be sent on the railroad to Macon, Henry Jones left Jesup at 6:44 A. M., and arrived at Macon at 3:30 P. M., on mail car 120. The testimony of Mr. Bussey being that he delivered the mail from Temperance to the postal clerk on the morning of July 20th, these trip reports in evidence are competent to show that Henry Jones made that trip on that day (the 20th) from Jesup to Macon, and these facts are relied on by the government as circumstances tending to trace this check to Henry Jones, and to his custody.

There is no positive evidence which traces the check to Henry Jones' custody, and that recited, in its nature, is circumstantial evidence. I charge you, gentlemen, that a conviction may well be had on circumstantial evidence, provided the circumstances so distinctly point to the guilt of the accused as to leave no reasonable explanation which is consistent with the theory that he is innocent.

Now, do these circumstances so distinctly point to the fact that Henry Jones was the postal clerk on that car No. 120, on the twentieth day of July, 1884, as to leave no explanation consistent with the theory that somebody else may have seen the postal clerk on the train that day? If so, gentlemen, it is your duty to find that he was the postal clerk on that day; and if you believe the testimony of Bussey that he delivered the Temperance mail, and that this letter had not been previously abstracted, and was delivered to Henry Jones, then that will of course have the effect to trace the letter to his custody.

Now, upon that general subject, I charge you this to be the law: That all public officers are presumed to do their duty faithfully until the contrary appears by proof. The postmaster at Temperance is presumed to have done his duty; in other words, is presumed to have locked the mailpouch, and to have seen that it was in good order. The mail carrier is presumed, in the absence of proof to the contrary, not to have stolen that check or the letter which contained it from the mail-pouch, but to have carried it safely. The postmaster at Poplar Hill is presumed to have seen that the pouch was received in good order, that it was locked; and, if the pouch was in bad order, it is presumed that he would have reported it, as was his duty. The carrier from Poplar Hill to Chauncey is presumed to have done his duty, and it is presumed that he delivered the pouch and the mail safely to the postmaster at Chauncey. The postmaster at Chauncey is presumed likewise to have done his duty, and to have delivered the mail to Macon safely to Henry Jones; and Henry Jones is also entitled to the presumption of having done his duty faithfully, and to have safely delivered the mail to the postmaster at Macon, unless there is proof in the evidence before you which would have the effect of destroying the presumption in his favor.

Now, applying these presumptions to this case, if all these officers of the mail did their duty,-and I charge you that this presumption has the effect of evidence unless there is proof to the contrary,-then the letter, with the check, is traced to the custody of Henry Jones, unless there are facts or reasonable suppositions relating to these circumstances which would justify sensible men, upon their oaths, to perceive and entertain a

reasonable theory that the letter and the check did not reach Henry Jones. This would contradict the presumption. That is an application of the rule I have already given you, namely, that, when reliance is had upon circumstances to show a fact, those circumstances must so distinctly point to that fact as to leave no reasonable idea or hypothesis that is inconsistent with the fact.

Now, gentlemen, is there any reasonable explanation arising from the evidence, or the want of evidence, which would authorize you to say that check did not reach Henry Jones? If so, notwithstanding the effect of the presumption that all these officers did their duty, and that the check did reach Henry Jones, it would be your duty to give him the benefit of that explanation, and acquit him. But if there is no reasonable explanation, such as a sensible man would act on or decline to act on in his own concerns, taking all the circumstances together, and considering them with the presumption that all the mail officers are presumed to have done their duty, then you will be justified in concluding that the check did reach Henry Jones.

At that point you will begin another inquiry. If it reached his hands, has it been accounted for satisfactorily after that time? Did the person to whom it was sent receive it? Upon that subject you have heard the evidence of Mr. Burden and Mr. Henry, who testify that the firm of Coleman & Co. did not receive that check. Upon that subject, I call your attention to the testimony of Rosa V. Hill. She tells you that Henry Jones sent her that check in a letter, and this is the letter which she identifies as the one in which he sent it. The letter is as follows: "MACON, GA., Saturday, 6 P. M., August 16, 1884. "DEAR FRIEND: I inclose to your address a sight draft for $79.08, which is drawn on J. E. Walker, and indorsed by him, and is now payable to whatever hands it may fall in; and I wish, if you can't use it, that you will please to return it to me at once. Present it to the doctor, and get him to indorse it, and have it cashed, and give you all over $50 that he charges you for his services, which would be at least $25. If he accepts it, you must telegraph me to Brunswick, and say it is accepted and all right. If he refuses, say it is rejected, etc. Don't sign your name, but sign Öttillia or Viola;" etc.

This letter was signed "OTTIE." She testifies that he signed his letters "OTTIE." She testifies that this was the handwriting of all the letters he wrote. W. W. Brown, who was the postmaster at Macon, and who testified that he had ample opportunities of knowing the handwriting of Henry Jones, testified that this letter was in his handwriting. Jo Franks, former clerk in the postal service, testified that he was familiar with his handwriting for several years, had received a great many communications from him, and that this letter, and the other letter which will be in evidence before you, was in his handwriting.

Now, gentlemen, if you believe from the evidence, under the rules I have given you, that this check was traced to the possession of Henry Jones; that it was not delivered to Coleman & Co., the persons to whom the letter inclosing it was directed; but that recently after that time Henry Jones delivered this check to this woman, Rosa V. Hill,-in the

absence of a sufficient explanation of his possession of the check, you would be justified in convicting him. The rule of law is this: that the possession of stolen property, recently after the time when it is stolen, unexplained, is prima facie evidence that the person in whose possession it is found was the person who stole it.. If so traced to his hands, is this explained by any of the evidence in the case? If it is, and if that explanation is consistent with the theory that he is innocent, it is your duty to give him the benefit of that explanation, and acquit him.

There will be in evidence before you an application for a postal order which you will consider, and the testimony of the postmaster of Jesup, who testified that Henry Jones applied for this order. You will consider this postal order in connection with the letter containing the check, which Rosa Hill testified he wrote, in which letter he states that he had sent her a postal order for that amount. You will consider it as a circumstance which the government insists tends to identify Henry Jones as the guilty possessor of this check. Mr. Smith testified that he saw the letter signed "OTTIE" and the identical check in the possession of Rosa Hill in Memphis, Tennessee, and attempted to get the check cashed for her. He identifies the letter which the other witnesses say is in the prisoner's handwriting.

I repeat, if there is a reasonable explanation consistent with his innocence, it is your duty to find that explanation, and give him the benefit of it; but you must consider these circumstances in connection with all the evidence in this case, in determining the question of his guilt or

innocence.

The defendant has proved that up to the time that this accusation was brought against him, that he had a good character for honesty. Now, a good character of a party accused of crime is always evidence fit and proper to be given in his behalf. The good character of the accused may render that doubtful which otherwise would be perfectly clear, and therefore he is always entitled to have the benefit of his good character, and you should weigh it, and give to it such weight as belongs to it. But if you believe from the evidence that he is guilty of the crime charged, and the other evidence in the case shows this to be true, you should convict him, notwithstanding proof of good character, because a man who has a good character may, nevertheless, commit a crime. Still you must consider the good character in connection with all the other testimony in this case.

I charge you that if, on a review of all the evidence in this case, you have a reasonable doubt as to whether or not you should convict the defendant, you should give the defendant the benefit of that doubt, and acquit him. By reasonable doubt you will understand that the court does not mean any fanciful conjecture which an imaginative man may conjure up, but a doubt which reasonably flows from the evidence or the want of evidence; and a doubt for which a sensible man could give a good reason, which reason must be based on the evidence or want of evidence; such a doubt as a sensible man would act upon, or decline to act upon, in his own concerns. If you have such a doubt, the defend

ant is entitled to the benefit of that doubt, and you should acquit him. But, if you are satisfied from the evidence that he is shown to have committed this crime, I charge you you ought to find him guilty.

There are two counts in this indictment. You can, if you think proper, under the rules I have given you in charge, find the defendant guilty on both, or on one count; or, if you think proper, you can find the defendant not guilty. If you find the defendant guilty on both counts, you will say by your verdict: "We, the jury, find the defendant guilty as charged." If you find him guilty on the first count, say so by your verdict, or on the second count. If you find the defendant not guilty, you will say by your verdict: "We, the jury, find the defendant not guilty."

As you believe from the evidence, so you must find.

The prisoner was convicted.

UNITED STATES v. JONES.

(Circuit Court, S. D. Georgia, W. D. June 29, 1887.)

1. ROBBING THE MAIL-INDICTMENT-OWNERSHIP OF LETTER.

Where the valuable contents of a letter are alleged to be the property of the person to whom it was addressed, and it appears in proof that they were intended by the sender for that person, and the proof further shows that the letter had left the mailing office, and was in the custody of the postal officers, at the time it was stolen, held, that the ownership of the letter and contents was properly laid.

2. INDICTMENT-OBJECTION TO-MEMBERSHIP OF GRAND JURY.

Where it is made to appear by plea in abatement that one of the grand jurors who returned the indictment had served on a jury which had rendered a verdict of guilty against the prisoner for the same offense, on a former trial, the plea will be sustained, and the indictment dismissed.

3. CRIMINAL PRACTICE-FORMER JEOPARDY-VOID CONVICTION.

Neither by common law nor by our constitution will a conviction upon a void proceeding or indictment, when the penalty has not been inflicted, operate as a bar to a subsequent indictment for the same offense.1 4. SAME-INCONSISTENT CLAIMS.

The prisoner having sued for and obtained a decision of the circuit court that the indictment was void, will not, on a second trial, be heard to urge that decision as error in order to escape its effect, on the plea of former jeopardy.

(Syllabus by the Court.)

Indictment for Robbing the Mails.

Dupont Guerry, U. S. Atty., for prosecution.

Hill & Harris and Dessau & Bartlett, for defendant.

When defendant obtains a new trial, he places himself in the same position as though he had not been tried, and a conviction on such first trial is no bar to a subsequent conviction. Johnson v. State, (Ala.) 2 South. Rep. 466, and note; Robinson v. State, (Tex.) 4 S. W. Rep. 904, and note.

SPEER, J. The defendant, on arraignment, filed a demurrer and a plea in abatement to the indictment. The demurrer averred that the allegation of ownership of the stolen property, to-wit, a check payable to Walker, and indorsed in blank by him, and mailed to S. T. Coleman & Co., to pay a debt due to that firm from Williams & Co., with the further averment that the check was the property of S. T. Coleman & Co., was fatally defective; the defendant insisting that it is a necessary conclusion of law from all the averments, taken together, that the check was not the property of S. T. Coleman & Co., but was the property of the sender. There can be no doubt that it is essential to the indictment that there must be a faithful description of the article alleged to be stolen, (1 Whart. Crim. Law, § 934,) and the description must be proved as laid, (2 Whart. Crim. Law, § 1829; U. S. v. Martin, 2 McLean, 256.) It may be considered as settled that property sent by the mail may be laid in the sender. U. S. v. Burroughs, 3 McLean, 405; 1 Whart. Crim. Law, § 946.

It is insisted, too, that if payment is sought to be made by sending money or other articles of value through the mail, it is done at the sender's risk, unless done by direction, either express or implied; citing Code Ga. § 2866; Abb. Trial Ev. 803, § 10; Bank v. McManigle, 8 Amer. Rep. 236; 2 Daniel, Neg. Inst. § 1474. I do not think that these authorities afford fair analogies for the determination of the sufficiency of the description in an indictment for larceny. It may be true that to send money through the post is at the risk of the sender, in the absence of authorization to use the mails; but, unquestionably, the party to whom it is addressed, after it has left the mailing office, has a qualified interest in the letter, and a title to the valuable contents, upon which he could maintain trover against a third party unlawfully obtaining its possession. In the case of U. S. v. Jackson, reported in 29 Fed. Rep. 503, and subsequently in 9 Crim. Law Mag. 325, this court, in charging the jury, said that when the ownership of a registered letter and its contents is alleged to be in the person to whom the proof shows it was directed, and the proof shows that when it was stolen the sender had deposited it with the postmaster, taking his receipt therefor, and it had, by due course of mail, left the mailing office, that its custody by the post-office department was for the benefit of the person to whom it was addressed, that it was his property, the sender had no control over it, and there is no variance. There can be no difficulty in the application of the principle of this decision to an unregistered letter. The necessities of trade and commerce require that the courts should give a practical application to the rules of pleading in cases arising under the methods of modern times. An immense mass of technical cobwebs has been swept away by that gradual reform which has been evolved by the liberal tendencies of the courts in passing upon the sufficiency of indictments, and in repeated recommendations to congress, that profound lawyer and distinguished advocate, the Honorable Benjamin Harris Brewster, lately the attorney general of the United States, urged the importance of legislation which would further aid the courts in dispensing with the