Clune v. United States

• Citation: 40 L.Ed. 269,16 S.Ct. 125,159 U.S. 590
• Decision Date: 18 November 1895
• Docket Number: No. 517,517
• Parties: CLUNE et al. v. UNITED STATES
• Court: United States Supreme Court

159 U.S. 590

16 S.Ct. 125

40 L.Ed. 269

CLUNE et al.

v UNITED STATES.

No. 517.

November 18, 1895.

Robert Christy, for plaintiffs in error.

Atty. Gen. Harmon, for the United States.

Mr. Justice BREWER delivered the opinion of the 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 24th, and is authenticated in these words: 'The defendants claiming that they are entitled to a bill of execptions 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. U. S., 150 U. S. 57, 14 Sup. Ct. 26; Holder v. U. S., 150 U. S. 91, 14 Sup. Ct. 10; Blitz v. U. S., 153 U. S. 308, 14 Sup. Ct. 924; Wheeler v. U. S., 159 U. S. 523, 16 Sup. Ct. 93. 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 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 Re Debs, 158 U. S. 564, 15 Sup. Ct. 900. On 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 train left here this morning. Everybody on the train are 'scabs.' Hold them there. Sure to win.

'W. H. Clune, Secty.'

'Exhibit No. 21.

'June 26, 1894.

'Chicago, Ills., _____, 26.

'W. H. Clune, 1844 Naud St., Los Angeles, Calif.:

'Boycott against Pullman cars in effect at noon to-day by order of convention.

'E. V. Debs.'

Although all the evidence does not appear to have been preserved in this bill of exceptions, enough is disclosed to show that the government was seeking to establish a conspiracy by circumstantial testimony; and telegrams of this character, if identified and brought home to the defendants, were obviously circumstances tending to show such conspiracy. It is familiar law that where a case rests upon that character of evidence, much discretion is left to the trial court, and its ruling will be sustained, if the testimony which is admitted tends even remotely to establish the ultimate fact. Alexander v. U. S., 138 U. S. 353, 11 Sup. Ct. 350; Holmes v. Goldsmith, 147 U. S. 150, 13 Sup. Ct. 288; Moore v. U. S., 150 U. S. 57, 14 Sup. Ct. 26; Thiede v. Territory of Utah, 159 U. S. 510, 16 Sup. Ct. 62. There was no error in admitting these telegrams.

Another series of objections is to the admission of the declarations and acts of parties other than the defendants, to wit, Gallagher and Buchanan, on the ground that they were not parties to the record. The indictment charged the defendants with conspiring and combining together and with other persons. Now, if Gallagher and Buchanan were conspirators with defendants, evidence of their acts and declarations in carrying, or attempting to carry, into effect the conspiracy was competent, and we must assume, in the silence of the record, that it was shown that they were engaged in the conspiracy, and that their acts and declarations were in execution thereof.

Again, it is insisted that the verdict was against the evidence. It is enough to say that such a contention cannot be sustained, unless all the testimony, or all upon some essential fact, is presented.

Finally, there is a claim of error in the instructions, but the difficulty with this is that they are not legally before us. True, there appears in the transcript that which purports to be a copy of the charge, marked by the clerk as filed in his office among the papers in the case; but it is well settled that instructions do not in this way become part of the record. They must be incorporated in a bill of exceptions, and thus authenticated by the signature of the judge. This objection is essentially different from that of the lack or the sufficiency of exceptions. An appellate court considers only such matters as appear in the record. From time immemorial that has been held to include the pleadings, the process, the verdict, and the judgment, and such other matters as by some statutory or...