cussion the court cited Section 192 of Wigmore on Evidence in the following words:

"This principle has long been accepted in our law. That the doing of one act is in itself no evidence that the same or a like act was again done by the same person has been so often judicially repeated, that it is a commonplace."

A very exhaustive discussion then follows, citing the cases State vs. Lapage, 57, N. H., 245; Kansas vs. Adams, 20, Kansas, 311; Commonwealth vs. Jackson, 132, Mass., 16; State vs. Saunders, 14, Oregon, 300; Booth vs. U. S., 139, Federal 252; People vs. Molineaux, 168, N. Y., 264; 1st Wigmore on Evidence, Section 192, and the court then proceeds: "Of course there are many instances in which evidence of the commission of other offenses is necessarily admissible. One instance, often referred to in the books, is where the commission of one offense is a circumstance tending to show the commission of the offense for which the defendant is on trial. The fact that the defendant charged with homicide stole an axe or a gun with which the killing was done; the stealing of the weapon, though a distinct offense, would necessarily be, in the very nature of the case, competent evidence against him on his trial for homicide. The passing of other counterfeit money of the same character as that which the defendant is charged with passing, in the case on trial, would be admissible to show guilty knowledge or intent." Register vs. U. S., 186, Federal 624. Conviction reversed in Talliaferro vs. U. S. 213 Fed. p. 25, because evidence of defendant's house being an assignation place was omitted when she was on trial for selling beer.

§ 27. Instructions of the Court.-Section 722 of the Revised Statutes of the United States do not in any measure bind the Federal Judge in the method or form of the instructions he delivers to the jury. The statutes and decisions of the state within which he holds his Court are not binding upon him in the matter of procedure in criminal cases, and he may deliver a written or an oral charge as he sees fit. In re Strupp, 12 Blatchf., 509; U. S. vs. Egan, 30 Federal, 608. The personal conduct and administration of the judge in the discharge of his separate functions is neither practice, pleading, nor a form nor mode of procedure within the meaning of the statute, and a state statute regulating the

manner in which the Court shall charge the jury is not within this statute. 4 Federal Statute, 567; Mudd vs. Burrows, 91 U. S., 441; Indianapolis, etc., vs. Horst, 93 U. S., 300; Grimes Dry Goods Co., vs. Malcolm, 164 U. S., 490; Lincoln vs. Power, 151 U. S., 442; U. S. Mutual Association vs. Barry, 131 U. S.

In Tennessee vs. Davis, 100 U. S., 257, the Court held with reference to Section 722, that, "examined in the most favorable light, the provision is a mere jumble of Federal Law, Common Law, and State Law, consisting of incongruous and irreconcilable regulations, which, in legal effect, amount to no more than a direction to a judge sitting in such a criminal trial to conduct the same as well as he can, in view of the three systems of criminal jurisprudence, without any suggestion whatever as to what he shall do in such an extraordinary emergency, should he meet a question not regulated by any one of the three systems." At Common Law, it is entirely within the discretion of the trial judge whether instructions to the jury shall be in writing; and in the absence of statutes providing otherwise, the whole charge may be delivered orally, and the action of the trial judge in so doing will not be reviewable on appeal or error. Smith vs. Crichton, 33 Maryland, 103; Baer vs. Rooks, 50 Federal, 898; Gulf Ry. Co. vs. Campbell, 49 Federal 354.

The most careful way, however, is in writing, and there is little doubt that any judge, upon proper request, would gladly charge the jury in writing. If special instructions be desired, they must be requested in writing before the retirement of the jury, and the best practice is to give them to the judge before he delivers his charge. All exceptions to the Court's charge must be in open Court, and before the jury retires, and no bill will be granted, unless such action is taken.

§ 27a. Exception to Charge After Jury Retired.In Coffin vs. U. S., 156; U. S., 445, Supreme Court reversed upon exception to charge reserved after the jury had retired. Such procedure having been by permission of the Court and prosecuting officer that defendant's counsel might have time to examine the charge and make his objections afterward.

§ 28. Opinion of Court.-A long line of decisions supports beyond contradiction the right and, under some circumstances, even the duty of the judge to express his opinion upon the testimony, which expression, in most state jurisdictions would be a charge upon the weight of the evidence, and, therefore, reversible error; but it is well settled that the Federal judge has this right. In Simmons vs. United States, 142 U. S., 148, the Court said: "It is so well settled by a long series of decisions of this Court that the judge presiding at a trial, civil or criminal, in any Court of the United States, is authorized, whenever he thinks it will assist the jury in arriving at a just conclusion, to express to them his opinion upon the questions of fact, which he submits to their determination, that it is only necessary to refer to a few cases; namely, Vicksburg, etc., vs. Putnam, 118 U. S., 545; United States vs. Philadelphia Company, 123 U. S., 113; Lovejoy vs. United States, 128 U. S., 171." These decisions have been followed repeatedly. Sebeck vs. Plattseutsche, 124 Federal, 18; Ching vs. United States, 118 Federal, 543. In the Ching case, the Court held that it was not error for the trial judge to express an opinion as to what the verdict should be, if afterward he qualified his statements, and in Breese vs. United States, 106 Federal, 686, it was held that an expression of the judge that the defendant is guilty was not error, he having cautioned the jury that they were the sole judges, and that his opinion should not govern. See also Doyle vs. Union Pacific R. R. Co., 147 U. S., 430; Allis vs. United States, 155 U. S., 123; Wiborg vs. United States, 163 U. S., 556; Woodruff vs. U. S., 58 Federal, 767; Spurr vs. U. S., 87 Federal, 708; Hart vs. U. S., 84 F., 799; Smith vs. U. S., 157 F., 722.

§ 28a. The Court is Not a Mere Presiding Officer.His function is to ascertain truth and express his views and insure an orderly progress of the trial. Littenbach vs. U. S. 202, Federal 379, but he must be careful in the expression of an opinion, Foster vs. U. S. 188, Federal 305, though he have the power to express an opinion, Young vs. Corrigan, 208 Federal 431. See also Sections 24 and 24a.

§ 29. Court Cannot Comment on Lack of Evidence. -One well marked limitation is that pointed out in Mullen vs. United States, 106 Federal, 892, in a decision by the Cir

cuit Court of Appeals for the Sixth Circuit, which holds in substance that where no testimony has been offered as to the previous good character of the accused, the presumption of such good character exists in favor of the accused, of which, upon a request to that effect, a jury should be instructed, and the Supreme Court, in Coffin against United States, 156 U. S., 432, having said that the presumption of innocence stands as evidence in favor of the accused, as does also the presumption of good character stand as evidence. Such presumptions existing it is the duty of the Court to let the jury know of such presumptions, and it was, therefore, error for the trial judge to tell the jury that the defendants, whether of good character or bad character, were presumed to be innocent, because the law presumed them to be of good character.

§ 30. Further Limitations.-In Hickory vs. United States, 160 U. S., 408, and in Starr vs. United States, 153 U. S., 616, the Supreme Court said in substance that where there is sufficient evidence upon a given point to permit the point to go to the jury, it is the duty of the judge to submit it calmly and impartially, and if the expression of an opinion upon such evidence becomes a matter of duty, under the circumstances of the particular case, great care should be exercised that such expression should be so given as not to mislead, and especially that it should not be onesided, and all deductions and theories not warranted by the evidence should be studiously avoided. See also Hicks vs. United States, 150 U. S., 442.

Were there testimony, therefore in the record, touching the question of character, it would not be error for the judge to assist the jury by such views as he entertained respecting character, its formation and effect, provided he then leave the jury free to decide the disputed matter of fact for themselves. See also McKnight vs. United States, 97 Federal, 210.

§ 31. Verdict.-A verdict in a criminal case which finds the defendant guilty upon certain counts of the indictments on which the trial was had, not guilty upon others, and which reports a disagreement as to the remaining counts, is entirely proper, and it is not error to receive such verdict and

to enter judgment thereon as to the counts which were finally disposed of. Dolan vs. U. S., 133 F., 440.

32. Sentence and the Correction Thereof.-Certain sections of Chapter IX. of the 1878 statutes, relate to the place and term of sentence. Each Federal district is not provided with a Federal prison, but the statutes of all of the states of the Union provide for the reception of Federal prisoners upon the payment terms therein prescribed. Section 5541 permits the Court to sentence the prisoner, if the term be longer than a year, to either a jail or a penitentiary. In this connection, it must be understood that a sentence must be longer than one year before the Court can direct that it shall be served in the penitentiary. Haynes vs. United States, 101 Federal, 817; in re Bonner, 151 U. S., 252. 5542 leaves it optional with the Court in imposing sentence to hard labor, as to whether it shall be jail or penitentiary.

There is no direct Federal statute exacting when convicted prisoners shall be sentenced. The authority for the sentence of a convict, therefore, under the Federal system, must be found in the general proposition that the Federal Courts are authorized to pronounce all decrees and judgments necessary. Specific penal statutes, with fixed terms of punishment, demand, therefore, sentence by the Court upon the convicted person.

32a.

Single Sentence What Is. District Judge Van Fleet in U. S. vs. Thompson, 202, Federal, 346, pronounced a judgment in a criminal case which designated different and consecutive periods of imprisonment of a defendant on different counts in the same indictment, a single sentence for the aggregate period and cited authorities to support his position, distinguishing the doctrine laid down in re Mills, 135 U. S., 263. See Section 34.

§ 33. No Authority to Suspend Sentence.-For years, and perhaps now in some of the Districts, judges have suspended sentence, when in their opinion such action was called for by the facts of the particular case. Such practice is, beyond question it seems, the exercise of pardoning power, and the usurpation by the judiciary of a power especially inhibited to them, and belonging to an entirely different branch