Great Falls tribune., 1922-02-17
SUSTAIN COURT
INSTRUCTIONS
TO TRIAL JURY
Fifth Appeal from Judge Bour-
quin's Ruling Fails at
San Francisco.

The fifth consecutive affirmation of
federal court decisions by Federal
Judge George NJ. Bourquin has been
returned by the United States circuit
court Of appeals in San Francisco. Six
cases were appealed from the federal
court and United States Attorney John
l.. Slattery, representing the district
of Montana, argued the cases before
the circuit court last December The
decision, in the sixth case is yet to be
heard from.
The fifth case in which Judgment by
the federal court was affirmed was
that against Ray McCnrry and John
Wall. convicted in federal court at
Helena in January, 1921. Of having
failed to register still or to give the
necessary bond required Of distillers
under the internal revenue laws. Both
were sentenced to nine months in the
county Jail and McCurry was fined
$500 and Wall was fined $500.
Claimed Court Erred
Attorneys for McCurry and Wall
contended that the court erred in in
srructing the jury at the trial to the
effect that evidence showing the prob
ability of guilt Of the defendants was
sufficient to warrant conviction. The
higher courts held that this was an
erroneous statement of the courts III
struction. Counsel for the defendants
in the federal court trial in arging the
case before the jury said that convlc-
tion could not be obtained on suspi-
ciOn.
THAT is true Judge Bourquin said.
But when the counsel went on to say
that the jury could not convict on
probabilities, the court interrupted 70
say: ,ooa,so af+er
all. all cases are determined on proba-
bilities. There is no such thing as
absolutely proving the guilt of the de-
fendant and guilt never needs to be
proved to an absolute certainty. be-
cause that is impossible. 1t only needs
to be proved to that high degree Of
probability that Greats in your minds
1.-THE jury, an abiding conviction to
a moral certainty that he is guilty.
Reasonable Doubt
The court had previously instructed
the Jury that these defendants are
presumed to be innocent and that pre-
sumption requires that you acquit them
unless after your review Of all evidence.
you believe it overcome to degree
that satisfied you that they are guilty
beyond reasonable. doubt. it is your
duty to convict them
This. the circuit court stated. is
unnuestionably a statement Of TACT.
Judge Morrow of the circuit court IN
reviewing the matter remarked fur
tber:
1T is not necessary to repeat what
has been so often said in this court
that counsel cannot select particular
passage or portion of the charge OF
the trial court for the purpose Of estab-
fishing error. The whole charge must
be taken together and if 1t appears
therefrOm that the law has been fully
and fairly stated and that the jury
must have SO understood him, the fact
that some passage or even passages
are open to criticism cannot be sue
cessfully urged as reversible error.
Burden on Defendant
TT was next assigned as error that
the lower court erred In lhstructlhe
the Jury that the burden was upon the
defendants to show the registration OF
the still and the filing of the bond.
The court instructed the jury that the
prosecution need only prove the CIR
cumstances from which can be pre-
sumed lack of registry and bond fIled.
whereupon the burden shifted to de-
PENDANTS to prove registration ana III
ing of bond.
"a circumstance Of great significance
against the registration of the still ana
filing Of a bond by the appellants was
the fact that they made no claim of
ownership. interest in. or knowledge
of the still. This was in accordance
with their plea of not guilty. and was
q practical admission that they had not
registered the still nor given bond
therefor. This fact was brought TO the
attention of the appellants by the court
in its decision denying the motion for
new trial. in response to winch they
remained silent.
instructions Justified
.The absence from the case OF any
claim of ownership. intent interest III.
Or knowledge of the still on the part OF
the appellants, was material clrcum-
stance sufficient TO shift the burden
Of proof and justify the instruction OF
the court to the jury that the burden
was upon the defendants to prove the
registration of the still, and filing OF
bond. If the appellants had registered
the still and filed the bond, they knew
that fact better than anyone else ano
could have so stated at any time dur
ing the proceedings against them. we
find no error in the proceedings OF this
district court and the Judgment Is
therefore affirmed
The opinion Of the circuit court was
filed in San Francisco, Monday
Feb. 13.
Cases Cause Comment
These cases have attracted country
wide interest in legal and court circles
owing to the number ana variety o'
noints of law involved The fact has
caused considerable comment that the
decisions of Federal Judge Bourqult
have been confirmed in each Of the
cases thus far reported This is the
greatest number Of caseA nvHr appealed
10 the circuit court from the fedora
court in the district Of Montana during
a single year.
MARRIAGE LICENSE.
Lewis Writ. legal age and Sophia
a1r al