court on a writ of error held the ruling to be proper. Reynolds v. United States, 8 Otto, 145 (SS 854-865).

§ 2005. On a trial for polygamy, persons living in polygamy are not competent jurors, and it matters not on what form of challenge they were set aside, whether for cause or favor. Ibid.

2006. Province of the jury. A jury in a criminal case have nothing to do with the punishment prescribed by law for the offense charged, or the real or apparent hardship of the case. United States v. Dodd,* 15 Int. Rev. Rec., 9; United States v. Bittinger,* 21 Int. Rev. Rec., 342. See SS 1915-19.

$ 2007. A jury has nothing to do with the consequences which may follow conviction. United States v. Blaisdell,* 3 Ben., 132.

§ 2008. The act of congress of May, 1790, ch. 9, § 22, declaring that the defendant, on conviction for a violation of its provisions, shall be imprisoned not exceeding twelve months and fined not exceeding three hundred dollars," the jury are to find the verdict and the court to assess the fine. And the state practice requiring the jury to assess the fine will not be followed. United States v. Mundell,* 1 Hughes, 415; 6 Call (Va.), 245.

§ 2009. Questions of jurisdiction are ordinarily for the court; but where the jurisdiction depends upon the existence of facts, the jury may, under the direction of the court, affirm through the medium of a verdict that there is or is not jurisdiction. United States v. Sanders, Hemp., 483.

§2010. In a criminal prosecution the jury are bound to presume that all the testimony which is pertinent to the issue in question and favorable to the defendant has been submitted to them. United States v. Mayer,* Deady, 127.

§ 2011. - as to issues of law and of fact.- The court is bound to declare the law, whenever it is called upon, both in civil and in criminal cases; but in the latter, it is the duty of the court to inform the jury that they are not obliged to take its direction as to the law. United States v. Hodges,* 2 Wheeler, 477. See § 1915.

§2012. In criminal cases the jury is the judge both of the law and of the fact, in the sense that if they acquit the accused their judgment therein is final. While it is not absolutely bound by the opinion of the court as to the law, the interests of justice are better served by its doing so. United States v. Wilson,* Bald., 78.

§2013. Under the constitutional provision that "the trial of all crimes, except in cases of impeachment, shall be by jury," it is the duty of the court to decide every question of law which arises in a criminal trial. If the question touches any matter affecting the course of the trial, such as the competency of a witness, or the admission of evidence, the jury receive no direction concerning it. If the question of law enters into the issue, and forms part of it, the jury are to be told what the law is, and they are bound to consider that they are truly told, that law they are to apply to the facts, and in this sense they pass on both the law and facts. United States v. Morris,* 1 Curt., 23.

§ 2014. The jurors are the judges of the facts in a criminal case, and, unless the evidence greatly preponderates against the verdict, courts are exceedingly cautious in interfering with the verdict of the jury. Leschi v. Washington Territory,* 1 Wash. Ty, 13.

§ 2015. Juries are not to look at the consequences of conviction. That is a matter for the law; and the jury has no power to repeal, alter, dispense with or annul its provisions. The degree of the punishment cannot alter the weight of the evidence or the meaning and words of the law, and a jury is bound to render its verdict by these alone, be the punishment what it may. United States v. Wilson,* Bald., 78.

§ 2016. A jury in a criminal case is bound by the decision of the supreme court of the United States as to the constitutionality of the law upon which the prosecution is founded. United States v. Shive,* Bald., 510.

2017. The question whether one fact can be inferred from another is a question of law, and to be decided by the court; and if the inference can, in law, be drawn, it ought to be drawn by the jury, if there be no contradictory evidence. United States v. Stockwell,* 4 Cr. C. C., 671.

2018. In a criminal case, the jury have a right to give a general verdict, and in doing so must, of necessity, decide upon the law as well as the facts of the case. United States v. Fenwick,* 4 Cr. C. C., 675.

§ 2019. It is the duty of the jury in every criminal case to accept the law as laid down to them by the court. If the jury were at liberty to settle the law for themselves, the effect would be, not only that the law itself would be most uncertain, from the different views which different juries might take of it, but in case of error there would be no remedy or redress by the injured party, for the court would have no right to review the law as it had been settled by the jury. United States v. Battiste, 2 Sumn., 243; United States v. Doyle,* 6 Saw., 612; United States v. Anthony, 11 Blatch., 210.

§ 2020. Although the jury have the power to disregard the instructions of the court, and in case of acquittal their decision is final, yet they have no moral right to adopt their own view of the law. It is their duty to take the law from the court and apply it to the facts of the case. United States v. Greathouse, 4 Saw., 457 ( 1183-94).

§ 2021. Juries, in criminal cases, have not the right to decide any question of law. United States v. Riley,* 5 Blatch., 204.

§ 2022. It is no error to require the counsel to argue the questions of law, in a criminal case, to the court instead of the jury. Argument on questions of law should be addressed to the court; on questions of fact, to the jury. Ibid.

§ 2023. The counsel are not permitted to argue a question of law to the jury which has been submitted by both parties to the court, and by them decided, and the jury instructed thereon. The only way in which the jury can decide the law of a case is by giving a general verdict, which necessarily involves the question of law as well as of fact. But if the instruction actually given exceeds the matter submitted to the court, and involves questions of law not in-volved in the instruction asked, the counsel may argue to the jury any such questions not involved in the instructions asked. United States v. Watkins,* 3 Cr. C. C., 441.

§ 2024. Counsel will not be permitted to argue a point of law to the jury against an instruction which has already been given, although the counsel have not asked the opinion of the court on the point. The jury in a criminal case have a right to find a general verdict, which includes the question of law as well as of fact; but they have no right to decide the question of law, disconnected from the fact. United States v. Columbus,* 5 Cr. C. C., 304.

§ 2025.

as to weight of evidence and credibility of witnesses.-The jury are the judges of the weight of the evidence and the credibility of the witnesses. United States v. Faulke,* 6 McL., 349; United States v. Coons,* 1 Bond, 1; United States v. Harries,* 2 Bond, 311; United States v. Smith, 2 Bond, 330; United States v. Cole,* 5 McL., 513; United States v. Dodge,* Deady, 186; United States v. Babcock,* 3 Dill., 619. But they must act carefully and with judgment in exercising their discretion, especially in the case of hostile and friendly witnesses. United States v. Mayer,* Deady, 127.

§ 2026. The jury are not bound to believe the testimony of the accused simply because it is uncontradicted. The jury are the judges of the credibility of witnesses. United States v. Borger, 19 Blatch., 249 (§§ 2687–90).

$ 2027. In judging of the credibility of a witness, the jury will always consider the circumstances under which he testifies, and under which his statements at different times were made. United States v. Brown,* 4 McL., 142.

§ 2028. In a criminal case the jury is the sole judge of the degree of credit to be given to the testimony of witnesses, and the inferences, if any, to be drawn from the facts proved. Yet the power of the jury must not be arbitrarily exercised, but must be subordinate to the rules of evidence. United States v. Dodge,* Deady, 186.

§ 2029. To the jury exclusively belongs the duty of weighing the evidence and determining the credibility of witnesses. With that the court has absolutely nothing to do. The degree of credit due to a witness should be determined by his character and conduct; by his manner upon the stand; his relation to the controversy and to the parties; his hopes and fears; his bias or impartiality; the reasonableness, or otherwise, of the statements he makes; the strength or weakness of his recollection, viewed in the light of all the other testimony, facts and circumstances of the case. If any of the witnesses are shown knowingly to have testified falsely on the trial, touching matters involved, the jury are at liberty to reject the whole of their testimony on the trial of the case. United States v. Babcock,* 3 Dill., 619. § 2030. If the jury find that a witness has deliberately testified falsely in a material point, it has a right to believe that he is not worthy of credit in any particular. United States v. Blaisdell,* 3 Ben., 132.

§ 2031. In judging of the credibility of witnesses, the jury should consider the motives by which they are influenced and the manner in which they conducted themselves on the examination. United States v. Buchanan,* Hughes, 487.

§ 2032. The credibility of witnesses must be considered and judged of by the jury, and the jury may consider and give weight to the reputed good character of the defendant in connection with the other facts in the case. United States v. Emerson, 6 McL., 406.

§ 2033. Where the defendant in a criminal case has voluntarily made contradictory statements, such statements cannot, as in the case of an ordinary witness, have the effect of merely neutralizing his testimony, but the jury must be left to draw therefrom such inferences as in view of all the circumstances may seem just, and they may properly infer, if truth is withheld, that it was done because the truth might not be favorable to innocence. United States v. Gleason,* Woolw., 128.

§ 2034. Taking case from jury.—Though the right to a trial by jury in a criminal case is a constitutional right, yet in cases where all the facts are conceded, or they are proved and

uncontradicted by evidence, the court has the right to take the case from the jury and decide it as a matter of law. Un ted States v. Anthony, 11 Blatch., 200.

§ 2035. Where a female was indicted under the act of May 31, 1870, for voting at an election for representatives in congress, in New York, where none but males have the right to vote for members of the most numerous branch of the legislature, and the fact that she voted was not denied but conceded, the court refused to submit to the jury whether the defendant believed she had a right to vote, and directed the jury to find a verdict of guilty. Held, on motion for a new trial, that the action of the court was not erroneous, and that the right of trial by jury was not violated. Ibid.

§ 2036. Separation. It seems that on a trial for murder the jury should not be allowed to separate. United States v. Woods, 4 Cr. C. C., 487.

§ 2037. Right of trial by jury.- In criminal proceedings to declare the forfeiture of property, the owner thereof has the same right to be informed of the nature of the charge, and to a jury trial, as he would enjoy in an action against him personally. Greene v. Briggs, 1 Curt., 331.

§ 2038. Laws conferring criminal jurisdiction on justices of the peace must preserve unimpaired the right of trial by jury or the whole proceeding is void ab initio. Ibid.

§ 2039. In a criminal case the accused has an absolute right to a trial by jury. He has a right, also, to be so charged that, when the trial takes place, the jury shall pass upon the whole charge so far as it involves matters of fact, and shall, under the direction of the court, apply the law to all mixed questions of law and fact. Ibid.

§ 2040. The offense of libel was always triable by a jury, and must be under the constitution of the United States. In re Dana, 7 Ben., 4.

§ 2011. The act of June 17, 1870, establishing a police court in the District of Columbia, which had jurisdiction of all misdemeanors not punishable by imprisonment in the penitentiary, and in which the trial was to be without jury, is unconstitutional so far as it includes offenses triable at common law by a jury, even though it provides for an appeal from that court to a court in which the offense is triable by jury. Ibid.

§ 2042. Swearing the jury.- Under an act prescribing the oath that the jury shall take, but not requiring such oath to be spread upon the record, a record which recites that the jury were duly sworn is sufficient. Leschi v. Washington Territory,* 1 Wash. Ty, 13.

§ 2043. Discharge after being sworn.— After a juror has been sworn, the court can discharge him for objection taken, without the consent of the defendant. United States v. Watkins, 3 Cr. C. C., 441.

§ 2044. After the jury has been sworn and the prosecution has begun the opening, in a capital case, the court cannot, without the consent of the prisoner, excuse a juror at his own request, because he cannot, consistently with his feelings, sit in a case of life and death. United States v. Randall, 2 Cr. C. C., 412.

XXVI. INDICTMENT.

1. In General.

SUMMARY-Objections good on demurrer are good in arrest, § 2015.- Charging fraud, § 2046.—Offenses created by statute, §§ 2047, 2048.— Use of the word wilfully, §§ 2049, 2050.- Variance as to name of owner of property, § 2051.

g 2015. Any objection to an indictment which would be good on demurrer is fatal on a motion in arrest of judgment. United States v. Goggin, §§ 2052–53.

§ 2046. An indictment charging fraud of any sort ought to aver wherein the fraud consisted and by what means it was effected. Ibid.

§ 2047. The general rule that an indictment for an offense created by statute is sufficient if it follows the language of the statute is subject to the qualification that the accused must be apprised by the indictment with reasonable certainty of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar in a subsequent prosecution for the same offense. Ibid. See § 2135.

§ 2018. Where a statute defining an offense contains an exception in the enacting clause, which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception; but if the language of the section defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the

pleader may safely omit any such reference, as the matter contained in the exception is matter of defense, and must be shown by the accused. United States v. Cook, § 2054-58.

§ 2049. Where a statute defining an offense describes it as a wilful act, the information must also charge that the act was wilful. United States v. Three Railroad Cars, §§ 2059–64. § 2050. The word "wilfully" is commonly used in a bad sense to express an evil or improper motive, intent or feeling, or to characterize an act done wantonly, or one which a man of reasonable knowledge and ability must know to be contrary to his duty. Ibid.

§ 2051. A. was indicted for an assault committed on board a vessel, under the act of 1825. The twenty-second section of this act describes the offense, and section 5, conferring jurisdiction over the offense upon the circuit court, requires that the offense should have been committed on board of a vessel belonging to citizens of the United States. The indictment alleged that the ship was the property of William Nye, and the proof showed it to be the property of Willard Nye. It being wholly immaterial who were the owners of the ship, provided it belonged te citizens of the United States, and the objection of variance applying solely to words which state the jurisdiction and not to words descriptive of the offense charged, the variance was held not fatal. United States v. Howard, §§ 2065-70. See § 2125.

[NOTES. See § 2071-2209.]

UNITED STATES v. GOGGIN.

(Circuit Court for Wisconsin: 9 Bissell, 269-274. 1880.)

Opinion by DYER, J.

STATEMENT OF FACTS.- This is an indictment for presenting for payment to the pension agent in Milwaukee a false and fraudulent claim for pension moneys. The defendant was tried and convicted at the last term of the court, and the case is again up for consideration upon a motion in arrest of judgment. It is not without reluctance that I have come to the conclusion which I am constrained to announce, since the evidence adduced on the trial tended strongly to show the perpetration of a gross fraud upon the government; but it is the duty of the court to administer the law according to its best understanding, regardless of consequences.

The defendant was indicted under section 5438, Revised Statutes of the United States, which provides that every person who presents for payment, to or by any person or officer in the civil service of the United States, any claim upon or against the government or any department thereof, knowing such claim to be false, fictitious or fraudulent, shall be punished as the statute directs.

§ 2052. In an indictment for presenting a fraudulent claim against the gov ernment it is not sufficient to follow the words of the statute. Degree of particu larity required.

The indictment contains three counts, but as they are equivalent in form, reference to one will be sufficient: The first count charges that on the 4th day of December, 1879, the defendant did present and cause to be presented for payment to and by a person in the civil service of the United States, to wit, Edward Ferguson, a pension agent of the United States, at the city of Milwaukee, a claim against the government of the United States, to wit, a claim for the sum of $24 then and there claimed and represented by the defendant to be due to him from the said government of the United States, as a pensioner, under and by virtue of a certain instrument known as a pension certificate, which said pension certificate had been theretofore procured and obtained by the said Richard Goggin upon false and fraudulent p:ofs, and by criminal and fraudulent devices, and without the authority of law, and in fraud of the law governing pensions and pension certificates; he, the said Richard Goggin, well knowing at the time and place of making said claim, and of presenting

the same for payment, that it was then and there false, fictitious and fraudulent. Objection is made to this indictment as not stating any offense, or, in other words, that no offense is described with such certainty as the law of criminal pleading requires. The reply of the learned district attorney is that it states the offense substantially in the language of the statute, and that this is sufficient. It will be observed that the gist of the offense, as it is defined in the statute, is the presentation for payment of a false or fraudulent claim. The indictment alleges no facts which constitute the fraud; it is not shown how the fraud was perpetrated, nor wherein the claim was false, except that the defendant presented a claim which he represented to be due to him by virtue of a pension certificate which had been theretofore procured upon false and fraudulent proofs, and by unlawful and fraudulent devices, and without authority of law. What the false and fraudulent proofs and unlawful and fraudulent devices were is not stated. The question is, are these allegations sufficiently certain, and do they contain statements of fact which will support a conviction? My impression upon the argument was that the objection urged by counsel for defendant was not one which reached the substance of the indictment, and that as he had not moved to quash, his objection was not good in arrest of judgment; but the rule is that any objection to an indictment which would be good upon demurrer is fatal on motion in arrest, and this being so, the objection to the indictment, if well grounded in law, may be as well taken at the present stage of the proceedings as by motion to quash. In the case of United States v. Watkins, 3 Cranch, C. C., 441, the court had occasion to state the rule with reference to certainty in alleging fraud in a case of false pretenses, and it was there held that an indictment charging fraud should aver the means by which the fraud was effected; that fraud is an inference of law from certain facts, and the indictment must aver all the facts which constituted the fraud; that whether an act has been fraudulently done is a question of law, so far as the moral character of the act is involved; to aver that an act was fraudulently done is therefore to aver a matter of law and not a matter of fact. § 2053. An indictment charging fraud must allege wherein the fraud consisted.

It is true that this was a case of false pretenses, and there may be a wellgrounded distinction, as urged by the learned counsel for the United States, between such a case and the case in hand; because, in a case of false pretenses, it is, undoubtedly, essential that the facts and circumstances should be alleged with such certainty that the court may see upon the face of the pleading that the pretenses were false, and that they were of such character and were made under such circumstances as constituted false pretenses, within the meaning of the criminal law; that they were relied upon-acted upon, and that the party defrauded had a right to rely upon them; and herein, and perhaps in some other respects, such a case is distinguishable from the case at bar. But it is, undoubtedly, a sound principle that an indictment charging fraud of any sort ought to aver with requisite particularity wherein the fraud consisted, and the means by which it was effected, and I have been unable to find any cases which dispense with the application of this rule. It is true that many of the niceties and technicalities with reference to form in criminal pleadings which once existed are not allowed now to prevail, but I do not understand that there has been any relaxation of the rule with reference to certainty and clearness as to the matter charged. It is also a general rule that in an indictment for an offense created by statute, it is sufficient to describe the offense in the words of the