will be allowed to call witnesses to show that his character was such as would make it unlikely that he would be guilty of the particular crime with which he is charged. And as here the defendant was charged with a species of the crimen falsi, the rejected evidence was material and competent. This, indeed, is conceded in the brief for the government; but it is argued that, as the learned judge, in overruling the offer of the evidence, observed that the testimony might "become proper later on," he was merely passing on the order of proof, his discretion in respect to which is not reversible. It is possible, as suggested, that the judge thought that such evidence should not be offered until it appeared that the defendant had himself testified. But this would show a misconception of the reason why the evidence was competent. It was not intended to give weight to the defendant's personal testimony in the case, but to establish a general character inconsistent with guilt of the crime with which he stood charged; and the evidence was admissible, whether or not the defendant himself testified. When testimony, competent and material, has been offered and erroneously rejected, the error is not cured by a conjecture that, if offered at a subsequent period in the trial, the evidence might have been admitted. It should also be observed that, when a subsequent offer to the same effect was made, the judge rejected it without qualification.

There was likewise error in that portion of the charge in which the judge instructed the jury as to the effect that they should give to the testimony showing the defendant's good character.

It is proper to give the judge's own language:

"Some testimony has been given you touching the good character of the defendant. When a man is charged with crime, the courts of the United States permit this question of good character to be introduced to go to the jury. The theory, as I view it, is a wise one. If a man, in the community where he lives, by his incoming and outgoing among his neighbors, has built up in the years of his life, be they comparatively few or many, a character among them for good morals, which includes the uprightness and excellency of our general citizenship, it is right that the jury should know that fact. It is of value to them, in conflicting cases, in determining points in the case; and yet, gentlemen, I have to say to you that evidence of good character is no defense against crime actually proven. If the defendant in this case is proven guilty of crime charged, any good character borne by him in his community is no defense. It must not change your verdict; for the experience of mankind, of all of us, teaches us that men reputed to be of good moral character in a community- Unfortunately, sometimes, we find they are sadly different from that

which they are reputed to be, and that they are committers of crime. Yet the good chayacter goes to the jury with special force wherever the commission of the crime is doubtful. If your mind hesitates on any *point as to the guilt of this defendant, then you have the right and should consider the testimony given as to his good character, and it becomes, as I have suggested, or may be, of great importance in the minds of the jury in the matters of doubt."

To this portion of the charge the defendant's counsel took exception in the following terms: "We except to that part of the charge in stating the effect of good character, the defendant claiming that it should not be forced only in doubtful cases, but. should be considered by the jury, in connection with all of the evidence, as to whether or not, on all the evidence, there is a rea sonable doubt."

Some criticism is offered to the exception as made to the whole paragraph, and thus coming within cited cases to the effect that exceptions are not well taken to an entire charge, or to large portions of a charge, if the instructions complained of are, as to some of them, sound. There is a reasonable rule that, if the entire charge is excepted to, or a series of propositions contained in it is excepted to in gross, the exception cannot be sustained if there were a distinct proposition or instruction given that was sound. Waiving the question as to how far this rule is justly applicable to the case of a charge in a criminal case, we are of opinion that, in the present instance, the criticism is not well founded. The paragraph of the charge excepted to does not contain instructions on separate and distinct propositions, some of which are sound, and others not so. The subject treated of in the paragraph is the single one of the proper effect to be given by the jury to the evidence of the defendant's good character. A fair understanding of the meaning of the instruction cannot be reached without reading and weighing the entire paragraph. There would have been more room for just criticism had the defendant taken exceptions to sentences or phrases detached from their connection.

If formally correct, was the exception in question substantially well taken? Was the charge, in the particular complained of, a correct exposition of the law?

It is impossible, we think, to read the charge, without "perceiving that the leading thought in the mind of the learned judge was that evidence of good character could only be considered if the rest of the evidence created a doubt of defendant's guilt. He stated that such evidence "is of value in conflicting cases," and that, if the mind of the jury "hesitates on any point as to the guilt of the defendant, then you have the right and should consider the testimony given as to his good character."

Whatever may have been said in some of

198.

the earlier cases, to the effect that evidence of the good character of the defendant is not to be considered unless the other evidence leaves the mind in doubt, the decided weight of authority now is that good character, when considered in connection with the other evidence in the case, may generate a reasonable doubt. The circumstances may be such that an established reputation for good character, if it is relevant to the issue, would alone create a reasonable doubt, although, without it, the other evidence would be convincing.

Jupitz v. People, 34 Ill. 516, was a case where the defendant was indicted for having received goods knowing them to have been stolen, and his counsel requested the trial judge to instruct the jury that the evidence of the good character of the defendant for honesty should have great weight in determining as to his guilt or innocence. This was qualified by the court by the addition of these words: "If the jury believe there is any doubt of his guilt." This was held to be error, and the supreme court of Illinols used the following language:

"The instruction, as asked, may be objectionable, on account of the epithet 'great'; but as that was not the ground of the qualification, but on the ground, as is inferable, that the court did not consider evidence of good character of any weight except in a doubtful case. The more modern decisions go to the extent that, in all criminal cases, whether the case is doubtful or not, evidence of good character is admissible on the part of the prisoner. We can hardly imagine a case where evidence of a good character was a more important element of defense than this, and in the language of the instruction was entitled to great weight. Proof of uniform good character should raise a doubt of guilty knowledge, and the prisoner would be entitled to the benefit of that doubt. Proof of this kind may sometimes be the only mode by which an innocent man can repel the presumption arising from the possession of stolen goods. It is not proof of innocence, although it may be sufficient to raise a doubt of guilt. The court seemed to think it was entitled to no weight, unless, taking the language used in its most favorable aspect, there was doubt of his guilt. A strong prima facie case was made out by the prosecution, but It was not conclusive. If the court had told the jury that his good character should be taken into consideration by them, and was entitled to much weight, a reasonable doubt of the prisoner's guilt might have been raised, which would have resulted in his acquittal."

Similar conclusions were reached in Com. v. Leonard, 140 Mass. 470, 4 N. E. 96; Heine v. Com., 91 Pa. St. 145; Remsen v. People, 43 N. Y. 6; People v. Garbutt, 17 Mich. 28; 1 Whart. Cr. Law, § 636.

We find no errors disclosed by the other assignments.

The judgment of the court below is re

versed, and the cause remanded, with direc tions to set aside the verdict and award a new trial.

Mr. Justice BREWER concurs in the judgment. Mr. Justice BROWN dissents.

(164 U. S. 255)

LALONE et al. v. UNITED STATES.
(November 30, 1896.)
No. 4.

FRAUD-FALSE REPRESENTATIONS IN APPLICATION
FOR PENSION-EVIDENCE.

1. A mere preponderance of vague and ambiguous evidence of alleged fraud in obtaining a pension will not warrant a finding of such fraud.

2. On the issue of fraud in obtaining a pension, which had been granted to defendant upon his representation that his disability resulted from disease incurred in the war, the uncontradicted evidence showed that defendant, upon entering the war, was strong and healthy; that he contracted disease during the war, was confined for a time in a hospital, and returned home, after his discharge, in very bad health; and that subsequently he suffered a stroke of paralysis, by which he was still afflicted. Two witnesses testified that, after defendant's return from the war, they had seen him thrown from his wagon; and there was evidence to the effect that the paralysis appeared soon afterwards, and that it was the general speech of the community that it resulted from the accident. The defendant denied the occurrence of such accident. It was also shown, by medical testimony, that such an accident might have caused paralysis much more readily in one of defendant's condition at the time it was alleged to have occurred than in a healthy per son. Held, that the evidence did not warrant a finding that the pension was obtained by fraudulent representations of the defendant.

Appeal from the Circuit Court of the United States for the Eastern District of Wisconsin.

A. T. Britton and A. B. Browne, for appellants. Sol. Gen. Conrad, for the United States.

Mr. Justice PECKHAM delivered the opin-* ion of the court.

This is a suit in equity, brought by the United States to recover back certain moneys which had theretofore been paid the appellant Joseph Lalone upon the granting of his application for a pension, and to enjoin the defendant the First National Bank of Beaver Dam, Wis., from paying out certain moneys deposited therein by the appellant Margaret Lalone, the wife of Joseph, and which moneys were alleged to be part of those paid to Joseph, and to enjoin the conveyance of cer tain real estate, the legal title to which was vested in the defendant Margaret Lalone, and which plaintiff alleged to have been purchased by her with a portion of such moneys, and to vest the title to such moneys and real estate in the United States.

The ground upon which a recovery of the moneys was sought was that the pension had been obtained through the fraudulent acts and representations of the individual defendants. The bill alleged that the defendant Joseph Lalone filed with the pension bureau, on

the 19th of May, 1880, a claim for a pension on account of partial paralysis due to disease and sickness contracted while serving in the army during 1865; that, after the consideration of such claim for a period of eight years, and until April 21, 1888, the application was allowed, and more than $5,000 were paid to the applicant as arrearages of pension, and the sum of $30 per month thereafter was allowed. The bill then alleged that the partial paralysis, which Lalone claimed he was suffering from, and which he said resulted from the disease and sickness contracted while in such army service, was not the result of any such cause, and that Lalone's allegation to that effect was false and fraudulent, and intended to deceive the officers charged with the duty of examining and allowing such claim, and that it did so deceive them; that claimant's disability* was caused by and resulted from an accident suffered by him long subsequent to his discharge from the army; that Lalone had turned the pension moneys received from the government over to his wife, Margaret Lalone, who had deposited $5,000 thereof in her name in the First National Bank of Beaver Dam, Wis., and had thereafter withdrawn all but about $1,500 thereof, and with it had purchased 120 acres of land in Dodge county, Wis., subject to an existing mortgage of $1,300; that Margaret Lalone had knowledge of and was a party to the fraud alleged. The bill asked for a decree giving the United States the residue of the fund in the bank, and a conveyance of the realty, and for an injunction pendente lite. Upon the filing of the bill an injunction was issued. The individual defendants each answered under oath, denying all the charges of fraud made by the bill. The bank admitted its possession of $1,500 deposited by Margaret Lalone.

On the testimony submitted, which consisted of the depositions of many witnesses, the circuit court rendered a final decree in favor of the United States against the individual defendants for a recovery of the amount of money received by them from such pension fund, with interest. The decree also provided that the bank should pay the $1,500 on deposit with it into the United States treasury. It also ordered the sale of the realty, and that the proceeds of the sale should be applied to the payment of the money decree against the Lalones, with execution for any deficiency.

The case is now before us for review. In all proceedings instituted to recover moneys, or to set aside and annul deeds or contracts or other written instruments, on the ground of alleged fraud practiced by a defendant upon a plaintiff, the rule is of long standing, and is of universal application, that the evidence tending to prove the fraud, and upon which to found a verdict or decree, must be clear and satisfactory. It may be circumstantial, but it must be persuasive. A mere preponderance of evidence, which at the same time is vague or ambiguous, is not sufficient to war

rant a finding of fraud, and will not sustain a judgment based on such finding. The rule, obtains in cases of alleged fraudulent representations made to an officer of the govern-* ment, upon the faith of which the officer has issued a patent, or done any other official act upon which the rights of the party making the misrepresentations may be founded. This principle is exemplified in U. S. v. Iron Silver Min. Co., 128 U. S. 673, 9 Sup. Ct. 195, and cases cited, and is not confined to cases of patents for lands.

Examining the record in this case, and after perusing the whole evidence contained therein, and having in mind the rule above stated, we are entirely convinced that the evidence on the part of the plaintiff, when read in connection with that which was given on the part of the defendants, falls far short of the requirements of the rule.

There are some facts which are established by uncontradicted evidence in the case. Joseph Lalone, one of the defendants, and the individual to whom the pension was granted, was, at the time of his enlistment, a young man, of about 32 years of age, of French extraction, and living in the state of Wisconsin. In 1864 he enlisted as a private in one of the Wisconsin regiments. He was famed at that time among his townsmen for his physical strength and perfect health. As many of the witnesses expressed it, he was one of the healthiest men they ever saw. He was with his regiment in the army of Virginia, and during the winter and spring of 1865 he contracted a disease, and was in the hospital at Alexandria, in Virginia, suffering from what was thought to be dumb ague, or fever and ague, as stated by some of the witnesses. He came back to his home in Wisconsin, after his discharge in August, 1865, badly shattered in health, sickly in appearance, and to such an extent as scarcely to be recognized by some of his former friends. His complexion and color were bad. He seemed to have no strength in his legs, walked in a trembling way, and seemed unable to do any hard work. (There is some difference of opinion among the witnesses as to the extent of his sickness when he came from the army.) Some time in the spring or early summer of 1866 or 1867, he suffered from a stroke of paralysis, resulting in the almost complete loss of the use of one side of his body, and affecting his speech, and to some extent his mind. From that time until the time of the trial of this case he has suffered without intermission, and with scarcely any improvement. In making his application for a pension in 1880, he claimed that this paralysis was the result of his experience in the army, and of his exposure incident to army life, and of the disease he there contracted. So far the evidence is substantially uncontradicted. There is, however, a conflict in regard to the immediate cause of the paralysis. Two witnesses upon the part of the government, who were boys at the time of the alleged occur

rence, testified that they saw the defendant thrown from his wagon while driving along the road, and it is claimed that immediately, or soon thereafter, the paralysis appeared. It is claimed that the evidence on the part of the government shows that, before this accident, he bad exhibited no signs of any paralysis, and that he had been fairly capable, from the time of his return from the army up to the time of the accident, to attend to the work on his farm like any other man of his age. Other witnesses for the government testified to the general speech of people at that time, that Lalone had been thrown from his wagon, and had received severe injuries, resulting in paralysis, from which he never recovered. On the other hand, the individual defendants denied the occurrence of any such alleged accident, contradicted the evidence of the government's witnesses as to its happening, and gave evidence tending to show that, soon after his return from the army, Lalone suffered a slight paralytic stroke, and that he was unable to do the ordinary work of the farm from the time of his return, and that in the spring of 1866 he sustained the last stroke, from the effects of which he never recovered, and was then suffering.

Upon a careful perusal of the evidence, we think it clearly appears that Lalone was not able to work on his farm from the time of his return as he had been accustomed to work before his departure for the army. Many years have elapsed since those events, and it is not strange that witnesses differ somewhat as to Lalone's condition when he returned, or as to the first appearance of the paralysis with which he is unquestionably afflicted, and under which he has suffered and been "almost helpless for nearly 30 years. Whether it was the direct result of his army life and the disease there contracted, or the direct and immediate result of the alleged accident, seems to be the chief subject of conflict in the evidence of the witnesses.

It is unnecessary, and it would serve no good purpose for us, on this occasion, to go into an extended and minute review of the evidence given on both sides of this case. It has been read with great care, and the most that can be said is that, after a careful perusal of all of it, there are some circumstances shown which might raise a doubt as to whether the last stroke of paralysis did not occur immediately or soon after the alleged accident. We are not entirely satisfied, from the evidence, that the accident in truth occurred in the manner and to the extent as testified to by the witnesses who spoke in regard to it, and who were quite young boys at the time they alleged that it happened, which was almost 30 years before the time they testified. But, even if we were satisfied, from the evidence, that the accident took place as described by these witnesses, we should still feel that the case on the part of the government had not been made out with that clearness which

is requisite in order to base a finding of fraud. It is not, and cannot be, disputed that Lalone went to the army a healthy man, and came back very greatly altered, and to all appearance a very sick man. It is uncontradicted that, while in the army, he suffered from some very grave and enervating fever, and that he was treated for it in the hospital at Alexandria. The medical witnesses called on the part of the government themselves admit that paralysis might supervene more readily in the case of one who had materially suffered from some disease, and who had not recovered from its effects, such as fever and ague, than it might in the case of a healthy man, -or, as one of them said, "just to the extent that his vital forces were depressed by the disease under which he suffered he would be just that much less able to withstand sickness or injury, and that, therefore, an injury which might not have resulted with a perfectly well person in such injury to the brain as to cause paralysis might be followed with such result more readily in the case of a man who had suffered from a previous illness, and was still laboring under its depressing effects." In the latter case, while the blow or accident might be the direct, immediate cause of the paralysis, yet the prior physical condition of the subject caused by ill health and exposure in the army, and the sickness which he endured while in the hospital in Virginia, from which he was then suffering, might fairly be regarded as a concurring cause of such paralysis. It could not be said to be a fraud, at any rate, under such a state of facts, for the defendant to claim that his paralysis was caused by his sickness in the army.

It may be somewhat doubtful as to what was the immediate cause of the paralysis from which the defendant suffered, and from which he is now suffering, and probably will suffer to the end. That he is almost completely helpless, and has been all these years, is not doubted. The trial court, in the opinion delivered by it, only went so far as to say that, on the whole, it was satisfied that the government had a preponderance of evidence that the pension was obtained fraudu lently, and that the money paid on it should be recovered back. This mere preponderance, as we have seen, is not sufficient in such a case. The decree in favor of the government must, therefore, be reversed, and the case remanded to the circuit court with directions to dismiss the bill.

ล

ment or decree of the court of appeals of the District of Columbia, where "the matter in dispute, exclusive of costs, shall exceed the sum of $5,000." Held, that this jurisdiction does not extend to criminal cases.

In Error to the Court of Appeals for the District of Columbia.

Chapman was indicted in the supreme court of the District of Columbia for an al leged violation of section 102 of the Revised Statutes, in refusing to answer certain questions propounded to him by a special committee of the senate of the United States, appointed to investigate charges in connection with proposed legislation then pending in the senate. To this indictment the defendant demurred, on the ground, among others, that section 102 of the Revised Statutes was unconstitutional, and that, therefore, the court was without jurisdiction in the premises. This demurrer was overruled by the trial court, and its judgment thereon affirmed by the court of appeals of the District. 5 App. Cas. D. C. 123. Defendant was thereupon tried and convicted, and, motions for new trial and in arrest of judgment having been made and overruled (the question of the constitutionality of section 102 being raised throughout the proceedings), was sentenced to be imprisoned for one month in jail and to pay a fine of $100, which judgment was affirmed on appeal. 24 Wash. Law Rep. 251.

A writ of error from this court was then allowed (24 Wash. Law Rep. 297), which the United States moved to dismiss.

Geo. F. Edmunds and J. M. Wilson, for plaintiff in error. Sol. Gen. Conrad, for the United States.

*Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

The appellate jurisdiction of this court rests on the acts of congress, and the question is whether we have jurisdiction to review on writ of error a judgment of the court of appeals of the District of Columbia in a criminal case under section 8 of the act of February 9, 1893, establishing that court (27 Stat. 434, c. 74). And the proper construction of that section is to be arrived at in the light of previous decisions in respect of similar statutory provisions conferring appellate jurisdiction.

Section 8 of the act of February 27, 1801, entitled "An act concerning the District of Columbia" (2 Stat. 103, c. 15), and creating a circuit court for the District, provided "that any final judgment, order or decree in said circuit court, wherein the matter in dispute, exclusive of costs, shall exceed the value of one hundred dollars, may be re-examined and reversed or affirmed in the supreme court of the United States, by writ of error or appeal, which shall be prosecuted in the same manner, under the same regulations, and the same proceedings shall be had there

in, as is or shall be provided in the case of writs of error on judgments, or appeals upon orders or decrees, rendered in the circuit court of the United States."

In U. S. v. More, 3 Cranch, 159, 173 (decided in 1805), it was held that this court had no jurisdiction, under that section, over the judgments of the circuit court of the District in criminal cases, and Chief Justice Marshall said: "On examining the act, 'concerning the District of Columbia,' the court is of opinion that the appellate jurisdiction granted by that act is confined to civil cases. The words, 'matter in dispute,' seem appropriated to civil cases, where the subject in contest has a value beyond the sum mentioned in the act. But, in criminal cases, the question is the guilt or innocence of the accused. And, although he may be fined upwards of 100 dollars, yet that is, in the eye of the law, a punishment for the offense committed, and not the particular object of the suit."

The section, as thus construed, was carried forward in the subsequent legislation on the subject, which is referred to at length and considered in cases hereafter cited, and need not be again reviewed.

The act of March 3, 1885 (23 Stat. 443, c. 355), consists of two sections, reading:

"Section 1. That no appeal or writ of error shall hereafter be allowed from any judgment or decree in any suit at law or in equity in the supreme court of the District of Columbia, or in the supreme court of any of the territories of the United States, unless the matter in dispute, exclusive of costs, shall exceed the sum of five thousand dollars.

"Sec. 2. That the preceding section shall not apply to any case wherein is involved the validity of any patent or copyright, or in which is drawn in question the validity of a treaty or statute of or an authority exercised under the United States; but in all such cases an appeal or writ of error may be brought without regard to the sum or value, in dispute."

*We have decided that this court has no jurisdiction to grant a writ of error to review the judgments of the supreme court of the District of Columbia in criminal cases, either under the judiciary act of March 3, 1891 (26 Stat. 826, c. 517; In re Heath, 144 U. S. 92, 12 Sup. Ct. 615), or under the act of February 6, 1889 (25 Stat. 599, c. 15; Cross v. U. S., 145 U. S. 571, 12 Sup. Ct. 842), or on habeas corpus (Cross v. Burke, 146 U. S. 82, 13 Sup. Ct. 22). And, although the validity of any patent or copyright, or of a treaty or statute of, or an authority exercised under, the United States, was not drawn in question in those cases, it was distinctly ruled, in reaching the conclusions announced, that neither of the sections of the act of March 3, 1885, applied to any criminal case; and Farnsworth v. Territory of Montana, 129 U. S. 104, 9 Sup. Ct. 253, U. S. v. Sanges, 144 U S. 310, 12 Sup. Ct. 609, and U. S. v. More, x