he probably would not have been poisoned. His death was an incident, but not the end, of the conspiracy. If, after his death, part of the insurance money had been collected, and divided between Jack and Lipscomb, can any one doubt that such evidence would have been admissible as tending to show the conspiracy and its purpose? The court did not err, we think, in admitting proof of the conduct of Lipscomb, after the death of Stewart. Holt v. State (Tex. Cr. App.) 46 S. W. 829; State v. Byers (Mont.) 41 Pac. 708.

Charge of the Court. The entire charge of the court is in the bill of exceptions. The bill of exceptions shows that plaintiffs reserved an exception to the whole charge. Such exception to the entire charge, consisting, as in this case, of several closely printed pages, cannot avail to secure a reversal.

This exception is also reserved: "We also except to the language read by your honor from the book.” The bill of exceptions does not show what language was read from the book. The assignment of error following this exception purports to set out what was read by the trial judge as a part of his charge. But we cannot consider statements of fact in the assignment of errors not based on the bill of exceptions. Unless the bill of exceptions certified by the judge showed what was read as a part of his charge, and the exception thereto, the question is not before this court for review.

The court was requested by the plaintiff to charge the jury that they "must be satisfied beyond a reasonable doubt arising from the evidence that Guy Jack was implicated in the murder.” The court said, “I do not think that is the law, and I decline to give the instruction." This is a civil case. The defendant, by plea, averred that Guy Jack, the plaintiff, aided and abetted Lipscomb or procured him to murder Stewart, the insured. The burden was on the defendant to prove its plea, but it was not required to prove it beyond a reasonable doubt. If the jury was, by all the evidence, satisfied and convinced that the plea was true, that was sufficient.

Written Instructions Requested. It appears from the printed transcript that during the progress of the trial the judge presiding requested the attorneys for the parties to present to the court written instructions, so that the court might be advised as to their respective theories of the case. The attorneys for the plaintiffs handed to the court before the argument began 30 separate written charges, numbered from 1 to 30, inclusive. Some of these charges were marked, "Given for the convenience of the court in charging the jury.” “The remaining instructions," the transcript states, were not passed upon by the court, nor were any exceptions taken by the plaintiff on account of the failure of the court to give the instruction to the jury, or to mark them “Given" or “Refused.” It is assigned as error that the court did not give these 30 charges. These charges do not even appear in the bill of exceptions. The bill of exceptions does not show that any exceptions were reserved to the refusal of the court to give them. On the contrary, the statement which follows the copy of the charges in the transcript shows affirmatively no exceptions were taken to the failure of the court to give the charges. Unless it appears in the bill of exceptions that a charge was requested, and refused by the court, and an exception duly reserved, no question is presented in regard to such charge for decision by this court. These charges are embodied a second time in the transcript, being set out in a motion for a new trial, the refusal to give them being assigned as one of many grounds for a new trial. The refusal of the court to grant a new trial is assigned as error. We have often held that the granting or refusing a new trial is in the discretion of the trial court, and that its decision cannot be reviewed by this court. Such is the unvarving rule of the federal courts.

Mrs. Stewart's Alleged Interest. Lillie A. Stewart, widow of the insured, was joined as plaintiff in the suit. In rulings on the admission of evidence and in the charge to the jury the trial court held that on the undisputed evidence she had no interest in the action. The policy in suit was made payable, not to his wife, but to the executors or administrators of the insured. Charles T. Stewart, the insured, assigned the policy, with the consent of the insurance company, to Guy Jack. No other assignment of it had been made. The declaration filed by both of the plaintiffs states these facts. For the purpose of showing an interest in Mrs. Stewart, it is alleged in the declaration that she “furnished proofs claiming the proceeds of said policy as the widow and only heir at law of said Charles T. Stewart," and that Guy Jack had furnished proofs claiming the proceeds of the policy under the assignment from the insured. Then follows the statement that "plaintiffs have adjusted their respective claims to the proceeds of said policy of insurance, and agreed on a basis of settlement of the same." There is evidence in the record that Charles T. Stewart owed debts at his death. If the assignment is to be regarded, Jack alone, as assignee, owns the policy; if the assignment be ignored, the policy being payable to the executors or administrators of the insured, they alone could sue on it. In Insurance Co. v. Jack, 76 Miss. 788, 25 South. 871, an action was brought by Jack and Mrs. Stewart on a life insurance policy assigned to Jack, which was payable to the executors or administrators of the insured. The court held-properly, we think—that Mrs. Stewart was a stranger to the contract; that, if she had made an agreement with Jack as to a division of the proceeds, that was a contract with which the insurance company had no concern. We concur in this view. The record in this case shows affirmatively that Mrs. Stewart had no right of action on the policy. In this case, by her pleading, she is affirming that the policy was assigned to Jack

The judgment of the circuit court is affirmed.

(113 Fed. 60.)


(Circuit Court of Appeals, Eighth Circuit. December 9, 1901.)

No. 1,573.



Gen. St. Minn. 1866, c. 10, § 107, provided that no town should have power to contract debts in any one year in a larger sum than the amount of taxes assessed for such year, unless authorized by a majority of its voters. Chapter 11, $ 78, as amended, limited the annual tax levy for town purposes to a sum not exceeding 10 mills on the dollar, and provided that nothing in such section should be construed to prevent the supervisors of any town from “levying any tax which by any special law they are authorized to levy." Section 79 prohibited the contracting of any debt by a town which would render necessary the levy of a higher rate of tax than that prescribed by section 78, “unless specially and expressly authorized by law.” An act of the legislature (Sp. Laws Minn. 1868, p. 47), in section 1, expressly authorized each town in certain counties to issue bonds, as thereinafter provided, to aid in the construction of any railroad running into such counties. Section 2 prescribed the minimum face value of the bonds, manner of execution, and rate of interest. Section 3 provided that any such town might, by vote of the majority of the legal voters of such town, fix the amount and size of bonds to be issued and the rate of interest. Section 4 provided a complete scheme for levying a tax on the property of the town in an amount “not less than the principal and interest upon such bonds," for the apportionment of the tax, collection thereof, and payment of the bonds. Held that, as the act of 1868 undertook to provide a complete scheme to accomplish the desired purpose, in the absence of a plain and clear intent it should not be presumed that it meant that the authority given the town to fix the amount and size of the bonds should be read with, and limited by, Gen. St. 1866, c. 11, 88 78, 79, to 10 mills on the

dollar of the taxable property. 2. SAVE

The act of 1868 is obviously the exercise of the power reserved by the legislature in Gen, St. Minn. 1866, c. 11, $$ 78, 79, to permit by special law, in exceptional cases, the creation of debts by towns in excess of the limit prescribed by the general law.

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