covered of the defendant in this case; the extent of that amount to be fixed solely upon a sum of money equal to one-third of such recovery. I fail to see that the written contract changes in any manner the admission in open court heretofore made by counsel that their fee is contingent upon the amount of recovery in this cause. Therefore, not only in view of the written contract alone, but also in view of the admission made in open court with reference to the basis of the fee agreed upon between plaintiff and his counsel, the motion of the plaintiff to vacate and set aside the order of Judge Toulmin heretofore made in this cause is denied and overruled.

I now come to the consideration of a further prayer in the petition filed by the plaintiff; and that is, in case this court should decide and determine that under the facts of this petition the plaintiff is not entitled to proceed without deposit or security of costs so long as the employment of his attorneys is based upon the terms of their contract, then that this court appoint the said attorneys who are familiar with this cause to represent him in this trial, and that said attorneys have such compensation for their services as may be fixed or determined by the court as reasonable. Section 4 of the act of July 20, 1892 (chapter 209), is cited as authority under which the court could take such action. As I have already said, the law under discussion is a charitable act, and is intended to give "any citizen of the United States entitled to commence any suit or action in any court of the United States" the right to do so by filing his statement under oath that because of his poverty he is not able to pay the costs of the suit or action.

By the undisputed facts of this case, the plaintiff's credit was sufficient to enable him to employ counsel to commence action in this cause, file pleadings, and actually prosecute this case in two trials. which have already been held, resulting in mistrials. It will be noted that the reading of the statute refers to the right of any citizen to "commence and prosecute to conclusion" his suit. Being able, therefore, without resorting to the affidavit of poverty, to secure counsel to commence his cause, such counsel could by proper proceedings in the absence of their contract, secure a lien upon the amount of recovery in this case for a reasonable attorney's fee. The section of the act under which this court is requested to make an order of assignment of counsel is a part of the same act of July 20, 1892, providing for the manner in which suits shall be commenced and prosecuted in forma pauperis. The title of the act is as follows: "An act providing when the plaintiff may sue as a poor person, and when counsel may be assigned by the court." It will thus be seen that the matter of assigning counsel is part and parcel of the same act providing for the manner in which such suits may be commenced and prosecuted. Therefore section 4 of said act must be construed together with section 1 of the act; the latter section being the section providing for permitting suits in forma pauperis.

Construing these two sections of the act together, and applying the facts in this case, I cannot say that this is a case in which the court is called upon to assign counsel for the plaintiff. Lawyers are, to some extent, a part of the court itself. They are, at any rate, officers

of the court. It is a part of the ethics of the legal profession, to say nothing of what is right, just, and proper, that they will not permit the rights of any litigant to suffer because of his inability, through poverty, to pay counsel to represent him. Plaintiff has already secured counsel by contract satisfactory alike to both counsel and client. To permit counsel now to repudiate this contract and be assigned by this court would be to permit by indirection that which this court has decided could not be done directly. Furthermore, section 5 of the act provided that, at the conclusion of the suit, judgment for costs. may be rendered as in other cases, "provided, that the United States shall not be liable for any costs thus incurred." It will thus be seen that whatever service is rendered by officers of the court in civil suits in forma pauperis would be at the expense of the officers of the Ourt, as being a part of the burthen of the office which they hold, should judgment for costs be adverse to the plaintiff. The clerk and marshal, therefore, are entitled in their right to collect all fees they have earned for service at the instance of the plaintiff in this cause, should he cast in the suit, and if not unwarranted by law it would at least be unwarranted in all fairness to these officers, and if not in contravention of the letter of the law, at least of the spirit of the act of July 20, 1892, did I now at this late stage in these proedlings permit the order heretofore made in this cause to be set aside, and now enter an order to permit the plaintiff to take advantage of the statute. The Bella (D. C.) 91 Fed. 540.

The prayer of the plaintiff, therefore, that this court appoint counsel to represent him in this cause, and that he be entitled to proceed without deposit or security of costs is denied and overruled.

UNITED STATES v. COLE et al.

(District Court, W. D. Texas, San Antonio Division. May 17, 1907.)

No. 1,956.

1. CONSPIRACY-WHAT CONSTITUTES.

A conspiracy is formed when two or more persons in any manner, or through any contrivance, positively or tacitly come to a mutual understanding to accomplish a crime or unlawful purpose.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 3039.]

2 SAME-ELEMENTS OVERT ACT.

In order to establish a conspiracy to commit an offense against the United States in violation of 1 Rev. St. Supp. (2d Ed.) p. 264, c. 8 [U. S. Comp. St. 1901, p. 3676], there must not only be an agreement or combination to commit a crime or unlawful purpose, but also an overt act apart from the conspiracy, done to carry into effect the object of the original combination.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Conspiracy, §§ 38, 39.]

SAME-KNOWLEDGE OF GUILT EVIDENCE.

Guilty connection of a conspirator may be established by showing association by the persons accused in and for the purpose of procuring the Illegal object.

[Ed. Note. For cases in point, see Cent. Dig. vol. 10, Conspiracy, # 100-104.]

153 F.-51

4. SLAVES-PEONAGE-DEFINITION.

Peonage is the status or condition of compulsory service in payment of an alleged indebtedness by the peon to his master.

[Ed. Note. For cases in point, see Cent. Dig. vol. 44, Slaves, §§ 1, 2] 5. CRIMINAL LAW-CREDIBILITY OF WITNESSES-PROVINCE OF JURY.

The jury, being the exclusive judges of the credibility of the witnesses, are entitled to determine for themselves what portion of conflicting testl mony is most worthy of belief, though they should endeavor to reconcile and harmonize it, if possible.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1714.]

6. SAME.

In determining the weight to be given to the testimony of a witness, the jury should consider his relationship to the parties, his means of information, and opportunity of knowing the facts to which he testifies, his manner and bearing in testifying, together with his interest in the controversy.

Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1252.]

7. SAME-INNOCENCE OF ACCUSED-PRESUMPTIONS.

In a criminal case the presumption of law is in favor of the innocence of the accused until his guilt has been established to the satisfaction of the jury beyond a reasonable doubt.

[Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 731-737.]

Charles A. Boynton, U. S. Atty., and Charles C. Cresson, Jr., Asst. U. S. Atty.

A. W. Houston, Jake Wolters, Frank Stubbs, Robt. T. Neill, and Geo. B. Taliaferro, for defendants.

MAXEY, District Judge (charging jury). The indictment against the defendants contains two counts. Both counts charge a conspiracy; the first to hold in a condition of peonage one Judge Johnson, and the second to hold in a condition of peonage Hagar Johnson. In the first count it is charged that the defendants conspired and agreed to hold the said Judge Johnson in a condition of peonage by, deceitfully and against his will, carrying him from Seguin, Tex., to the parish of Ouachita, in the state of Louisiana, and there to compel the said Judge Johnson against his will to work for J. T. Cole in payment of a debt claimed by Cole as due and owing him by Judge Johnson. It is further charged that, afterwards, on the same day, in pursuance of the conspiracy, and to effect the object of the same, the said J. T. Cole unlawfully and against Johnson's will carried him from Seguin, Tex., to the parish of Ouachita, in the state of Louisiana, and there forcibly and against Johnson's wili compelled him to perform labor and service for him (Cole) in payment of a debt claimed by Cole as due and owing him by Johnson. The second count, as before observed, is practically the same as the first, except that the defendants are charged with a conspiracy to hold in a condition of peonage Hagar Johnson.

The statute upon which the indictment is based provides as follows: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner, or for any pur

pose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty," etc. See 1 Supp. Rev. St. (2d Ed.) p. 264, c. 8 [U. S. Comp. St. 1901, p. 3676].

In this case it becomes your duty to inquire: (1) Was there such a conspiracy formed as the indictment alleges against the defendants? And (2) if such a conspiracy was formed and existed, were the acts charged in the indictment, to effect the object of the conspiracy, committed as alleged? To arrive at a satisfactory conclusion upon these questions, it is necessary to understand what constitutes conspiracy.

* * *

"A conspiracy is formed when two or more persons agree together to do an unlawful act-in other words, when they combine to accomplish, by their united action, a crime or unlawful purpose-and the statutory offense is consummated when such agreement is made and such combination is entered into and one or more of the parties do any act to effect the object of such conspiracy. It is not necessary, to constitute a conspiracy, that two or more persons should meet together and enter into an explicit or formal agreement for the unlawful scheme, or that they should directly, by words or in writing, state what the unlawful scheme is to be and the details of the plans or means by which the unlawful combination is to be made effective. It is sufficient if two or more persons, in any manner, or through any contrivance, positively or tacitly, come to a mutual understanding to accomplish a common and unlawful design. Of course, a mere discussion between parties about entering into a conspiracy, or as to the means to be adopted, for the performance of an unlawful act, does not constitute a conspiracy, unless the scheme, or some proposed scheme, is in fact assented to-concurred in by the parties in some manner, so that their minds meet for the accomplishment of the proposed unlawful act." United States v. Goldberg, 12 Meyer, Fed. Dec. 41, 42, Fed. Cas. No. 15,233.

"A mere agreement or combination to effect an unlawful purpose, not followed by any acts done by either of the parties to carry into execution the object of the conspiracy, does not constitute the offense. There must be both the unlawful agreement or combination, and an act or acts done by one or more of the parties to effect the illegal object or design agreed upon, to make the punishable offense under the statute. Where there is an attempted attainment of an unlawful end by two or more persons, who are actuated by a common design of accomplishing that end, and who in any way, and from any motive, or upon any consideration, work together in furtherance of the unlawful scheme, each one of the persons becomes a member of the conpiracy." Id.

To establish the guilt of the defendants on trial, you must be satisfied from the testimony that a conspiracy was formed and entered into by them, as alleged, to hold in a condition of peonage Judge johnson and Hagar Johnson, as charged in the indictment; and that to effect the object of the conspiracy the defendant Cole carried them against their will from Seguin, Tex., to Ouachita parish, La., and there forcibly and against their will compelled them to perform labor

and service for him in payment of a debt claimed by Cole to be due and owing him by Judge Johnson and Hagar Johnson.

"To establish a conspiracy, it is not, as has been said, necessary that there should be an explicit and formal agreement for an unlawful scheme between the parties; nor is it essential that direct proof be made of an express agreement to do the act forbidden by the law. It is as competent to prove an alleged conspiracy by circumstances as by direct evidence. In prosecutions for criminal conspiracies, the proof of the combination charged must almost always be extracted from the circumstances connected with the transaction which forms the subject of the accusation. * * * The acts of the parties in the particular case, the nature of those acts, * * * and the character of the transactions or series of transactions, with the accompanying circumstances, as the evidence may disclose them, should be investigated and considered as sources from which evidence may be derived of the existence or nonex istence of an agreement, which may be express or implied, to do the alleged unlawful act.'

The crime charged against the defendants is a statutory offense, and all the essentials required by the statute to constitute the offense must be proved before a conviction can be had, and under the statute there must be not only a conspiring together by the parties to commit the offense, but to complete the offense denounced by the statute, the formation of the conspiracy must be followed by the act charged in the indictment to have been done to effect its object, for otherwise the offense would not be made out. "But the moment any act is done to effect the object of the conspiracy, that moment criminal liability is fixed; and this act to effect the object, though it be done by only one of the parties, binds each and all the parties to the conspiracy, and completes the offense as to all, for in that case the act of one becomes the act of both or all.”

"This act, to effect the object of the conspiracy, must not be an act which is a part of the conspiracy. It must not be one of a series of acts, constituting the agreement or conspiring together, but it must be a subsequent, independent act, following a completed conspiracy, and done to carry into effect the object of the original combination." And under the law a person, who was not a party to the previous conspiracy, cannot be convicted on the overt act. Employing the language of the Supreme Court: "The gravamen of the offense here is the conspiracy. For this there must be more than one person engaged. Although by the statute something more than the common-law definition of a conspiracy is necessary to complete the offense, to wit, some act done to effect the object of the conspiracy, it remains true that the combination of minds in an unlawful purpose is the foundation of the offense, and that a party who did not join in the previous conspiracy cannot, under this section, be convicted on the overt act." United States v. Hirsch, 100 U. S. 34. 25 L. Ed. 539.

"Guilty connection with a conspiracy may be established by showing association by the persons accused, in and for the purpose of the prosecution of the illegal object. Each party must be actuated by an intent to promote the common design, but each may perform sepa