McKinley had taken] without suspecting, and thinking it probable, it imports an obligation to commit a capital crime. That has been and is my impression. But the presumption in favor of innocence is not to be redargued by mere suspicion. I am sorry to see, in this information, that the public prosecutor treats this too lightly. He seems to think that the law entertains no such presumption of inno

cence.

I cannot listen to this. I conceive that this presumption is to be found in every code of law which has reason and religion and humanity for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman, and I was happy to hear from Lord Hermand he is inclined to give full effect to it. To overturn this, there must be legal evidence of guilt, carrying home a decree of conviction short only of absolute certainty."

It is well settled that there is no error in refusing to give a correct charge precisely as requested, provided the instruction actually given fairly covers and includes the instruction asked. Tweed's Case, 16 Wall. 504; Railway Co. v. Whitton, 13 Wall. 270. The contention here is that, inasmuch as the charge given by the court on the subject of reasonable doubt substantially embodied the statement of the presumption of innocence, therefore the court was justified in refusing, in terms, to mention the latter. This presents the question whether the charge that there cannot be a conviction unless the proof shows guilt beyond a reasonable doubt so entirely embodies the statement of presumption of innocence as to justify the court in refusing, when requested, to inform the jury concerning the latter. The authorities upon this question are few and unsatisfactory. In Texas it has been held that it is the duty of the court to state the presumption of innocence along with the doctrine of reasonable doubt, even though no request be made to do So. Black v. State, 1 Tex. App. 369; Priesmuth v. State. Id. 480; McMullen v. State, 5 Tex. App. 577. It is doubtful, however, whether the rulings in these cases were not based upon the terms of a Texas statute, and not on the general law. In Indiana it has been held error to refuse, upon request, to charge the presumption of innocence, even although it be clearly stated to the jury that conviction should not be had unless guilt be proven beyond reasonable doubt. Long v. State, 46 Ind. 582; Line v. State, 51 Ind. 175. But the law of Indiana contains a similar provision to that of Texas. In two Michigan cases, where the doctrine of reasonable doubt was fully and fairly stated, but no request to charge the presumption of innocence s made, it was held that the failure to mention the presumption of innocence could not be assigned for error in the reviewing court. People v. Potter, 89 Mich. 353, 50 N. W. 994; People v. Graney, 91 Mich. 648, 52 N. W. 66. But in the same state, where a request to

charge the presumption of innocence was made and refused, the refusal was held erroneous, although the doctrine of reasonable doubt had been fully given to the jury. People v. Macard, 73 Mich. 15, 40 N. W. 784. On the other hand, in Ohio it has been held not error to refuse to charge the presumption of innocence where the charge actually given was "that the law required that the state should prove the material elements of the crime beyond doubt." Moorehead v. State, 34 Ohio St. 212. It may be that the paucity: of authority upon this subject results from the fact that the presumption of innocence is so elementary that instances of denial to charge it upon request have rarely occurred. Such is the view expressed in a careful article in the Criminal Law Magazine for January, 1889 (volume 11, p. 3): "The practice of stating this principle to juries is so nearly universal that very few cases are found where error has been assigned upon the failure or refusal of the judge so to do." But, whatever be the cause, authorities directly apposite are few and conflicting, and hence furnish no decisive solution of the question, which is further embarrassed by the fact that in some few cases the presumption of innocence and the doctrine of reasonable doubt are seemingly treated as synonymous. Ogletree v. State, 28 Ala. 693; Moorer v. State, 44 Ala. 15; People v. Lenon, 79 Cal. 625, 631, 21 Pac. 967. In these cases, however, it does not appear that any direct question was made as to whether the presumption of innocence and reasonable doubt were legally equivalent; the language used simply implying that one was practically the same as the other, both having been stated to the jury.

Some of the text-books, also, in the same loose way, imply the identity of the two. Stephen, in his History of the Criminal Law, tells us that "the presumption of innocence is otherwise stated by saying the prisoner is entitled to the benefit of every reasonable doubt." Volume 1, p. 438. So, although Best, in his work on Presumptions, has fully stated the presumption of innocence, yet, in a note to Chamberlayne's edition of that author's work on Evidence (Boston, 1883; page 304, note a), it is asserted that no such presumption obtains, and that "apparently all that is meant by the statement thereof, as a principle of law, is this: If a man be accused of crime, he must be proved guilty beyond reasonable doubt."

This confusion makes it necessary to consider the distinction between the presumption of innocence and reasonable doubt as if it were an original question. In order to determine whether the two are the equivalents of each other, we must first ascertain, with accuracy, in what each consists. Now, the presumption of innocence is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial*upon a criminal charge, he must be acquitted, unless he is proven to be guilty. In other words,

This

this presumption is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created. presumption, on the one hand, supplemented by any other evidence he may adduce, and the evidence against him, on the other, constitute the elements from which the legal conclusion of his guilt or innocence is to be drawn.

Greenleaf thus states the doctrine: "As men do not generally violate the Penal Code, the law presumes every man innocent; but some men do transgress it, and therefore evidence is received to repel this presumption. This legal presumption of innocence is to be regarded by the jury, in every case, as matter of evidence, to the benefit of which the party is entitled." On Evidence, pt. 1, § 34.

Wills on Circumstantial Evidence says: "In the investigation and estimate of criminatory evidence, there is an antecedent, prima facie presumption in favor of the innocence of the party accused, grounded in reason and justice not less than in humanity, and recognized in the judicial practice of all civilized nations, which presumption must prevail until it be destroyed by such an overpowering amount of legal evidence of guilt as is calculated to produce the opposite belief." Best on Presumptions declares the presumption of innocence to be a "presumptio juris." The same view is taken in the article in the Criminal Law Magazine for January, 1888, to which we have already referred. It says: "This presumption is in the nature of evidence in his favor [1. e. in favor of the accused], and a knowledge of it should be communicated to the jury. Accordingly, it is the duty of the judge, in all jurisdictions, when requested, and in some when not requested, to explain it to the jury in his charge. The usual formula in which this doctrine is expressed is that every man is presumed to be innocent until his guilt is proved beyond a reasonable doubt. The accused is entitled, if he so requests it, to have this rule of law expounded to the jury in this or in some equivalent form of expression."

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.

Concluding, then, that the presumption of innocence is evidence in favor of the accused, introduced by the law in his behalf, let us consider what is "reasonable doubt." It is, of necessity, the condition of mind produced by the proof resulting from the evidence in the cause. It is the result of the proof, not

the proof itself, whereas the presumption of innocence is one of the instruments of proof, going to bring about the proof from which reasonable doubt arises; thus one is a cause, the other an effect. To say that the one is the equivalent of the other is therefore to say that legal evidence can be excluded from the jury, and that such exclusion may be cured by instructing them correctly in regard to the method by which they are required to reach their conclusion upon the proof actually before them; in other words, that the exclusion of an important element of proof can be justified by correctly instructing as to the proof admitted. The evolution of the principle of the presumption of innocence, and its resultant, the doctrine of reasonable doubt, make more apparent the correctness of these views, and indicate the necessity of enforcing the one in order that the other may continue to exist. While Rome and the Mediaevalists taught that, wherever doubt existed in a criminal case, acquittal must follow, the expounders of the common law, in their devotion to human liberty and individual rights, traced this doctrine of doubt to its true origin,-the presumption of innocence, and rested it upon this enduring basis. The inevitable tendency to obscure the results of a truth, when the truth itself is forgotten or ignored, admonishes that the protection of so vital and fundamental a principle as the presumption of innocence be not denied, when requested, to any one accused of crime. The importance of the distinction between the two is peculiarly emphasized here, for, after having declined to instruct the jury as to the presumption of innocence, the court said: "If, after weighing all the proofs, and looking only to the proofs, you impartially and honestly entertain the belief," etc. Whether thus confining them to "the proofs," and only to the proofs, would have been error, if the jury had been instructed that the presumption of innocence was a part of the legal proof, need not be considered, since it is clear that the failure to instruct them in regard to it excluded from their minds a portion of the proof cre ated by law, and which they were bound to consider. "The proofs, and the proofs only," confined them to those matters which were admitted to their consideration by the court; and, among these elements of proof, the court expressly refused to include the presumption of innocence, to which the accused was entitled, and the benefit whereof both the court and the jury were bound to extend him.

In addition, we think the twenty-second exception to the rulings of the court was well taken. The error contained in the charge, which said, substantially, that the burden of proof had shifted, under the circum. stances of the case, and that therefore, it was incumbent on the accused to show the lawfulness of their acts, was not merely verbal,

but was fundamental, especially when considered in connection with the failure to state the presumption of innocence.

There are other objections specifically raised to certain particular counts in the indictment, which we do not deem it necessary to elaborately examine, but to which the condition of the case compels us to briefly allude. Thus, the first count charges the receipt and placing to the credit of the Indianapolis Cabinet Company of a bill of exchange amounting to a certain number of pounds sterling, followed by the averment that the company thereupon drew its check for said amount. It is contended that the check offered to show the payment of this money was for dollars, and not for pounds sterling, and therefore there was a variance between the indictment and the proof. This contention, we think, is without merit. The count charged the misapplication of the sum of $5,802.84, and averred that the misapplication was effected by taking the bill of exchange and paying out that amount; in other words, the whole context, we think, makes plain the charge that the sum which it avers to have been misapplied was credited as the result of taking the bill of exchange, and that it was this sum which was paid out upon the check of the cabinet company. Of course, it is immaterial at what rate or by what rule the pounds sterling were converted into current money. The sum of the misapplication was the amount stated as credited in consequence of having taken the bill of sterling exchange.

On the subject of the counts covering the charge of false entries in the books of the bank, the following requests were made and refused:

"No. 18. In considering the false-entry charges in the indictment, it is necessary that you should know what constitutes a false entry. The books of account of a bank are kept for the purpose of accurately and truly recording the financial transactions of the bank. An entry upon the books of the bank of some alleged transactions which never occurred, or of a transaction which did occur, but which is falsely recorded, would 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 in detail is not a false entry. If, therefore, you find from the evidence, for instance, with reference to the alleged false entry in the 40th count, that the bank had actually given to the cabinet company the credit for $44,000 upon the paper presented by the cabinet company, and had authorized said cabinet company to make its checks against said credit, and that said entry was made upon the books simply as a truthful record of that which had been done, then the same was not a false entry, but was and is a true entry, and the indictment, so far as based upon such entry, cannot be sustained.

"No. 19. If Mr. Haughey, as president of the bank, received from the cabinet company drafts, bills, or notes which, by reason of the insolvency of the parties, or for any other reason, ought not to have been received, and gave to said cabinet company credit therefor, and afterwards caused an entry of such credit to be made upon the books of the bank, then whatever wrong was done in the matter by Mr. Haughey was not in causing such entry to be made, but was, further back, in receiving the paper and giving the credit. Not to have made the entry would have been to commit another wrong, since it was his duty, as president of the bank, to see that the books should speak the exact truth as to that which he had caused to be done; and, however wrongful may have been his previous acts, the making of an exact and truthful record of the same in the books of the bank was and could be no crime, under this statute."

While we consider the charges asked were in some respects unsound, yet the exception reserved to the charge actually given by the court was well taken, because therein the questions of misapplication and of false entries are interblended in such a way that it is difficult to understand exactly what was intended. We think the language used must have tended to confuse the jury, and leave upon their minds the impression that if the transaction represented by the entry actually occurred, but amounted to a misapplication, then its entry exactly as it occurred constituted "a false entry"; in other words, that an entry would be false, though it faithfully described an actual occurrence, unless the transaction which it represented involved full and fair value for the bank. The thought thus conveyed implied that the truthful entry of a fraudulent transaction constitutes a false entry, within the meaning of the statute. We think it is clear that the making of a false entry is a concrete offense, which is not committed where the transaction entered actually took place, and is entered exactly as it occurred.

Judgment reversed and case remanded, with directions to grant a new trial.

(156 U. S. 537)

ARD V. BRANDON.

SAME v. PRATT.

(March 4, 1895.)

Nos. 141, 142.

PUBLIC LANDS -HOMESTEAD ENTRY-DENIAL OF RIGHTS BY LAND OFFICE-SUBSE

QUENT PATENTEE.

Defendant, having the right to enter a certain 160 acres of land as a homestead, went on it for the purpose of making it his home, and has ever since occupied it. His homestead application therefor was wrongfully rejected by the register of the land office, on the ground that the land was within the granted limits of a railroad, was double minimum land, and that 80 acres was the limit of a homestead entry there

on, as to which fact the register was mistaken. Held, that defendant thereby acquires an equity, which he could enforce against the railroad, which thereafter selected the land as indemnity land, and obtained a patent and legal title there to; and that he did not lose his rights by failure to take an appeal from the register, or by making a pre-emption filing, when his homestead application was rejected, on 80 acres of the land, on the advice of the register that he could prove up on this at the end of a year and then homestead 80 acres more. 23 Pac. 646, reversed.

In Error to the Supreme Court of the State of Kansas.

These two cases may be considered together, for the initial fact in defendant's (now plaintiff in error's) claim of right is the same in each case. The actions were commenced by the respective defendants in error as plaintiffs in the district court of Allen county, Kan., the first to recover the possession of the N. 1⁄2 of the N. E. 4 of section 11, township 26, range 20, and the other to recover possession of the W. 1⁄2 of the S. E. 4 of section 2, township 26, range 20. These two tracts, each of 80 acres, adjoin and are so situated as to be the subject of one homestead entry. Rev. St. §§ 2289, 2298.

The first of these tracts was on April 10, 1873, certified by the United States to the state of Kansas, and by it on May 19, 1873, conveyed to the Missouri, Kansas & Texas Railway Company. The second was patented November 3, 1873, by the United States directly to the Missouri, Kansas & Texas Railway Company. The respective plaintiffs hold under conveyances from the railway company.

A jury having been waived, the cases were submitted to the court upon certain admissions and the single testimony of the defendant. No special findings of fact appear in the record, but by both the trial and the supreme courts of the state the facts testified to as well as those admitted were treated as facts in the case. Among the matters admitted were these: "At the time defendant made settlement he was duly competent to make a legal homestead or pre-emption, and has ever since been duly competent and qualified to make a valid homestead entry, and that he still resides on said land, with a wife and six children, and that he has all the required improvements to perfect a homestead or preemption. It is admitted that the W. 1⁄2 of S. E. 4, section 2, 26, 20 E., was selected by the Missouri, Kansas & Texas Railway Company, April 14, 1873, and it was patented to said company the 3d day of November, 1873, under the act of congress of July 26, 1866. The N. 2 of the N. E. 4 of section 11, 26, 20 E., was selected by both companies jointly,-Missouri, Kansas & Texas Railway Company and L., L. & G. R. R.,-August 8, 1872. This tract was approved to the state for the M., K. & T. Co., April 10, 1873, under the act of congress of March 3, 1863. Both tracts were selected as indemnity lands, and both tracts are over 12 miles from both roads,

and lie within the Indemnity limits of both the L., L. & G. and M., K. & T. R. R. Said defendant also testified that when said defendant settled on said land he did it in good faith, and for the sole purpose of making it his homestead."

So much of defendant's testimony as bears upon his original occupation of the 160 acres, and his first transaction at the government land office, is as follows:

"The first work said defendant did on said land was about the last of June, 1866; that he broke about two acres of prairie and three hedge rows on said land, making about five acres in all. Then I went to the U. S. land office at Humboldt, Kan., which was on the 14th day of July, 1866, and there I made out a homestead application for said land, as described, and tendered the application and the land-office fees to the register of the U. S. land office, of which Watson Stewart was register of said land office, and at that times I was a single man and over 21 years of age, a citizen of the United States, and had never had the benefit of the homestead or pre-emption laws of the United States; but said register, Watson Stewart, rejected said application and fees, as he claimed, on the ground that said land was situate within the granted limits of the L., L. & G. R. R., and was double minimum lands, and that he could not let me homestead only 80 acres, as the land was double in price. Said register advised me if I wanted said 160 acres that I could first make a pre-emption filing on 80 acres of land, and put a house on said land within 12 months, and prove up and pay for it at $2.50 per acre, and then I could homestead 80 acres more, and by that plan I could get 160 acres; but said register told me that I could change a pre-emption filing at any time if I wanted to into a homestead; so I told said register, as he would not allow my homestead, I would make a pre-emption filing on part of the land, as he would not let me only on 80 acres; so he made out the filing, and I paid him a fee of $2, which he said was the fee.

"A copy is hereto attached and admitted as in evidence:

"No. 2115. Register's Office, Humboldt, Kansas, July 14th, 1866. I certify that Newton L. Ard has this day filed in this office his notice to claim by right of pre-emption the west half of the southeast quarter of section No. 2, in township No. 26 S., in range No. 20 east, of the sixth principal meridian, in the state of Kansas. $2.50 per acre, within R. R. limits. Watson Stewart, Register.'

"Said words and figures, $2.50 per acre, within R. R. limits,' being written in red ink transversely across the face of the certificate."

It also appears from his testimony that subsequently, and in the fall of 1866 and the spring of 1867, he did further work on the land, and built a house thereon; that about July 1, 1867, he again went to the land office, but

was told by Col. N. S.*Goss, then the register, that he could neither change his pre-emption into a homestead entry nor prove up under the pre-emption law. In 1872 he made formal application to prove up on the land, but his application was denied by the local land officers. From this denial he prosecuted an appeal to the commissioner of the general land office, and thence to the secretary of the interior, by both of whom the decision of the local land officers was affirmed.

The judgments of the district court were in favor of the plaintiffs, which judgments were afterwards affirmed by the supreme court of the state on the ground that the legal title passed by the instruments offered in evidence through the railway company to the plaintiffs, and that the decision of the land departinent upon the facts of defendant's occupation and improvements was conclusive as against his equitable rights. To reverse these judgments the defendant sued out writs of error from this court.

Wm. Lawrence, for plaintiff in error. A T. Bullon, A. B. Browne, and Geo. R. Peck, for defendants in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

As these lands were not within the place limits of either the Leavenworth, Lawrence & Galveston Railroad or the Missouri, Kansas & Texas Railway, and as they were within the indemnity limits of both roads, it is not open to question that the certification by the land department to the state of Kansas, and the conveyance by it to the railway company of the one tract, and the patent directly from the United States of the other, operated to transfer the legal title to these two tracts to the railway company; and also that the United States has no cause of action against the railway company or its grantees to disturb the legal title thus conveyed. Kansas City, L. & S. K. R. Co. v. Attorney General, 118 U. S. 682, 7 Sup. Ct. 66; U. S. v. Missouri, K. & T. Ry. Co., 141 U. S. 358, 12 Sup. Ct. 13. But it is equally clear, under the authority of the last-cited case, as well as of many others, that no adjudication against the government in a suit by it to set aside a patent estops an individual not a party thereto from thereafter setting up his equitable rights in the land for which the patent was issued. Referring to allegations in the bill of the United States in that case of matters very like those presented here, Mr. Justice Harlan, speaking for the court, said (page 379, 141 U. S., and page 13, 12 Sup. Ct.): "If the facts are as thus alleged, it is clear that the Missouri-Kansas Company holds patents to land both within the place and indemnity limits of the Leavenworth road which equitably belong to bona fide settlers who acquired rights under the homestead and pre-emption laws, which

were not lost by reason of the land department having, by mistake or an erroneous interpretation of the statutes in question, caused patents to be issued to the company."

The question, therefore, is whether the cases disclose equitable rights in the defendant superior to the claims of the railway company. If his rights are only those which spring from his pre-emption entry and subsequent occupation of the lands, it may well be, as held by the supreme court of the state, that the decisions of the land department upon the questions of fact are conclusive against him. But we are of the opinion that the testimony shows a right anterior to his pre-emption entry,-a right of which he was deprived by the wrongful acts of the local land officer, and which he did not forfeit or lose by virtue of his subsequent efforts to pre-empt the land. According to this testimony, he had commenced improving the premises prior to July 14, 1866. He was qualified under the laws of the United States to make a homestead entry. The land was not within the place limits of either road, and had not been withdrawn by the land department from entry and settlement, for the orders of withdrawal were not made until March 19 and April 30, 1867. He had, therefore, on July 14th, when he went to the land office, the right to enter the entire 160 acres as a homestead. This right he de manded. He made out a homestead application for the land as described, and tendered the application and the land-office fees to the register of the land office; but the regis ter rejected the application, giving as a reason therefor that the land was within the granted limits of the Leavenworth, Lawrence & Galveston Railroad, and was double minimum lands, and that 80 acres was the limit of homestead entry of such lands. to this matter of fact the register was mistaken, and his rejection of the application was wrongful, and denied to defendant that homestead entry which under the law he W was then entitled to. In the case of Shepley v. Cowan, 91 U. S. 330, 338, this court said (after referring to the cases of Frisbie v. Whitney, 9 Wall. 187, and the Yosemite Valley Case, 15 Wall. 77):

As

"But while, according to these decisions, no vested right as against the United States is acquired until all the prerequisites for the acquisition of the title have been complied with, parties may, as against each other. acquire a right to be preferred in the purchase or other acquisition of the land, when the United States have determined to sell or donate the property. In all such cases, the first in time in the commencement of proceedings for the acquisition of the title, when the same are regularly followed up, is deemed to be the first in right. So, in this case, Chartrand, the ancestor, by his previous settlement in 1835 upon the premises in controversy, and residence with his family, and