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the proceedings void in that case, although the plaintiff, as disclosed by the affidavit of Wimme, was fictitious.
One motion to amend in case No. 1022 was filed before this case was tried, and a copy of the motion was in all probability served on counsel for defendant in this case, and service by him accepted, as appears by the files in that case; so that, whatever the facts were as to that matter, they were within the knowledge of counsel, and therefore presumably within the knowledge of his client. If this be true, counsel cannot now seek to have the verdict set aside because of newly discovered evidence. Newly discovered evidence means evidence discovered since the last trial.
Evidence known to a party but not to his attorney, or vice versa, is not newly discovered evidence. Isaacs v. People, 118 III. 538, 8 N. E. 821; Pace v. State, 63 Ga. 159; Russell v. Oliver, 78 Tex. 11, 14 S. W. 264.
Testimony upon which a new trial may be granted must be discovered since the last trial. Holeman v. State, 13 Ark. 105; People v. Freeman, 92 Cal. 359, 28 Pac. 261; O'Barr v. Alexander, 37 Ga. 195; Barrow v. State, 80 Ga. 191, 5 S. E. 64; Boot v. Brewster, 75 Iowa, 631, 36 N. W. 649, 9 Am. St. Rep. 515; Sexton v. Lamb, 27 Kan. 432; Gautier v. Douglass Mfg. Co., 52 How. Prac. (N. Y.) 325; Watkins v. U. S., 5 Okl. 729, 50 Pac. 88; Dingman v. State, 48 Wis. 486, 4N. W. 668; Shaw v. State, 27 Tex. 750; Griffith v. Eliot, 60
Newly discovered evidence, to be sufficient, must fulfill all the following requirements: (1) It must be such as will probably change the result if a new trial is granted; (2) it must be discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue ; (5) it must not be merely cumulative to the former testimony; and (6) it must not be merely impeaching or contradictory of the former evidence.
Measuring the claimed newly discovered evidence in this case by these rules, and considering in that connection the files of the court showing that counsel was advised of the facts referred to in the affidavit several months prior to the trial of this case, it cannot be claimed that the matter set out in the affidavit in support of the motion for a new trial on the ground of "newly discovered evidence" is such as entitles the party to consideration on this phase of the case.
On the ground of the motion challenging the sufficiency of the evidence to support the verdict, the court has examined the evidence, and, outside of the writs offered in evidence by the plaintiff showing the property sold and the price received therefor, there is practically no evidence on the question of value. Mr. Marks was asked on examination in chief:
"Q. At the time the inventory was made did the goods have the tags on? A. Yes, sir; every box, what it was worth. Q. And after you paid the money he put you in possession and gave you the key? A. Yes, sir; took me down and gave me the keys. Q. You say the goods were marked? A. Yes, sir; everything. Q. And on that investigation you made your estimate of the value? A. Yes, sir; thirty-five hundred dollars."
On cross-examination of the witness Marks the following questions were propounded and answered.
"Q. There was no inventory turned over to your possession? A. No, sir; there was not; no, sir. Q. And all there was to that, you went over that stuff with Steffin, and he made out the list and papers, and you didn't get it? A. No, sir. Q. Was Joe Levy around when you took the inventory? A. No, sir. Q. These figures you talk about getting off the boxes, did you get them off the boxes, or off of any inventory or bill of lading or shipping bills—they were on the boxes? A. They were on the boxes. Q. How do you know that was the cost price? A. Well, Steffin was the man that done the work. Q. And he told you these figures on the boxes represented the cost price, did he? A. Yes, sir. Q. And that's all you know about it? A. Yes, sir."
The testimony of Mr. Marks was objected to, and should have been withdrawn from the jury. He was allowed by the court to testify at the time as he did because of his age and seemingly defective memory, and because he seemed to be devoid of understanding as to what was desired of him in the way of testimony, and the court allowed him to wander, and state whatever he would; intending to withdraw all such testimony as was inadmissible from the jury. This was overlooked by the court when the case was submitted, and was not withdraw from their consideration. In my opinion the only competent evidence of value before the jury is to be found in the answer admitting the value of the goods to be $2,025, and by the writs offered by the plaintiff showing the sum received for the goods at forced sale. Whatever sum, therefore, the jury awarded in excess of the latter sum, there is no competent evidence to sustain. The evidence is insufficient to sustain the verdict as rendered; the said sum received on the sale being the largest sum that could have been allowed, with interest thereon at the legal rate.
Under the rule established in this court as to the sufficiency of the testimony, the motion for a new trial will have to be sustained unless plaintiff will remit the difference between the sum of $2,045.25, the amount specified as having been received on the return, and the amount returned by the jury. If the plaintiff chooses to remit this amount, the verdict will be sustained, and judgment entered for the difference, as above indicated.
A corporation may be indicated under the United States statutes for carrying on business as a wholesale or retail liquor dealer without paying the license required by section 3244, Rev. St. U. S. 1878 (U. S. Comp. St. 1901, p. 2096).
[Ed. Note.-For cases in point, see yol. 12, Cent. Dig. Corporations, $ 2138.]
John L. McGinn, Asst. Dist. Atty., for plaintiff.
MOORE, District Judge. The defendant corporation was on the 1st day of April, 1902, indicted by the grand jury of this division and district for the commission of two crimes, viz.: (1) Of unlawfully carrying on in the Second Division of the District of Alaska the business of a wholesale liquor dealer without having paid to the United States government the special tax, as required by law; and (2) of unlawfully carrying on the business of a retail liquor dealer without having paid to the United States government the special tax, as required by law.
The section of the Revised Statutes of the United States of which the indictments charge violations is section 3244, p. 623, of the Revised Statutes of the United States of 1878 [U. S. Comp. St. 1901, p. 2096]. Its language, defining the foregoing offenses and their penalties, reads as follows:
“Every person who carries on the business of a wholesale liquor dealer, retail liquor dealer, (or manufacturer of stills), without having paid the special tax as required by law, shall, for every such offense, be fined not less than one thousand dollars, and be imprisoned not less than six months nor more than two years.”
The amount of the special tax imposed on wholesale dealers in liquors is $100, and on retail dealers therein is $25.
The ground of the demurrers upon which the defendant relies is paragraph No. 4 thereof, in words following: "That the facts stated do not constitute a crime;" in other words, that the facts stated do not constitute a crime for which a corporation is indictable. In support of its contention the defendant maintains that the offenses charged are felonies, and that, being a corporation, the defendant is not liable to indictment therefor.
The court was upon the argument of the demurrers cited to section 5541 of the Revised Statutes (U. S. Comp. St. 1901, p. 3721], wherein it is enacted, in substance, that any person convicted of any offense to which a sentence of imprisonment for more than one year attaches, the court having jurisdiction of the crime may order the defendant to be imprisoned in any state jail or penitentiary within the district or state where such court is held; and it was maintained that the offenses charged in the indictments, being penitentiary offenses, are felonies, within the definition of a felony in the Penal Code for Alaska (section 184). A felony is therein defined to be "a crime punishable with death, or by imprisonment in the penitentiary."
The offenses charged in the indictments under consideration are not mong the crimes enumerated in the Alaska Penal Code. They
They are offenses punishable as crimes under a general statute of the United States, and are made punishable wheresoever committed, whether in any of the states or in any of the territories of the nation. They are crimes within the jurisdiction of all the United States District Courts. The classification of crimes in the Alaskan Code, on the contrary, only relates to crimes made such by said Code, and committed within the district of Alaska.
There is no statutory definition of "felonies” in the General Statutes of the United States. Reagan v. U. S., 157 U. S. 302,