to each, or rather as to 44 thereof. To the charge of the court actually delivered to the jury, the defendants reserved 26 exceptions. A controversy exists as to whether one of the 26 exceptions was properly taken. The facts, as stated in the bill of exceptions, are as follows:

"After the court had delivered its charge to the jury, and before it retired, the court said: 'If it is the desire of counsel for defendant to reserve any exceptions to the charges given and refused, the practice in this court requires that that shall be done before the jury retires.'

"Mr. Miller: 'It is, of course, if your honor please, the desire on behalf of defendants to reserve exceptions to the refusal of such instructions as were requested and refused, and to parts of the instruction given. Without having a little time to examine these instructions, it is impossible for us now to designate the particular parts. We would like to have time to look at them for that purpose.'

"The Court: 'What length of time would you desire?'

"Mr. Miller: 'I do not know, if your honor please, how long it would take. It has taken an hour to read them.'

"Mr. Duncan: "They can be made, when made, as of this time, with permission of the court.'

"The Court: 'Except so far as any mere verbal changes are concerned, which, if the court's attention was drawn to, it would at once correct, I have no objection to that method of procedure.'

"Mr. Miller: 'Of course, anything that is formal, of that character, that won't go to the substance of the matter, we should not expect to insist on. But, as your honor can see it, it is impossible for us, from hearing the instructions read for an hour, to select the parts.'

"The Court: "There are the instructions you propose (indicating), and these instructions I do not care to have mislaid or lost (indicating).'

"Mr. Miller: 'No, sir; of course not. For that matter, every syllable of them has been taken down by two stenographers here,-all of your instructions, as you read them,-so there cannot be any possibility of any trouble about them. We take them and make"The Court: Where is the bailiff?' "Mr. Taylor: 'You may take these forms of the verdict and the indictment.'

""Gentlemen of the jury, you may retire with your bailiff.'"

The bill of exceptions then states that at the time this colloquy took place the assistant attorney for the prosecution was present in the court room, heard the conversation, and assented to the arrangement thus made. It further states that a few minutes after 3 in the afternoon the jury retired to consider their verdict; that the defendants' counsel took the instructions given by the court,

which were typewritten, and noted thereon, by inclosing the same in a parenthesis mark with pencil, the parts of such instructions so given by the court to which exceptions were taken, the parts thus marked being respectively numbered; that at 9 o'clock that night the defendants' counsel returned to the court room, and handed the instructions which had been so marked and numbered by them to the judge, in open court, saying that the parts marked in parentheses and numbered were those to which the defendants excepted, and to which they reserved their bill, under the understanding previously had; that immediately thereafter the jury, which had not reached a conclusion, was brought into court, and informed by the judge that he would be within call until 11 o'clock to receive a verdict, and if they did not agree by that time they might seal their verdict, and bring it into court on Monday morning, it being then Saturday evening.

On May 28th the defendants, through their counsel, wrote out in full their exceptions to the various parts of the charge, as marked and numbered, and presented them to the court, which declined to sign them because of the twenty-second exception, which it considered not properly taken, under the understanding between court and counsel above stated. However, the court signed the bill of exceptions, writing therein a narrative of the facts, and predicating its objection to the twentysecond exception on the ground that the matter covered by it was merely verbal, and at the time the parties were given the right to take their bill the court did not include any mere verbal error, which would have been corrected if attention had been called to it in proper time. The language contained in the charge covered by the disputed exception is as follows:

"I do not wish to be understood as meaning that the intent to injure, deceive, or defraud is conclusively established by the simple proof of the doing of the prohibited act which results in injury. What I do mean is this: That when the prohibited acts are knowingly and intentionally done, and their natural and legitimate consequence is to produce injury to the bank, or to benefit the wrongdoer, the intent to injure, deceive, or defraud is thereby sufficiently established to cast on the accused the burden of showing that their purpose was lawful, and their acts legitimate."

On the 28th day of May the jury returned a verdict against the plaintiffs in error of guilty as charged on all the counts of the indictment. After an ineffectual motion for a new trial, which restated the various grounds of objection raised to the admissibility of evidence under the indictment, and which had also been urged in the charges which had been requested and refused, the defendants moved in arrest. After argument upon this motion the court sustained the same as to the 17th, 18th, 19th, 20th, 21st, 22d, 23d, 24th,

This reduced the indictment-First, to those counts which were specific as to date, amount, and method; second, to those which, while specific in amount and date, were not specific as to method; third, to four counts, Nos. 13, 14, 15, and 16, which were not specific as to date or method, leaving in addition all the counts charging false entries in the books of the bank. The errors assigned here are 78 In number, and cover all the objections which were made to the rulings of the court below during the trial, and the exceptions based on charges requested and refused, as well as charges given.

W. H. H. Miller, Ferdinand Winter, and John B. Elam, for plaintiffs in error. Asst. Atty. Gen. Conrad, for the United States.

Mr. Justice WHITE, after making a statement of the case, delivered the opinion of the court.

Many of the exceptions taken during the trial, and the requests to charge which were refused, as well as most of the exceptions to the charge as given, relate to the counts of the indictment which were quashed on the motion in arrest. All these questions are therefore eliminated. We shall hence only consider the matters which are pertinent to the remaining counts, and shall examine first the objections made to the indictment generally, based upon the contention that all the counts fail to charge an offense; second, the exceptions reserved to rulings of the court during the trial, the effect of which is to assail the verdict and judgment without reference to the validity of the indictment. In making this examination, we shall concentrate the errors complained of in proper order, thus obviating repetition; for the matters to be considered are all reiterated by way of objection to the evidence, of exception to the refusal to charge as requested, and of complaints of the charges which the court actually gave. It is contended that no offense is stated against the aiders and abettors, because in none of the counts is it asserted that they were officers of the bank, or occupied any specific relation to the bank which made aiding and abetting possible. The language of the statute fully answers this contention. It provides that "every president, director, cashier, teller, clerk, or agent of any association, who," etc., and adds, after defining the acts which are made misdemeanors, "that every person who with like intent aids and abets," etc. The phrase "every person" is manifestly broader than the enumeration made in the first portion of the statute. In other words, the unambiguous letter of the law is that every president, director, agent, etc., who commits the designated offenses, shall suffer the penalties provided, and that every person who aids or abets such officer,

officer or an agent can be punished as an aider and abettor, and hence that every person who aids and abets, not being an officer, shall go unwhipped of justice. To adopt the construction contended for would destroy the letter and violate the spirit of the law; for the letter says, "every person who aids and abets," and the proposition is that we should make it say "every officer or agent who aids and abets." The spirit and purpose of the statute are to punish the president, cashier, officer, or agent, etc. and likewise to punish every person who aids and abets. The assertion that one who is not an officer, or who bears no official relation to the bank, cannot, in the nature of things, aid or abet an official of the bank in the misapplication of its funds, is an argument which, if sound, should be addressed to the legislative, and not the judicial, department. We cannot destroy the law on the theory that the acts which it forbids cannot be committed. In other words, the construction which we are asked to give does not deal with the meaning of the statute, but simply involves the claim that it is impossible to prove the commission of the offense defined by the law. The question whether the proof shows the commission of an offense is one of fact, and not of law. The citation made from U. S. v. Northway, 120 U. S. 333, 7 Sup. Ct. 580, is not apposite. True, we there said, "All the acts charged against Fuller could only be committed by him by virtue of his official relation to the bank, and the acts charged against the defendant likewise could only be committed by him in his official capacity." But in that case the indictment itself charged Northway, as president and agent, with aiding and abetting Fuller, the cashier of the bank, and the language quoted referred to the matter under consideration, and hence it was incidentally stated that the proof and averment must correspond.

Nor is the contention sound that the particular act by which the aiding and abetting was consummated must be specifically set out. The general rule upon this subject is stated in U. S. v. Simmonds, 96 U. S. 360, as follows: "Nor was it necessary, as argued by counsel for the accused, to set forth the special means employed to effect the alleged unlawful procurement. It is laid down as a general rule that in an indictment for soliciting or inciting to the commission of a crime, or for aiding or assisting in the commission of it, it is not necessary to state the particulars of the incitement or solicitation, or of the aid or assistance. 2 Whart. Cr. Law. § 1281; U. S. v. Gooding, 12 Wheat. 460." The form books give the indictment substantially as it appears here. Bish. Forms, § 114, p. 52. Nothing in Evans v. U. S., 153 U. S. 608, 14 Sup. Ct. 939, conflicts with these views. In that case the question was whether the eighth count stated misapplication of the funds, and not whether the par

ticular acts by which the aiding and abetting were done were necessary to be set out in the indictment. On the contrary, the counts there held good charged the aiding and abetting in the very language found in the indictment in hand,-"and the said Evans did then and there knowingly and unlawfully aid and abet the said cashier in such willful misapplication with intent in him, the said Evans, to injure and defraud,"

etc.

2. It is said that all the counts in the indictment are bad because it is not charged that the aiders and abettors knew that Haughey was president of the bank at the time it is averred the acts were committed. The argument is this: The statute says that every person who with like intent aids or abets any officer, etc. Therefore, the fact that the aider or abettor knew that the person who misapplied the funds was an officer, etc., must be specifically charged. Without considering the legal correctness of this proposition, it may be observed that it has no application to this cause. Each and every count here specifically avers that "the said Theodore P. Haughey, then and there being president of the bank," and "then and there, by virtue of his said office, as such president as aforesaid," "misapplied the funds"; and having thus fully averred the relation of Haughey to the bank, and the commission of the acts complained of, in his official capacity, with intent to defraud, etc., the counts go on to charge that the plaintiffs in error did unlawfully, willfully, feloniously, knowingly, and with intent to defraud, aid, and abet the "said Haughey as aforesaid." The words "as aforesaid" clearly relate to Haughey in the capacity in which it is stated that he committed the offense charged against him in the body of the indictment. Without entering into any nice question of grammar, or undertaking to discuss whether the word "said," before Haughey's name, and the words "as aforesaid," which follow it, are adverbial, we think the plain and unmistakable statement of the indictment, as a whole, is that the acts charged against Haughey were done by him as president of the bank, and that the aiding and abetting were also knowingly done, by assisting him in the official capacity, in which alone it is charged that he misapplied the funds.

This prop

3. It is further contended that all the counts of the indictment, except the first, are insufficient because they fail to aver the actual conversion of the sum misapplied to the use of any particular person. osition is based on the cases of U. S. v. Britton, 107 U. S. 666, 2 Sup. Ct. 512, and U. S. v. Northway, supra. In the Britton Case we said "that the willful misapplication which was made an offense by this statute means a misapplication for the use, benefit, or gain of the party charged, or some other person; and therefore, to constitute the ofv.15s.c.-26

fense of willful misapplication, there must be a conversion to the party's own use, or to the use of some one else, of the funds of the association. This essential element ofe the offense is not averred in the indictment under consideration, but is negatived by the* averment that the shares purchased by the defendant were held by him in trust for the use of the association; and there is no averment of a conversion by the defendant, for his own use, or the use of any other person, of the funds used in purchasing the shares. The counts, therefore, charge maladministration of the affairs of the bank rather than criminal misapplication of the funds." So, in Northway's Case, we said, "It is of the essence of the crime of misapplication that there should be conversion of the funds to the use of the defendant, or of some other person than the association." The various counts of the indictment here are all substantially alike in stating the conversion. We take the second as an example. That charges that Haughey, being president of the Indianapolis Bank, did then and there, by virtue of his office as president of said bank. unlawfully, feloniously, and willfully misapply the moneys, funds, and credits of the bank, with intent to convert the same to the use of the Indianapolis Cabinet Company, by then and there causing said sum to be palu out of the moneys, funds, and credits of the bank, upon a check drawn upon the bank by the Indianapolis Cabinet Company, which check was then and there cashed and paid out of the funds and credit of the bank, which sum, and no part thereof, was the said Indianapolis Cabinet Company entitled to withdraw from the bank, because said company had no funds in the bank, and that the said company was then and there insolvent, which Haughey then and there well knew, whereby said sum became lost to the bank. This clearly states the misapplication and actual conversion of the money by the methods described; that is to say, by paying it out of the funds of the bank to a designated person, when that person was not entitled to take the funds, and that, owing to the insolvency of such person, the money was lost to the bank. The fact that the count charges the intent to convert money to the use of the Indianapolis Cabinet Company does not obliterate the clear statement of the actual conversion. In this regard the count is clearer and stronger than that held sufficient in Evans v. U. S., supra. 4. The following request was made and refused:

"Each of the forty-six counts of this indictment, except the 1st, the 40th, the 41st, and the 43d, alleges that certain facts therein referred to are unknown to the grand jury. Thus, the 2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th counts each aver a misapplication of the funds of said bank by said Haughey with intent to convert the same to the use of the Indianapolis Cabinet

Company, and to other persons to the grand jury unknown. The averment that the names of these persons were unknown to the grand jurors is a material averment, and is necessary to be proven by the government, in order to make out its case in each of said counts, because in each of said counts the charge is of a misapplication of a single, definite, fixed sum, with an intent to convert the same to the use, not merely of the cabinet company, but of other persons. If, as a matter of fact, no evidence has been placed before you showing, or tending to show, that the names of such persons were unknown to the grand jury, then, as to these counts, the government's case has failed."

In connection with this ruling, the bill of exceptions states that there was no evidence whatever on the subject offered by either side, and nothing to indicate that there was knowledge in the grand jurors of the matter which the indictment declared to be to them unknown. The instruction was rightly refused. It presupposes that where there is an averment that a person or matter is unknown to a grand jury, and no evidence upon the subject of such knowledge is offered by either side, acquittal must follow, while the true rule is that, where nothing appears to the contrary, the verity of the averment of want of knowledge in the grand jury is presumed. Thus, it was said in Com. v. Thornton, 14 Gray, 43: "The fact that the name of the person was in fact known must appear from the evidence in the case. It is immaterial whether it so appears from the evidence offered by the government, or that offered by the defendant. But, there being no evidence to the contrary, the objection that the party was not unknown does not arise." And previously, in Com. v. Sherman, 3 Allen, 248, the court observed: "It is always open to the defendant to move the judge before whom the trial is had to order the prosecuting attorney to give a more particular description, in the nature of a specification or bill of particulars, of the acts on which he intends to rely, and to suspend the trial until this can be done; and such an order will be made whenever it appears to be necessary to enable the defendant to meet the charge against him, or to avoid danger of injustice. Com. v. Giles, 1 Gray, 469; King v. Curwood, 3 Adol. & El. 815; Rosc. Cr. Ev. (6th Ed.) 178, 179, 420. It is to be observed that none of the counts as to which the prosecution was called upon to specify remain, all having been eliminated by the action of the court on the motion in arrest.

This concludes the examination of all the general objections to the indictment which we deem it necessary to consider, and brings us to the exceptions taken to the refusals to charge, as well as those reserved to the charges actually given.

The forty-fourth charge asked and refused was as follows:

"The law presumes that persons charged

with crime are innocent until they are prov. en, by competent evidence, to be guilty. To the benefit of this presumption the defendants are all entitled, and this presumption stands as their sufficient protection, unless it has been removed by evidence proving their guilt beyond a reasonable doubt."

Although the court refused to give this charge, it yet instructed the jury as follows: "Before you can find any one of the defendants guilty, you must be satisfied of his guilt, as charged in some of the counts of the indictment, beyond a reasonable doubt." And again: "You may find the defendant's guilty on all the counts of the indictment, if you are satisfied that, beyond a reasonable doubt, the evidence justifies it." And finally, stating the matter more fully, it said: "To justify you in returning a verdict of 'Guilty,' the evidence must be of such a character as to satisfy your judgment to the exclusion of every reasonable doubt. If, therefore, you can reconcile the evidence with any reasonable hypothesis consistent with the defendants' innocence, it is your duty to do so, and in that case find the defendants not guilty. And if, after weighing all the proofs, and looking only to the proofs, you impartially and honestly entertain the belief that the defendants may be innocent of the offenses charged against them, they are entitled to the benefit of that doubt, and you should ac quit them. It is not meant by this that the proof should establish their guilt to an absolute certainty, but merely that you should not convict unless, from all the evidence, you believe the defendants are guilty beyond a reasonable doubt. Speculative notions, or possibilities resting upon mere conjecture, not arising or deducible from the proof, or the want of it, should not be confounded with a reasonable doubt. A doubt suggested by the ingenuity of counsel, or by your own ingenuity, not legitimately warranted by the evidence, or the want of it, or one born of a merciful inclination to permit the de fendants to escape the penalty of the law, or one prompted by sympathy for them or those connected with them, is not what is meant by a reasonable doubt. A reasonable doubt,' as that term is employed in the administration of the criminal law, is an honest, substantial misgiving, generated by the proof, or the want of it. It is such a state of the proof as fails to convince your judgment and conscience, and satisfy your reason of the guilt of the accused. If the whole evidence, when carefully examined, weighed, compared, and considered, produces in your minds a settled conviction or belief of the de fendants' guilt,—such an abiding conviction as you would be willing to act upon in the most weighty and important affairs of your own life, you may be said to be free from any reasonable doubt, and should find a verdict in accordance with that conviction or belief."

The fact, then, is that, while the court re

that the failure of the accusation was inevItable, could not restrain himself, and exclaimed, "Oh, illustrious Caesar! if it is suf

fused to instruct as to the presumption of innocence, it instructed fully on the subject of reasonable doubt.

It is stated as unquestioned in the textbooks, and has been referred to as a matter of course in the decisions of this court and in the courts of the several states. See 1 Tayl. Ev. c. 5, §§ 126, 127; Wills, Circ. Ev. c. 5, § 91: Best, Pres. pt. 2, c. 1, §§ 63, 64; Id. c. 3, §§ 31-58; Greenl. Ev. pt. 5, § 29, etc.; 11 Cr. Law Mag. 3; Whart. Ev. § 1244; 2 Phil. Ev. (Cowen & Hill's Notes) p. 289; Lilienthal's Tobacco v. U. S., 97 U. S. 237; Hopt v. Utah, 120 U. S. 430, 7 Sup. Ct. 614; Com. v. Webster, 5 Cush. 320; State v. Bartlett, 43 N. H. 224; Alexander v. People, 96 Ill. 96; People v. Fairchild, 48 Mich. 31, 11 N. W. 773; People v. Millard, 53 Mich. 63, 18 N. W. 562; Com. v. Whittaker, 131 Mass. 224; Blake v. State, 3 Tex. App. 581; Wharton v. State, 73 Ala. 366; State v. Tibbetts, 35 Me. 81; Moorer v. State, 44 Ala. 15.

Greenleaf traces this presumption to Deuteronomy, and quotes Mascardius De Probationibus to show that it was substantially embodied in the laws of Sparta and Athens. On Evidence, pt. 5, § 29, note. Whether Greenleaf is correct or not in this view, there can be no question that the Roman law was pervaded with the results of this maxim of criminal administration, as the following extracts show:

"Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day." Code, L. 4, tit. 20, 1, 1. 25.

"The noble (divus) Trajan wrote to Julius Frontonus that no man should be condemned on a criminal charge in his absence, because it was better to let the crime of a guilty person go unpunished than to condemn the innocent." Dig. L. 48, tit. 19, 1. 5.

"In all case of doubt the most merciful construction of facts should be preferred." Dig. L. 50, tit. 17, 1. 56.

"In criminal cases the milder construction shall always be preserved." Dig. L. 50, tit. 17, l. 155, § 2.

"In cases of doubt it is no less just than it is safe to adopt the milder construction." Dig. L. 50, tit. 17, 1. 192, § 1.

*Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, "a passionate man," seeing

of the guilty?" to which Julian replied, "If it suffices to accuse, what will become of the innocent?" Rerum Gestarum, lib. 18, c. 1. The rule thus found in the Roman law was, along with many other fundamental and humane maxims of that system, preserved for mankind by the canon law. Decretum Gratiani de Presumptionibus, L. 2, T. 23, c. 14, | A. D. 1198; Corpus Juris Canonici Hispani et Indici, R. P. Murillo Velarde, Tom. 1, L. 2, n. 140. Exactly when this presumption was, in precise words, stated to be a part of the common law, is involved in doubt. The writer of an able article in the North American Review (January, 1851), tracing the genesis of the principle, says that no express mention of the presumption of innocence can be found in the books of the common law earlier than the date of McNally's Evidence (1802). Whether this statement is correct is a matter of no moment, for there can be no doubt that, if the principle had not found formal expression in the common-law writers at an earlier date, yet the practice which flowed from it has existed in the common law from the earliest time.

Fortescue says: "Who, then, in England, can be put to death unjustly for any crime? since he is allowed so many pleas and privileges in favor of life. None but his neighbors, men of honest and good repute, against whom he can have no probable cause of exception, can find the person accused guilty. Indeed, one would much rather that twenty guilty persons should escape punishment of death than that one innocent person should be condemned and suffer capitally." De Laudibus Legum Angliae (Amos' translation, Cambridge, 1825).

Lord Hale (1678) says: "In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him; but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die." 2 Hale, P. C. 290. He further observes: "And thus the reasons stand on both sides; and, though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger,-'Quod dubitas, ne feceris.'" 1 Hale, P. C. 24.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer." 2 Bl. Comm. c. 27, marg. p. 358, ad finem.

How fully the presumption of innocence had been evolved as a principle and applied at common law is shown in McKinley's Case (1817) 33 State Tr. 275, 506, where Lord Gillies says: "It is impossible to look at it [a treasonable oath which it was alleged that