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.
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
Page 159 U. S. 591
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
Page 159 U. S. 592
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 train left here this morning.
Everybody on the train are 'scabs.' Hold them there. Sure to
win."
"W. H. Clune,
Sec't'y"
"
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 today 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
Page 159 U. S. 593
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. United States, 138 U.
S. 353;
Holmes v. Goldsmith, 147 U.
S. 150;
Moore v. United States, 150 U. S.
57;
Thiede v. Utah Territory, 159 U.
S. 510. 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 recognized method have been made a part of it. There
are, for instance, in
Page 159 U. S. 594
some states statutes directing that all instructions must be
reduced to writing, marked by the judge "refused" or "given," and
attested by his signature, and that when so attested and filed in
the clerk's office, they become a part of the record. But in the
absence of that or some other statutory provision, a bill of
exceptions has been recognized as the only appropriate method of
bringing onto the record the instructions given or refused.
Struthers v. Drexel, 122 U. S. 487,
122 U. S. 491;
Supreme Court Rules No. 4, 108 U.S. 574;
Insurance Company v.
Raddin, 120 U. S. 183,
120 U. S. 193;
McArthur v. Mitchell, 7 Kan. 173;
Moore v. Wade,
8 Kan. 380;
Kshinka v. Cawker, 16 Kan. 63;
Lockhart v.
Brown, 31 Ohio St. 431;
Pettett v. Van Fleet, 31 Ohio
St. 536.
Even if we were to ignore this lack of due authentication, we
should be met with the want of any proper exceptions. To the charge
as apparently given on November 20th, when the case was submitted
to the jury, there is no pretense of any exception whatever. The
journal entry of November 21 shows that the jury were brought into
court and announced that they had not agreed upon a verdict. Then
follows this statement: "Thereupon the court further instructs the
jury by reading written instructions to them, all of which is
excepted to by the defendants' attorneys," and this is the only
exception having any reference to instructions to be found in the
transcript. Exactly what was intended by it is not clear. If the
objection was simply to the time and manner of giving instructions,
the propriety of such action has been sustained in
Allis v.
United States, 155 U. S. 117,
155 U. S. 123.
If to what was contained in those instructions, then, in addition
to the fact that they have not been preserved in any bill of
exceptions, arises the further difficulty that no particular
proposition is called to the attention of the court.
These are all the matters pointed out by counsel in the brief.
At the argument in this Court, other counsel than those whose names
are on the brief appeared, and, in addition, presented this further
objection: by section 3995, Rev.Stat., the offense of obstructing
the passage of the mails is made punishable by a fine of not more
than $100. Under section
Page 159 U. S. 595
5440, Rev.Stat., a conspiracy to commit any offense against the
United States is punishable by a fine of not less than $1,000 nor
more than $10,000, and by imprisonment for not more than two years.
Upon this he contended that a conspiracy to commit an offense
cannot be punished more severely than the offense itself, and also
that when the principal offense is in fact committed, the mere
conspiracy is merged in it. The language of the section is plain
and not open to doubt. A conspiracy to commit an offense is
denounced as itself a separate offense, and the punishment therefor
fixed by the statute, and we know of no lack of power in Congress
to thus deal with a conspiracy. Whatever may be thought of the
wisdom or propriety of a statute making a conspiracy to do an act
punishable more severely than the doing of the act itself, it is a
matter to be considered solely by the legislative body.
Callan
v. Wilson, 127 U. S. 540,
127 U. S. 555.
The power exists to separate the conspiracy from the act itself,
and to affix distinct and independent penalties to each. With
regard to the suggestion that the conspiracy was merged in the
completed act, it is enough that we cannot, upon the record, hold
that the mails were obstructed. All the testimony not being
preserved, it may be that the testimony satisfied the jury that
there was in fact no obstruction of the mails, but only, as
charged, a conspiracy to obstruct. If so, the suggestion of a
merger falls to the ground.
These are the only matters called to our attention. In them we
perceive no error, and the judgment is
Affirmed.