Page:Federal Reporter, 1st Series, Volume 9.djvu/702

 UNITED STATES V. MILLS. 68I �I have already said in general : you are to try the case on the evi- dence before you, not upon what you might suppose the witnesses could have testioed if they would. You cannot presume that the witnesses might have sworn to more than they have sworn to. �It devolves on the prosecution to satisfy you by at least a fair pre- ponderance in the weight of the testimony both as to the fact of the cutting and the amount. If you are not satisfied from the telstimony as to the fact of cutting, your verdict should be for the defendant. K you are so satisfied, the remaining question will be as the estent of the cutting and value. And this you will determine in the same manner from the weight of evidence on that point. �You will use your best judgment upon the testimony, and say what your conclusion is — how you are convinced. Yoti cannot presume that the defendant has eut and converted more than the evidence shows he has. On the contrary, if the evidence shows to your satis- faction that defendant is guilty, you cannot excuse him from the consequences of his own acts because the evidence also shows thai others have trespassed on the same lands who have not been pr6se- cuted or had justice meted out to them. "What's open made to jus- tice that justice seizes." That is to say, when the guilt of the per- son charged is made apparent, he cannot be excused because others who are not charged have done the like and go unpunished. �It may be quite evident from the testimony that other persons have trespassed in former years upon the lands in question. With that you, have nothing to do except to determine whether the cutting, or some part of it, charged upon the defendant, was really done by him or was done by these other persons. The defendant's evidence tends to show that it was all out in former years by other trespassers. You must determine the faets. If yoll find that the defendant did but and couvert timber, as charged, the amount of damages he will be chargeable with is the value of the logs, ties, piles, or wood which he converted at the time and place of its sale and conversion by him. �The government is not confined in its measure of damages to the value of the stumpage; that is, the value of the timber in the stand- ing tree. On the contrary, as the defendant could get no title to the timber by converting it into these things, but the logs, ties, or piles, after being eut, still belonged to the government, and might be seized and held by the government, the defendant will'be chargeable with the market value in cash at the time and place of their eale and delivery. ��� �