Mullen v. United States

• Decision Date: 12 February 1901
• Docket Number: 885.
• Citation: 106 F. 892
• Parties: MULLEN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

106 F. 892

MULLEN et al. v. UNITED STATES.

No. 885.

United States Court of Appeals, Sixth Circuit.

February 12, 1901

The plaintiffs in error were indicted for alleged violations of the Revised Statutes of the United States (section 5508), in that, being respectively judge of the election, sheriff of election, clerk of election, and challenger, at an election held on November 7, 1900, at Louisville, Ky., for the election of persons to fill certain state and municipal offices, they had entered into a conspiracy to injure oppress, threaten, and intimidate certain colored persons, on account of their race, color, and previous condition of servitude, in the free exercise and enjoyment of the right and privilege which such persons then and there had, and which was then and there secured to them by the constitution and laws of the United States, of voting for persons to fill said offices. In the progress of the trial no evidence was offered, either by the government or defendants, concerning the general character of the accused prior to the commission of the alleged offense. In the course of the charge the learned judge said: 'Now, it is a fact that cannot escape your attention-- could not probably escape your attention-- that, if these defendants desired, or anybody behind them desired, to have colored men deprived of the right of voting that it would be at such a precinct as this; and it is not improbable that just such men as these defendants would be chosen to carry that object into execution. Those are circumstances that you might weigh in this case in reaching a conclusion. ' At the conclusion of the charge, in the presence of the jury, counsel for the prisoners excepted to this comment, to which the court responded: 'What I said on that subject may stand, because it is well qualified. The jury understand it was only the comment of the court, which they were not bound by.' Further, counsel for plaintiffs in error, at the conclusion of the charge, said: 'If your honor please, we offered your honor an instruction that the defendants were presumed to be persons of good character, and that the presumption prevailed during the progress of the case. ' To which the court responded: 'I do not think that the jury should be told that the defendants are presumed to be persons of good character, but they are presumed, as the court had told the jury, whether of good character or bad character, to be innocent until their guilt has been established to the exclusion of a reasonable doubt by testimony. ' An exception was taken to the court's ruling in declining to instruct the jury as to the good character of the accused, and, before the jury retired, the defendants, and each of them, moved the court to instruct and charge the jury as follows: 'You are charged that the law presumes the good character of the accused, and such presumption is to be considered as evidence in favor of the accused in considering the question of the guilt or innocence of them, or any of them. ' But the court refused to so instruct the jury, to which ruling of the court each of the said defendants then excepted.

Lawrence Maxwell, Jr., Swager Sherley, and Thos. R. Gordon, for plaintiffs in error.

R. D Hill and W. C. P. Breckenridge, for the United States.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

DAY Circuit Judge, after stating the foregoing facts, .

The comment of the judge in his charge and the several refusals to charge in the exceptions noted raise the question whether in a criminal trial, in a court of the United States, where no testimony has been offered as to the previous good character of the accused, a presumption of such good character exists in favor of the accused, of which, upon a request to that effect, the jury should be instructed. The supreme court of the United States, dealing with the presumption of innocence in criminal trials, in the case of Coffin v. U.S., 156 U.S. 432, 460, 15 Sup.Ct. 394, 405, 39 L.Ed. 481, 493 (opinion by Mr. Justice White), said:

'The fact that the presumption of innocence is recognized as a presumption of law, and is characterized by the civilians as a presumption juris, demonstrates that it is evidence in favor of the accused; for in all systems of law legal presumptions are treated as evidence giving rise to resulting proof to the full extent of their legal efficacy.'

This reasoning applies to the presumption, if such exists, of good character of the accused, and should be given in the charge to the jury where a specific request on that subject is made at the trial. Does such presumption exist? We fail to find any difference of opinion in the well-recognized text writers upon this subject. All assert that a presumption exists in favor of the accused in the absence of testimony that he had a good character previous to the time of the alleged commission of the offense in question. It is true that the government may not attack the character of the accused until he puts it in issue by affirmative testimony on his part. He is not obliged to do this, but may, if he sees fit, rest upon the presumption raised by the law. Bishop states the doctrine thus:

'The doctrine is that the defendant is presumed

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