tent as in the case of receiving. To aid in concealing stolen property, a party must do some act with intent to assist the thief or other person, then in the guilty possession of the propery, in concealing it, or furtively disposing of it, with a like intent as in the case of receiving. The possession of property by the defendant for which the stolen gold dust was exchanged-as, for instance, gold coin for which it may have been exchanged by Harmison at the Philadelphia mint will not support the charge in the indictment. The possession of such coin would not be the possession of the stolen property, and would not of itself tend to prove the defendant guilty of the charge in the indictment. But if the stolen dust was made into coin, this circumstance would not change its identity, and the possession of such coin would be the possession of the stolen property.

§1113. To support an indictment for receiving stolen property, it must appear that the offense was committed in the district in which the indictment was found.

But this cannot be a material question in this case because it is admitted that, if this dust was changed into or for coin by Harmison, it was done at the Philadelphia mint. Now the defendant cannot be convicted of the crime. charged in the indictment upon proof of receiving, concealing, or aiding in concealing, this dust or the coin into which it may have been changed beyond this district without the state of Oregon. Evidence has been given to you in regard to the conduct and declarations of Harmison and the defendant beyond this district, during their journey to Texas and back again, but only for the purpose of throwing light upon their acts and conduct while in this district. It being incumbent on the United States to show that this dust was stolen from the mails, instead of introducing the record of Harmison's conviction of the theft, in the first instance, the prosecution saw proper, as it had the right to do, to go into the original proof of the fact. In so doing the acts and declarations of Harmison, both within and without this state, tending to prove that the larceny was committed by him, have been given to you. But you are to remember that this evidence was only received for the purpose of proving the theft of the property, and that the defendant is not to be affected by the acts or declarations of Harmison, only so far as it appears the former were known to her or the latter were made to her, or in her presence, and assented to by her.

1114. Presumption of innocence.

Although you should find that the defendant knew from Harmison, or otherwise, that this dust had been stolen from the mails, that itself is not sufficient to convict her of the crime charged. And, in this connection, it may be material for you to consider the sex of the defendant for the purpose of determining whether her flight, and subsequent association with Harmison, was as his accomplice in the crime or his paramour. Proof that the defendant fled the country with the thief as his wife is not sufficient to sustain the charge in the indictment. A woman who deserts her husband and flees the country with another man who has committed larceny, ought not to complain if a jury fieds her guilty of receiving, or aiding in concealing, the property stolen by her paramour, upon circumstances which would be deemed insufficient in the case of an honest woman. But you are not to convic the defendant of the crime charged in the indictment because she appears to are been guilty of the crime. of adultery. The defendant's illicit relation with Harmison may have afforded her favorable opportunities, and offered strong temptations, to assist him in

concealing the fruits of his crime, but it is not sufficient of itself to establish the fact that she did so assist him. But whatever her conduct or condition, the law presumes that the defendant is innocent of the crime charged against her until the contrary is proven beyond a reasonable doubt. In this respect, and so far as the crime charged in the indictment is concerned, she stands before the law as the peer of any woman, however virtuous or honorable. This presumption of innocence is the shield which the law interposes between her and her accusers, and it cannot be thrust aside or beaten down except by the force of evidence which shall satisfy your minds, beyond a reasonable doubt, of her guilt.

§ 1115. Reasonable doubt defined.

A reasonable doubt is a substantial one - not a mere whim, caprice or speculation. It arises out of the case, from some defect or insufficiency in the evidence which makes a juror hesitate and feel that he is not satisfied. Mathematical certainty is not attainable in criminal trials. If you are morally certain of the defendant's guilt you should say so by your verdict, but unless you are, however you may suspect it, you must say not guilty. You are the judges of the credibility of the witnesses and the weight to be given to their testimony.

§ 1116. Circumstances properly affecting the credibility of witnesses.

The evidence of Cardwell, tending to show that the defendant attempted to suborn him to swear falsely on the trial of Harmison, was admitted without objection, but it is my duty to say to you that it is not relevant or competent proof of the crime charged in this indictment. It may tend to show that the defendant was willing to run any risk, or even commit a crime, to save her paramour from conviction and punishment, but it does not prove that she committed the crime for which she is on trial. Montgomery, the late husband of the defendant, is contradicted by several witnesses and by the reporter's notes of his testimony on Harmison's trial. Besides, it appears from his own evidence that he knew of the theft soon after it was committed, in October, 1874, and had had the gold dust in his buggy and in his house without disclosing the fact. Besides, Cardwell, a witness called by the prosecution, testifies that Montgomery saw him at Canyonville, about the time the warrants were sworn out for Harmison and the defendant, and urged upon him the necessity of their- that is, Montgomery and Cardwell - making up a good story about the robbery, and sending IIirmison and the defendant "up." Upon this trial he testified that when Harmison left this dust for him at the toll-house the defendant said he was foolish not to take it, when he spoke of their little child, and said it would ruin them. Upon cross-examination he stated that he testified to this conversation on Harmison's trial, but it appears from the reporter's notes that he did not. The witness was the husband of the defendant, and she deserted him for Harmison. He may entertain unkind feelings towards her on this account, he may desire, as he said to Cardwell, according to the latter's testimony, to "send her up." All these circumstances go to affect the credibility of this witness. What weight shall be given to his testimony you must judge, always remembering that a witness who is intentionally false in a material part of his testimony ought to be at least distrusted as to the rest of it. The postal agent, Mr. Underwood, who acted as deputy marshal in pursuing and arresting Harmison and the defendant at Seguin, Texas, and bringing them here for trial, testifies to conversations and confessions of the defendant all along the route from there here. This kind of testimony should be received

with caution. The witness testified in a very indefinite manner as to the time and place of these conversations-giving them apparently in his own language and not always in the same words. After being on the stand one afternoon, and apparently going over the whole subject, he came back the next morning and testified to important conversations with the defendant in Texas, and between there and St. Louis, which he had not stated the day before, or apparently remembered. Besides, in stating a material part of a particular conversation, he first said she used the word "they," and afterwards said she used "we"-a change which makes a material difference in the sense and effect of the admission. I make these suggestions not by way of calling in question or casting doubts upon the integrity of the witness, but that his testimony may be received with due caution. Apparently this prosecution was set on foot by him, and he has since been earnestly engaged in the arrest of Iarmison and the defendant and the pursuit of evidence to secure their conviction, and he is liable to be unconsciously influenced by his zeal in the premises and the very natural desire of success in what he has undertaken.

$1117. The law as to confessions as evidence.

Upon the subject of verbal confessions, I read to you, as a part of my charge, from 1 Greenl. Ev., sections 214, 215, as follows: "The evidence of verbal confessions of guilt is to be received with great caution. For, besides the danger of mistake, from the misapprehension of witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory, it should be recollected that the mind of the prisoner himself is oppressed by the calamity of the situation, and that he is often influenced by motives of hope or fear to make an untrue confession. The zeal, too, which so generally prevails, to detect offenders, especially in cases of aggravated guilt, and the strong disposition, in the persons engaged in the pursuit of evidence, to rely on slight grounds of suspicion, which are exaggerated into sufficient proof, together with the character of the persons necessarily called as witnesses, in cases of secret and atrocious crime, all tend to impair the value of this kind of evidence, and sometimes lead to its rejection, when, in civil actions, it would have been received." The weighty observation of Mr. Justice Foster is also to be kept in mind, that this evidence is not, in the ordinary course of things, to be disproved by that sort of negative evidence by which the proof of plain facts may be, and often is, confronted.

Subject to these cautions in receiving them and weighing them, it is generally agreed that deliberate confessions of guilt are among the most effectual proofs in the law. Their value depends on the supposition that they are deliberate and voluntary, and on the presumption that a rational being will not make admissions prejudicial to his interest and safety, unless when urged by the promptings of truth and conscience. Such confessions, so made by a prisoner, to any person, at any moment of time, and at any place subsequent to the perpetration of the crime, and previous to his examination before the magistrate, are at common law received in evidence, as among proofs of guilt. The only direct evidence in the case which brings this defendant into what might be considered possession of this dust, in Oregon, is that of Montgomery, concerning the dust being left at the toll-house, near Canyonville, where he and she lived in the spring of 1875. According to his account, he came home one day and found his wife, the defendant, lying on the lounge in the front room, when she laughed and said: "Dan Smith (Harmison) has been here and left you a present." He asked what it was, and she replied by rising up and leading him.

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into the back room, and pointing him to a sack in the potato-box. He put his hand into the sack, felt the cans of dust, and drew one of them in sight, when he said: "It is that d-d infernal dust! Give it back to him, and have nothing to do with it." The defendant urged him to keep the dust; but he declined, saying it would be the ruin of them, when she promised to return it, and Montgomery never saw it afterwards. Upon this evidence, assuming it to be true, I do not think, as a matter of law, that the defendant was then and there guilty of the crime charged in the indictment. A package is brought to the house and left with her for her husband, which she delivered to him, and he refuses to accept it, and directs her to return it to the person who brought it, which she does. This alone does not make her guilty of receiving, concealing, or aiding in the concealing, of stolen property, even if we assume, as is probable, that she knew these cans of dust had been stolen from the mails. And although it was wrong to advise her husband to take it (if she did), yet she did not hereby commit the crime with which she is charged.

Gentlemen of the jury, the case is now submitted to you to say upon your oaths, under the law and evidence given you in court, whether the defendant is guilty or not. Take the law so given you, and apply it to the facts, as you may find them from the evidence, and make up your verdict accordingly. (Verdict, not guilty.)

XVI. RESISTING AN OFFICER.

[See §§ 232, 612, 1218, 1468, 2644.]

SUMMARY - Resistance after property is seized on attachment, § 1118.- Resisting a person in charge of property, § 1119.- When owner of property may not resist, though the writ does not run against him, § 1120.- What constitutes the offense, § 1121.

§ 1118. Under a statute which punishes any person who shall resist or obstruct an officer in serving or executing the process of a court, a person who resists the officer after property is taken into his hands on a writ of attachment is guilty, for such holding of the property is executing the process within the meaning of the statute. United States v. McDonald, § 1122-1127.

§ 1119. Resistance to a person having custody of property seized by a marshal, and who acts under the direction of the marshal, is resisting the marshal, even though such person is not a regularly sworn deputy. Ibid.

§ 1120. Where an officer, under a writ of attachment in favor of one person, and acting in good faith, seizes the property of another person, having reasonable grounds for believing that the property belongs to the person against whom the writ runs, the owner has no right to resist the officer in serving or executing the process. But if the officer acts in bad faith and without such reasonable grounds, then taking forcible possession of the goods by the owner or agent is not resistance to an officer which the law punishes. Ibid.

§ 1121. Resistance to an officer is to oppose him by direct, active, and more or less forcible means. It means something more than to hinder, or interrupt, or prevent, or baffle, or circumvent. The gist of the offense of resisting is personal resistance of the officer; that is, personal opposition to the exercise of official authority or duty by direct, active, and in some degree forcible means. Where a statute punishing this offense uses the words " 'obstructs, resists or opposes," the offense is not limited to resistance alone, but it includes, also, wilful acts of obstruction or opposition, and does not necessarily imply the employment of direct force. It includes any passive, indirect or circuitous impediments to the service or execution of process. Ibid. See §§ 1130, 1137.

[NOTES.-See §§ 1128-1168.]

UNITED STATES v. MCDONALD.

(Circuit Court for Wisconsin: 8 Bissell, 439-452. 1879.)

Charge by DYER, J.

STATEMENT OF FACTS.- This is an indictment which charges the defendants with the offense of obstructing and resisting an officer of the United States in

the service and execution of process issued from the United States circuit court. The allegations of the indictment in brief are, that on the 11th day of January, 1879, one Isaac Cook, a citizen of Missouri, commenced in the circuit court of the United States, for this district, an action against the defendant McDonald, to recover a certain demand, in which action a summons was issued and placed in the hands of the marshal for service; that a writ of attachment, commanding the marshal to attach the property of the defendant McDonald, was also issued in the same action, out of and under the seal of the court, the plaintiff in the action having made or procured to be made the affidavit and undertaking required by law in such cases; and that the writ of attachment, affidavit and undertaking were placed in the hands of the marshal in connection with the summons for service and execution.

That on or about the 16th day of January, the marshal caused and directed two of his deputies to proceed to the premises of the defendant McDonald to serve the summons and execute the writ of attachment, and that they did, on or about that day, serve the summons, and attach and take into custody a certain quantity of personal property, found by them upon the premises of the defendant McDonald, as his property, by virtue of the writ of attachment; that an inventory and appraisal of the attached property were made, and that thereafter copies of the writ of attachment, affidavit, undertaking and inventory were served upon McDonald; that at the time of such service one of the marshal's deputies, W. A. Nowell, made an arrangement with the defendant McDonald to leave the attached property on his premises in the charge and custody of one Jas. II. Hubbard, who was there present at the special request and by direction of Deputy Nowell, and that such arrangement was agreed to by the defendant McDonald and was acted upon by the deputy, and that the property was left upon the premises in the special care and custody of Hubbard. It is then alleged that on or about the 22d day of January, Hubbard was specially authorized and directed by the marshal to keep possession of the attached property, and to protect the same, and his letter of authority and direction is set out in the indictment. It is further charged that on the 27th day of January, the attached property being in the care and custody of the marshal in the manner alleged, the defendants did forcibly, wilfully and unlawfully take and remove a large portion thereof from the possession of the marshal and of Hubbard, against and in defiance of the authority of the marshal, and so it is charged that they did knowingly and wilfully obstruct, resist and oppose an officer of the United States in serving and attempting to serve and execute a mesne process of the United States, namely, the writ of attachment before mentioned. This is the first count of the indictment. The second count, in more abbreviated form, charges the commission of a similar offense by the defendants on the 27th day of January, and is understood to be but a repetition. of the charge contained in the first count.

§ 1122. It is an offense to resist an officer attempting to execute process; and holding attached property after seizure is execution of process.

The statute of the United States upon which this indictment is based is as follows: "Every person who knowingly and wilfully obstructs, resists or opposes any officer of the United States in serving or attempting to serve or execute any mesne process or warrant, or any rule or order of any court of the United States or any other legal or judicial writ or process" (R. S., sec. 5398), shall be punished in the manner prescribed by the statute. And the question is, Have the defendants committed this offense and so made themselves amen