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McKinley had taken) without suspecting, and charge the presumption of innocence was thinking it probable, It imports an obligation made and refused, the refusal was held erroto commit a capital crime. That has been neous, although the doctrine of reasonable and is my impression. But the presumption doubt had been fully given to the jury. Peoin favor of innocence is not to be redargued ple v. Macard, 73 Mich. 15, 40 N. W. 784. On by mere suspicion. I am sorry to see, in this the other hand, in Ohio it has been held not information, that the public prosecutor treats error to refuse to charge the presumption of this too lightly. He seems to think that the innocence where the charge actually given law entertains no such presumption of inno was “that the law required that the state

I cannot listen to this. I conceive should prove the material elements of the that this presumption is to be found in every crime beyond doubt." Moorehead v. State, code of law which has reason and religion 34 Ohio St. 212. It may be that the paucity and humanity for a foundation. It is a of authority upon this subject results from maxim which ought to be inscribed in indel- 'the fact that the presumption of innocence is ible characters in the heart of every judge 80 elementary that instances of denial to and juryman, and I was happy to hear from charge it upon request have rarely occurred. Lord Hermand he is inclined to give full ef Such is the view expressed in a careful article fect to it. To overturn this, there must be in the Criminal Law Magazine for January, legal evidence of guilt, carrying home a de 1889 (volume 11, p. 3): "The practice of statcree of conviction short only of absolute cer ing this principle to juries is so nearly uni. tainty."

versal that very few cases are found where It is well settled that there is no error in error has been assigned upon the failure or refusing to give a correct charge precisely refusal of the judge so to do." But, whatever as requested, provided the instruction actual be the cause, authorities directly apposite ly given fairly covers and includes the in are few and conflicting, and hence furnish struction asked. Tweed's Case, 16 Wall. 504; no decisive solution of the question, which is Railway Co. v. Whitton, 13 Wall. 270. The further embarrassed by the fact that in some contention here is that, inasmuch as the few cases the presumption of innocence and charge given by the court on the subject of the doctrine of reasonable doubt are seemreasonable doubt substantially embodied the ingly treated as synonymous. Ogletree v. statement of the presumption of innocence, State, 28 Ala. 693; Moorer v. State, 44 Ala. therefore the court was justified in refusing, 15; People v. Lenon, T9 Cal. 625, 631, 21 Pac. in terms, to mention the latter. This presents 967. In these cases, however, it does not apthe question whether the charge that there pear that any direct question was made as to cannot be a conviction unless the proof shows whether the presumption of innocence and guilt beyond a reasonable doubt so entirely reasonable doubt were legally equivalent; the embodies the statement of presumption of language used simply implying that one was innocence as to justify the court in refusing, practically the same as the other, both hav. when requested, to inform the jury concern ing been stated to the jury. ing the latter. The authorities upon this Some of the text-books, also, in the same question are few and unsatisfactory. In loose way, imply the identity of the two. Texas it bas been held that it is the duty Stephen, in his History of the Criminal Law, of the court to state the presumption of in. tells us that “the presumption of innocence nocence along with the doctrine of reasonable is otherwise stated by saying the prisoner is doubt, even though no request be made to do entitled to the benefit of every reasonable so. Black v. State, 1 Tex. App. 309; Pries doubt." Volume 1, p. 438. So, although muth v. State. Id. 480; McMullen v. State, 5 Best, in his work on Presumptions, has fully Tex. App. 577. It is doubtful, however, stated the presumption of innocence, yet, in whether the rulings in these cases were not a note to Chamberlayne's edition of that based upon the terms of a Texas statute, author's work on Evidence (Boston, 1883; and not on the general law. In Indiana it page 304, note a), it is asserted that no such has been held error to refuse, upon request, presumption obtains, and that “apparently to charge the presumption of innocence, even all that is meant by the statement thereof, although it be clearly stated to the jury that as a principle of law, is this: If a man be acconviction should not be had unless guilt be cused of crime, he must be prored guilty proven beyond reasonable doubt. Long v. beyond reasonable doubt." State, 46 Ind. 582; Line v, State, 51 Ind. 175. This confusion makes it necessary to conBut the law of Indiana contains a similar sider the distinction between the presumpprovision to that of Texas. In two Michigan tion of innocence and reasonable doubt as it cases, where the doctrine of reasonable doubt it were an original question. In order to de. was fully and fairly stated, but no request termine whether the two are the equivalents to charge the presumption of innocence us of each other, we must first ascertain, with made, it was held that the failure to mention accuracy, in what each consists. Now, the the presumption of innocence could not be as presumption of innocence is a conclusion signed for error in the reviewing court. Peo drawn by the law in favor of the citizen, by ple v. Potter, 89 Mich. 353, 50 N. W. 994; virtue whereof, when brought to trial*upon a People v. Graney, 91 Mich. 648, 52 N. W. 66. criminal charge, he must be acquitted, unless But in the same state, where a request to be is proven to be guilty. In other words,

this presumption is an instrument of proof the proof itself, whereas the presumption of created by the law in favor of one accused, innocence is one of the instruments of proof, whereby his innocence is established until going to bring about the proof from which sufficient evidence is introduced to overcome reasonable doubt arises; thus one is a cause, the proof which the law has created. This the other an effect. To say that the one is presumption, on the one hand, supplemented the equivalent of the other is therefore to by any other evidence he may adduce, and say that legal evidence can be excluded from the evidence against him, on the other, con the jury, and that such exclusion may be stitute the elements from which the legal cured by instructing them correctly in reconclusion of his guilt or innocence is to be gard to the method by which they are redrawn.

quired to reach their conclusion upon the Greenleaf thus states the doctrine: "As proof actually before them; in other words, men do not generally violate the Penal Code, that the exclusion of an important element the law presumes every man innocent; but of proof can be justified by correctly instruct. some men do transgress it, and therefore evi ing as to the proof admitted. The evolution dence is received to repel this presumption. of the principle of the presumption of innoThis legal presumption of innocence is to cence, and its resultant, the doctrine of reabe regarded by the jury, in every case, as sonable doubt, make more apparent the cormatter of evidence, to the benefit of which rectness of these views, and indicate the nethe party is entitled.” On Evidence, pt. 1, cessity of enforcing the one in order that the 31.

other may continue to exist. While Rome Wills on Circumstantial Evidence says: and the Mediaevalists taught that, wherever “In the investigation and estimate of crim doubt existed in a criminal case, acquittal inatory evidence, there is an antecedent, pri. must follow, the expounders of the common ma facie presumption in favor of the inno law, in their devotion to human liberty and cence of the party accused, grounded in rea individual rights, traced this doctrine of son and justice not less than in humanity, doubt to its true origin,-the presumption of and recognized in the judicial practice of all | innocence,-and rested it upon this enduring civilized nations, which presumption must basis. The inevitable tendency to obscure prevail until it be destroyed by such an over the results of a truth, when the truth itself powering amount of legal evidence of guilt is forgotten or ignored, admonishes that the as is calculated to produce the opposite be- protection of so vital and fundamental a lief." Best on Presumptions declares the principle as the presumption of innocence be presumption of innocence to be a "presump- not denied, when requested, to any one actio juris." The same view is taken in the ar cused of crime. The importance of the disticle in the Criminal Law Magazine for Janu. tinction between the two is peculiarly emary, 1888, to which we have already referred. phasized here, for, after having declined to It says: “This presumption is in the nature instruct the jury as to the presumption of in of evidence in his favor (1. e. in favor of the nocence, the court said: “If, after weighing accused), and a knowledge of it should be all the proofs, and looking only to the proofs, communicated to the jury. Accordingly, it you impartially and honestly entertain the is the duty of the judge, in all jurisdictions, belief," etc. Whether thus confining them when requested, and in some when not re to "the proofs," and only to the proofs, quested, to explain it to the jury in bis would have been error, if the jury had been charge. The usual formula in which this instructed that the presumption of innocence doctrine is expressed is that every man is was a part of the legal proof, need not be presumed to be innocent until his guilt is considered, since it is clear that the failure proved beyond a reasonable doubt.

The ac

to instruct them in regard to it excluded cused is entitled, if he so requests it, •

from their minds a portion of the proof creto have this rule of law expounded to the ated by law, and which they were bound to jury in this or in some equivalent form of consider. “The proofs, and the proofs only," expression.”

confined them to those matters which were . The fact that the presumption of innocence admitted to their consideration by the court; is recognized as a presumption of law, and is and, among these elements of prool, the characterized by the civilians as a presump court expressly refused to include the pretio juris, demonstrates that it is evidence in sumption of innocence, to which the accused favor of the accused. For, in all systems of was entitled, and the benefit whereof both la w, legal presumptions are treated as evi the court and the jury were bound to extend (lence giving rise to resulting proof, to the him. full extent of their legal efficacy.

In addition, we think the twenty-second exConcluding, then, that the presumption of ception to the rulings of the court was well innocence is evidence in favor of the accused, taken. The error contained in the charge, introduced by the law in his behalf, let us which said, substantially, tbat the burden consider what is “reasonable doubt." It is, of proof bad shifted, under the circum. of neressity, the conditiou of mind produced stances of the case, and that therefore, it was by the proof resulting from the evidence in incumbent on the accused to show the law. the cause. It is the result of the proof, not fulness of their acts, was not merely verbal,

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but was fundamental, especially when con "No. 19. If Mr. Hanghey, as president of sidered in connection with the failure to the bank, received from the cabinet company state the presumption of innocence.

drafts, bills, or notes which, by reason of There are other objections specifically raised the insolvency of the parties, or for any to certain particular counts in the indicto other reason, ought not to have been rement, which we do not deem it necessary ceived, and gave to said cabinet company to elaborately examine, but to which the credit therefor, and afterwards caused* an condition of the case compels us to briefly entry of such credit to be made upon the allude. Thus, the first count charges the re books of the bank, then whatever wrong ceipt and placing to the credit of the Indianap was done in the matter by Mr. Haughey was olis Cabinet Company of a bill of exchange not in causing such entry to be made, but amounting to a certain number of pounds was, further back, in receiving the paper and sterling, followed by the averment that the giving the credit. Not to have made the company thereupon drew its check for said entry would have been to commit another amount. It is contended that the check of. wrong, since it was his duty, as president fered to show the payment of this money was of the bank, to see that the books should for dollars, and not for pounds sterling, and speak the exact truth as to that which he therefore there was a variance between the had caused to be done; and, however wrong. indictment and the proof. This contention, ful may have been his previous acts, the we think, is without merit. The count char. making of an exact and truthful record of ged the misapplication of the sum of $5,802. the same in the books of the bank was and 84, and averred that the misapplication was could be no crime, under this statute." effected by taking the bill of exchange and While we consider the charges asked were paying out that amount; in other words, in some respects unsound, yet the exception the whole context, we think, makes plain the reserved to the charge actually given by the charge that the sum which it avers to have court was well taken, because therein the been misapplied was credited as the result questions of misapplication and of false en. of taking the bill of exchange, and that it tries are interblended in such a way that was this sum which was paid out upon the it is difficult to understand exactly what was check of the cabinet company. Of course,

intended. We think the language used must it is immaterial at what rate or by what rule have tended to confuse the jury, and leare the pounds sterling were converted into cur. upon their minds the impression that if the rent money. The sum of the misapplication transaction represented by the entry actual. was the amount stated as credited in con. ly occurred, but amounted to a misapplicasequence of having taken the bill of sterling | tion, then its entry exactly as it occurred exchange.

constituted "a false entry”; in other words, On the subject of the counts covering the that an entry would be false, though it faithcharge of false entries in the books of the fully described an actual occurrence, unless bank, the following requests were made and the transaction which it represented involved refused:

full and fair value for the bank. The thought "No. 18. In considering the false-entry thus conveyed implied that the truthful encharges in the indictment, it is necessary that try of a fraudulent transaction constitutes you should know what constitutes a false a false entry, within the meaning of the stat. entry. The books of account of a bank are ute. We think. It is clear that the making of kept for the purpose of accurately and truly a false entry is a concrete offense, which recording the financial transactions of the is not committed where the transaction en. bank. An entry upon the books of the tered actually took place, and is entered ex. bank of some alleged transactions which actly as it occurred. never occurred, or of a transaction which did Judgment reversed and case remanded, occur, but which is falsely recorded, would with directions to grant a new trial. be a false entry. But any entry in which that which has been done by the officers or agents of the bank is correctly set forth

(156 U, S. 537) in detail is not a false entry. If, therefore,

ARD v. BRANDON. you find from the evidence, for instance,

SAME V. PRATT. with reference to the alleged false entry in

(March 4, 1895.) the 40th count, that the bank had actually

Nos. 141, 142. given to the cabinet company the credit for PUBLIC LANDS -HOMESTEAD ENTRY - DENIAL OF $44,000 upon the paper presented by the cab

RIGHTS BY LAND OFFICE-SUBSEinet company, and had authorized said cab

QUENT PATENTEE. inet company to make its checks against

Defendant, having the right to enter a said credit, and that said entry was made

certain 160 acres of land as a homestead, went

on it for the purpose of making it his home, and upon the books simply as a truthful record

has ever since occupied it. His homestead apof that which had been done, then the same plication therefor was wrongfully rejected by was not a false entry, but was and is a true

the register of the land office, on the ground that

the land was within the granted limits of a rail entry, and the indictment, so far as based

road, was double minimum land, and that 80 upon such entry, cannot be sustained.

acres was the limit of a homestead entry there

on, as to which fact the register was mistaken. and lie within the indemnity limits of both Held, that defendant thereby acquires an equity, the L., L. & G. and M., K. & T. R. R. Said which he could enforce against the railroad, which thereafter selected the land as indemnity

defendant also testified that when said deland, and obtained a patent and legal title there fendant settled on said land he did it in good to; and that he did not lose his rights by fail. faith, and for the sole purpose of making it ure to take an appeal from the register, or by

his homestead." making a pre-emption filing, when his home stead application was rejected, on 80 acres of

So much of defendant's testimony as bears the land, on the advice of the register that he upon his original occupation of the 160 acres, could prove up on this at the end of a year and and his first transaction at the government then homestead 80 acres more. 23 Pac. 646, rerersed.

land office, is as follows:

"The first work said defendant did on said In Error to the Supreme Court of the State land was about the last of June, 1866; that of Kansas.

he broke about two acres of prairie and three These two cases may be considered to hedge rows on said land, making about five gether, for the initial fact in defendant's acres in all. Then I went to the U. S. land (now plaintiff in error's) claim of right is the office at Humboldt, Kan., which was on the same in each case. The actions were com 14th day of July, 1866, and there I made our menced by the respective defendants in er a homestead application for said land, as de ror as plaintiffs in the district court of Allen scribed, and tendered the application and the county, Kan., the first to recover the posses land-office fees to the register of the U. S. sion of the N. 42 of the N. E. 14 of section 11, land office, of which Watson Stewart was, township 26, range 20, and the other to re register of said land office, and at that time cover possession of the W. 12 of the S. E. 14 I was a single man and over 21 years of age, of section 2, township 26, range 20. These a citizen of the United States, and had never two tracts, each of 80 acres, adjoin and are had the benefit of the homestead or pre-empso situated as to be the subject of one home tion laws of the United States; but said stead entry. Rev. St. 88 2289, 2298.

register, Watson Stewart, rejected said appliThe first of these tracts was on April 10, cation and fees, as he claimed, on the ground 1873, certified by the United States to the that said land was situate within the grantstate of Kansas, and by it on May 19, 1873, ed limits of the L., L. & G. R. R., and was conveyed to the Missouri, Kansas & Texas double minimum lands, and that he could not Railway Company. The second was patented let me homestead only 80 acres, as the land November 3, 1873, by the United States di was double in price. Said register advised rectly to the Missouri, Kansas & Texas Rail me if I wanted said 160 acres that I could way Company. The respective plaintiffs hold first make a pre-emption filing on 80 acres under conveyances from the railway com of land, and put a house on said land within pany.

12 months, and prove up and pay for it at A Jury having been waived, the cases were $2.50 per acre, and then I could homestead submitted to*the court upon certain admis 80 acres more, and by that plan I could get sions and the single testimony of the defend 160 acres; but said register told me that I ant. No special findings of fact appear in the could change a pre-emption filing at any time record, but by both the trial and the supreme if I wanted to into a homestead; so I told courts of the state the facts testified to as said register, as he would not allow my homewell as those admitted were treated as facts stead, I would make a pre-emption filing on in the case. Among the matters admitted part of the land, as he would not let me only were these: “At the time defendant made set on S0 acres; so he made out the filing, and I tlement he was duly competent to make a paid him a fee of $2, which he said was the legal homestead or pre-emption, and has ever fee. since been duly competent and qualified to "A copy is hereto attached and admitted as make a valid homestead entry, and that he in evidence: still resides on said land, with a wife and “ 'No. 2115. Register's Office, Humboldt, six children, and that he has all the required Kansas, July 14th, 1866. I certify that Newimprovements to perfect a homestead or pre ton L. Ard has this day filed in this office emption. It is admitted that the W. 12 of S. his notice to claim by right of pre-emption E. 44, section 2, 26, 20 E., was selected by the the west half of the southeast quarter of Missouri, Kansas & Texas Railway Company, section No. 2, in township No. 26 S., in range April 14, 1873, and it was patented to said No. 20 east, of the sixth principal meridian, company the 3d day of November, 1873, un in the state of Kansas. $2.50 per acre, withder the act of congress of July 26, 1866. The in R. R. limits. Watson Stewart, Revister.' N. 12 of the N. E. 14 of section 11, 26, 20 E., “Said words and figures, '$2.50 per acre, was selected by both companies jointly,-Mis within R. R. limits,' being written in red ink souri, Kansas & Texas Railway Company transversely across the face of the certifiand L., L. & G. R. R.,-August 8, 1872. cate." This tract was approved to the state for the It also appears from his testimony that subM., K. & T. Co., April 10, 1873, under the act sequently, and in the fall of 1866 and the of congress of March 3, 1863. Both tracts spring of 1867, he did further work on the were selected as indemnity lands, and both land, and built a house thereon; that about Jutracts are over 12 miles from both roads, I ly 1, 1867, he again went to the land office, but

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was told by Col. N. S. Goss, then the register, were not lost by reason of the land depart. that he could neither change his pre-emption ment having, by mistake or an erroneous ininto a homestead entry nor prove up under terpretation of the statutes in question, causthe pre-emption law. In 1872 he made for ed patents to be issued to the company." mal application to prove up on the land, but The question, therefore, is whether the his application was denied by the local land cases disclose equitable rights in the defendofficers. From this denial he prosecuted an ant superior to the claims of the railway appeal to the commissioner of the general company. If his rights are only those which land office, and thence to the secretary of the spring from his pre-emption entry and subinterior, by both of whom the decision of the

sequent occupation of the lands, it inay well local land officers was affirmed.

be, as held by the supreme court of tbe state, The judgments of the district court were that the decisions of the land department in favor of the plaintiffs, which judgments upcn the questions of fact are conclusive were afterwards affirmed by the supreme against him. But we are of the opinion that court of the state on the ground that the

the testimony shows a right anterior to his legal title passed by the instruments offered pre-emption entry,-a right of which he was in evidence through the railway company to deprived by the wrongful acts of the local the plaintiffs, and that the decision of the

land officer, and which he did not forfeit or land department upon the facts of defendant's

lose by virtue of his subsequent efforts to occupation and improvements was conclusive

pre-enapt the land. According to this testias against his equitable rights. To reverse mony, he had commenced improving the these judgments the defendant sued out writs

premises prior to July 14, 1866. He was of error from this court.

qualified under the laws of the United States Wm. Lawrence, for plaintiff in error. A to make a homestead entry. The land was T. Bullon, A. B. Browne, and Geo. R. Peck, not within the place limits of either road, for defendants in error.

and had not been withdrawn by the land

department from entry and settlement, for Mr. Justice BREWER, after stating the the orders of withdrawal were not made unfacts in the foregoing language, delivered til March 19 and April 30, 1867. He had, the opinion of the court.

therefore, on July 14th, when he went to the As these lands were not within the place land office, the right to enter the entire 100 limits of either the Leavenworth, Lawrence acres as a homestead. This right he de & Galveston Railroad or the Missouri, Kan. manded. He made out a homestead appli. sas & Texas Railway, and as they were with cation for the land as described, and tenderin the indemnity limits of both roads, it is ed the application and the land-office fees to not open to question that the certification the register of the land office; but the regis. by the land department to the state of Kan ter rejected the application, giving as a reasas, and the conveyance by it to the railway son therefor that the land was within the company of the one tract, and the patent granted limits of the Leavenworth, Lawdirectly from the United States of the other, rence & Galveston Railroad, and was double operated to transfer the legal title to these minimum lands, and that 80 acres was the two tracts to the railway company; and also limit of homestead entry of such lands. As that the United States has no cause of action to this matter of fact the register was misagainst the railway company or its grantees taken, and his rejection of the application to disturb the legal title thus conveyed. was wrongful, and denied to defendant that Kansas City, L. & S. K. R. Co. v. Attorney homestead entry which under the law he General, 118 U. S. 682, 7 Sup. Ct. 66;* U. S. was then entitled to. In the case of Shepv. Missouri, K. & T. Ry. Co., 141 U. S. 358, 12 ley V. Cowan, 91 U. S. 330, 338, this court Sup. Ct. 13. But it is equally clear, under said (after referring to the cases of Frisbie the authority of the last-cited case, as well V. Whitney, 9 Wall. 187, and the Yosemite as of many others, that no adjudication Valley Case, 15 Wall. 77): against the government in a suit by it to set "But while, according to these decisions, no aside a patent estops an individual not a vested right as against the United States is party thereto from thereafter setting up his acquired until all the prerequisites for the equitable rights in the land for which the acquisition of the title have been complied patent was issued. Referring to allegations with, parties may, as against each other, acin the bill of the United States in that case quire a right to be preferred in the purchase of matters very like those presented here, or other acquisition of the land, when the Nr. Justice Harlan, speaking for the court, United States have determined to sell or do said (page 379, 141 U. S., and page 13, 12 nate the property. In all such cases, the first Sup. Ct.): “If the facts are as thus alleged, in time in the commencement of proceedit is clear that the Missouri-Kansas Com ings for the acquisition of the title, when the pany holds patents to land both within the

same are regularly followed up, is deemed place and indemnity limits of the Leaven to be the first in right. So, in this case, worth road which equitably belong to bona Chartraud, the ancestor, by his previous setfide settlers who acquired rights under the tlement in 1835 upon the premises in controhomestead and pre-emption laws, which versy, and residence with his family, and

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