Opinion of the Court.

testimony; second, that the verdict was against the evidence; and, third, that the court erred in the instructions.

With reference to the first it may be remarked that the offence charged against the defendants took place during and was a part of the great strike, which was brought to the attention of this court in In re Debs, 158 U. S. 564. One series of objections under this head is to the introduction of telegrams, some signed by the defendants, some by Debs, and others by still other parties, all of which upon their face have more or less direct reference to the stopping of railroad trains. The following are samples of these telegrams:

"EXHIBIT No. 19.
"LOS ANGELES, CAL.,

29, 1894.

"To Barrett, Bakersfield:

"Have stopped trains at Mojave, come to Los Angeles

with engine and caboose.

PHILIP STANWOOD."

"EXHIBIT No. 20.

"L. A., 7 10, 1894.

"To L. B. Hays:

"No. nineteen and one freight train left here this morning everybody on the train are 'scabs.' Hold them there. Sure to win. "W. H. CLUNE, Sec't'y."

"W. H. Clune, 1844 Naud St., Los Angeles, Calif. : "Boycott against Pullman cars in effect at noon to-day by order of convention. E. V. DEBS."

Although all the evidence does not appear to have been preserved in this bill of exceptions, enough is disclosed to show that the government was seeking to establish a conspiracy by circumstantial testimony, and telegrams of this character, if identified and brought home to the defendants, were obviously circumstances tending to show such conspiracy. It is familiar law that where a case rests upon that

Opinion of the Court.

character of evidence much discretion is left to the trial court, and its ruling will be sustained if the testimony which is admitted tends even remotely to establish the ultimate fact. Alexander v. United States, 138 U. S. 353; Holmes v. Goldsmith, 147 U. S. 150; Moore v. United States, 150 U. S. 57; Thiede v. Utah Territory, 159 U. S. 510. There was no error in admitting these telegrams.

Another series of objections is to the admission of the declarations and acts of parties other than the defendants, to wit, Gallagher and Buchanan, on the ground that they were not parties to the record. The indictment charged the defendants with conspiring and combining together, and with other persons. Now, if Gallagher and Buchanan were conspirators with defendants, evidence of their acts and declarations in carrying or attempting to carry into effect the conspiracy was competent, and we must assume in the silence of the record that it was shown that they were engaged in the conspiracy, and that their acts and declarations were in execution thereof.

Again, it is insisted that the verdict was against the evidence. It is enough to say that such a contention cannot be sustained unless all the testimony, or all upon some essential fact, is presented.

Finally, there is a claim of error in the instructions, but the difficulty with this is that they are not legally before us. True, there appears in the transcript that which purports to be a copy of the charge, marked by the clerk as filed in his office among the papers in the case; but it is well settled that instructions do not in this way become part of the record. They must be incorporated in a bill of exceptions, and thus authenticated by the signature of the judge. This objection is essentially different from that of the lack or the sufficiency of exceptions. An appellate court considers only such matters as appear in the record. From time immemorial that has been held to include the pleadings, the process, the verdict, and the judgment, and such other matters as by some statutory or recognized method have been made a part of it. There are, for instance, in

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some States statutes directing that all instructions must be reduced to writing, marked by the judge "refused" or "given," and attested by his signature, and that when so attested and filed in the clerk's office they become a part of the record. But in the absence of that or some other statutory provision a bill of exceptions has been recognized as the only appropriate method of bringing onto the record the instructions given or refused. Struthers v. Drexel, 122 U. S. 487, 491; Supreme Court Rules No. 4, 108 U. S. 574; Insurance Company v. Radding, 120 U. S. 183, 193; McArthur v. Mitchell, 7 Kansas, 173; Moore v. Wade, 8 Kansas, 380; Kshinka v. Cawker, 16 Kansas, 63; Lockhart v. Brown, 31 Ohio St. 431; Pettett v. Van Fleet, 31 Ohio St. 536.

Even if we were to ignore this lack of due authentication we should be met with the want of any proper exceptions. To the charge as apparently given on November 20, when the case was submitted to the jury, there is no pretence of any exception whatever. The journal entry of November 21 shows that the jury were brought into court and announced that they had not agreed upon a verdict. Then follows this. statement: "Thereupon the court further instructs the jury by reading written instructions to them, all of which is excepted to by the defendants' attorneys," and this is the only exception having any reference to instructions to be found in the transcript. Exactly what was intended by it is not clear. If the objection was simply to the time and manner of giving instructions, the propriety of such action has been sustained in Allis v. United States, 155 U. S. 117, 123. If to what was contained in those instructions, then in addition to the fact that they have not been preserved in any bill of exceptions arises the further difficulty that no particular proposition is called to the attention of the court.

These are all the matters pointed out by counsel in the brief. At the argument in this court other counsel than those whose names are on the brief appeared, and in addition presented this further objection: By section 3995, Rev. Stat., the offence of obstructing the passage of the mails is made. punishable by a fine of not more than $100. Under section

Opinion of the Court.

5440, Rev. Stat., a conspiracy to commit any offence against the United States is punishable by a fine of not less than $1000 nor more than $10,000, and by imprisonment for not more than two years. Upon this he contended that a conspiracy to commit an offence cannot be punished more severely than the offence itself, and also that when the principal offence is, in fact, committed, the mere conspiracy is merged in it. The language of the sections is plain and not open to doubt. A conspiracy to commit an offence is denounced as itself a separate offence, and the punishment therefor fixed by the statute, and we know of no lack of power in Congress to thus deal with a conspiracy. Whatever may be thought of the wisdom or propriety of a statute making a conspiracy to do an act punishable more severely than the doing of the act itself, it is a matter to be considered solely by the legislative body. Callan v. Wilson, 127 U. S. 540, 555. The power exists to separate the conspiracy from the act itself and to affix distinct and independent penalties to each. With regard to the suggestion that the conspiracy was merged in the completed act, it is enough that we cannot, upon the record, hold that the mails were obstructed. All the testimony not being preserved, it may be that the testimony satisfied the jury that there was, in fact, no obstruction of the mails, but only as charged a conspiracy to obstruct. If so, the suggestion of a merger falls to the ground.

These are the only matters called to our attention. them we perceive no error, and the judgment is

In

Affirmed.

Statement of the Case.

MCDOWELL v. UNITED STATES.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT.

No. 552. Submitted October 15, 1895. - Decided November 18, 1895.

There being a vacancy in the office of District Judge for the District of South Carolina from January 1, 1894, to February 12, 1894, and the term of that court for the Western District being fixed by law for the fifth day of February, 1894, one of the Circuit Judges of the circuit designated and appointed a Judge of one of the District Courts in North Carolina, within the same circuit, to hold and preside over that term. Court was so held and adjourned from day to day. February 12 a commissioned Judge appeared. Plaintiff in error was tried upon an indictment returned against him, found guilty and sentenced. Held,

(1) That it is within the power of Congress to provide that one District Judge may temporarily discharge the duties of that office in another district;

(2) That whether existing statutes authorized the appointment of the North Carolina District Judge to act as District Judge in South Carolina is immaterial; as,

(3) He must be held to have been a judge de facto, if not de jure, and his actions, as such, so far as they affect third persons, are not open to question.

Where there is an office to be filled, and one acting under color of authority fills the office and discharges its duties, his actions are those of an officer de facto, and are binding on the public.

THIS case comes to this court on questions certified by the Court of Appeals of the Fourth Circuit. The facts, as stated, are that a vacancy existed in the office of District Judge of the United States for the District of South Carolina, from January 1, 1894, to February 12, 1894. The regular terms of the District Court for the Western District were fixed by law to be held at Greenville on the first Mondays of February and August, act of April 26, 1890, c. 165, 26 Stat. 71, and the first Monday of February, 1894, fell on the fifth day of the month. On January 30, 1894, the following order, made by Hon. Charles H. Simonton, one of the Circuit Judges of the circuit, was duly filed in the clerk's office: