been brought about by the defendant, as in the case of flight, or the like, that such a person is not within the spirit or letter of the rule. O'Toole v. State, 40 Tex. Cr. R. 578, 51 S. W. 244; Doyle v. Commonwealth, (Ky. Court of Appeals) 37 S. W. 153; Hill v. State, 17 Wis. 675, 86 Am. Dec. 736; Peterson v. State, 64 Neb. 875, 90 N. W. 964; 1 Bishop's New Crim. Proc. § 266. The inquiry as to whether there are exceptions to the general rule need not be followed further, for, if the statute has been misconstrued by holding that the acts charged against the defendant are misdemeanors, error has been committed in any event. Adhering to the view that these acts are misdemeanors, it is necessary to inquire whether the rule prevails as to such offenses:

In Lewis v. United States, page 372 of 146 U. S., page 136 of 13 Sup. Ct. (36 L. Ed. 1011), the court refers to the relaxation of the rule in cases of misdemeanors. Bishop, in his New Criminal Procedure (volume 1, § 266) says: "Ordinarily and by most opinions one may waive his right, if the prosecuting attorney and the court do not object, to be present at any steps in a misdemeanor case." In United States v. Santos, 27 Fed. Cas. 954, No. 16.222, the court said, referring to the defendant: "The case being a misdemeanor, it was competent to proceed with the trial during his absence." The cases above cited as holding that they are exceptions to the general rule are particularly in point. Some of them are felony cases. Some are cases of misdemeanor. The best considered seem to hold that in cases of misdemeanor it is not necessary that the defendant be present during the proceedings, particularly if he absents himself voluntarily without the knowledge of the court, and so it must be held in this case. Counsel argue that the case of United States v. Peters, 94 Fed. 127, 36 C. C. A. 105, is an authority for holding that offenses under section 5209 are felonies, but that question was never before the court. In discussing that case the court assumed, but it did not decide, that the nature of the charge was such as at all times to require the presence of the defendant. There is nothing in the opinion to indicate anything to the contrary, and the abbreviated quotation made of the section shows that the court did not consider that question at all.

2. It is contended that there was error in charging the jury. The ideal charge has yet to be written, that is, a charge which able and ingenious counsel cannot criticise with more or less force of reasoning. It is not to be supposed that the judge of this court so early in his judicial career would have been able to put the charge in this case above criticism when so many eminent judges of long experience on the bench have failed in that regard. Counsel's principal assignment of error on the charge is that this language was used: "It follows, of course, that in considering the case upon those issues which have thus far been mentioned to you, that if the defendant was not authorized by W. H. Fleet to loan out his money, and the defendant had no reasonable ground to think so, even if not authorized, that a conviction must follow, and, if he was, then no conviction can be had. As to whether the defendant was authorized to loan this money, I charge you that an authority to loan the money would not be an authority to the defendant to borrow it himself. To find with the defendant that he was authorized to loan the money, you would also have to find that he was authorized to borrow it, because the authority of an agent to loan presupposes that the agent is to stand in the shoes of the principal, and, as a principal could not borrow money of himself, neither can an agent borrow money of his principal in his hands, or subject to his control as a trust fund, under a general arrangement to loan the money of the principal." The objection to this is that it was assumed that the defendant borrowed a part of the Fleet money. Time will not permit an extended quotation from the testimony of the defendant. It will suffice for the purposes of the motion to say that the ability displayed by counsel in arguing this question has not convinced me that there was any evidence that the defendant did not borrow the money. His explanation that he used it for certain purposes and borrowed it for other people does not shake me in the opinion formed from his oft-repeated assertions, acknowledgments, and recognition of that fact. Merely saying that he borrowed it for somebody else in no way affects the fact, which is that he took the money and gave his own note for it. The rule for which counsel contends, and which is well settled, namely, that the court cannot take away from the jury contro

verted questions of fact, applies in its full force where there is a contention by a party on the one hand, or evidence of some witness to one state of facts which contradicts the evidence of another witness, even though that contradiction may be very slight. It ought not to apply in its full force, and apparently, it does not so apply to the solemn admission of a party made in giving his testimony. To make this idea better understood, it is only necessary to reverse the situation. Suppose that the guilt of the defendant depended upon the question of his having borrowed the money of Fleet, could the court have submitted that question to the jury for a finding, or would it have been compelled to take the case from the jury? An examination of the defendant's testimony will make it readily appear that the court would have been compelled to tell the jury that there was no conflict of evidence, and that they could not convict the defendant. The assumption that there was a conflict of evidence upon that question inheres in every objection which counsel make to that part of the charge. The well-established rule is that parts of a charge are not to stand alone, but the whole must be considered, and, while fully recognizing the doctrine contended for by counsel that anything which withdraws from the jury evidence tending to support a defense is erroneous, it does not appear that there was prejudicial error in this regard. The argument of counsel construes the charge literally. It ignores the context and the subject-matter upon which the jury was being charged. The jury was in effect told that, inasmuch as the defendant made his defense upon the contention that he was authorized by Fleet to loan his money, that defense was not established by proof that the defendant borrowed it himself. His defense was that he was authorized to loan Fleet's money. He sought to sustain that defense by showing that he had borrowed a part of it and loaned a part of it. Perhaps the thought was not altogether happily expressed, but that it misled the jury, or could have misled it when taken in connection with the language which immediately preceded that which counsel quotes, I cannot bring myself to believe. That language was as follows: "The real controversy as to these four counts, which relate to the Fleet deposit, grows out of the contention of the defendant that he was authorized by Fleet to loan this money, and if you find this to be true, or if you find on that question that your minds are in such a state of uncertainty as to cause a reasonable doubt as to whether he did or not, then the defendant cannot be convicted as to any of the counts relating to the Fleet transaction. That is a question for you to decide from the evidence. It is a vital one in this case, and in deciding it you should take into consideration all the testimony which has been offered, bringing your experience as business men to bear upon the question, and from all the testimony, your own experience, and your best judgment determine where the truth lies." It is said that the jury were arbitrarily told that they must find authority to borrow or convict the defendant; but it takes a good deal of study and construction and effort to arrive at that conclusion. Besides, only a part of the money was borrowed by the defendant, and in the very paragraph which counsel complains of the jury were told that there could be no conviction if the defendant was authorized to loan Fleet's money, so that the instruction that authority to loan was not authority to borrow could not in any event have been prejudicial to the defendant. It was never stated at the trial by way of oral argument, nor by way of request for instructions, that the evidence of the defendant in relation to settlement with Fleet was a ratification of his act as now for the first time contended, even though it may not have been authorized, but that evidence was offered by the defendant to establish his own authority, and that was the theory upon which the case was tried.

In this connection, also, it is said that the court should have charged the jury that, if the defendant believed he had authority to loan the money, he should be acquitted. That question was covered by telling the jury that, if he had reasonable ground to believe so, he should be acquitted. Even in the defense of a charge of murder, where the defendant seeks to show that he acted in self-defense, he must show that he relied upon appearances, and that he had reasonable ground to rely upon them. It is not sufficient to say that he believed that deceased was about to kill him. He must show that he had some ground for believing so. Any defendant will say that he believed that 157 F.-2

he had the right to do a thing when on trial for doing it. That is no excuse. What he must show is that he had some ground for belief. But in the same connection the jury was told that, if they had a reasonable doubt as to whether Fleet authorized the defendant to loan the money, they must acquit.

3. The exclusion of the evidence of witnesses who would have testified, had they been permitted, that the defendant, at the time he loaned the money, declared that he was loaning the money of Fleet, is assigned as error. When this testimony was offered, it was suggested that it was part of the res gestæ. Just when an act or declaration is a part of the res gestæ is sometimes extremely difficult to determine. When this question was presented during the trial, it was concluded that in this case the defendant was speaking of the facts, rather than the facts speaking through the defendant. The charge related to the falsification of a report to the Comptroller of the Currency. The prosecution offered evidence tending to prove that Fleet had an account in the bank. Inded, that was never a disputed fact in the case, except in so far as all facts are put in issue by a plea of not guilty. In offering proof tending to establish the deposit of Fleet, the prosecutor was compelled to go back to the time when the bank books showed the deposit, and follow the account through the books until it was closed, thus incidentally showing the checks by means of which the account was drawn out. Remembering that the charge was falsification of the books and showing that Fleet did have an account there, it did not seem to me at the trial that the fact that the defendant was authorized to loan the money, and his loaning thereof was a part of the res gestæ, nor does it seem so yet. It must be admitted, however, that this matter is not altogether free from doubt. But, for the fact that the ruling made at the time is to my mind clearly sustainable upon another theory, the question as to whether the declaration of the defendant as to the loaning of Fleet's money was a part of the res gestæ might receive more careful consideration. If the defendant's liberty depended upon that ruling alone, it might be one of sufficient uncertainty and doubt to justify the granting of a new trial, even though the evidence would have been cumulative, but the declarations of those witnesses who borrowed money would have in no way added to the admitted fact that the defendant did loan the money and took the securities in the name of Fleet. If the tender of proof was intended to go to the extent of showing declarations made by the defendant generally that he was loaning Fleet's money, it is perfectly clear that they could not, in any event, have been a part of the res gestæ, but were purely self-serving, and evidence relating to the declarations made at the time the money was loaned to those borrowing it could in no way add to that which the papers relating to the transaction disclosed and which must be conclusively presumed to have been known by the borrowers who signed the obligations which were payable to Fleet. The taking of those obligations in the name of Fleet disclosed all there was of the transaction, and it unavoidably brought before the jury the declarations that the defendant made at the time; that is to say, it would not have strengthened the defendant's contention to have allowed a borrower to testify that he told him he was loaning Fleet's money when the note which he executed showed that upon its face, particularly when the testimony of the defendant as to that matter was never contradicted. In that view the declarations of the defendant were simply repetitions. This view also disposes of the contention that the declarations of the defendant were competent as proof of his agency, a suggestion which is now made to the court for the first time by the motion for a new trial.

4. It is claimed that the verdict as submitted to the jury was so uncertain and irregular as to render it void. Counsel on both sides, after an examination, approved it as to form, and it was sent to the jury in pursuance of such affirmative action. Beyond this, I have not discovered any ground for the charge that it was uncertain or misleading, and certainly the jury found no difficulty in understanding it perfectly. There were 23 counts in both indictments, the two causes having been consolidated, and 18 of those counts were eliminated for one cause or another. As to those counts upon which the jury was peremptorily instructed to return a verdict of not guilty, the verdict was fully completed. Upon those counts submitted to the jury a blank was left before the word “guilty," with instructions, if they found the defendant

not guilty, to insert the word "not" before the word "guilty," as to each of the counts on which they so found; but, if they found the defendant guilty as to those counts, to sign the verdict without writing in the word "not." That the jury fully understood this is shown by the verdict itself, where they used the word "not" as to one count, but did not use it as to the others. To have prepared and sent to the jury every possible combination of verdict which they might have found would have been far more confusing and irregular than to have sent it to the jury in the manner in which it was submitted.

It follows that the motion for new trial must be overruled, to which the defendant will be allowed an exception.

HAMILTON COUNTY v. MONTPELIER SAVINGS BANK & TRUST CO. (Circuit Court of Appeals, Seventh Circuit. October 1, 1907. Rehearing Denied November 19, 1907.) No. 1,349.

1. COUNTIES-FUNDING BONDS-CONSTITUTIONAL LIMITATION OF INDEBTEDNESS. Const. Ill. 1870, art. 9, § 12, which limits the amount of indebtedness which may be lawfully contracted by any municipality to 5 per cent. of the value of the taxable property therein, relates solely to the creation of indebtedness thereafter, and neither authorizes repudiation, nor affects the making of terms for payment of existing legal liabilities; hence the funding of such liabilities by a county, authorized by statute and vote, was unaffected by the limitation, and the fact alone that funding bonds issued for that purpose, reciting that "binding, subsisting legal obligations of said county" were thereby funded exceeded such limitation, neither implies nor amounts to a violation of the constitutional provision which can only be made to appear by impeaching such recital as to the validity of the indebtedness funded.

2. SAME-RECITALS IN BONDS-EFFECT AS ESTOPPEL.

Rev. St. Ill. 1881, c. 113, authorizes counties and other municipalities to issue bonds for the purpose of retiring outstanding obligations. A county had an outstanding issue of bonds. After years of litigation in both state and federal courts the liability of the county was established in favor of the holders of a majority of such bonds, and judgments entered against it thereon, while other portions of the issue had been adjudged invalid, and the holders defeated. Others of the bonds were in the hands of holders whose rights had not been adjudicated. In such state of facts a compromise was effected, pursuant to which the county voted to issue funding bonds under such statute, to be used in settlement of the judg ments and the outstanding unadjudicated bonds, and they were so used; judgments being entered on the unadjudicated bonds by consent, and all judgments satisfied in exchange for the funding bonds. Such bonds recited that they were issued under such statute, and that "binding, subsisting legal obligations of said county" were thereby funded. Held that, under the statute, the county officers, authorized thereto by a vote of the electors, had power to make the compromise, and for that purpose to determine on behalf of the county that the unadjudicated outstanding bonds were valid and subsisting obligations, and that their recital of such fact estopped the county as against a bona fide holder for value of the funding bonds to deny their validity, on the ground that all or any part of the obligations thereby retired were invalid, either on constitutional or statutory grounds.

In Error to the Circuit Court of the United States for the Eastern District of Illinois.

The judgment against county of Hamilton is in assumpsit, for recovery upon so-called "funding bonds," issued by the county, and held by the Montpelier Savings Bank & Trust Company, the plaintiff below. These bonds were issued under the provision of a general act of the Legislature of Illinois, mention

ed in the bonds-being chapter 113, Rev. St. 1881; 3 Starr & C. Ann. Ill. St. par. 1, c. 113-authorizing issuance of bonds by municipalities for the purpose of funding and retiring outstanding obligations, and pursuant to a vote of the people for such issue. They were in the following form, except that the num bering and times of payment were various:

"United States of America, State of Illinois. No. 85 County of Hamilton. "Funding Bond, Issued under Act of 1865. "As amended April 27th, 1877 & June 4th, 1879. "Third Class.

$1000.

"Seven years after date, for value received, the county of Hamilton promises to pay to the bearer hereof the sum of one thousand dollars, in lawful money of the United States, at the American Exchange National Bank in the city of New York with interest at the rate of 42 per cent. per annum, payable January and July as shown by and upon the surrender of the annexed coupons as they severally become due, except the last coupon which is due with the bond.

"This bond is issued for the purpose of funding and retiring certain binding, subsisting legal obligations of said county, which remain outstanding and unpaid under the provisions of an act of the General Assembly of the state of Illinois, entitled 'An act to enable counties, cities, towns, townships, school districts and other municipal corporations to fund, retire and purchase their outstanding bonds and other evidences of indebtedness, and to provide for the registration of new bonds or other evidences of indebtedness in the office of the Auditor of Public Accounts,' approved February 13th, 1865 (Pub. Laws 1865, p. 44), and acts amendatory thereto, approved April 27th, 1877 (Laws 1877, p. 158), and June 4th, 1879 (Laws 1879, p. 229), and in pursuance of the vote of a majority of the legal voters of said county, voting at an election duly called under said act, and notified, held, and conducted according to the laws of said state.

"We hereby certify that all the requirements of said acts and laws have been fully complied with in the issue hereof.

"In testimony whereof, we, the undersigned officers of the said county, being duly authorized to execute this obligation on its behalf, have hereunto set our signatures this first day of August, A. D. 1898.

"Auditor's Office, Illinois, Springfield, Sept. 2, 1898. "I, James S. McCullough, Auditor of Public Accounts of the state of Illinois, do hereby certify that the within bond has been registered in this office this day pursuant to the provisions of an act entitled 'An act to enable counties, cities, towns, townships, school districts and other municipal corporations to fund, retire and purchase their outstanding bouds and other evidences of indebtedness, and to provide for the registration of new bonds, or other evidences of indebtedness, in the office of the Auditor of Public Accounts,' approved February 13, 1865, and acts amendatory thereto, approved April 27, 1877, and June 4, 1879.

"I further certify that the aggregate equalized valuations of property assessed for taxation in said county for the year 1897 were certified to this office as follows: Real estate, $1,297,229.00; personal property, $330,447.00. "In testimony whereof, I have hereunto subscribed my name, and affixed the seal of my office, the day and year aforesaid.

"[Seal.]

"J. S. McCullough,

Auditor Public Accounts."

The record is voluminous with facts in reference to the alleged indebtedness for which these funding bonds were issued, litigation over the pre-existing bonds, and circumstances attending the refunding transaction. In the brief submitted on behalf of the county of Hamilton the ultimate facts are recited,