
    THE UNITED STATES v. JOHN BOWEN.
    Criminal. —
    No. 11,576.
    I. At the trial of an indictment twelve of the regular jurors were impanelled in another canse, and were out consulting- upon their verdict. Defendant claimed the right, before the impanelling- commenced, to have the whole array present and subject to his challenge. Tlie court ruled against the point, and the jury was completed from tlie other jurors and talesmen, and the ruling of tlie court was sustained on appeal. *
    II. On an indictment for presenting a false claim against tlie United States for back pay of a deceased soldier, claimed by tlie defendant to be his brother, the allegation of the indictment was that the brother was named “ Major Dabney ” and enlisted under the name of “George Bowen whereas the proof was that defendant claimed to be the brother of George Bowen, who served under the name of Major Dabney. It was held that the variance was immaterial and the defendant properly convicted.
    in. Previous good character is not sufficient to create such a doubt in tlie minds of the jury as would of itself justify an acquittal.
    IV. Declarations made to a witness by the father of an illegitimate son is not proof of pedigree.
    STATEMENT OE THE CASE.
    The defendant was indicted for presenting to the Second Auditor of the Treasury a false claim for the back pay and bounty of a deceased soldier named Major Dabney, of company C, 23d regiment, IT. S. colored troops.
    At the trial, exception was taken to the manner in which the jury was impanelled. It appears that twelve of the regular jurors were impanelled in another cause, and were out consulting upon their verdict. The defendant claimed the right, before the impanelling commenced, to have the whole array, consisting of twenty-six jurors, present and subject to his challenge. The court overruled the point, and directed the jurors then present to be called until the number was exhausted by being accepted, and by the challenges of the defendant. The court then directed the marshal to summon a sufficient number of talesmen, and the jury was completed and sworn to try the issue; to all of which the defendant, by his counsel, excepted.
    The defendant represented in said claim that he was the sole and only heir of his brother, George Bowen, who enlisted and served in company C or G, 23d regiment IT. S. colored troops, as Major Dabney. It is claimed on the part of defendant that there is a fatal variance between the claim and the allegation in the indictment setting out said application. The indictment alleges, in substance, that the claim presented was for arrears of pay and other allowances due one Major Dabney and his lawful heirs, who served as a private in company C, 23d regiment, United States colored troops, under the name-of George Bowen. It will he seen on' examination that the-claim describes the deceased soldier as the brother of the defendant, serving in the company as Major Dabney; and:the indictment describes the claim as setting up. that he served under the name of George Bowen. The variance was deemed immaterial by the court below, and the objection.was accordingly overruled and exception noted. The defendant offered, to prove the declarations of John Bowen, the reputed father-of the defendant, to the effect that he had a woman in Washington, not his wife, who had a son named George by him. The court refused to allow the statement to be given in evidence, on the ground that it was in no sense pertinent to the issue to prove that the reputed father of defendant had a son by a woman other than his wife, and that there was no law which authorized pedigree to be proved by hearsay testimony of that kind. This ruling was also objected to and an exception noted.
    After the close of the testimony, the defendant’s counsel asked the court to instruct the jury that previous good character of the accused is sufficient, -when clearly proved, to create such doubt in the minds of the jury as will justify’an acquittal, which the court refused to give in the words prayed, but did instruct the jury fully as to the weight to be given to evidence of previous good character. The defendant, by his counsel, excepted to such refusal to give the instruction as prayed for. There were two or three other exceptions not insisted upon, and which are, consequently, omitted from this statement.
    The defendant was convicted as charged in the indictment, and a motion for a new trial denied. The case is here on appeal.
    
      H. H. Wells, U. S. Attorney, for the prosecution.
    We say there was no error in the manner in which the jury was impanelled. The language of the statute seems decisive on this point.
    It is made the duty of the court to summon talesmen whenever, for any cause, there is not a sufficient number of the regular panel out of which to form a trial jury. There were in this case more than enough jurors present until the number had been reduced by challenges on the part of the defendant, so that, as a matter of fact, the necessity for summoning talesmen was created solely by his challenges.
    The real scope of this exception, however, is that the defendant has a right, before the impaiielling of the jury is commenced, to have twenty-six jurors present subject to his challenge, so that if twelve jurors, or any smaller number of the regular panel in attendance upon the term, are out in ¡another cause, all busiuess of the court must stop until they .agree or are discharged.
    It goes still further. If, from any cause, one or any greater number of the jury are absent, sick, or for any other cause •unable to attend, then no cause can be put on trial until the disabilities of such jurors aré removed, or they have been discharged and other regular panel jurors have been summoned to supply their places.
    That such is not the true intendment of the statute is very plain, not only because of the use of the expression in this section, “by reason of challenge or otherwise,” but from the whole scope of the jury law.
    A jury, before the commencement of each trial, is to be drawn from the box, “ and the twenty-six persons whose names shall be drawn shall constitute the petit jury for that term.” (Rev. Stat. D. C., sec. 858.)
    If any of the persons so drawn shall have died or removed from the District, or become incapable of serving, the clerk shall draw from the box another name to serve in his stead. (Rev. Stat. D. C., sec. 859.)
    Three exceptions were taken on the trial, which together embody substantially one and the same proposition, though stated in various forms, to wit: That under the allegations of the indictment it was incompetent to prove that Major Dabney was a member of company G, 23d regiment, United States colored troops.
    All of these objections appear to us to rest upon a false construction put upon the indictment itself. That paper first alleges that the defendant Bowen presented a false claim, and states by way of recital what the claim was, and after that concludes as follows: “ Which said claim was false, fictitious, and iraudulent in this,” and thereupon enumerates the following particulars: “ That the said John Bowen was not the brother of the said Major Dabney, alleged to have been called George Bowen,” * * * “ and was not entitled to recover any arrears of pay and other allowances due the said Major Dabney,” * * * and “that said Major Dabney died leaving a father and a brother.”
    It will be remembered that the defendant, in his first claim, described Major Dabney as belonging to company C, while in the second or amended claim he was described as belonging to company C or G. Now, the indictment did not count at all as to any misstatement of the particular company, and it was not necessary for the purpose of proof to allege the fact that Major Dabney was a member of any company, because the falsity of the claim lay in the fact that he pretended and falsely stated that he was the brother and sole heir of George Bowen, alias Major Dabney, who served in company 0 or G; and, therefore, it was no error for the court to allow the muster rolls of both companies C and G to be received in evidence. They were proper evidence, being original documents from the War Department, in every cause in which they might be relevant.
    The roll of company C was introduced simply to show that no person of that name was borne on that roll, as charged in the defendant’s original claim; nor were the facts as thus established by the roll of compauy C repugnant to any allegation in the indictment. Not only so, but if it had been averred that Major Dabney was a member of company C or G, and the fact in the examination proved to be otherwise, it would have been an immaterial defect, because the question as to which company the deceased belonged was immaterial and would be rejected as surplusage. As before stated, the allegation would have been only useful, and the proof was only material, for the purpose of identifying Major Dabney, deceased, so as to show that the defendant was not his brother.
    The third exception relates to the instruction given and refused by the court on the subject of the weight that evidence of good character should have with the jury on the question of his guilt or innocence.
    The court was asked to instruct the jury that “ the fact of good character may be sufficient to create a doubt which will be sufficient to justify a verdict of acquittal,” which the court refused to give in the words as prayed, but did instruct the jury that “evidence of good character is competent for the jury to consider, and in the absence of uncontradicted and conclusive proof of guilt, introduced on the part of the government, should weigh in favor of the defendant.”
    In the refusal to instruct as prayed, we submit that there was no error, but that the instructions given stated, with the utmost liberality to the defendant, the broadest rule as to the effect of such evidence.
    On the trial, the defendant having offered to prove that John Bowen, the reputed father of the defendant, who was his illegitimate son, had long ago, and before the war, said that he had a woman in Washington wffio had a son George by him, the court refused to allow that statement to be given in evidence.
    
      In this ruling there was no error whatever, because the testimony was in no sense pertinent to the issue, inasmuch as it was already proven and never denied that Sophia Clements was the mother and John Bowen the father of the accused, and that Peter Dabney and Malinda Dabney were the father and mother of Major Dabney, the deceased soldier.
    How could the fact, if properly proven, that John Bowen, deceased, had another illegitimate son by another woman, who was not the mother of the defendant John Bowen, tend to establish any issue involved in this case ? Clearly it had no relation or reference to that subject, because the question was whether John Bowen was the brother of Major Dabney, the deceased soldier.
    
      William A. Cook and J. S. Slater, for defendant.
    The defendant was entitled to the array of the full panel of twenty-six. constituting the jury, as provided by section 856 of the Revised Statutes of the District of Columbia, from which to make his selections; and it was only after the full panel constituted as aforesaid had, in being arrayed, become exhausted, by “ challenge or otherwise,” that the court could legally direct talesmen to be summoned to complete it. The word “ otherwise ” cannot, by any proper construction, be taken to include an incomplete panel caused by the temporary engagement of some of the regularly summoned panel on a jury considering another cause.
    There is a fatal variance between the allegations of the indictment concerning the service of the deceased soldier and the proof offered in support thereof, said allegations setting out that defendant claimed his brother was named “ Major Dabney,” and enlisted under the name of “ George Bowen”; whereas the proof submitted by the government shows that defendant claimed to be the brother of George Bowen, alias Major Dabney, and who served, as w’as believed, under the name of Major Dabney in the 23d regiment, U. S. colored troops, &c. (See 1 Wheat. Crim. Law, 592, &c.; 1 Green leaf, 51, 56, 57, 60, 65; 10 Petersdorf Abridg’t, 353, 354; 15 Petersdorf Abridg’t, 200.)
    In proving pedigree, the declarations of a deceased parent touching the existence and paternity of one of his alleged children are competent proof to be submitted to the jury, and especially so when such declarations are offered to be proved by a relative or member of the family of the deceased. It having been proved on the trial that the father of defendant was long since dead, and that during his life-time he made certain declarations concerning the existence of a person claimed by defendant as his brother George, the court erred in excluding the testimony of Sophia Clements, (formerly wife of defendant’s deceased father,) Alfred Ross, and others of such declarations. The defendant was thus prevented from proving by competent testimony the truth of essential facts, viz., the existence of George Bowen, his brotherhood, &c. (1 Greenl. Ev., 103, and note 1, sec. 104; 1 Whart. Crim. Law, 666y; Roscoe’s Crim. Law, sec. 28, p. 27.)
    Previous good character of the accused is sufficient, when clearly proved, to create such doubt in the minds of the jury as will justify an acquittal; and the court should have given the instruction as to this point in full, as prayed by defendant. (1 Whart. Crim. Law, 644; 3 Russ. Crimes, 300; 2 Brewster’s Rep’t, Commonwealth v. Hart, 546.)
   Mr. Justice Olin

delivered the opinion of the court:

John Bowen was indicted under section 5438, p. 1060, for presenting a false claim against the United States. The particular crime alleged in the case was that the defendant, on the 9th day of December, 1874, presented to the Second Auditor of the Treasury a false claim for the back pay and bounty of a deceased soldier, one Major Dabney, to which back pay he, Bowen, claimed to be entitled as next of kin or heir at law. After carefully looking through the indictment we think it sufficient in law, and properly charges the offense mentioned in the statute. We see no error in the ruling of the court to which exceptions were taken on the trial.

The evidence recited in the bills of exceptions clearly shows that Bowen was a willing instrument in the attempt to perpetrate a gross fraud upon the Treasury, and it is only to be regretted that the party or parties that made use of him for that purpose do not stand in the same position that Bowen does by the verdict of a jury. The judgment in this case is affirmed, and the warden of the jail is directed to carry into execution the sentence of the Criminal Court.  