United States v. Powell , 27 F. Cas. 605 ( 1871 )

BOND, Circuit Judge

(charging jury). The facts in this case have been plainly presented and thoroughly argued to you, and it remains only for the court to instruct you upon one or two strictly legal points, to enable you to find a true verdict. And in the first place, gentlemen, if you find from the evidence that before the late war the defendant held the office of constable in tbe state of North Carolina, and took the oath to support the constitution of the United States required of such office, and subsequently engaged in the Rebellion, it is necessary for you to know whether or not he is within the meaning of the provisions of the act of congress, under which he is now indicted.

The words of the statute, gentlemen, are broad enough to embrace every officer in the state. There can be no office which is not either legislative, judicial, or executive; and there can be no question, it seems to the court, but that, unless it be possible to find some external reasons for giving this broad language a narrower meaning, it embraces every office in the state. But we can find no such reasons. The act, to be sure, is primitive, and it is argued that it was passed to punish those high in authority in the rebellious states at the time of the outbreak of the Rebellion, for their bad faith toward the government they had sworn to support, and was not intended to reach those who had minor offices. But while the act is primitive in its character, it was passed at a time when congress was endeavoring to restore order and government throughout the rebellious states; and it was thought that in this effort those who had been once trusted to support the power of the United States, and proved false to the trust reposed, ought not, as a class, to be entrusted with power again until congress saw fit to relieve them from disability.

The words of the act were made just exactly comprehensive enough to include such persons, and, in the opinion of the court, embrace the office of constable, which is an executive office, and in North Carolina, at the time defendant held it, was limited in its exercise and jurisdiction by county lines only.

If you find that the defendant did hold the office of constable before the war. and took the oath to support the constitution of the United States, you must, before you find him guilty under this indictment, find a further fact, and that is, that he engaged subsequently in insurrection and rebellion against the United States. To establish this the prosecution offers evidence to prove two facts, which, if you find to be true, the question arises, do these amount in law to engaging in rebellion or insurrection? The first is, that in February or March, 1863. he furnished a substitute for himself to the Confederate army. This fact, if proved without explanation, would, of itself, gentlemen, be sufficient to show the defendant was engaged in the Rebellion. But the defendant alleges, and offers evidence to show, that he did not do this voluntarily. That he was himself enrolled, and was about conscripted, and was overcome by force, which he could not resist, and the question is whether, if you find the facts alleged by the defendant to be true, these exceed or justify his conduct in law.

We are of opinion, gentlemen, that the word ‘'engage” implies, and was intended to imply, a voluntary effort to assist the Insurrection or Rebellón, and to bring it to a successful termination; and unless you find the defendant did that, with which he is charged, voluntarily, and not by compulsion, he is not guilty of the indictment. But it is not every appearance of force nor timid fear that will excuse such actual participation in the Rebellion or Insurrection. Defendant’s conduct must have been prompted by a well grounded fear of great bodily harm and the result of force, which the defendant was neither able to escape nor resist. And further, the defendant’s action must spring from his want of sympathy with the insurrectionary movement, and not from his repugnance to being in an army, merely.

When you have determined these facts, gentlemen, and have applied the law as we have stated it to these two points, you will have no further difficulty, for, although it is further alleged by the prosecution that the defendant held a commission of justice of the peace in 1865, under the Confederate government, we are of opinion that he might well have held that office without giving adherence or countenance to the Rebellion. It was absolutely necessary that during that commotion there should have been some to preserve order and to restrain the vicious and licentious, who, without this, would have taken advantage of the turmoil to pillage and destroy friend and foe alike. He was a mere peace officer, and unless it be shown that under his commission the defendant did some act in aid of the Insurrection or Rebellion, the fact that he was justice of the peace is of no consequence in the determination of his guilt or innocence under this indictment.

Take the case, and remember that every reasonable doubt is to be given in favor of defendant, and by reasonable doubt we do not mean every indefinite uncertainty of mind which you may feel, but such a doubt as you can give a reason for or such a doubt as a reasoning man would entertain after careful consideration of the proof.