pression till last year the Court of Appeal ruled it seems, that, to comply with the Bankruptcy Rules as to appeal, all the steps must be taken. The Lords Justices were of opinion that the failure of the solicitor for the applicant to read, mark, and inwardly digest the Law Reports of the previous year was not such an unavoidable mistake as to justify the court in extending the time.

"The moral of these cases," says the Law Journal (London), "is very obvious, that the lawyer must not only know the principles of the law, but must read the reports and keep his text-books up to date. Yet it could be wished that the rules of procedure were not so rigidly applied. As Lord Collins said in Coles and Ravenshear: 'Their relation to the work of justice is intended to be that of handmaid rather than mistress, and the court ought not to be so far bound and tied by rules which are, after all, only intended as general rules of procedure, as to be compelled to do what will cause injustice in the particular case.'"

This all sounds very familiar to the American lawyer. The only difference is that an American lawyer would not think of worrying about his failure to observe a clearly imposed statutory requirement. He would charge it up to his own negligence and take his medicine. He would rejcice if he could but free himself from the uncertain technicalities surrounding the introduction of evidence and the giving of instructions-technicalities, which in England seem to have already passed into the limbo of things that were but are not.

INSTRUCTIONS-RELATIVE INFLUENCE OF REQUESTS FOR INSTRUCTIONS GIVEN AND ORAL CHARGE BY COURT.-Instructions to juries confined to requests offered by respective counsel in a case have sometimes reminded us of the remark said to have been made by a distinguished lawyer after listening for a while to an involved oral charge. "How that judge is drawing darkness down on that jury!"

While darkness may sometimes be drawn down on a jury by small-salaried, and some large-salaried, incumbents of judicial place, we believe the efforts of opposing counsel to get instructions in for their sides more generally spread an Egyptian gloom over the issues to be decided. The judge, presumably, always wishes the instructions to aid the jury to a correct decision of questions of fact. Such presumption is not near so violent as to counsel offering requests. And we did not know that there was any judicial cognizance about how jurors looked on these requests.

In Alabama it seems that the practice is for the judge to charge orally and to read such requests for instructions as he permits to be given. In the case of Birmingham R. L. & P. Co. v. Seaborn, 53 So. 241, the court committed an error in its oral charge, and it was claimed to be harmless, because corrected in a written charge, the phraseology we follow being that employed in Alabama decision.

The Supreme Court of Alabama said: "It would be a very unsafe rule to establish that, if the trial court charges the law incorrectly, but gives a written charge contradicting the oral one, the error would be cured. The jury would be at sea and would not know which to follow, and experience teaches that they are more apt to heed what the court tells them than the instructions on the slips given them."

The slips given them "possibly appear to the jury as if the lawyer is trying to get the judge to do something in his favor, and the accordingly discount what he obtains, if it disagrees with what the judge tells them of his own motion.

This is not a bad sort of reasoning and by the same token it may be argued, that when they hear a judge reading to them nothing in the way of instructions but what has been written out for him by the counsel, it does not impress them greatly and they "take the bull by the horns" and decide cases according to their general sense of right and justice. For this reason and for the additional reason, that the requests of one side are on the border line of contradiction to requests on the other side, the instructions are more than apt to be confusing.

If there is a connected charge in which principles and exceptions are placed in opposi tion, a certain phase is developed as the charge proceeds and then other phases are fully presented. At the end of its giving, the jury will have been enlightened. With requested instructions, each request is like a bolt shot into the air and then after awhile an opposing bolt is let locse, and just when the jury has settled down after the verbal pyrotechnics of counsel have ended, they see that through the judge the merry war is still on. An American judge, playing such a role, looks more like an automaton than a jurist.

CARRIER-DUTY TO INTENDING PASSENGER WHILE WAITING ARRIVAL OF TRAIN. Our much esteemed contemporary, the New York Law Journal, referred to this Journal in its issue of November 7th, 1910, in expression of its disagreement with our criticism of a Mississippi decision found in 71

Cent. L. J. 166. In its issue of November 16th, 1910, it speaks of its commendation of the decision we criticised, and submits not only as in line with, but as going even beyond its view, the case of Texas Midland R. R. v. Geraldon, 128 S. W. 611, decided by the Supreme Court of Texas.

The latter case is interesting but it does not seem to relate to the point decided by the Mississippi court in any way whatever. In the Mississippi case the question was whether one going to a railroad station in advance of a train's arrival, but within the statutory time providing for a depot to be kept open for intending passengers, became such by leaving his satchel there for his own convenience, while he was transacting private business before the train arrived. The court held he did and we took the view this was error, cur contemporary agreeing with the court.

re

In the Texas case it appears, that one Geraldson and his family arrived at a depot too late to catch a train they intended taking. The night being rainy, they wished to main in the station room, until 5 A. M. the next morning when the next train would arrive. The station agent compelled them to leave late at night, notwithstanding he was informed by Geraldon, that his wife was in no condition to be exposed to the rain.

The court held that Mrs. Geraldon was not a trespasser when she entered the depot, and while the railroad had the lawful right to require occupants to leave the depot, rather than keep it open all night, yet under the circumstances, and assumption from the verdict, that the agent knew her health would be endangered by her being put out of the depot in the rain, this general right was qualified.

As showing further, that the plaintiff's right of recovery for the injury she sustained from being put out in the rain was not that of one with passenger rights, the court said: The relative rights and duties of the railroad company and Geraldon and his wife on this occasion are analogous to those existing between persons improperly upon moving trains when it becomes the duty of the conductor to remove them from the train. His right to remove them under such conditions is not questioned, but it is beyond all controversy his duty to see that he does not, in so doing, expose the persons to danger of life or health."

It seems evident to us, that the Texas court was little, if at all influenced, to its conclusion by the fact of Mrs. Geraldon intending to take a train several hours later, except as that fixed a time beyond which refuge from inclement weather would not be sought. When the court

been treated, it needed no intending passenger's rights to help it along, and it referred to none, but on the contrary said, in effect, that but for plaintiff's condition as to health the agent would have had the right to require her to leave.

A controversy between editors is of no particular interest to this Journal's subscribers and what we have above said is offered on its general merits, and because, when we differ from our valued contemporary, we are disposed to regard its view as worthy of note.

CRIMINAL CONSPIRACY NEEDING OVERT ACT TO MAKE IT INDICTABLE.

Preliminary.-Exception of a strictly technical character might possibly be taken to the phraseology of this title, but decision generally does not distinguish, in terminology, between an act to effect the object of a conspiracy, so as to bring conspiring within the laws' denouncement, and an act done in pursuance of a conspiracy that is a complete offense. Yet overt acts, in common law language, contemplate merely those acts which furnish evidence, not aid in the completion, of the offense of conspiracy. An overt act of conspiracy, at common law, is an act done. as the phrase goes, dum fervet opus, and in pursuance of the object thereof. But an act in pursuance of a conspiring to commit a crime, and necessary to make that conspiring an indictable offense, completes the opus. Either by relation back, or by transference forward, the act and the conspiring become legally simultaneous. A crime of this sort may be said to be in embryo or inchoate and is born or made consummate afterwards.

This distinction would seem to suggest that a necessary act to complete the crime of conspiracy is not strictly an overt act. It is, instead, a part of the crime, while an overt act is but evidence of the crime. The body of the offense-the corpus delicti -of common-law conspiracy may be established without proof of an overt act.

that even a trespasser would not thus have

it in the respect inlicated, demands the es

tablishment of at least one so-called overt

act.

These observations would seem not to require any citation of authority in their support and are introduced here by way of preliminary.

Federal Conspirary Statute. Section 5440, U. S. R. S., reads as follows:

"If two or more persons conspire either to commit an offense against the United States or to defraud the United States in any manner, or for any purpose, 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 of not less than one thousand dollars and not more than ten thousand dollars, and to imprisonment not more than two years."

This provision has been made the basis. of so many prosecutions and has evoked so much discussion, with views so variant, that we present it as a type of those statutes, which demand in conspiracy the so-called overt act.

It is to be first observel, that the statute attempts to place the "act to effect," etc., upon the precise footing of the commonlaw overt act, that is to say, the act to bring the conspiracy into being, as an offence, need not be participated in by more than one of those who conspire. Ipso facto, then, the conspiring becomes a crime. I wish to ask if this is consistent with the principle (1) that there can be no common-law offenses against the United States, and (2) that the commission of the "act to effect," etc., makes the statute of limitations begin to run?

Conspiring Against the United States.Mere conspiracy is undoubtedly a commonlaw offense. It is malum in se if the object and end is morally bad. And with

what is morally bad the federal government having merely delegated powers, has no concern. And a statute in regard to those things, about which the government they represent has no concern, can be none other than brutum fulmen. If, therefore, federal legislation can decree that an antece

dent conspiracy, merely immoral when entered into, should culminate into crime by the subsequent act of one of the conspirators to effect its object, it is so because effect is traced back to cause. But is the legal hiatus covered, in federal aspect, by such an answer? At most the conspiring is not a crime, but it may become one because the conspiring authorizes an agent to add the necessary ingredient.

I can imagine a distinction were this statute state legislation, though neither a state nor the government may recognize the investiture of one with authority to commit a crime. If this were a state statute, it could be construed to mean that conspiracy is the offense, but it need not be prosecuted, unless an attempt is made to carry it into execution. If the United States is unable to declare conspiracy alone to be a crime, can it declare that the act of a single conspirator can raise it to a crime?

Judge Sanborn in Ware v. U. S.1 did not pass upon this question, but the reasoning he employed in discussing the question of overt acts as fixing the last starting point of the statute of limitations implies that "the act to effect," etc., is not precisely like an overt act in conspiracy at common law. Thus, he says, after quoting from U. S. v. Britton: "So there is a locus poenitentiae after the performance of each overt act and a presumption of innocence, and. if after the performance of the first overt act, a defendant abandons the designs of the conspiracy, and the prosecution of the conspiracy, and, if the first overt act becomes barred by the statute, the overt acts of the other conspirators within the three years in the performance of the old conspiracy, without the conscious participation of the defendant, ought not to charge and cannot charge him with the offense, because they fail to evidence his intent to violate the law within the three years."

We find no such language or reasoning as to common-law conspiracy. Overt acts may help to show conspiracy and to con

(1) 154 Fed. 577, 84 C. C. A. 503, 16 L. R. A. (U. S.) 1053.

(2) 108 U. S. 204.

spire establishes guilt, while Judge Sanborn says that, even after one may be shown to have conspired, "a presumption of innocence" attends him until his conscious participation in another overt act is proven. At common law this conscious participation follows from proof of the conspiracy. If such reasoning is admissible as to later overt acts, a fortiori "conscious participation" should be required as to the first act, which alone makes the conspiracy indict

able at all.

Starting of Limitations from First Act to Effect, etc.-The fact that a conspiracy never becomes indictable until some act done to effect the object of the conspiracy has been ruled to make the statute of limitations begin to run from that time. Indeed, about the only controversy between the lower federal courts seems to be whether later overt acts may make a new starting point. The theory of a new starting point is that each overt act constitutes a renewal of the agreement. At common law that would seem very much like a fiction arising ex necessitate rei, that is to say, if the rule were otherwise, then by the terms of a conspiracy it might be provided that the first overt act should not occur until the offense of conspiracy has been barred. Then all steps to carry out a nefarious project could be committed with impunity. Therefore, the renewal theory has been invented, to which I will advert later on.

Taking, however, into account the distinction between a common-law overt act and an "act to effect the object" of a statutory conspiracy, it is to be asked, why the date of the beginning of the statute should be brought forward to the commission of the act rather than relate back to the formation of the conspiracy? Very probably a sufficient answer is, that then is the first time the law takes any notice of the offense and, if at common law a mere fiction of renewal can make a new starting point, a fortiori does the time of a conspiracy becoming indictable make the statute first begin to run. This sort of reasoning, however, is based on the weakness of the statute rather than its force, and converts a

saving-clause in favor of an accused into a weapon against him.

3

Formation and Renewal of Conspiracy.At common law it is undoubtedly true that the formation of the conspiracy must be proved to be within the statutory period, if the indictment is framed that way. A leading case on this subject is that of Commonwealth v. Bartilson. There were two counts in the indictment, the first charging conspiracy without alleging overt acts, and the second charging "divers, dishonest, malicious and unlawful acts" in pursuance and as a renewal of said conspiracy, etc. In the first the date of the formation of the conspiracy showed it was barred by the statute, and the date of the renewal in the second count was later and no bar attached. A bill of particulars was called for as to the second count and the latest overt act stated therein was at a date which showed it was barred. But demurrer was only sustained as to the first count, the court reasoning that: "While the bill of particulars showed a defect of proof, yet an indictment should not be quashed for that reason," as "this may be supplied at the last moment." Then is discussed the relevancy, as at common law of overt acts, the court saying: "Acts and conduct prior to the statutory time may be given in evidence, provided they tend to show a conspiracy existing at the time charged in the indictment." Under the reasoning, however, adopted by Judge Sanborn, it would seem quite doubtful about the admissibility of such evidence, because he says there is a presumption of innocence in the locus poenitentiae theory advanced by Judge Wood' in regard to formation of the conspiracy and the first act necessary to make it indictable, extended by Judge Sanborn, subsequently, beyond such first act.

This theory of renewal, pressed by the Bartilson case, is based by analogy upon the rule, that, while in criminal cases venue must be laid in the county in which the offense was committed, yet in conspiracy it

may be laid in any county in which an overt act has been done by anyone of the conspirators. In this the common law is seen to take account of existence, rather than formation of conspiracy, and to regard the offense as a continuing one-a menace because of its potency of evil.

Venue has been held to be properly laid "either in the county of the original unlawful confederation or in that wherein any unlawful act pursuant thereto transpired.”

The Matther case says: "The law considers that whenever they act, there they renew their agreement, and this agreement is renewed as to all, whenever any one does an act in furtherance of their common design."

I have tried to make plain, that the affixing of guilt to all who originally conspire is a tenet of the common law, enforced in utmost rigor, while the federal supreme court, as interpreted by Judge Sanborn, gives to every conspirator the benefit of a presumption of innocence, that is to be overcome not: "Whenever any one does an act in furtherance of their common design," but only by "conscious participation in such an act." That distinction should cut a wide swath in questions as to the admissibility of so-called overt acts in statutory conspiracy as evidence; as to the measure of proof required to convict, and whether or not venue is properly laid, when not in the county where the original conspiracy was entered into. Incidentally, and necessarily, too, it controls the question of the running of the statute, making it exceedingly more difficult to trace back the last of a series of overt acts to the original conspiracy.

Federal Cases as to New Starting Points of Limitation.-In Insurance Co. v. States the Mississippi supreme court, which followed the rule of renewal, spoke of cases in the lower federal courts as seemingly opposed to U. S. v. Britton, supra, in that

(6) Whar. Cr. Law, Sec. 2350; Rex v. Scott, 4 East 164; People v. Matther, 4 Wend. 230. (7) 2 Bish. Cr. Proc., Sec. 236; Peo. v. Matther, supra: Noyes v. State, 41 N. J. L. 422. (8) 75 Miss. 24, 22 So. 99.

they based their ruling of the statute of limitations beginning to run from the first overt act, and not receiving a new starting point from subsequent overt acts, in that the crime being complete with the first "act to effect," etc., it was not continuing, because the Britton case held that "conspiracy was the gist of the offence," It supposedly, therefore, reasoned the Mississippi court. was subject to renewal by overt acts in pursuance thereof. At that time these lower courts were generally holding this way, but later cases have adopted the renewal theory, the supreme court not yet having ruled on the question.

An

An early case in which it was ruled that the first act fixed the starting point of the statute was that of U. S. v. Owen, the conspiracy relating to fraudulent entries of public lands. The opinion said: "This is an instantaneous crime, composed of the conspiracy and the first act done to affect the object thereof, at whatever distance of time therefrom.. Where the conspiracy is formed the crime is begun and when the act is committed it is consummated. indictment will then lie against the criminal and the limitation on the right of the government to prosecute him begins to run, and in three years the bar is complete." This reasoning induced the court to say subsequent acts did not make a new starting point. But it hardly sounds conclusive, because the real question, was, not when the statute first began to run, but whether or not it was tolled on the principle of renewal.

In U. S. v. McCord1o the conspiracy was for a like object and the opinion said: "That conspiracy is a continuing offense in the sense that, as to the first and original parties to the conspiracy, this statute begins to run anew from the time of the commission of every overt act, is a contention this court is unable to affirm." The court may have had in mind the concept more fully developed by Judge Sanborn about "conscious participation," though

(9) 32 Fed. 534.
(10) 72 Fed. 159.
(11)

U. S. v. Ware, supra.