126
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Court of' AppeaJ.e, .Bllghth: C1rcuit. llL!l.Uf117 27, 1S93.)
, L . #IT;:g!lIl''rr.DllI'IlREE ,().F .
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if'"
'./0 under Rev,_ St. § 3490, to ,reeover thll double da.mag-es and for·:reltlltepresclibed 4gainst 8ny one presenting a taliIe or fraudulent cIaiJn , agaWsttbe UnitedStlttes:1h one of Its offlcers tor:payment or approval, itscllse beyond doubt, and :y U,ce, evidence ,Of good for the proceeding, form,'is criminal in its natul'e and e1rect.
TBEUNITED,STAq'EB-PBJl:BEN'rATION-BUITFOB Pa· REQ.UIRED, ," ',,' ." .
I. SAME:':':'lllvIDENcE
the government must show that defendant not only· pre..'taJse 01" fraudulent clalm,but that he knew It to be such;alld the lury.&l'9;not wamlnted in inferring, such p),erely from the tact that he acted negligently and without ordlna.ry business prudence; they musts,tleast be satisfied that he was aware of cl.romnstances such as would'lriduce an ordinarily intelllgent and prudent man to believe the vouchers to be false. . No.,JuPglJlent should be reversed tor an error which could not ha.ve the rights of the party agaiwlt whom the ruling was made. ,
rn Such :B: suit
OF INTENT.
"
'
,
B.
APPEAL-REVIEW-HARMLESS ElmOR.
SAHE-QENERAL OBJECTIONS TO EVII)ENCE,
.A. mere objection, Where no grounds for It are aSsIgned at the trial, cannot be,considered in an appellate court. Burtxln v. Driggs, 20 Wall. 125, approved IlJ.1d followed.
6. TRIAL-PnOVINCE OF COURT AND JURy-DmECTING VERDICTS. It is tile duty of a federal trlal court to direct a vel'dlct for defendant whe:n Is' such that, In the exercise of a sound judicial discre-
tion, ,it, 'be compelled to asJ.de a verdict returned in favor ot plllinti1f. Railroad eo, v. Davis, /S3 Fed. Rep. 61, and Monroe v.Insurance Co., 62 Fed, Rep. 777, followed.
In Error tQ the Distriet Court of the United States for the East· ern DiV:i$ion of the Eastern Distriet of Missouri. Action,l,)ythe United States against Frank Shapleigh to recover certainpena.1ties prescribed by Rev. St. § 3490. The district court gave judgment on a verdict for defendant. Plaintlif brings error. Affirmed. " Statement by SANBORN, Circuit Judge: SectlonM88 ot the Revised Statutes of the United States provides that: "Sec. 1:i438. Every person who makes or causes to be made, or who presents or causes to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, any claim upon or against the government of the United States, or any departInent or officer' thereof, knowing such claim to be false, fictitious, or fraudulent, o,r who, for the purpose of obta1nlng or aIding to obtain the payment or approval of such claim, makes, uses, or causes to be made or used, any false bll1, receipt, voucher, roll, account, claim, certlflcate, affidavit, or deposition, lmowiug the same to contain' :'lny fraudnlent or fictitious statement· or entry, · · ., shall be Imprisoned at bard lab()!:' for not less than one nor more than five years, 01' fined not less than one thousand nor more than five thousand .
Section 3490 provides that: "Sec. 3490. Any person not In ilie mllltary or naval forces of the United States, or In the mllitla called into ;)r actually emplo3'ed in the service of the United States, who shall do or commit any of the acts prohibited by any of the
dollars."
UNITED S'l'ATlll8 ,. SHAPLEIGH.
127
provisions ,of section fifty·forll' hundred and thirty-etght, title 'Orlmes,' shall forfeit and pay to the United States the sum of two thousand dollars, and, in addition, doUble the amount of d.am.ages winch the United States may have aostalned by reason of the doing or committing of such act, together with the costs of suit; and such forfeiture and damages shall be sued for In the same the dlstrlct court of the United States for the eastern d1str1ct of Missouri, in which it alleged that the defendant in error, who was not a person In the mtlltary or naval forces of the United States, or In the m1lIt1a, had committed .156 violations of the provisions of section 5438, whereby the plaintiff had sustained damage In the sum of $56,885.67, and demanded judgment against him for double, this amount ()f damages and $312,000 in penalties, amounting In the aggregate to $425;771.34. An amended petition was subsequently filed, which contained 146 counts, each of which set forth a viOlation the defendant- of the provisions of section 54B8. This petition set forth the amollnt of llamages sustained 'by the plaintiff from each violation, and demanded a recovery of double damages and $2,000 for each of the 146 violations charged. A domurrer to counts numbered 1 to 45, Inclusive, and 86 to 122, inclusive. was sustained OD the ground that the causes of action lrtated In these counts were barred by the statute of limitations. At the close of the plaintiff's case upon the trial the court sustained a demurrer to the evidence in support ot, and' withdrew from the consideration of the jury, the causes of action set forth In all the rema1ning counts except those numbered 129, 132, 133, 137, 138, 141', and 142. . Counts numbered 1 to 85, inclusive, were founded on vouchers for merchandise, wblch the defendant presented for payment to Oapt. A. E. MUtimore, assistant quartennaster of the United States army at Jefferson barracks, near St. Loms, 'Mo. during the years 1883, 1884, 1885, and 1886. These vouchers were receipted by the defendant, and the amounts Damed In them were paid to him. He was a prominent merchant In St. Louis, and a stockholder in the A. F. Shapleigh Hardware Company, a corporation engaged In mercantile businesS >In that city during these years, and that c011poration furnished iarge quantities'of merchandise to the United States, which was paid for upon these vouchers, made in the name of, and receipted by, the defendant. During these years extensive repairs and Improvements were made by the United States at the J etIerson barracks, under the direction of Capt. Mlltlmore. The evidence tended to show that the defendant had great confidence In this captain; that he furnished the United States large quantities of supplies through him, and had bem acquainted with him tor mll.ny years; that at the captain's suggestion he made proposaht and signed contracts for performing work and furnishiug materials at the barracks, and received payments and recelptro vouchers therefor whenever they were to him by the captain; that npoll his orders he paid over to the captain's cierk the m()neys he so received, and left the hiring and discharging of the men, their payment. and the accounts between himself and the government and between himself and the workmen employed, entirely to the captain. He testified tlmt he derived no profit, from the contracts for work, or from the work done In his name, but that he signE'd these contracts and V"ou':lhers simply as an accommodatlon, to Capt. Miltlmore, and relied upon him to make the proper vouchers, 'and keep the accounts for this work and material used in the repairs and improvements, and that he did not know that any of the vouchers were not correct. The evidence tended to prove that an account was kept upon ,the 'books of the A. F. Shapleigh Hardware Company during these years, In which all the merchandise furnished to the government by that corporation or the defendant, through Capt. MUtimore, and all the cash paid to him or his clerk: by either of them was charged to him., and all the moneys received by the defendant on the vouchers was credited to him. The of action numbered 86 to 146, Inclusive, were founded upon vouchers f()r this work and these materials there stated to have been done and fUl'llished In making the improvements and repairs at the barracks, and there was evidl'nc(I tending' to 'Show that llome of the services specified In the seven voucbeN named In the'causes of action submitted to the jury were never, in fact, per-
On the 4th 'day of Febmary, 1891. the plalntl1f In error filed a petition In
128
J'EDEBAL REPOR';lijl:R,
vol. 54.
tot;med.1,o, tbfs defendant ,mtrQcluced ·In·, .evldence, over. the ,PJ./Wltitf's objection, certified copies of reports of the ..assistan't quartermaster at letrerson barracks to.the UnitedSta-tes tor the time covered by the seven vQilcb.ers, which QOntained·statements performed that exactly corresponded with those contained in the vOllche1:s. The defendant Introduced evidence ot his character for integrdty and honesty over the objection. The court charged the jury that "s 1lct1#ous claim agablst the government (for the purposes of this suit) may ,be defined to be a.' cla.im preterred against it for services to have been to it, Qr fOl; supplies said to have been furnished to the gpvernment, no part ot which services or suppliclI were, in fact, rendered. or supplied." "a claim aj!;ainst the government is a 'false' one, within the meaning of the, statute, it it is an untrue claim; tor example, it a oIaim Is tor labor or supplies said to have been· turnished to the government, and the claim is made for more services than have been actually rendered, or tor more supplies than have been furnished, such a claim is a false one within the meaning ot the statute." That "a fraudulent claim against the government is a false or fictitious claim, gotten up or contrived by some perso:Q.or persons with the intent to present it for approval and payment, and thus to defraud the government." That to entitle the plaintiff to recover the jury must find that sQme of the seven claims referred to in the seven counts were either faIse, fictitious, or fl"audulent, and' that the defendant it when he presented them. That "whether he had such knowledge or not Is a question for y011 to determine, and you may determine It from all the facts and circumstances in evidence before you. I will say this much: You ought not to infer that he had such knowledge merely from the fact (If it is a fact) that he acted nef:ligently, or without ordinary business prudence, In his dealings with Capt. MUtimore. To warrant you In that he knew such claims were either false, fictitious, or fraudulent, you must be satisfied that he was aware of such facts ur circumstances as would have created tile belief in ,the mind ot an ordinarily intelligent and prudent person that the claims were in some respect.'! fah"e, fictitious, or fraudulent." 'That "the law presumes the defendant to be innocent of the charge made against him. It is also true, as h88 been stated, that to entitle the government to a verdict in a case.of this sort every f'lct necessary to a conviction, as .heretofore explained, must be prove(! beyond a reasonable dQubt. The doubt here referred to is a d()ubt arlsin:; In your minds from, the testimony In the case; and it is such a doubt, also, as rellsonnhle men, having heard all tile testimony, may fairly entertain in view. of nIl the, testimony." '1'he plalntif¢ excepted to these' portions of the charge inclosed in quotation marks, and assigned, these and other less important mlings as error. The. jury fOUlld that the seven vouchers were false, but tbat the defendant had DO knowledge ot It, and returned a verdict in his fa vor, upon which. the judgment wasrendel'ed to reverse which tilis writ ot error was sued out.
George D. Reynolds, (E. H. Crowder, on the brief,) for the United St3tail.
Given Campbell and Chester H. Krum, for defendant in error. SANBORN, Circuit Judges, and
BefOl'e· CALDWELL and SHIRAS,District JJldge.
SANBORN, Circuit Judge, (after stating the facts.) Where a statute authorizes the state to recover, in a civil suit, penalties prescribed for the commission ofa felony, mUBt the government prove its case beyond a reasonable doubt, in order to recover the penalties in such a suit? This is the most important question presented by this record. The burden of proof in judicial proceedings is on him who alleges the existence of a fact denied. Where the fact denied is the commission of a crime, the additionaJ burden of overcoming
UNITED STATES 11. SHAPLEIGH.
129
the presumption of innocence, which the law aJways interposes as a. shield between accuser and accused, is necessarily imposed upon him who alleges it. In controversies of a civil nattJre the purp<)Se is generally to obtain the determination of some right of person or property, or to recover compensation for some injury. The parties are ordinarily private citizens or corporations, and the character, life, or liberty of neither party is in jeopardy. In controversies of a. criminal nature the purpose is to punish the accused for some violation of his duty to the public. The Erosecutor is generally the government, and the defendant is a private citizen, whose character, and either his life, liberty, or property, and sometimes all of them, are placed in jeopardy. To this wide difference in the purpose, the character, and situation of the parties, and in the natural effects of findings and judgments against the defendants in controversies, civil and criminal, is it due that the rule became established that, to warrant a verdict or finding against the defendant in the latter, evidence sufficient to satisfy the jury or court beyond a reasonable doubt is required; while in the former, evidence preponderating in his favor, but less convincing, js sufficient to warrant a recovery by the plaintiff. The presumption that every man is innocent until the contrary appears, and a consideration of the iITeparable injury to the defendant that must result from an unjust conviction, tended to the establishment of this rule; but doubtless the controlling consideration was the inequality of the parties in pOiWer, situation, and advantage in criminal cases where the government, with its unlimited resources, trained detectives, willing officers, and counsel learned in the law stood arrayed a,gainst a single defendant, unfamiliar with the practice of the courts, unacquainted with their officers or attorneys, often without means, and frequently too terrified to a defense if he had one, while his character and his life, liberty, or property rested· upon the result of the trial. Proof sufficient to satisfy beyond a reasonable doubt, then, is rwuired in .a criminal case, because its purpose is puhishment, not compensation for injury; its prosecutor is the state; the result to the defendant of its successful prosecution is irreparable loss of character, and the loss of either life, liberty, or property; and because the presumption is that every man is innocent until the contrary appears; while less convincing evidence will authorize a recovery in a civil suit, because its purpose is generally compensation for injury or the determination of rights, not the punishment of the offender; the litigants are generally private parties, more nearly equal in resources, advantages, and situation, and neither the character, life, nor liberty of either is ordinarily at stake. Now, if the government enactS a statute which provides that a case in its nature criminal, whose purpose is punishment, whOEle prosecutor is the state, and whose successful prosecution disgraces the defendant, and forfeits his property to the state as a punishment for crime, may be brought in the form of a civil suit, does that change the rule of evidence that ought to be applied to it? If a state provides that all proceedings for the punishment of crime shaD be conducted in the form of civil suits, does that change their v.54F.no.1-9
130
FEDERAL .REPORTER,vol.
54..
Datorefw the amoUnt 'of evidebCe that ought to be. required· to conviot thedefendlWts of the crimed, 1& a wolf in· sheep's clothing a wolf)(PDr", ·Bh.eep? Take the case!at.bar. The crimes, withwhieh the .def8Udant wascwged WaDe !felonies. rrbegovernment might MiVe'proceeded by .indictment .to: him. for th.em under SeQticm6438. If it had. dona so, its:;case must have' been proved. beyond :a ',reasonable doubt. It elected to under 'section" 3490, bys civil suit, to recover over penalties, to punish the defenllant for thesa.mecrime.' The penalties sought to be inflicted by the:latter proceeding far heavier than any that the court woUld probably have in1Licted under the former. In each proceeding government, with its:unlimited resources, proceeds against the same citizen to punish him' for the same crimes, and in ·each the single question for, the juq· to determine is, was thi, defendant guilty of these felonies? Every consideration which in,ducedtJie courts to establish the rule that the prosecutor must prove 'the 'criIhe charged beyond 'flo reasonable doubt-the inequality of the :parties in power, ,situation, and advantage; the purpose of the,'proceeding, which is the punishment of the defendant, not compensation for injury; tlle irreparable disgrace and injury that must result to the defendant from an unjust ,recovery, and the presumption of his innocence-demands that this rule be applied to the latter to the, same extent 8B it' would be to the former proceeding. It is not the form, but th.e nature, of this proceeding that must determine the rUle to be . applied to it. ,To protect the substantial rights of parties, to wisely administer the law, courts must frequently look beyond the outward form to the real substance and nature of things. Thus in Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 8 Sup. Ct. Rep.; 1370, the state of Wisconsin brought in the supreme court a civil suit to collect a judgment rendered in one of ita own 'courts against the Pelican Insurance Company, a corporation of Loujsiana, for penalties imposed by a statute of Wisconsin for doing an insuranCe business therein without having deposited with the proper officer of the state a full statement of its 'property and buSiness during the previous years. This was a suit to recover a debt. It was founded on a judgment rendered in a proceeding in the form of a civil suit. The judiciary act provided that "the supreme court shall have exclusive jurisdiction of controversies of a civil nature where 'a' state is a party, except between a state and ita citizens, and except, also, between a state Rl1d citizens of other states, or aliens, in which latter case it shall have original, and not exclusive, jurisdiction." Section 687. But that court looked through the form of the civil stilt before it, and through the form of the suit in which the judgment was rendered, to the real nature of the original controversy, and refused to take jurisdiction, because that was a su,it to recover a penalty, and was not of a civil nature. Mr. Justice Gray, in delivering the opinion of the court, said:
are
''The'cause at a.ctlon was not any private Injury, but solely the offense eomm1tted against the state byvtolatlIlg her law. The prosecution was ba the name of. the state, and the whole penalty, when recovered. would I\.CCJ:'\l8
UNIT:EDS1'A.'fES '1:. SHAPLEIGH.,
131
to the state, and be paid,· one halt· fnto .her treasury· and the other halt to her w1,lo pays all of l!rosecuting for and collecting such forfeitures. Laws Wis. 1885, e. 395. The real nature of the case is not the foi'Dls provided by the law of the statn for the punishment 'ot· the offense. tt is 1JIJ.materialwhetlier, by the law of Wisconsin, the prosecution must be by indictment or by action,or whether, nnder tllat law, a judgment there obtaiu\'<1. for the penlllt;v wight be enforced by executlnn, by scire facias, or a In whatever fonn the state pursues her right to punish the offense agitinst her sovereignty, every step of the proceeding tends toone end,-the compelling the offender ·to pay a pecuniary fine by way of punishment for the offense."
In U. S. v. The Burdett, 9 Pet. 682,690, 691, a proceeding in rem was instituted against the brig Burdett to enforce a forfeiture of the vessel, and all that. pertained .to it, for the violation of a. revenue law. Neither the life nor liberty of the citizen was in jeopardy; nothing but his property; yet the supreme court held that the prosecution was a highly penal one, and the penalty should not be inflicted unless the infractions Of the J.a,w were established beyond a reasonable doubt. Mr. Justice McLean, in delivering. the opinion of the court, said: "No individual should be Ptmished for a violation ot a law which In1llcts 110 forfeiture' of property, able doubt." the· offense shall be established beyond reason-
In Lilienthal's Tobacco v. U.s., 97 U., S. 238, 271, which was a proceeding in rem to enforce the forfeiture of certain tobacco for the violation of a revenue law, tltis question did not arise, but there is a. dictum of Mr. Justice Clifford's to the effect that the rule that should apply to a proceeding in rem for the forfeiture of property is widely different from that applicable to an action against the person to recover a penalty imposed to punish an offender, and upon that ground he suggesta a distinction between that case and Chaffee v. U. S., 18 WalL 516, and says that ill a proceeding in rem "it is correct to say that, if the scale of evidence hangs in doubt, the verdict should be in favor of the claimant," and that "jurors in such a case ought to be clearly satisfied that the allegations of the information are true; and when they are so satisfied of the truth of. the charge they may render a verdict for the government, even though the proof falls short of what is required in a criminal case prosecuted by indictment." This statement does not commend itself to our judgment, and it is clearly disapproved, and the distinction between such a proceeding in rem for a forfeiture and an action for a penalty there suggested is expressly repudiated, in the latter wellconsidered and decisive case of Boyd v. U. S., 116 U. S. 616, 637, 638, 6 Sup. Ct. Rep. 524. That was also a proceeding in rem to enforce a forfeiture for the violation of a revenue law. The fifth section of the act of June 22, 1874, (18 St. p. 187,) in terms empowered the courts in ill suits and proceedings other than criminal arising under any of the revenue laws of the United States to require the defendant or claimant on motion to produce any of his books or invoices for the purposes of examination and proof under the penalty of having the allegations made in the motion deemed as confea;ed The ,claimant had been required by an order of the
132
FEDERAL
vol.
54.
court under this act to produce anfnvoice tending to ;show the quantity and vaJue of seized, and had done so,. and the invoice had been introduced in evidenCe over his objections ,that the law was· unconstitutionaJ and the order unauthorized. One question presented to the supreme court was whether the procooding in rem, which was civil in form, was a "criminal case" within the meaning of the clause of the ftfth amendment to the constitution of the United States, which declares that no person "shall be compelled in any criminal caae to be a witness against himself." A number of decisions had been rendered in the district and circuit courts to the e1fect that under such a statute the defendant or claimant could be to produce evidence to support the claim of the govand thus convict U. S. v. Mason, 6 Biss. 350, 355; U. ,S. v. Three Tons of Coal, Id. 379; U. S. v. Distillery No. 28, 483; Stockwell v. U. S., 3 Cliff. 284; U. S. v. Hughes, 12 Blatchf. 553. But the supreme QOurt unanimously held otherwise, and, Mr. Justice Bradley delivered an exhaustive and convincing opinion, in which he said: "Weare also clf'arly of opinion that proceedings instituted for the purpose of·declarlng the forfeiture of a man's property by reason of offenses coIDlnlt1ied by him, though they may be civil In form, are in their nature criminal. In this very case the grouud of· forfeiture as declared in the twelfth section of the act of 1874, ,on which the. information is based, consists of eertll1n net's of fraud committed against th& public revenue in relation to impo,rted merchandlSlc, which are made crlmlmll by the statute; and It Is declared that the offender shall be fined not excet.>dlng $5,000 nor le88 than $50, or be imprl$oned not two years, or botll;and. In addition to such fine, 1ll1e1llUerchandise sh&ll be forfeited. ' These are the penalties aftlxed to the crlII1liliU'l1ct8; . the forfeiture sou..mt by the suU being one of them. If an indictment had been presented the claimants, upon conviction the fe1tw.'e Qtthe goods could have been in the judgment. If the governn1ent prosecutor elects t() waive an inclictment,and to file a civil informatiOn against the clalmants,-that Is, civil iu form,-can he by this device take from the Us criminal aspect, and deprive the claimants of their lmmunlt1es as citizens, and extort from them a production of their private papel'8,or, as an alternative, a conf('8Slon of guilt? ThiB cannot be. Tho lnfqfUUl,tiOll, though te<lhnlcally a civil proceeding, Is, in substance and effect, a one. As shoWing the close. relation between the civil and criminal proceedings on the same statute In' such cases, we may refer to the recent case of Ooffey v. U. S., 116 U. S. 436, 6 Sup. Ct. Rep. 437, in which we decided that an acquittal on a CrimiDl\1 lnformation was a good plea ill bar to a civil lnformation for the forfeiture of goods. arising upon the same acts. As, therefore, suits for penalties and forfeitures incurred by the commission of ofl:enses against the law are of this quasi criminal nature, we think that they were Within the reason of criminal proceedings for all the purposes of the fourth amendment of the constitution. and of that portion of the fifth amendm,ent which declares that no penton shall be compelled in any criminal case to be a Witness against himself." ,
In Chaffee v. U. S., 18 WaJl. 516, 522, 544, 545, the government brought a civil action of debt to recover a penalty of double damages imposed for the violation of a revenue law; and the court instructed the jury that, if the government had in its opening case made a prima facie caae against the defendants, requiring explanation from them, but not sufficient to satisfy the minds of the jury beyond all reasonable doubt that the 'plaintiff was entitled to recover, and they believed that the defendants could by their books or
UNITED STATES II. SHAPLEIGH.
133
testimony have made certain material facts left uncertain by the proof on the part of the plaintiff certain, and the defendants had knowingly withheld this proof, the jury was authorized to resolve all doubts against them. The supreme· court reversed the judgment, and declared this charge erroneous. Mr. Justice Field, in delivering the opinion of the court, said: "The purport of all this WllS to tell the jury that, although the defendants must be proved guilty beyond a l'easonable doubt, yet, 1:t the government had made out a prima facie cnse agaJ.nst them,-not one :tree from all doubt, but one \vbich dtsclosed circumstances requiring· the defendants did not explain, the perplexing question of their guilt need not disturb the minds of the jurors; their silence supplied in the presumptions of the law that full proof which should dispel all reasonable doubt. In other words, the C{)urt instJ,'ucted the jury, in substance, that the government need only prove that the defendants were presumptively guilty, and the duty thereupon devolved. upon them to establish their innocence, and, if they did not, they were gUilty beyond a reasonable doubt. We do not think it at all necessary to go· into any argument to show the error of this instruction. The error is palpable on its statement. All the authorities condemn it."
In U. S. v. ,McKee, 4 Dill. 128, Mr. Justice Miller and Judge Dillon held that the indictment, conviction, and punishment of a defendant under section 5440 of the Revised Statutes for conspiracy with certAin distillers to defraud the United States by the unlawful reo moval of distilled spirits from their distilleries without the payment of the taxes was a bar to a civil suit by the government to recover the penalty of double the amount of the taxes for the same offense under section 3296 of the Revised Statutes, on the ground that the defendant could not be twice punished for the same offense. In Coffey v. U. S., 116 U. S. 436, 6 Sup. Ct. Rep. 437, the supreme court held that an 'acquittal on a criminal information was a bar to a pro· ceeding to enforce a forfeiture of property for the saDie offense. There is a decided conflict in the decisions of the other conrts· of this country upon the question whether or not the government should be required to establish its case to a moral certainty when it brings a civil suit to recover a penalty imposed for the violation of some statute. The decisions in the federal courts were generally rendered before the supreme court decided in Boyd v. U. S., supra, that a. proceeding in rem to enforce a forfeiture of property and a suit to recover a penalty fora violation of law were criminal cases within the meaning of the constitution. Many of the cases in the state courts were brought to recover penalties for acts or omissions which were not felonies, and some of them were not even misdemeanors. To such cases the reason of the rule obviously applies with less force than to the case at bar. Some of these decisions are Nichols v. Newell, 1 Fish. Pat. Cas. 647; White v. Comstock, 6 Vt. 405; Ri.ker v. Hooper, 35 Vt. 457; Barton v. Thompson, 46 Iowa, 30; Welch v. Jugenheimer, 56 Iowa, 11, 8 N. W. Rep. 673; Hawloetz v. Kass, 25 Fed. Rep. 765; U. S. v. Brown, Deady, 566; Webster v. People, 14 lll. 865; Hitchcock v. Munger, 15 N. H. 97; People v. Hoffman, 3 Mich. 248; Woodward v. Squires, 39 Iowa, 435, 437. To review these and other authorities here would serve no·· good purpose, since the decisions of the supreme court to which we have referred are binding upon us, commend themselves to our judgment, and in our opin-
184
FEDE&\:l.iREPORTER,
f(>n are decisive of this case. Theymaintaiudhe.:fDN.owingproiPo8itiOXlS: lnapplying the 'statutes, constitution;. and rules of law tofue varioul!lsuits andiproeeedings as they, arise,i courts should look beyo:n,d their form, and be governed by character. A prooeeding in rem to enforce·a· forfeiture for the violation of a law, and an action to recover a penalty imposed for such a violation, in form; in and character criminal proceedings; they are eriminalcaseswithin the meaning of the constitution. Boydv. U. S;,sullt>a. Where provision is made by statute .fdr the 'a,n offense by fine 01' imprisolI1Jllent, and 3],so '9rJAe recovery of a pena;J.ty for the same offense by a civil suit, a trial and judgment of conviction or acquittal. in the criminal proceeding iaa blU' to the civil suit, and a tria,l and.judgment for the plainti.JJ or defendant in ciVil suitis a bar to the cr,iminal proceed· ing; Ooffey v. U. S., supra; U. S. v.McKee,supra. It is now settled by 'the great current of the authorities in this country that where a criminal act is alleged in a civil suit-in a suit that is civil notip form merely, but in its nature and purpose-proof of the crimiIlaJ act beyond a reasoIl.l;l.ble doubt is. not required to warrant a. verd¥::t or decision in favor the party who· makes the allegation. 1. Ev. § 138; note; Rape v. Insurance Co., 17 Amer. Law Reg. (.N. S.) 293, 297; Insurance Co. v. Wilson, 7 Wis. 169; Blaeser v. Co., 37 Wis. 31; Knowles .v. Scribner, 57 Me. 495; IloffJnlLD.v. Insurance Co., 1 La. Ann. 216; Schmidt v. Insurance Co., 1 Gray1 529; Youngv. Edwards, 72 Pa. St. 257, 267; Insurance Co. 11, Bush, 587; Rothschild v. Insurance Co., 62 Mo. 356; miss, 35 Vt. 326; Ellis v. Buzzell, 60 Me. 209; Folsom 5 Fost. (N. H.) 114; Matthews v. Huntley, 9 N. H. 146; WelchvlJugenheimer, 56 Iowa, 11, 8 N. W. Rep. 673. The.;Q'nited States might have maintained a civil suit for the single sustained, if any, from the wrongful actB of the defendant charged in this complaint without establishing its case beyond a rea.sonable doubt. Such a suit would have been a civil suit in its nature 8IIld purpose as well as in its form. The action at bar is a. civil. suit in form; .but when, under the form of this civil suit, the .scmght to punish this defendant for felonies by reooveling the. penalty of double damages and $2,000 for each offense, it made. thjg proceeding criminal in its nature and purpose, and invoked the application to it of the rules of evidence applicable to crimina.l trials. While civil in form, all its other characteristics were those of a criminal case; its prosecutor was the government; its purpose was punishment; the defendant's conviction of a felony was essentiaJ. to the plaintiff's recovery; the defendant's charactel' and property were in jeopardy, because the government sought to punish h.iJ:D. in this suit; and the verdict and judgment here would be a bar to any criminal prosecutiOID. for the offense. The case becaxne a criminal case under the cloak of a civil suit, and the rewson of. the rule required, a.nd the decisions of the supreme court warranted, the application to it of t4fl rule that the plaintiff must establish its case by proof beyond a reasonable doubt. For the reason the evidence of the defendant's character was
UNITED STATES V. SHAPLEIGH.
135
pl'operlyreceived. When a man whose character for honesty and integrity has been unquestioned for 40 years in the community in which he lives is charged by his government on circumstantial evidencewith knowingly defrauding it, in a direct prooeeding to punish him. for the crime that character ought to serve him as a. shield against unfounded accusations, and the evidence of it ought to be received and to have no light weight in determining the issue. The presumption is strong that a man of such character would not be guilty of such a crime. That presumption accompanies him. in every other situation in life, and he is entitled to the benefit of it in the jury room. 1 Whart. Crim. Law, § 636. The defendant's testimony was that he presented these voucbers for servieesand received payment of them without examining them, and without any knowledge whether they were correct or incorrect, in <reliance upon the assistant quartermaster, who prepared them for h.im.. The counsel for the government requested the court to charge "thatit was the duty of the defendant, before presenting the voucherP for payment and allowance and receiving the money thereon, to have exercised such care and prudence as a man of ordinary business capacity and prud'ence would exercise to determine whether or not the accounts were in fact true; and that if, without such inquiry as an intelligent man would make under similar circumstances to ascertain that the facts presented were in fact true, it should turn out that: they were false, then the defendant was responsible in thil!' action for the consequences of presenting fable vouchers." The court refused to give this request, and charged that to ena,ble the plaintiff to recover the jury must be satisfied that the defendant knew some of the cla.ims he presented were false, fictitious, or fraudulent; that they might determine whether or not he had such knowledge from all. the facts and circumstances in evidence; that they ought not to infer that he had such knowledge merely from the fact that he acted negligently, or without ordinary business prudence, in his dealings with Capt. Miltimore; but that to warrant a finding that he knew such claims were either false, fictitious, or fraudulent they must be satisfied that he was aware of such facts or circumstances as would have created the belief in the mind of an ordinarily intelligent and prudent person that the claims were in some respects false, fictitious, or fraudulent. In other words, the counsel for the government insisted that the defendant was liable to pay the prescribed penalties if he was negligent in examining 01' presenting the false vouchers, and the court charged that he not liable in this action for mere negligence, but was liable only in case he was aware, when he presented the vouchers, of such facts and circumstances as would induce an ordinarily intelligent and prudent man to believe them to be false. The statute prescribes these penalties not for negligently presenting false vouchers, but for presenting them "knowing the same to contain any fraudulent or fictitious statement or untruth." It is not negligence, but guilty knowledge, for which punishment is here prescribed, and nothing can make it more evident that the request was wrong and the charge right than this statement.
136
Jl'EDERAL REPORTER,
; ·The court charll;ed that "a fictitious claim against the government ($ol the purposes of this suit) may' be defined to be a claim preferred it for services .said to have been rendered to. it, or for supplieasaid to have been furnished to the governlllent, no part of services or supplies were in fact rendered or supplied," (by the making 'the Glaim, or by .the person in whose favor the account ,Or claim purports to have been made out;) and it is urged that·'tlhis charge was erroneous, because the court did not add to it the.'WQl'ds contained in the parenthesis at the close of the quotation ft'bQve.; that under the charge as given one might present a fictitious claim in his own name for services rendered or supplies furnished by anothe:r, and for which the government had once paid the rightful claimant, and this second claim would not, under the court's deftnition,be ,fictitious. The vice of this argument is that such was not the,c:ase presented to the court below, and its charge was given "for the ,purposes of this suit," and not for the imaginary case suppoliledinthe brief nresentedto this court. The evidence was that the defendant simed some of these contracts and vouchers for the accOJJlDlodation of Capt. Miltimore; that he had. no pecuniary interest and derived no pecuniary benefit from them,' but that he had paid over to the captain's clerk all the money he collected on the vouchers, as he supposed, to pay the men whom the captain hired to perform these services; that the captain did hire and pay some men, and that a Dart of the services charged for in the vouchers were actually rendered to the government. For these services that were performed no one but the defendant presented any voucher!! or claims. and the ouestion was not whether the defendant had presented claims for aervices for which the government had paid or become indebted to another, but simply whether he had presented and received payment of claims for any services t}1at had never in fact .been rendered by anyone. The definitions of fictitious, false, and fraudulent claims given by the court fairly submitted this question to the jury, and there was no error in this portion of the charge. Mter teetimony had been introduced that the defendant admitted that all the transactions between him and Capt. Miltimore were entered in the account with the captain on the books of the A.F. Shapleill;h Hardware Company, that account, which opened November 25. 1882; and closed May 8, 1886, was introduced in evidence. With the exception of one item of $15.50, it consisted of merchandise items and cash items. The government proved by Mr. Kent that the cash credits to Miltimore on this account were $78,531.38, and that the cash debits were $55,623.53, and the entire account exactly balanced. The government also proved by Mr. Kent that the net amount of merchandise charged to Miltimore in this account subsequent to February 4, 1885, (prior to which date the claims of the government against the defendant were barred by the statute of limitations,) was only $6,566.88, while he had presented vouchers for mercha.ndise therein said to have been furnil!lhed to the government subsequent to that date to the amount of $9,761, besides vouchers for services in wp.ich some other merchandise was charged r.rh.e government then offered to prove the amount and items of the
UNITED STATES
v.
SHAPLEIGH.
137
merchandise to Miltimore in this account prior to February 4, 1885, and the court excluded the evidence. It is clear that this ruling could not and did not prejudice the government, because it had already proved that the defendant had presented vouchers, sub· sequent to February 4. 1885, for merchandise, amounting to $3,194.12 more than was charged to Miltimore on this account, and proof that merchandise was to him prior to that date could not have increased, but have diminished, this discrepancy, because it might appear from this evidence that l!lome of this earlier merchandise was included in the later vouchers. It is not necessary to determine whether there was technical error in this ruling, for it is well settled that "no iudlZment should be reversed in a court of error when it is clear that the error could not have prejudiced, and did not prejudice, the rights of the party against whom the ruling was made." Lancaster v. Collins, 115 U. S. 222, 227, 6 Sup. Ct. Rep. 33; Deery v. Cray, 5 Wall. 795, 803; Gregg v. Moss, 14 Wall. 564, 569; Lucas v. Brooks, 18 Wall. 436, 454; Allis v. Insurance Co., 97 U. S. 144, 145: Cannon v. Pratt, 99 U. S. 619, 623; Mining Co. v. Taylor, 100 U. S. 37.42; Hornbuckle v. Stafford, 111 U. S. 389,394, 4: Sup. Ct. Rep. 515. For the same reason it is unnecessary to determine whether or not there was technical error in the receipt in evidence of the official rewrts and certificates of the assistant quartermaster, Milti· more, and the major commanding at Jefferson barracks, made in 1885 and 1886. to the effect that the services charged for in the seven vouchers submitted to the jury had actually been rendered to the government by the defendant. The only pUrPose and e1fect these reports could have had was to rebut the evidence that had been introduced by the government to the effect that the claims made in these seven vouchers were false. They did not tend to show whether or not the defendant had knowledge of their falsity, for it did not appear that he had any knowledge of the reports. The jury found specificallv that those seven vouchers were false, so that it conclusively appears that the introduction of the reports and certificates of the officers in no way prejudiced the rights of the government. It is assigned as error that a quartermaster of the army was permitted to testify what sort of an examination is usually made by the commanding officer of a post for the purpose of making reports of this description. but at the trial no ground of objection to this tes. timony was stated. The only objection consists of the two words, "Objected to." A mere objection, where no grounds for it are assigned at the trial. cannot be considered in an appellate court. Bur· ton v. Driggs. 20 Wall. 125. 133; Camden v. Doremus, 3 How. 515, 530; Baldwin v.Blanohard, 15 Minn. 489, 496, (Gil. 403.) It was the duty of the court below to withdraw the case from th£' jury, and to direct them to return a verdict for the defendant on every cause of action in this complaint upon which the evidence was of such a character that the court, in the exercise of a souno judicial discretion. would have been compelled to set aside a verdict returned in favor of the plainti1f. Railroad Co. v. Davis, 53
138
FEIlERAL REPORTER,
Fed. Rep.ul; Railroad Co.v. Oonverse, 139 U. S. 469, 472, 477, 11 Sup. Ct.. ,Rep. 569: R. Co. v. Commercial Bank, :t23 .u.S., 727, 733, 8 Sup. Ct. Rep. 266; Monroe v. Insurance Co., 52 Fed; Rep. 777, 778. Tested by this rule, a careful examination of this record. has satisfied us that there was no error in the ruling of the. from the and instructing them to return a verdict for the defendant upon all the causes of action upon which the government went to trial except the seven submitted to the There are other errors assigned, but they were not discussed in the briefs or are deserving of no separate consideration. There was no sufficient ground for their assignment, and no error prejudicial to the government in the trial of this case. The judgment is affirmed. UNITEP STA.TES DUCOURNA.U.'
T.
(Circuit Court, S. D. Alabama. July 2, 189;1..) 1. J"DidLU. lrN()WLEDGE-'-BEER A MALT LIQUOR. . . . Beer is judicially known to be a fermented liquor, cb1edy made of malt, and!.pMot ot selling beer not shown to be otherwise made will support an lndictmel).t tor selling malt liquor. S. PBACTIPB-:-COURT ,\NJ) JVRY. The jury in a criminal case are exclusive judges of the welghtbt what is proved, Hand the court will not set aside a verdiot because dlflerlng with them as 'to the su:lllclenoy of the evidence. .
At Law. lndictment of Lotta Ducournau forcaITying on the businees of ,a retail. dealer in malt liquors without a license. On motion to set. aside a verdict of conviction. Denied. M.D. Wickersham, U. S. Dist. Atty. SInith& Gaynor, for defendant. TOULMIN, District Judge. ['he indictment charges that defend· ant carried on the business of a retail dealer in malt liquors without a license. The evidence tended to prove that he carried on business and sold beer by the glass. The jury found him guilty. A motion is now made to set aside the verdict and grant a new trial on the grounds: First, that there was no evidence to support the ver· diet; and, second, that the evidence was not sufficient to establish beyond'arreasonabledoubt the guilt of the defendant. The con· tention is that proof that beer was sold does not support the charge that malt liquor was sold, but that there should be evidence that the beer sold was that made of malt. At first impression I was inclined to yield to this contention, and to hOld that the evidence did not support the verdict. But from investigation· and further consid· eratio:nT have reached a different conclusion. Malt liquor is defined t6 be a beverage prepared. by infusion of malt, as beer, ale, porter, 'etc.; and beer is defined asa fermented liquor, chiefiy made of· malt. i Ifithen, beer il a chiefly made of malt, and ,1Reportel:l by Peter J, ,HamUtoIl,"Esq.)iQtthe Mobile, Ala., bar.