ent from the one who according to the testimony, which was the subject of the indictment had signed the register, was held not to be prejudicial.5

§ 523j. Evidence of presence of defendant in locality of crime. An entry in a diary or notebook in the possession of the defendant when he was arrested stating that he was in a place at a date there named was admitted as evidence of that fact although the hand writing was not proved.1

§ 523k. Proof of hand writing in criminal cases. In the absence of a statute as a general rule, the genuineness of hand writing cannot be determined by comparing it with any other transcript of the party except other papers admitted to be in his hand writing, which are in evidence for some other purpose.1

The act of February 26, 1913, provides, "In any proceeding before a court or judicial officer of the United States where the genuineness of the hand writing of any person may be involved, any admitted or proved hand writing of such person shall be competent evidence as a basis for comparison by witnesses, or by the jury, or court, or officer conducting such proceeding, to prove, or disprove such genuineness." This statute applies to criminal as well as to civil cases.3

2

The cases construing this statute have been previously considered.4

§ 5231. Evidence in prohibition cases. By the act of October 28, 1919, sometimes known as the "Volstead Law," "No person shall be excused, on the ground that it may tend to incriminate him or subject him to a penalty or forfeiture, from attending

5 Ibid.

§ 523j. 1 In Dean v. U. S., C. C. A., 246 Fed. 568, a prosecution for altering a postal money order issued at Macon on Saturday, December 26th, where accused denied that the order was issued to him, or that he was in Macon on that day, an entry in a notebook taken from his possession, "Macon 45 Stat. 12.26'' held that this was at least slight evidence that accused was in Macon on the day the order was issued.

§ 523k. 1 Hickory v. U. S., 151 U. S. 303, 38 L. ed. 170. See Moore v. U. S., 91 U. S. 271, 23 L. ed. 346; Rogers v. Ritter, 12 Wall. 317, 20 L. ed. 417.

2 The Act of February 26, 1913, 37 St. at L. 683, ch. 79, Comp. St., § 1471.

3 Dean v. U. S., C. C. A., 246 Fed. 368.

4 Supra, § 332a.

and testifying, or producing books, papers, documents, and other evidence in obedience to a subpoena of any court in any suit or proceeding based upon or growing out of any alleged violation of this act; but no natural person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing as to which, in obedience to a subpoena and under oath, he may so testify or produce evidence, but no person shall be exempt from prosecution and punishment for perjury committed in so testifying."1

"After February, 1, 1920, the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the provisions of this title." 2

Where intoxicating liquor was stored in the basement of a hotel, the location and character of the place raised presumption that the liquor was kept in violation of the National Prohibition Act, although the hotelkeeper disclaimed ownership, and it was claimed by one having a permit to use it for certain stated pur poses.3

§ 523m. Evidence in prosecutions for conspiracy. Under an indictment charging a conspiracy to defraud the United States, evidence may be admitted of overt acts not specifically named in the indictment.1 Under an indictment charging defendants as individuals with conspiracy to defraud the United States by means of fraudulent and collusive bids for the furnishing of coal, evidence was admitted which showed that the bids were made in the name of corporations of which defendants were officers and were signed by defendants as such officers.2 The declarations or admissions 4 of conspirators during the existence of their unlawful combination and in furtherance thereof, are evidence against the rest, but not a declaration or admission

§ 5231. 141 St. at L. 305, ch. —, Title II, § 30. See supra, § 339a. 2 Ch. 885, § 36, Comp. St., § 101361⁄2t. Supra, §§ 487a, 506q. 3 U. S. v. Masters, 267 Fed. 581. But see U. S. v. Rykowski, 267 Fed. 866.

§ 523m. 1 Houston v. U. S., 217 Fed. 852.

2 Houston v. U. S., 217, Fed. 852. 3 Samara v. U. S., C. C. A., 263 Fed. 12.

4 Am. Fur. v. U. S., 2 Peters 358, 7 L. ed. 450; Wiborg v. U. S., 163

made before the conspiracy was formed.5 Nor after it was terminated. Nor a declaration not made in furtherance of the conspiracy, nor to effectuate its purposes.7

§ 523n. Evidence in trials for treason. By the Constitution, "Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open court.

"The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted." 1

By the Criminal Code, which re-enacts the Revised Statutes in this respect, "§ 1. Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason." 2

"§ 2. Whoever is convicted of treason shall suffer death; or, at the discretion of the court, shall be imprisoned not less than five years and fined not less than ten thousand dollars, to be levied on and collected out of any or all of his property, real and personal, of which he was the owner at the time of committing such treason, any sale or conveyance to the contrary notwithstanding; and every person so convicted of treason shall, moreover, be incapable of holding any office under the United States."' 3

"§ 3. Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the

U. S. 632, 16 Sup. Ct. 1127, 41 L. ed. 289.

5 Halsman v. U. S., C. C. A., 248 Fed. 193, 196.

6 Erber v. U. S., C. C. A., 234 Fed. 221; Lew Moy v. U. S., C. C. A., 237 Fed. 50.

7 Halsman v. U. S., C. C. A., 248 Fed. 193, 196.

§ 523n. 1 Article 3, Section 3.

2 Criminal Code, § 1, Act of March 4, 1909, ch. 321, 35 St. at L. 1088, U. S. R. S., § 5331, Comp. St., § 10165.

3 Criminal Code, § 2, Act of March 4, 1909, ch. 321, 35 St. at L. 1088, U. S. R. S., § 5332, Comp. St., § 10166.

United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be imprisoned not more than seven years and fined not more than one thousand dollars."4

"§ 4. Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be imprisoned not more than ten years, or fined not more than ten thousand dollars, or both; and shall, moreover, be incapable of holding any office under the United States." 5

"§ 6. If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined not more than five thousand dollars, or imprisoned not more than six years, or both.'"'6

It seems that Congress has no power to enact a statute punishing under a different name conduct which the Constitution declares to be treason, and make the defendant liable to conviction without the testimony of two witnesses against him." A statute penalizing a conspiracy to commit treason is valid, and the two witnesses are not required to support a conviction thereunder, provided that no treasonable act has been committed. The statute was valid which made it a criminal offense to "by word or act support or favor the cause of any country

8

4 Criminal Code, § 3, Act of March 4, 1909, ch. 321, 35 St. at L. 1088, U. S. R. S., § 5333, Comp. St., § 10167.

5 Criminal Code, § 4, Act of March 4, 1909, ch. 321, 35 St. at L. 1088, U. S. R. S., 5334, Comp. St., § 10168.

6 Criminal Code, § 6, U. S. R. S., § 5336, Act of March 4, 1909, 35 St. at L. 1089, Comp. St., § 10170.

7 Wimmer v. U. S., C. C. A., 264 Fed. 11, 12.

8 U. S. v. Fries, Wharton State Trials, Fed. Cas. No. 5,127. See Ex parte Bollman, 4 Cranch 75, 2 L. ed. 554; Bryant v. U. S., C. C. A., 257 Fed. 378, 386, 387. 9 See supra, § 506c.

with which the United States is at war or by word or act oppose the cause of the United States therein." 10

The words, "overt act," are derived from the act of Edward III, 25, which uses the phrase "and thereof be probably attainted of open deed by people of their condition."

The requirement of two witnesses to prove an overt act is contained in Chapter 12 of the first year of Edward VI and Chapter 11 of the fifth and sixth year of Edward VI.

The overt act must be an act committed in furtherance of the crime.11 Overt acts have been thus defined: "Overt acts are such acts as manifest a criminal intention and tend towards the accomplishment of the criminal object. They are acts by which the purpose is manifested and the means by which it is intended to be fulfilled." 12 An overt act may be an act innocent in itself.13 It is enough if the overt act shows the intention of the defendant, thereby to aid in giving the aid and comfort.14 The aid and comfort need not reach the enemy.15

To levy war upon the United States there must be an actual assemblage of men in force,16 to resist the Government.17 A riot is not treason.18

10 Act of June 15, 1917, ch. 30, Title I, 3, 40 St. at L. 219, as May 16, 1918, ch. 75, § 1, 40 St. at L. 553, Comp. St., § 10212c; Wimmer v. U. S., C. C. A., 264 Fed. 11, 12.

11 U. S. v. Robinson, 259 Fed. 685, 690.

12 Reading, C. J., in Rex v. Casenment, quoted with approval by Learned Hand, J., in U. S. v. Robinson, 259 Fed. 685, 690.

13 U. S. v. Fricke, 259 Fed. 673, 677.

14 Ibid.; U. S. v. Robinson, 259 Fed. 685, 690.

15 Lord Preston's Case, 12 How. St. Tr. 64; Rex v. Hensey, 1 Burr. 643, 19 How. St. Tr. 1342; Rex v. Stone, 25 How. St. Tr. 1171; U. S. v. Greathouse, 4 Sawy. 457, Fed. Cas. No. 15,254; U. S. v. Robinson, 259 Fed. 685, 690.

Fed. Prac. Vol. III-39

16 Ex parte Bollman, 4 Cranch 75, 2 L. ed. 554; Burr's Trial.

17 Bryant v. U. S., C. C. A., 257 Fed. 378, 387.

18 U. S. v. Castner Hanway, U. S. C. C., E. D., Pa., November and December, 1851. Hanway had headed a mob of whites and blacks which successfully prevented the capture of some fugitive slaves by a deputy marshal of the United States in Lancaster county, Pennsylvania, in September, 1850. In the course of the affair the slave-owner was killed. The trial was before Mr. Justice Grier and Judge Kane with a jury. The argument. of John M. Read for the defendant is said to have been one of the ablest speeches ever made at the American bar, and to have contained a learned and lucid exposition of the law of treabrief Unfortunately but a

son.