MORROW, Circuit Judge
(after .stating the facts as above).
[1] 1. It is assigned as error that the court sustained the demurrer to the defendant’s plea of former acquittal. The objection to the order of the court presents the question whether upon the face of the record, it appears as matter of law that the offense charged in the second count of the second indictment, upon which the plaintiff in error was tried and convicted, was the same offense as that charged in the first indictment, upon which he had been previously tried and acquitted. The contention is that the offense which it was charged the defendants Louie and Ralston conspired to commit, as set forth in the first indict[39]*39ment, is identical in substance and effect with the offense which it is charged Louie aided and abetted Ralston to commit as set forth in the second count of the second indictment.
The question has two aspects. It is charged in the first indictment that in September, 1912, Ralston and Louie conspired, combined, and confederated together to import and bring into the United States opium prepared for smoking, and to receive, conceal, buy, sell, and facilitate the transportation, concealment, and sale of such opium, knowing the same to have been fraudulently imported contrary to law; and as an overt act entering into that conspiracy it is charged that the defendant Ralston, after the formation of the conspiracy and during its continuance, and to effect the object thereof, did, on the 5th day of March, 1913, have in possession and conceal, and fraudulently and knowingly transport and facilitate the transportation of 64 five-tael tins of opium prepared for smoking, knowing that such opium had been fraudulently and knowingly imported and brought into the United States contrary to law. In the second count of the second indictment it is charged that on the 5th day of March, 1913 (the date of the overt act in the first indictment), the defendant Ralston committed the offense of receiving, concealing, buying, selling, and facilitating the transportation of 64 five-tael tins of opium prepared for smoking, after the same had been imported into the United States contrary to law. This is in effect the overt act charged against Ralston in the first indictment. It is further charged that the defendant Louie aided and abetted Ralston in the commission of the offense. In the first indictment, Louie is not charged as an actor in the commission of the offense constituting the overt act. That act is charged in the indictment to have been committed by Ralston alone; while in the second indictment Louie is charged with having aided and abetted Ralston in committing the offense.
There is plainly a lack of identity in the two indictments with respect to this charge as against the defendant Louie. But plaintiff in error contends, further, that the charge that Louie aided and abetted Ralston to commit the offense described in the second indictment is equivalent to the charge that the defendants Ralston and Louie conspired to commit the offense charged in the first indictment; that the charge of conspiring to commit an offense involved the co-operation, association, and union of two or more persons to commit the offense; and that the charge that one person aided and abetted another to commit the offense involved the same character of co-operation, association, and union. But Congress has provided that if two or more persons conspire to commit any offense against the United States, and one or more of such parties do any act to effect the object of the conspiracy, all of the parties to such conspiracy shall be liable. Congress has also provided that whoever aids or abets another in the commission of an offense against the United States is a principal in the commission of the offense. These are separate and distinct offenses, and the courts are not authorized to hold as matter of law that one who aids and abets another in the commission of the offense is a,conspirator, and may plead an acquittal of a conspiracy charge in bar of a prosecution for the other offense. It is the province of Congress to specify [40]*40what acts shall be offenses against the United States, and not the courts. As said by Chief Justice Marshall in United States v. Wiltberger, 5 Wheat. 76, 95 (5 L. Ed. 37):
“It is the Legislature, not the court, which is to define a crime, and ordain it's punishment,”
In Carter v. McClaughry, 183 U. S. 365, 394, 22 Sup. Ct. 181, 193 (46 L. Ed. 236), Captain Oberlin M. Carter had been tried and convicted by a general court-martial of the United States on four charges. The first and second charges were as follows:
“Charge I: Conspiring to defraud the United States, in violation of the 60th article of war.”
“Charge II: Causing false' and fraudulent claims to be made against the United States, in violation of the 60th article of war.”
The two charges related to the same transaction, and it was contended on behalf of the defendant that the charges were the same, and •that the defendant was being twice punished for the same offense. With respect to this feature of the case the Supreme Court said:
“The offenses charged under this article were not one and the same offense. This is apparent if the test of the identity of offenses that the same evidence is required to sustain them be applied. The first charge alleged ‘a conspiracy to defraud,’ and the second charge alleged ‘causing false and fraudulent claims to be made,’ which were separate and distinct offenses, one requiring certain evidence which the other did not. The fact that both charges related to and grew out of one transaction made no difference.”
We are of opinion that the acquittal of the defendant of the conspiracy charge cannot, as matter of law, be held to.be a sufficient plea in bar to a charge of aiding and abetting another to commit an offense. Whether the evidence necessary to sustain the charge in the last case would have sustained the charge in the first case is mainly a question of fact, which we cannot consider, as the evidence is not in the record in either case; but it appears to have been determined in this case by the jury adversely to the contention of the defendant. The jury was advised of the acquittal of the defendant of the charge of conspiracy in the first case, and the court, to limit and restrict the evidence in the present case to the charge against the defendant of aiding and abetting Ralston in committing the offense charged against him, instructed the jury specifically upon that question as follows:
“I instruct you tbat tbe defendant bas heretofore been accused, tried by a jury, and acquitted of tbe charge of conspiring, confederating, and agreeing with tbe said James Ralston to receive, conceal, buy, sell, and facilitate tbe transportation, concealment, and sale of this same opium. Under tbe law no man can be twice put in jeopardy for tbe same offense.
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MORROW, Circuit Judge
(after .stating the facts as above).
[1] 1. It is assigned as error that the court sustained the demurrer to the defendant’s plea of former acquittal. The objection to the order of the court presents the question whether upon the face of the record, it appears as matter of law that the offense charged in the second count of the second indictment, upon which the plaintiff in error was tried and convicted, was the same offense as that charged in the first indictment, upon which he had been previously tried and acquitted. The contention is that the offense which it was charged the defendants Louie and Ralston conspired to commit, as set forth in the first indict[39]*39ment, is identical in substance and effect with the offense which it is charged Louie aided and abetted Ralston to commit as set forth in the second count of the second indictment.
The question has two aspects. It is charged in the first indictment that in September, 1912, Ralston and Louie conspired, combined, and confederated together to import and bring into the United States opium prepared for smoking, and to receive, conceal, buy, sell, and facilitate the transportation, concealment, and sale of such opium, knowing the same to have been fraudulently imported contrary to law; and as an overt act entering into that conspiracy it is charged that the defendant Ralston, after the formation of the conspiracy and during its continuance, and to effect the object thereof, did, on the 5th day of March, 1913, have in possession and conceal, and fraudulently and knowingly transport and facilitate the transportation of 64 five-tael tins of opium prepared for smoking, knowing that such opium had been fraudulently and knowingly imported and brought into the United States contrary to law. In the second count of the second indictment it is charged that on the 5th day of March, 1913 (the date of the overt act in the first indictment), the defendant Ralston committed the offense of receiving, concealing, buying, selling, and facilitating the transportation of 64 five-tael tins of opium prepared for smoking, after the same had been imported into the United States contrary to law. This is in effect the overt act charged against Ralston in the first indictment. It is further charged that the defendant Louie aided and abetted Ralston in the commission of the offense. In the first indictment, Louie is not charged as an actor in the commission of the offense constituting the overt act. That act is charged in the indictment to have been committed by Ralston alone; while in the second indictment Louie is charged with having aided and abetted Ralston in committing the offense.
There is plainly a lack of identity in the two indictments with respect to this charge as against the defendant Louie. But plaintiff in error contends, further, that the charge that Louie aided and abetted Ralston to commit the offense described in the second indictment is equivalent to the charge that the defendants Ralston and Louie conspired to commit the offense charged in the first indictment; that the charge of conspiring to commit an offense involved the co-operation, association, and union of two or more persons to commit the offense; and that the charge that one person aided and abetted another to commit the offense involved the same character of co-operation, association, and union. But Congress has provided that if two or more persons conspire to commit any offense against the United States, and one or more of such parties do any act to effect the object of the conspiracy, all of the parties to such conspiracy shall be liable. Congress has also provided that whoever aids or abets another in the commission of an offense against the United States is a principal in the commission of the offense. These are separate and distinct offenses, and the courts are not authorized to hold as matter of law that one who aids and abets another in the commission of the offense is a,conspirator, and may plead an acquittal of a conspiracy charge in bar of a prosecution for the other offense. It is the province of Congress to specify [40]*40what acts shall be offenses against the United States, and not the courts. As said by Chief Justice Marshall in United States v. Wiltberger, 5 Wheat. 76, 95 (5 L. Ed. 37):
“It is the Legislature, not the court, which is to define a crime, and ordain it's punishment,”
In Carter v. McClaughry, 183 U. S. 365, 394, 22 Sup. Ct. 181, 193 (46 L. Ed. 236), Captain Oberlin M. Carter had been tried and convicted by a general court-martial of the United States on four charges. The first and second charges were as follows:
“Charge I: Conspiring to defraud the United States, in violation of the 60th article of war.”
“Charge II: Causing false' and fraudulent claims to be made against the United States, in violation of the 60th article of war.”
The two charges related to the same transaction, and it was contended on behalf of the defendant that the charges were the same, and •that the defendant was being twice punished for the same offense. With respect to this feature of the case the Supreme Court said:
“The offenses charged under this article were not one and the same offense. This is apparent if the test of the identity of offenses that the same evidence is required to sustain them be applied. The first charge alleged ‘a conspiracy to defraud,’ and the second charge alleged ‘causing false and fraudulent claims to be made,’ which were separate and distinct offenses, one requiring certain evidence which the other did not. The fact that both charges related to and grew out of one transaction made no difference.”
We are of opinion that the acquittal of the defendant of the conspiracy charge cannot, as matter of law, be held to.be a sufficient plea in bar to a charge of aiding and abetting another to commit an offense. Whether the evidence necessary to sustain the charge in the last case would have sustained the charge in the first case is mainly a question of fact, which we cannot consider, as the evidence is not in the record in either case; but it appears to have been determined in this case by the jury adversely to the contention of the defendant. The jury was advised of the acquittal of the defendant of the charge of conspiracy in the first case, and the court, to limit and restrict the evidence in the present case to the charge against the defendant of aiding and abetting Ralston in committing the offense charged against him, instructed the jury specifically upon that question as follows:
“I instruct you tbat tbe defendant bas heretofore been accused, tried by a jury, and acquitted of tbe charge of conspiring, confederating, and agreeing with tbe said James Ralston to receive, conceal, buy, sell, and facilitate tbe transportation, concealment, and sale of this same opium. Under tbe law no man can be twice put in jeopardy for tbe same offense. Whether you agree with it or not, tbe judgment of this court in tbe case I have referred to, in which tbe defendant was so acquitted, is final and conclusive; and, in your consideration of tbe case now before you, you will assume tbat tbe defendant, was not guilty of conspiring, confederating, and agreeing with tbe said James Ralston, or of advising, counseling, commanding, inducing, or procuring tbe said James Ralston to receive, conceal, buy, sell, or facilitate tbe transportation, concealment, or sale of said opium, and will consider merely tbe question whether tbe defendant did some physical act by which be aided or assisted said James Ralston in a physical and material way in receiving, concealing, buying, selling, or facilitating tbe transportation, concealment, or sale of such opium. • Unless you find beyond a reasonable doubt tbat tbe [41]*41defendant did such an act, you will find a verdict of not guilty upon the second count of this indictment.”
The foregoing instruction is numbered 7 in- the record, and no exception was taken to it. It must be presurned, therefore, that the question whether as a matter of fact the defendant had been acquitted of the offense charged in the second indictment was properly before the court, and that it was fairly presented to the jury upon the evidence. The verdict of the jury disposes of the question as a question of fact.
[2] We do not overlook the exception taken to the subsequent part of the instruction which the plaintiff in error designates as No. 8. The instruction was manifestly in favor of the defendant in limiting the inquiry of the jury as to the character of the act that would constitute aiding and abetting as distinguished from the previous charge of conspiracy. The court said:
“So I hope that you will be able to separate any plan or combination of these two men that was charged in the indictment for conspiracy, of which this defendant has been acquitted, from this charge that the government has made here that he aided Ralston in receiving this opium; but unless these conversations or this telephone message that has been told about was something more than a general keeping in touch with one another or general agreement, unless it was knowingly giving him knowledge of where he could get opium, then you will not consider it. If you have a reasonable doubt about it, you will not consider it as supporting this charge of aiding, because he, having been acquitted, is entitled to that reasonable doubt.”
The objection is that this instruction was an erroneous statement of the law, and erroneously instructed the jury that they might consider any act of counseling and advising, if they believed it was of assistance to Ralston in concealing and transporting the opium. The further objection was made that it was in conflict with the previous instruction. The only objection we discover in this instruction is that as a matter of law it was more favorable to the defendant than he was entitled to have given. Carter v. McClaughry, supra. We do not find that it was in conflict with the previous instruction. >
This disposes of the entire question of law and fact involved in the plea in bar.
[3] 2. The remaining assignments of error relate to the introduction in evidence over the objection of the defendant of certain letters alleged to have been in a trunk in the residence of the defendant, and also the testimony of certain witnesses called on behalf of the. government. We think it unnecessary to consider specifically the objections with respect to either the letters or the testimony. We have carefully considered the questions presented, and are of opinion that no error was committed by the court below, either in the introduction of the letters and testimony or in the charge to the jury relating thereto. All of the testimony in the case is not before us; but it does appear, however, that the government’s case rested in part, at least, upon circumstantial evidence. It is familiar law that, where a case rests upon that character of evidence, much discretion is left to the trial court, and its rulings will be sustained, if the testimony which is admitted tends even remotely to establish the ultimate fact. Clune v. [42]*42United States, 159 U. S. 590, 16 Sup. Ct. 125, 40 L. Ed. 269; Alexander v. United States, 138 U. S. 353, 11 Sup. Ct. 350, 34 L. Ed. 954; Holmes v. Goldsmith, 147 U. S. 150, 13 Sup. Ct. 288, 37 L. Ed. 118; Moore v. United States, 150 U. S. 57, 14 Sup. Ct. 26, 37 L. Ed. 996; Thiede v. Utah Territory, 159 U. S. 510, 16 Sup. Ct. 62, 40 L. Ed. 237.
The judgment of the court below is affirmed.