#### United States *v.*Burkhardt.

*(Circuit Court, D. Oregon.*

June 22, 1887.)

Perjury—Instruction.

At the close of the instructions to the jury the court, in response to a question from a juror, said the jury might give the verdict in the case in which the defendant committed the alleged perjury such consideration as they thought it entitled to, when it also appeared from the record of the prior action, and the other evidence before the jury, that the jury therein must have disregarded the evidence of the defendant herein alleged to he false. *Helé,*that the instruction was erroneous; and, although the verdict of guiltyappeared to ho fully justified by the evidence, the court could not say, on a motion for a new trial, that the error had no appreciable influence on the result, and therefore granted a new trial.

*(Syllabus by the Oourt.)*

Indictment for Perjury. Motion for new trial.

*Lewis McArthur,*for the United States.

*W. W. Page,*for defendant. '

Deady, J.

The defendant is accused by the grand jury of this district of the crime of perjury. The indictment states that on November 29, 1886, the case of *Elizabeth Stapleton*v. *Oakland Home Ins. Co.,*an action to recover damages for the loss of the New Couch Hotel, destroyed by fire in this city on July 10, 1886, ivas on trial in this court, when it became and Avas material to the determination of ihe issue therein whether said building Avas destroyed by the procurement of said Elizabeth, and whether the furniture contained therein had been removed therefrom by said Elizabeth prior to said fire; that the defendant, being then duly sAA'orn as a witness in said case, willfully and falsely SAVore that about tAvo weeks before said fire, and about two days before said Eliza*142betli and her family left said building for the seaside, at Ilwaco, Washington Territory, Timothy Stapleton, her husband, with the aid of the defendant, and the knowledge and assistance of said Elizabeth, removed the furniture, bedding, crockery, carpets, cooking utensils, and cutlery 'from said hotel, with the exception of the bedsteads, and the mattresses thereon, and a sufficient amount of bedding, crockery, cutlery, and cooking utensils for four or five persons who remained in the building after the Stapletons left the same, to the Ash-street dock, in Portland, and then and there shipped the same, by the Oregon Railway & Navigation Company, to Ilwaco; whereas, in truth and in fact, as the defendant well knew when he so testified, none of said articles excepting five or six pairs of blankets, a small stove, two pulu mattresses, and sufficient cooking utensils and dishes to accommodate the Stapletons and their children while camping at Ilwaco, were so removed or shipped, but were destroyed by fire in and with said hotel on July 10,_ 1886. The defendant pleaded not guihy to the indictment, and was tried thereon May 24, 1887, and found guilty. He now moves for a new trial in arrest of judgment.

On the argument nothing was said in support of the motion in arrest of judgment; and the burden of the argument for anew trial was the refusal of the court to allow the defendant to offer proof on the question whether the Stapletons did cause the New Couch Hotel to be burned, and the remark of the court, in refusing to admit evidence on the subject, that the question had been decided in their favor in *Stapleton*v. *Oakland Home Ins. Co.,*and was altogether immaterial in this case.

Certainly there was no error in the exclusion of this evidence, or rather in refusing to allow the defendant to go into the question. As was said by the court at the time, if Burkhardt was indicted for falsely swearing on the trial of John Doe for the murder of Richard Roe, that Doe bought a pistol of him, about the time of the homicide, such as it was claimed was used in the killing, it would be equally absurd and irrelevant to offer, evidence in defense tending to prove that Doe did kill Roe. The remark that the question whether the Stapletons caused the burning of the hotel had been settled in their favor by the jury that tried the insurance case may have been improper. But it was a mere casual remark, in the course of the colloquy between the court and counsel, and it is not likely that the'jury paid any attention to it. And, furthermore, counsel for the defendant qnovoked the remark, and is largely responsible for it. He endeavored to prejudice the case of the prosecution by indirectly impressing the jury with the idea that the Stajjletons caused the burning of the hotel, by insisting, in their presence, that he ought to be allowed to go into that question, and manifesting surprise when he was refused.

It is also claimed that the evidence is insufficient to support the verdict.

The evidence for the prosecution left no room for reasonable doubt that the defendant, on the trial of *Stapleton*v. *Oakland Home Ins. Co.,*willfully and falsely swore that the larger portion of the furniture, par*143ticularly in value, of tlio Noav Couch Hotel, a building fitted for the lodging and boarding of at least 50 persons, was hauled to the Ash-street dock, and shipped to Ilwaco by the defendant and Timothy Stapleton, Avith the knoAvledge and consent of his Avife, Elizabeth; that the articles so removed amounted to three wagon-loads,—one tAA'o-horse one, and tAAro one-horse ones; and the shipment took place within a day or Iavo of the departure of the Stapleton’s for Ilwaco, and not earlier than June the 24th. It was also satisfactorily shoAvn that the Stapletons did send a camping outfit of small value, as stated in the indictment, on June the 23d, from the hotel to the Ash-street dock, AyhichAvas shipped on June 24,1886, to Ilwaco, by the Oregon Railway & Navigation Company, and that the defendant helped to put these things in the Avagon, and deliver them on the dock; and there Aras no testimony tending to show that the Stapletons, or either of them, shipped any other of the furniture or furnishings of this hotel to Bwaco, or elsewhere, about this time, or at all.

An attempt was made by the defense to prove that some articles— boxes and trunks—were taken aAA'ay from the hotel during the high water, and in the early part of June, in express wagons, but it amounted to nothing. In a public house, patronized largely by the floating, laboring population, it Avould have been strange if express AAragons were not coming and going night and day Avith the baggage and effects of parties going to and from the hotel and steam-boat landings and railway stations. But, besides all this, the testimony did not tend in the least degree to identify any of these transactions Avith the wholesale removal of the furnishings of the hotel that the defendant SAvore took place, Avith his assistance, on the day before the Stapletons Avent to Ihvaco, June the 23d.

An attempt was also made in the testimony and argument for the defense to show that the defendant in his testimony in the insurance case did not confine the removal of the articles to one occasion, but left it someAvhat indefinite as to time. But the weight of the evidence is to the contrary. In fact, the impression made by bis testimony in the insurance case, according to my notes, is that the removal of tlie goods was one continuous transaction; and certainly he said nothing to the contrary. On the trial of this case, after hearing the Avitnesses for the prosecution and the defense, and having his attention called to the matter, he Aveut on tlie AA'itness stand in his own behalf, and admitted that he SAvore on the former trial that three Avagon-loads, comprising the best part in value of the property of the hotel, were taken from there to the Ash-street dock within a period of two days, and just prior to the departure of the Stapletons for IIaatico; that he marked some of the articles Ilwaco, and accompanied the last load to the dock, and AA'ould not say he did not accompany the other íavo loads also.

A neAV trial is also asked on account of an error in the instruction of the court. In the progress of the trial the judgment roll in *Stapleton*v. *Oakland Home Ins. Co.*Avas offered in evidence by the prosecution, to show the pendency of that action, and the issue therein, wherein and whereabout the defendant is alleged to have sworn falsely. After the *144instructions to the jury were closed, and they were in the act of retiring, one of their number asked the question, “What effect shall be given to the verdict of the jury in the insurance case?” to which the court replied, without suggestion or objection from counsel, “Give it such consideration as you may think it entitled to.” Upon reflection I am satisfied that this instruction was erroneous. Whart. Crim. Ev. § 602a. And while I feel satisfied that the verdict of the jury is fully justified by the evidence, without this instruction, yet I cannot, in the nature of things, be assured that it did not have some appreciable influence on the result. The verdict in the insurance case, in connection with the evidence, showed that the jury, in finding for the plaintiff, must have disbelieved the evidence of the defendant, and that fact may have had some influence with the jury in this case in finding that the defendant was guilty of peijury.

It is to be regretted that this apparently just verdict must be set aside on account of this error. But the defendant, whatever may appear to be the merit or demerit of his case, is entitled to the verdict of a jury thereon impaneled to try the same, without reference to the finding or opinion of any other jury in any other case to which he was not a party.

The motion for a new trial is allowed, and the defendant is held to bail to await such trial in the sum of |2,000.