159 U.S. 590 (1895), 517, Clune v. United States

Docket Nº:No. 517
Citation:159 U.S. 590, 16 S.Ct. 125, 40 L.Ed. 269
Party Name:Clune v. United States
Case Date:November 18, 1895
Court:United States Supreme Court

Page 590

159 U.S. 590 (1895)

16 S.Ct. 125, 40 L.Ed. 269



United States

No. 517

United States Supreme Court

November 18, 1895

Argued October 30, 1895




It is doubtful whether the record and bill of exceptions present for review the matters complained of in the brief of counsel.

On the trial of parties charged with the criminal offence of conspiring to stop the mails, contemporary telegrams from different parts of the country, announcing the stoppage of mail trains are admissible in evidence against the defendants if identified and brought home to them.

So too, the acts and declarations of persons not parties to the record are in such case admissible against the defendants if it appears that they were made in carrying the conspiracy into effect or attempting to carry it into effect.

Instructions of the court below, to become part of the record, must be incorporated in a bill of exceptions and be authenticated by the signature of the trial judge.

It is within the power of Congress to provide, for persons convicted of conspiracy to do a criminal act, a punishment more severe than that provided for persons committing such act.

The case is stated in the opinion.

BREWER, J., lead opinion

MR. JUSTICE BREWER delivered the opinion of the Court.

On July 3, 1894, the plaintiffs in error, together with one A. T. Johnson, were indicted under section 5440, Rev.Stat., in the District Court for the Southern District of California for a conspiracy to obstruct the passage of the United States

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mails. On November 17, a jury was empanelled and a trial begun which resulted, on November 21, in a verdict of guilty. Motions for a new trial and in arrest of judgment having been overruled, the defendants were, on December 6, each sentenced to pay a fine of one dollar and to be imprisoned in the County Jail of Los Angeles County for the period of eighteen months. The defendant Johnson, at the time of sentence, withdrew his motions for a new trial and in arrest of judgment. The other defendants, the present plaintiffs in error, have brought the case to this Court.

It is doubtful whether the record is in such condition as to present for review the matters complained of in the brief or argument of counsel. There is only one bill of exceptions, which was signed and filed on December 24 and is authenticated in these words:

The defendants claiming that they are entitled to a bill of exceptions to review the ruling upon their motion for a new trial, and having presented the foregoing as such bill, the same is hereby allowed and settled as a correct statement of the proceedings had on the trial, so far as it goes.

It preserves no portion of the charge, does not purport to contain all the evidence, but does state that on the trial, certain testimony was offered and admitted over the objections of defendants and exceptions taken. If this bill of exceptions was prepared simply for the purposes of a review of the ruling on the motion for a new trial, as seems to be suggested by the words of the authentication, then we are confronted with the proposition, so often announced, that the action of the court in overruling a motion for a new trial is not assignable as error. Moore v. United States, 150 U.S. 57; Holder v. United States, 150 U.S. 91; Blitz v. United States, 153 U.S. 308; Wheeler v. United States, 159 U.S. 523. If no error can be affirmed in overruling a motion, it would seem unnecessary to examine the record of that which was presented on the hearing of such motion.

But passing that and assuming that we are at liberty to examine for any purpose the bill of exceptions, the contentions of counsel in the brief are practically three in number -- first that there was on the trial error in the admission of

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testimony; second, that the verdict was against the evidence; and, third, that the court erred in the instructions.

With reference to the first, it may be remarked that the offense charged against the defendants took place during, and was a part of, the great strike which was brought to the attention of this Court in In re Debs, 158 U.S. 564. One series of objections under this head is to the introduction of telegrams, some signed by the defendants, some by Debs, and others by still other parties, all of which, upon their face, have more or less direct reference to the stopping of railroad trains. The following are samples of these telegrams:

Exhibit No. 19

Los Angeles, Cal., _____ 29, 1894

To Barrett, Bakersfield:

Have stopped trains at Mojave. Come to Los Angeles with engine and caboose.

Philip Stanwood

Exhibit No. 20

L.A. 7 10, 1894.

To L. B. Hays:

No. nineteen and one freight...

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