salutary public policy of the nation and of the tribes to prevent shrewd and intelligent men from alienating simple, unlearned, and improvident Indians and their heirs from their homesteads and lands. The question here is not whether or not it is the act of a testator or death that alienates a testator from his property; but it is: What did the Congress of the United States and the Chickasaws and Choctaws mean when they agreed and enacted that the lands of the latter should be inalienable for specified times? It is more important that rules and the meaning of words in the law of real property shall be certain and fixed than that they shall be logical, or even right. If they are certain and unchangeable, all men may safely act, and acquire and protect their rights in reliance upon them; but if they are to be changed whenever the reflection of a brilliant intellect may find, or the ingenuity of an inquiring mind may discover, some reason for a modification, there will be little security to titles in property. Where words have acquired a well-understood meaning by judicial interpretation or definition, it is to be presumed that they were used in that sense in a subsequent statute, unless the contrary clearly_appears. United States v. Trans-Missouri Freight Association, 58 Fed. 58, 114, 7 C. C. A. 15, 71, 24 L. R. A. 73. It is a familiar rule of construction that a word or term which has a common meaning, well understood, is presumed to be used in its accustomed sense. Brun v. Mann, 151 Fed. 145, 156, 80 C. C. A. 513, 524, 12 L. R. A. (N. S.) 154. The words "inalienable," "alienable," and "alienation" are familiar terms, commonly used in relation to the disposition of real estate. In their accustomed sense, and by the great weight of judicial interpretation and definition, they included the disposition of real estate by will, as well as by conveyance, when the acts of Congress and the agreements under consideration were enacted, and it was undoubtedly in that sense that Congress and the Indian Nations used them in these acts and agreements. They intended to restrict, and by the use of these terms they did restrict, the disposition of the property of the Choctaws and Chickasaws by will as well as by deed. 2 Blackstone's Comm. (Lewis' Ed.) cc. 19 and 23; Burbank v. Rockingham M. F. I. Co., 24 N. H. 550, 558, 57 Am. Dec. 300; Lane v. Maine Mutual Fire Ins. Co., 12 Me. 44, 28 Am. Dec. 150; Harty v. Doyle, 49 Hun, 410, 3 N. Y. Supp. 574, 575; Butler v. Fitzgerald, 43 Neb. 192, 204, 61 N. W. 640, 27 L. R. A. 252, 47 Am. St. Rep. 741, 750; Anderson's Law Dictionary, p. 48; Kerr on Real Property, § 267; Jackson v. Thompson, 38 Wash. 282, 80 Pac. 454, 456; United States v. Zane, 4 Ind. T. 185, 69 S. W. 812, 844, 845. Nor do all the terms of the restrictions contained in the acts and agreements, when read and construed together, either convince or indicate that the intention of the parties to them was to forbid or limit conveyances, sales, and gifts inter vivos only. They disable the allottees, it is true, from affecting the title to their lands for limited times by deeds, debts, or obligations of any character (section 15); but they also declare that these lands shall not be alienable within terms specified (sections 12, 16). Nor is this all. They expressly provide that where, as in the case of the testatrix here, the enrolled person dies subsequent to July 1, 1902, and before receiving an allotment, her lands shall de scend to her heirs according to the laws of descent and distribution, as provided in chapter 49, § 22, of Mansfield's Digest. When this section was adopted there were laws of the Chickasaws and Choctaws which governed the disposition of the property of their deceased members by devise and by descent in the absence of a will. There were laws of the state of Arkansas in Mansfield's Digest which provided for the disposition of property by will (chapter 155, Mansf. Dig. [sections 3562-3620, Ind. T. Ann. St. 1899]), and by descent and distribution (chapter 49). The United States and the Chickasaw and Choctaw Nations selected the latter chapter from these various laws, and agreed and enacted that the lands allotted to an enrolled member of the Chickasaw or Choctaw tribe after his death should descend to his heirs as provided in that chapter, and there is no rational or logical escape from the conclusion that the lands in controversy in this case so descended. The equitable right to receive a just share of the lands of these Indian Nations, which the testatrix had when she made her will and when she died, was not devisable, and her will was ineffectual to deprive her heirs of it, or of the lands derived from it. Jackson v. Thompson, 38 Wash. 282, 80 Pac. 454; United States v. Zane, 4 Ind. T. 185, 69 S. W. 842, 844. The opinion of Judge Dillon in Gray v. Coffman, Fed. Cas. No. 5,714, cited by counsel for the plaintiff, has not been overlooked. Judge Dillon there held that a will of a Wyandot Indian, made and probated according to the laws of the Wyandots, before any statutes of wills or of descent and distribution had been enacted by the Legislature of the territory of Kansas, was effectual to convey the testator's absolute right to select and to receive a patent to a section of land "never to be conveyed" by him "without the permission of the President of the United States." That decision is inapplicable to the case in hand, because the restriction in that case was on "conveyance," and in this it is on "alienation," and because in that case there was no act of Congress, agreement, or statute, other than the laws of the Wyandots, prescribing the disposition of the property upon the death of the Indian testator, while in this case there is an act of Congress, embodied in an agreement between the United States and the Indian Nations, that the right to this land and the land itself shall descend to the heirs of the testator as provided in chapter 49 of Mansfield's Digest. The judgments below are right, and they are affirmed. MARRASH et al. v. UNITED STATES. (Circuit Court of Appeals, Second Circuit. February 16, 1909.) No. 233. 1. CONSPIRACY (§ 47*)—CIRCUMSTANTIAL EVIDENCE-FORMAL AGREEMENT. Conspiracy to defraud the United States, under section 5440, Rev. St. (U. S. Comp. St. 1901, p. 3676), is not necessarily established by direct evidence. Circumstantial evidence may suffice. A formal agreement need not be proved. It is sufficient to show that the parties are acting together understandingly to accomplish the same unlawful purpose, even though •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 168 F.-15 individual conspirators may do acts in furtherance of the common unlawful design, apart from and unknown to others. [Ed. Note.-For other cases, see Conspiracy, Cent. Dig. §§ 105-107; Dec. Dig. § 47.*] 2. CONSPIRACY (§ 48*)-QUESTION FOR JURY. The questions whether a conspiracy existed, as charged in an indictment, and whether an act was done by one or more of the defendants to effect the object of the conspiracy, are questions of fact for the jury. [Ed. Note. For other cases, see Conspiracy, Cent. Dig. § 110; Dec. Dig. § 48.*] 3. CRIMINAL Law (§ 561*)—EVIDENCE-"REASONABLE DOUBT." The rule that, to warrant conviction for a crime, the evidence must in every case be of such a character as to exclude every reasonable hypothesis of innocence, is but another way of saying that the defendants must be proved guilty beyond a "reasonable doubt." If a reasonable doubt exists, there must be a reasonable hypothesis of innocence; and where such hypothesis does not exist there can be no reasonable doubt. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1267; Dec. Dig. § 561.* For other definitions, see Words and Phrases, vol. 7, pp. 5958-5972; vol. 8, p. 7779.] 4. CRIMINAL Law (§ 304*) — CONSPIRACY — CUSTOMS DUTIES JUDICIAL NOTICE OF LAWS. In a prosecution for conspiracy to defraud the customs revenue, it is not requisite that proof should be given that the imports involved were dutiable, or were not within a provision exempting from duty goods of American origin. The court can take judicial knowledge of the laws of the United States and the fact that the imports were dutiable. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 706; Dec. Dig. § 304.*] 5. CRIMINAL LAW (§ 564*)-Proof of VENUE. Where conspirators had been doing business together in the judicial district in which they were tried prior to and at the time of the crime, and there was no evidence that they had been together outside of the district, the jury were justified in finding the conspiracy to have been in that district. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1277–1284; Dec. Dig. § 564.*] 6. CONSPIRACY (§ 47*)-PARTICIPATION IN OFFENSE-EVIDENCE. Knowledge by an alleged co-conspirator that the other defendants were attempting to defraud is not sufficient to involve him in the conspiracy; nor is mere suspicion that he was a party to the conspiracy. [Ed. Note. For other cases, see Conspiracy, Cent. Dig. §§ 105-107; Dec. Dig. § 47.*] In Error to the Circuit Court of the United States for the Southern District of New York. On writ of error to review a judgment of conviction under an indictment charging the defendants with having conspired to defraud the United States of customs duties due on certain importations of laces. Selim Marrash was sentenced to imprisonment for 12 months and to pay a fine of $500, George Sara was sentenced to imprisonment for 3 months and to pay a fine of $500, and Habib Marrash was fined $500 and to stand committed until the fine was paid. Seventy-five errors are assigned by the defendants. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Ernest E. Baldwin, for plaintiffs in error. Henry L. Stimson, U. S. Atty. (Goldthwaite H. Dorr, Asst. U. S. Atty., on the brief), for the United States. Before LACOMBE, COXE, and NOYES, Circuit Judges. COXE, Circuit Judge. The indictment charges that the defendants on and before October 9, 1906, in the Southern District of New York, did conspire with other persons unknown to defraud the United States of large sums of money, which the defendants should have paid on the importation at the port of New York of dutiable goods from foreign countries. The indictment alleges that the manner in which the said conspiracy was to be effected was in brief as follows: The defendants were to cause said merchandise to be shipped to New York, consigned to the defendant Sara, or other persons unknown, upon false invoices containing false descriptions of the goods. The merchandise was to be falsely entered, as containing only crushed wheat, pistache nuts, etc., whereas in fact it contained laces and lace articles, the purpose being that these valuable articles should enter at the port of New York without paying duty. The indictment charges that the act done to effect the object of the conspiracy was as follows: On October 9, 1906, Sara caused to be entered at the port of New York, 12 cases of pistache nuts, crushed wheat, etc., and 10 bags of crushed wheat imported by him from Syria. That the entry was made. upon two invoices, describing the merchandise as aforesaid, whereas in fact one of the bags contained 50 dozen handmade Syrian lace handkerchiefs, and one of the cases contained one can and another case contained two cans of lace and lace articles. The indictment was based upon section 5440 of the Revised Statutes (U. S. Comp. St. 1901, p. 3676), which provides in substance that if two or more persons conspire to defraud the United States in any manner, and one or more of such parties do any act to effect the object of the conspiracy, all the parties thereto shall be liable to fine or imprisonment, or to both, in the discretion of the court. There can be no doubt as to the truth of the following propositions: First. The October importations were made on false invoices, bills of lading, and entry, on none of which appeared any mention of the laces concealed in the crushed wheat and pistache nuts. Second. The laces were so concealed that had the ordinary procedure in such cases been followed they might easily have escaped the observation of the custom officers. Third. The disclosure that the importations contained concealed. laces was not made until after Selim Marrash had been informed that, instead of the usual one package in ten, the entire importation had been ordered to the public stores for examination. Within an hour thereafter Selim had disclosed the presence of the contraband goods and had asked permission to amend the entry. Fourth. The December and January entries of goods consigned to Petrakian and Marrash Bros., respectively, by the same importers at Damascus and Aleppo, were packed and started on their way before the discovery of the laces in the October entry was known to the ship pers. The December and January consignments had lace concealed in lentils, squash, and crushed wheat. It cannot be denied that these facts were sufficient to cast suspicion strongly upon the defendants. One importation of nuts and wheat, with valuable laces carefully concealed therein and no suggestion of their presence on bills of lading, invoices, or entry, might have been made inadvertently and therefore with no criminal intent. When, however, five similar importations more or less directly connected with the defendants, shipped at different dates from exporters residing in cities separated from each other by several hundred miles of desert, arrive at the port of New York with the same contraband articles concealed in the same way, the presumption is persuasive that the consignees knew what goods they were receiving. A letter discloses not only the character of the writer but also the character of the person to whom it is sent. A thief or a smuggler does not write to an honest man the details of his plans to steal and defraud. It is safe to assume that the recipient of such a letter is, if not a confederate, the same character of man as the writer. So, in the case before us, it is hardly conceivable, unless the exporters and importers were in accord, that so many packages of goods dishonestly packed and falsely billed would have been sent out. If the exporters had been honest, they would not have sent the goods under a false invoice and bill of lading. It is equally true that, if dishonest, they would not have sent the goods so packed and billed unless they knew the men with whom they were dealing. Gellad at Aleppo and Debahi at Damascus knew that the moment the defendants discovered the hidden lace it would be their duty, on the assumption that they were not in the plot and were honest men, to denounce the fraud and sever all business relations. The importers, not the exporters, were to be benefited if the lace came in duty free, and it seems to us most improbable that the latter would have taken such a risk unless the situation was fully understood between them. In order words, the presumption is strong that both knew of the dishonest scheme and were acting in accordance therewith. The attempted explanation was discredited by the jury, and they were justified in disregarding it.. Selim Marrash testified that within an hour after he had been informed that the entire importation was to be sent to the public stores for examination, with a strong probability that the hidden lace would be discovered, he received a leter from Sara, mailed at Watertown, N. Y., October 6, 1906, which inclosed a letter from the exporters at Damascus, dated September 17, 1906, in which they say in substance that during their absence an employé took the liberty of sending bills of lading and a consular invoice from Beirut without disclosing the fact that the package of handkerchiefs and the two cans of needlework were concealed in the wheat and pistache nuts. How the employé of Debahi at Damascus succeeded in getting the handkerchiefs hidden in Gellad's crushed wheat at Aleppo, and how, in the absence of telepathic communication, he became familiar with the contents of Gellad's bill of lading from Alexandretta, is not ex |