United States v. Foulke.

with Loder. Witness saw Mr. Root come down, call Foulke out and change some money with him; handed the bill to Randolph; Foulke had the note, but does know the size of it; and witness saw Foulke give change for the note; heard Mr. Randolph say it was a base counterfeit.

Mr. Thomas, lives in Chambersburg. On the 22d of July 1853, had some hands at work who came to his house on the same evening, and he made an entry of the date as above. Witness saw a bill in the hands of the defendant, who said it did not look like a good bill. Root said if it were not good he would make it good. Witness did not examine the bill, and did not know the amount of it. On the same evening a wagon and sulkey were taken away by Mr. Randolph.

Joseph Estel was the mail carrier about five months, and was the carrier at the above time, three times a week each way Tuesdays, Thursdays and Saturdays.

Mr. Lever, Mr. Wallace, John McClury, Wm. H. Gill. Wm. W. Hamilton, Charles M. Austin, Judge Riddle, Joseph H. Quinn and Mr. Aster were sworn, all of whom testified to the good character of the defendant. They represented him as having filled various responsible trusts, and exercising great influence with the people of his county.

The plaintiffs called some rebutting witnesses.

Mr. Root says he is the brother-in-law of Koons; that he had some dealings with the defendant the latter part of May or the beginning of June; bought a horse from defendant; paid thirty dollars, and gave a note for the balance; that he sold goods, and had more accounts against the defendant. Chambersburg was only a few miles from Moultrie.

Mr. Koons says he was not at Chambersburg on the 21st of July; that he was there on the 20th, and a short time afterwards; that he never promised Root to change a bill for him with the defendant.

The defendant then called Mr. Eustine, who says, he heard

United States v. Foulke.

Root say he had changed with Foulke a ten dollar bill, which was suspected; and that he promised to make it good if it were not so.

This is the substance of the testimony, gentlemen; and it is your duty to consider it well, and to come to a decision as to the guilt or innocence of the defendant.

If the postmasters of Osnaburg and New Franklin have sworn truly, the letter was mailed at Osnaburg, and, passing through the New Franklin office, in all probability was received at the Moultrie office: and, if the conductor of the train, Mr. Cleland, and the Post office agent, Chapman, remember correctly, the note which the latter endorsed to test, as he says, the Moultrie office, was received by the conductor from the defendant on the 21st of July, and handed by him to Chapman, the agent, on the same day. And, as the conductor was apprised by the agent of the experiment, both he and the agent would necessarily charge their memories with the facts and the date. These witnesses are not impeached.

The defense rests mainly on the fact alleged, that the identical note was received by the defendant from Roth on the 21st of July, the same day the conductor received the note from the defendant. The witnesses vary somewhat as to the time the note was received by the defendant from Roth. It was sometime in the afternoon. Now, if this note was not received until after the cars had passed the Moultrie office, the defense must fail. Chambersburg is but a short distance from Moultrie. Supposing the note received from Roth was the identical note passed to the conductor by the defendant, there is no question that he must have received it from Roth, and returned to his office before the cars arrived. It is said that the daughter of the defendant, in the absence of her father, generally opened the mail.

The attempt is openly avowed to implicate Mr. Koons, the Postmaster at Osnaburg, in this transaction. The letter in question was enclosed to Mr. Koons by Chapman, open, and

United States v. Foulke.

he stated the object. It is then suggested that Koons had the power to abstract the letter, hand it to his brother-in-law, Roths, who passed it off to Foulke with the view of entrapping him. Mr. Koons was not suspected by the agent of the Postoffice Department, nor is there any evidence, beyond what you have heard, to cause suspicion against him.

Koons swears he was not at Chambersburg on the 21st of July, and the same is corroborated by the oath of Roth, his brother-in-law; and one or two of the other witnesses state, that it was on the twenty-second or third that the ten dollar note was passed to Foulke by Roth. But, several of the witnesses say that the note was passed to the defendant on the 21st; and they identify the note now presented to them by a mark which was observed at the time; and here, too, the witnesses state facts which would be likely to remain impressed upon their memory. The note was minutely examined by Mr. Randolph and others, as it was suspected to be a counterfeit; and several of them, on looking at the note now, are able to identify it by certain marks which were observed when they saw it at Chambersburg.

If this evidence be false, it has been most ingeniously contrived. But, such a supposition most seriously implicates the defendant's witnesses, who have not been impeached, and. who appear to be respectable. It will be your duty, gentlemen, to reconcile the testimony if you can; but, if this can not be done, it will become your painful duty to weigh the facts, and decide where the truth lies.

By a large number of respectable witnesses the defendant has shown a good character. This the law permits, from the infirmity of human testimony, and for the safety of the accused. Where an individual has so acted as to secure the confidence and good feeling of his neighbors, and of those with whom he has had intercourse or business, he will not be supposed, except upon the clearest evidence, at once to abandon so desir

Ex parte H. H. Robinson, Marshal of the United States.

able an inheritance. There may be such instances, but they form exceptions to the general rule.

of the weight of evidence, There is no tribunal but appear, which can rightly

You, gentlemen, are to judge and the credibilty of witnesses. that before which we must all judge of the motives of human action. We have no such standard; and, at best, we can only determine matters of controversy, civil and criminal, on the highest probability of facts, from the evidence. But, in every criminal case, where a conviction is utterly ruinous to the accused, a jury will acquit, if they have reasonable doubts of his guilt; but, these doubts must not arise from our sympathies, but from a deliberate consideration of the evidence.

The jury found the defendant not guilty.

EX PARTE H. H. ROBINSON, MARSHAL OF THE UNITED

STATES.

A writ of habeas corpus may issue to relieve an officer of the Federal government who has been imprisoned under State authority for the performance of his duty.

Where concurrent jurisdiction may be exercised by the Federal and State authorities, the court which first takes jurisdiction can be interfered with by no other court, State or Federal. It is a subversion of the judicial power to take a case from a court having jurisdiction, before its final decision is given.

It may be considered an open question, whether one decision on a habeas corpus is final.

It should be considered whether all the evidence was heard, and a full trial was had by a Judge or court having jurisdiction.

The federal authorities follow the established construction of a State law by the Supreme Court of the State.

And the rule should be reciprocal-by the State courts in regard to the federal laws.

The powers of the Federal courts, in regard to the exercise of its powers under the constitution and laws of the Union, are as distinct as the courts of distinct governments.

Mr. Pugh for the Marshal.

Messrs. Chase & Joliffe against the discharge.

Ex parte H. H. Robinson, Marshal of the United States.

BEFORE JUDGE MCLEAN AT CHAMBERS.

A petition and affidavit of Hiram H. Robinson, Marshal of the United States for the above district, stating that he was imprisoned under the order of the Hon. Judge Parker, one of the Judges of the Court of Common Pleas for the county of Hamilton, for the performance of his duty as Marshal, under process issued by a Commissioner of the United States, and praying for a writ of habeas corpus, was presented; which, being granted, the Sheriff, in obedience to the command of the writ, brought the petitioner into court, with the following return:

"April 8, 1855, for return and answer to the habeas corpus, the Sheriff of Hamilton county says, that, by virtue of an order of the Court of Common Pleas, and in pursuance of the command of said order, he arrested the within named H. H. Robinson, and committed him to jail as commanded; and that he now holds him in custody by virtue of said order."

It appears from the facts of the case, that, on the 30th of March last, an affidavit of Lewis Van Slyke was made to Judge Parker, representing himself to be the guardian of Rosetta Armstead, and that said Rosetta was then held in illegal imprisonment by Hiram H. Robinson, United States Marshal, under a certain pretended warrant issued by John S. Pendery, claiming to sit as a Commissioner of the Circuit Court of the United States for the Southern District of Ohio, from which said imprisonment said Rosetta was discharged by order of the honorable court on Thursday, the 29th day of March current, in violation of which said order of this court, and immediately after the said minor was placed in the custody of the affiant, the said Hiram H. Robinson again seized the said minor under the same pretended warrant of said Pendery, and now holds her in illegal imprisonment, &c. Upon which affidavit a writ of habeas corpus was issued. To this writ the Marshal made the following return: