or whimsical conjecture, but an actual sincere mental hesitation, caused either by insufficient evidence or by unsatisfactory evidence.

[Ed. Note.-For cases in point, see vol 14, Cent. Dig. Criminal Law, S$ 1267, 1268, 1904-1922.]

3. SAME-CIRCUMSTANTIAL EVIDENCE-WEIGHT AND SUFFICIENCY.

Direct and circumstantial evidence differ merely in their logical relation to the fact in issue. Evidence as to the existence of the fact is direct. Circumstantial evidence is composed of facts which raise a logical inference as to the existence of the fact in issue. A conviction may well be had upon circumstantial evidence, but to warrant such conviction the proven facts must not only be consistent with the hypothesis of guilt, but must clearly and satisfactorily exclude every other reasonable hypothesis save that of guilt.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 1262-1269, 1883-1888.]

4. CONSPIRACY-CRIMINAL PROSECUTION EVIDENCE OF INTIMACY BETWEEN PARTIES CHARGED.

Previous intimacy between persons charged with conspiracy is competent and important proof on the trial, and proof of close intimacy is especially important, if the duties of the parties respectively were intended to be in opposition, and should the occasion arise might forbid such intimacy, as where the conspiracy charged was to defraud the government in respect to contracts for public work, and the alleged conspirators were respectively contractors for such work and the government engineer officer in charge of the same.

5. CRIMINAL LAW-FACTS RELEVANT TO ISSUE-FLIGHT OF ACCUSED.

It is always competent to prove the flight of the accused as having a tendency to establish guilt; but such fact, if shown, is not conclusive, nor does it raise a legal presumption of guilt, but is to be given the weight to which the jury think it entitled, under the circumstances shown. In this connection they may take into consideration the defendant's age, intelligence, and financial ability to make a defense.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, $$ 779-780, 1257.]

6. SAME LIMITATION OF PROSECUTION-PERSONS FLEEING FROM JUSTICE. Where a person charged with crime against the United States in the courts of one federal district, when found elsewhere, resists removal to such district, with intent to avoid the jurisdiction and process of the court therein, such action constitutes a fleeing from justice, which, under Rev. St. § 1045 [U. S. Comp. St. 1901, p. 726], takes away from him the privilege of pleading the statute of limitations, and, until he submits himself to such jurisdiction, the statute does not run in his favor as against prosecution for any offense charged to have been previously committed in said district.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 278.]

7. SAME.

Although, under the extradition treaty of 1890 between Great Britain and the United States and the laws of Canada, a person whose extradition is sought by the United States from the Dominion of Canada has the right to oppose his extradition by legal proceedings, he is nevertheless, during the pendency of such proceedings, a person fleeing from justice, within the meaning of Rev. St. § 1045 [U. S. Comp. St. 1901, p. 726].

8. CONSPIRACY-CRIMINAL PROSECUTION-INSTRUCTIONS-REVIEW OF EVIDENCE. Evidence reviewed in the charge to the jury on trial of consolidated indictments and counts severally charging conspiracy to defraud the United States between contractors for public work and the government

engineer officer in charge of the same, the presentation of fraudulent claims against, and embezzlement from, the United States.

See 115 Fed. 343.

Marion Erwin, U. S. Atty., Samuel B. Adams and Thomas F. Barr, Sp. Assts. to U. S. Atty., and Alexander Akerman, Asst. U. S. Atty. William Garrard, Peter W. Meldrim, William W. Osborne, and Alexander A. Lawrence, for defendants.

SPEER, District Judge (charging jury). A grand jury drawn conformably to law from the judicial division and district having jurisdiction has presented three indictments against the prisoners. The indictments are numbered 322, 371, and 476. The first was returned December 8, 1899, the second February 28, 1902, and the third November 18, 1905. The accused indicted in the three indictments are Benjamin D. Greene, John F. Gaynor, William T. Gaynor, Edward H. Gaynor, Michael A. Connolly, and Oberlin M. Carter. Of the persons named, Benjamin D. Greene and John F. Gaynor are on trial. The indictments have been consolidated, the accused have pleaded not guilty to the charges made, and thus the issues are formed which you are to determine. The indictments will be before you. They have been read or sufficiently explained. It is, however, proper that the court shall direct your attention to the substance of the charges made in the several counts.

Conspiracy to defraud the United States is one of the alleged crimes. It is made in indictments 322 and 371. It is made punishable by section 5440 of the Revised Statutes [U. S. Comp. St. 1901, p. 3676]:

"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 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 $1,000, and not more than $10,000, and to imprisonment not more than two years."

Before this statute becomes applicable two or more persons must conspire to commit an offense against the United States, or to defraud the United States in some manner, or for some purpose. Having thus conspired, if one or more of such parties do an act to effect the object of the conspiracy, all the parties to the conspiracy shall be liable to the penalty. While this statute denounces conspiracy, it does not define it. It is an agreement of two or more persons to accomplish an unlawful purpose, or a lawful purpose by unlawful means. The essence of this offense is the unlawful combination. In union there is strength. This is true of combinations to do wrong as of combinations to do right. One man may desire, and even plan, to commit crime; but, where several agree to a common criminal design, the probability of their success, and therefore of injury to society, is largely enhanced. For this reason the mere act of conspiracy, the mere unlawful agreement, was indictable by the common law and is indictable in many, if not all, of the states. It is, however, true that the legislation of Congress, to which we must look exclusively for the definition of crimes of which we have jurisdiction here, provides that

one or more of the parties to the conspiracy must do some act to effect its object before it becomes punishable by national law.

Your inquiry as to this charge will be: First, was there the conspiracy as charged? If you find there was, you will next inquire: Was any act done by one or more of the parties to such conspiracy to effect its object? Such acts need not be the acts of the alleged conspirators actually on trial, but finding the conspiracy you may consider such acts of either one or more, or all the persons indicted, to ascertain if any act to effect the object of the conspiracy was done.

Now, why does Congress require something to be done before an unlawful agreement is indictable? It is because of the humanity of our laws. Under the English law, the mere conspiracy was indictable; but by the law of our general government, quoted, the conspirators may conspire all they please, provided that none of them do anything to carry out the object about which they conspire. In other words, it was the purpose of Congress to give them what is termed the locus penitentiæ; that imports an opportunity or point at which they may repent and abandon their unlawful purpose. But when anything is done by one of the conspirators to effect its object, it is regarded by our law as such an aggravation of the conspiracy that there is no longer a place for repentance, and the penalties of the statutes attach.

How may a conspiracy be proved? By witnesses to the agreement itself, or by proof of facts from which the jury may infer it. Rare indeed are the cases where a conspiracy can be proven by witnesses who heard it made. From its very nature, it is a secret or furtive agreement. Indeed, a famous writer upon criminal law, Mr. Archibald, declares that:

"A case cannot be easily imagined in which a conspiracy can be expressly proven, unless where one of the persons implicated in the conspiracy consents to be examined as a witness for the prosecution."

A conspiracy, however, is more dangerous to the public on this very account. It follows, in nearly all cases, that the charge of conspiracy is supported by proof of facts from which the jury may fairly infer it. You have already gathered from what I have said that, where several parties conspire or combine together in conspiracy, each is criminally responsible for any act of his associate, or associates, done to effect the object of the crime. In such cases, in contemplation of law, the act of one is the act of all. One person alone cannot be convicted of conspiracy. Two may be. One may be, provided that another or others also indicted are shown to be guilty with him. It is also true that, upon the trial of charges of this character, where the prosecution depends upon inferences to be drawn from facts, great latitude of proof must be allowed. "The jury," said the Supreme Court of the United States, "should have before them every fact which will enable them to come to a satisfactory conclusion, and it is no objection that the evidence covers a great many transactions and extends over a long period of time, provided, however, that the facts have some bearing upon and tendency to prove the ultimate fact in issue.

Having, as I think, sufficiently for the purposes of your inquiry explained the crime of conspiracy in general, it now becomes my duty

to attempt to make plain the particular conspiracy with which the prisoners are here charged. While there are three indictments and many counts, all of which you must consider, for the purposes of condensation and brevity, at present I direct your attention to indictment No. 371. This indictment, in language appropriate in a legal sense, charges that on the 1st day of January, 1897, Benjamin D. Greene, John F. Gaynor, William T. Gaynor, Edward H. Gaynor, Michael A. Connolly, and Oberlin M. Carter did conspire to defraud the United States of large sums of money. It is alleged that persons indicted had devised a fraudulent scheme for this purpose. This scheme, the indictment recites, on or about the year 1891, was first concocted and put in operation, and had been "continuously in process of execution," until renewed in the conspiracy entered into at the date mentioned in 1897. It is further charged that the conspiracy and acts done to effect its object continued thereafter in process of execution by the alleged conspirators.

The charge of conspiracy is, in substance, as follows: Oberlin M. Carter was an officer of the corps of engineers of the United States Army. From about 1888 until about the 20th of July, 1897, he was, as such engineer officer, in charge of what is called the Savannah district. His duty involved the execution of river and harbor improvements in the district mentioned. In this capacity he was vested with power, duty, and discretion to propose projects for the improvement of rivers and harbors, and projects for the expenditure of money appropriated by Congress for this purpose. It was his duty to devise and draft specifications for contracts for such improvements. His was the duty and discretion to recommend the acceptance of such contracts by his superior officers, to draft and suggest forms of advertisements, and to fix the period in which these should be published, and thus to give notice to the public that competitive bids would be received by him for the construction of the works proposed. His also was the power of suggesting and fixing the period in such contract specifications, within which a successful bidder would be required to commence work. He had the duty to give out information in regard to contracts to be let, to receive proposals for contracts, to recommend the award of the same, to approve or reject the bonds required of contractors, to superintend their work, to approve or reject the same as it might be in accordance with the requirements of the contract or otherwise, to suggest and recommend modifications of such contracts to be made by the Secretary of War, in certain cases without competitive bids and without public advertisement. He had also power and duty to approve or reject the accounts rendered to him by contractors for work done or claimed to have been done by them. It was his duty to approve such accounts if they were fair and honest, and to reject them if they were false or fraudulent. He was the disbursing officer of the government for all the purposes of his work, and, when the funds therefor had been appropriated and set apart for the work of his district, he was vested with the power, duty, and discretion to pay the contractors, if their claims for work done

honest and fair, and to refuse to pay them if such claims were false and fraudulent.

It is further charged that it was comprehended in the fraudulent scheme and device that Carter should misuse the official powers, duties, and discretion above enumerated; that he should do this so fraudulently that competitive bidding, for contracts to be let for the government by him, should be cut off, so that his co-conspirators would be the only successful bidders for the contract work of the district. In this manner it was contemplated that all such contract work would be secured by one or the other of the alleged co-conspirators, or by some other person for their benefit, with the result that the works constructed for the United States on such contracts would be let at high and exorbitant cost.

In furtherance of this project, it is also charged that Carter, as engineer officer, would frame the specifications of contracts for constructing jetty works and training walls with a specified fraudulent intent. This consisted in the contrivance of specifications in certain contracts of three designs of "mattresses" to be used as a part of the projected improvements. For these the contractors were to be paid by the United States at a certain price per square yard. Such contract, with its specifications, would provide that the engineer in charge might, at his option, require the contractor to put in the works a large number of square yards of a particular design of what is called a "log and brush mattress," and other specifications provided that the engineer at his option and at the same price to be paid by the United States, in lieu of the log and brush mattress, might require the same number of square yards of another specified design of what is usually called a "brush mattress." The log and brush mattress was costly in its character, and was therefore expensive to the contractor. The cost of the brush mattress was not only much cheaper to the contractor, but of much less value to the United States. By a vague description in the specification of the cheaper and inferior, that is to say the brush mattress, the engineer, by a fraudulent and strained construction, would accept and approve large numbers of square yards thereof at very much less cost to the contractor, and of a value much less to the United States than would be the same number of square yards of the log and brush mattress which might under the specifications be exacted by the engineer.

It is charged that the scheme comprehended that such specifications should be so devised and drafted by the engineer officer that all persons not parties thereto should have no information as to which design of mattress would be required until after the bids for the contracts. were received. It followed that bidders not parties to this scheme would be compelled, it is charged, to make bids at prices based upon the most expensive construction mentioned in the specifications. On the other hand, it is further charged that the defendants would be advised by Carter before their bids were put in, and opened, that, if they or any one of them should be the successful bidder, the engineer officer would require mattresses of the cheapest design, and that the design itself would be construed most liberally in their favor. This, it is